Earlier this year the court held that the defendant's solicitor had been "technical game playing" when it did not point out an error in service made by the claimant's solicitor (see our previous article: Solicitors’ Duties: Now including the duty to point out the other side’s mistakes?). The High Court has now overturned that decision on appeal.

The solicitor for the claimant had erroneously served the claim form on the solicitor for the defendant without any express authority to do so. The defendant’s solicitor was aware of the error immediately, took instructions from the defendant, determined that it had no duty to the claimant to point out the error, and then allowed time for service to expire before responding, meaning that a limitation defence to the claim was available.

First instance judgment

At first instance, Master Bowles had granted the application for retrospective service under CPR 6.15. The Master found that, although neither the defendant nor its solicitor had caused or contributed to the error in any way and had not owed a duty to the claimant to point out its mistakes nor had any professional conduct obligation to do so, the defendant's solicitors had failed to comply with the overriding objective of the CPR. In particular, there was a failure to comply with the duty to avoid unnecessary, expensive and time consuming satellite litigation. It was in balancing its duty to its client with its duty to the Court, not to the claimant, that Master Bowles found that the defendant had erred.

Whilst writing the judgment, the Supreme Court handed down its judgment in Barton v Wright Hassall [2018] UKSC 12, and, in an addendum, Master Bowles considered the impact of the Supreme Court judgment on his conclusions. In Barton, Lord Sumption expressly noted that solicitors did not owe any duties to their counterparts to point out errors. Master Bowles distinguished that judgment on the basis that Lord Sumption had not been asked to comment on the role of the overriding objective, and so maintained his original position.

The first instance judgment in Woodward therefore appeared to introduce a seemingly counter-intuitive duty on solicitors to advise their clients to abandon a position of strength.

Appeal judgment

The main thrust of the defendant’s appeal was the apparent inconsistency between a party not having a duty to its opponent to point out mistakes, but to have a duty to the Court to do so. Clearly moved by the argument that Master Bowles’ decision had created a great deal of uncertainty and could potentially open the floodgates for procedural applications arising from failures, essentially, to provide legal advice to an opponent, Lord Hodge QC overturned the decision, finding that the CPR did not require a solicitor who has in no way contributed to a mistake on the part of the opponents to draw attention to it.

There was also discussion of the phrase “technical game playing”. Where Master Bowles was of the view that if this was not an example of technical game playing, and therefore that phrase did not have any significant meaning, Lord Hodge found precisely the opposite. He helpfully clarified that “playing technical games” typically consists of conduct in which a party takes arid procedural points which are technically correct but are contrary to the spirit in which litigation should be conducted, and in respect of which, following Denton v White, relief from sanctions is bound to be granted.

Lord Hodge explored the position further and opined that the defendant had been entitled to put forward a limitation defence. It had not been a foregone conclusion that the claimant would have issued its application for retrospective service, or that that application would have turned on the interpretation of something as nuanced as the overriding objective and lead to the sort of costs that the parties are now incurring. Had the defendant agreed to accept service retrospectively and proceeded to case management, its defence of the claim might counterfactually have been more expensive than the application for retrospective service.

Conclusion

While this particular case may not be concluded, there are lessons to be learned for solicitors from these proceedings. The claimant was said to have “courted disaster” by leaving service of the claim form until the last moment, and made the error of assuming that the defendant’s solicitor was instructed to accept service: not an uncommon scenario. Lord Hodge indicated that a better course might have been to serve the claim form earlier, and to seek an extension of time to serve the particulars of claim if required.

From the point of view of a solicitor in a position where the other side has made a mistake, it will be necessary to consider carefully the facts of an individual case, before deciding how to proceed. For example, could both sides be said to have contributed to the mistake, is there some kind of misunderstanding that has led to the mistake such as in relation to an agreement to extend service? In Woodward, Lord Hodge did not need to consider what the position would have been had the claimant's solicitors expressly sought confirmation from the defendant's solicitor that service was effective, but this has the potential to add a further nuance to the position.

A solicitor who gets it wrong is at risk of a negligence claim from their own client: pointing out a mistake when not required could mean that their client loses a significant advantage (such as, in this case, the benefit of a limitation defence). Further, taking a point that is rejected by the court as "technical game playing" may lead to additional costs for the client.

Whilst some reassurance may be derived from the appeal judgment, the line between a solicitor’s duty to act in the interests of their client and their duty to comply with the overriding objective position is still uncertain. Given the very differing conclusions reached in the judgments in this case, and the two dissenting judgments in the Supreme Court in Barton, it is clear that there is room for disagreement here. Lord Briggs commented in Barton v Wright Hassall that he was troubled by the fact that the meaning of CPR 6.15 had been entertained by the Supreme Court twice in recent years. Following these recent developments, CPR 6.15 may well get its own trilogy in the Supreme Court.