The Court of Appeal has recently addressed the question of whether a solicitor has a duty to point out a mistake by his opponent, in circumstances where not doing so could deprive a claimant of its claim altogether.
On 19 June 2017, the appellant’s solicitors issued a claim form on behalf of their clients. On 17 October 2017, shortly before the claim form expired, the appellant’s solicitors purported to serve it on the respondent’s solicitors, by which time the relevant limitation periods had expired. Whilst the solicitors had exchanged correspondence on behalf of their respective clients, the respondent’s solicitors had never confirmed they were authorised to accept service. The day after the claim form expired, the respondent’s solicitors wrote to the appellant’s solicitors pointing out the error and that the claim form had not been served in time, which was fatal to the claim.
The appellant applied to the court for an order that the steps taken on 17 October had been good service; alternatively, that, in the light of those steps, service be dispensed with; and in the further alternative, that the court should validate the purported service on the respondent on 20 October by granting an appropriate extension of time. The Master who heard the application, in a judgment praised but reversed by the Court of Appeal, held that service of the claim form was defective, but that in the circumstances of the case ought to be deemed to be good service. He found that doing so promoted the overriding objective required by the CPR to deal with cases justly and at proportionate cost, and criticised the respondent’s solicitors for engaging in technical game-playing by not pointing out the error.
After the Master had drafted his judgment, but before it was handed down, the Supreme Court gave its decision in Barton v Wright Hassall LLP, which dealt with very similar circumstances. He was asked to reconsider his judgment in light of that case, which he did, but opted not to change his decision. The respondent appealed to the High Court, which reversed the Master’s decision, finding that there was no good reason to validate service of the claim form.
The Court of Appeal upheld the High Court’s decision, relying heavily on Barton, which it found to be almost indistinguishable. Most significantly for solicitors, the Court of Appeal found that there was no duty to inform an opponent of an error, and that the respondent’s solicitors’ conduct in not doing so did not amount to “technical game playing”. It also found that the existence of a limitation defence did not affect the duty.
There are a number of technical administrative requirements to comply with when serving a claim form and this case confirms that solicitors should not expect any help from their opponents if they fail to follow the required steps. Particular care needs to be taken when the end of a limitation period looms on the horizon.