Are you under a duty to flag up a mistake made by your opponent?
In the recent case of Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985, the Court of Appeal held that the Defendant’s solicitors were not under a duty to warn the other side that service of the claim form had been defective prior to expiry of the same. Lady Justice Asplin explained that there was no “technical game playing” in the case and that the duty to the court was not more important that the entitlement of a party to litigation to take advantage of an opponent’s mistakes.
The Claimant’s purported to serve the claim form and particulars of claim on the Defendant’s solicitors by letter and email. However, the Defendant’s solicitors were not authorised to accept service. The claim form expired unserved the following day. Unfortunately, limitation had also expired.
At first instance Master Bowles agreed the court should exercise its power to retrospectively validate the claim form criticising the Defendant’s solicitors for failing to further the overriding objective by alerting the claimant’s solicitors to their error prior to expiry of claim form and the limitation period but the Court of Appeal did not agree.
The case is a reminder of Lord Sumption’s Supreme Court judgment in Barton v Wright Hassall LLP [2018] UKSC 12 in which he said that solicitors were under no duty to give advice to the other side and in fact could not do so without first taking their own client’s instructions. Given clients are highly unlikely to give instructions to alert the other side as to their error it seems clear that there is no duty or requirement to give that advice and all parties must be confident as to their own position and not rely on the other side to flag up an opponent’s mistake.
Posted on 07/04/2019 by Ortolan
