What should a solicitor do when confronted by the other side’s mistake?

At the Supreme Court

In Barton v Wright Hassall LLP, a claimant purported to serve the defendant's solicitors by email on the last day of the validity period for the claim form. The defendant's solicitors, however, had not indicated that they were prepared to accept service by that method.

The claimant then brought an application for retrospective validation of his bad service pursuant to CPR 6.15(2), on the basis that there was a "good reason" to do so. One of the "good reasons" was that the defendant's solicitors had been "playing technical games" by not warning him, when they received his email purporting to effect service, that the method he had used was invalid.

The Supreme Court dismissed this argument. It held that there had been no time for defendant's solicitors to warn the claimant that his service had been bad before the expiry of the relevant validity period. Further, even if there had been, they were under no duty to advise the claimant of his mistake, and they could only have done so by taking instructions from their client – which the client was unlikely to agree as to do so might deprive it of a limitation defence.

A dissenting view

Almost at the same time, Master Bowles at first instance considered the same issue in Woodward & Anor v Phoenix Distribution Healthcare Ltd.

In this case, the claimants' solicitors purported to serve a claim form on the defendant's solicitors by post, several days before the expiry of its validity period. Those solicitors, however, had not indicated that they were instructed to accept service. The defendant's solicitors then took a conscious decision not to point out to the claimants' solicitors that their attempted service was bad until after the validity period had expired.

Master Bowles was very clear that this conduct did constitute "playing technical games", and as such constituted a "good reason" retrospectively to validate service pursuant to CPR 6.15(2). While he accepted that litigants and their solicitors do not owe duties as between themselves to point out the other side's mistakes, he stressed that they do owe a duty to the court to assist it in furthering its overriding objective of dealing with cases justly and at proportionate cost. Failure to point out that the claimants' service was bad while there was still time to rectify it was a breach of that duty, and that breach of duty was enough for the court to validate service.

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How can these be reconciled?

There were factual differences between the two cases – in Barton there would have been no time to rectify the claimant's mistake even if it had been pointed out, and the decision not to do so was not done consciously.

The real difference between them, however, appear to be one of principle. Master Bowles considers that a solicitor's duty to assist the court in furthering the overriding objective includes a duty to point out the other side's mistakes.

This is an area where further guidance is needed as a matter of urgency. Master Bowles has granted permission for his decision to be appealed, so hopefully such guidance will be available in the near future.

In the meantime, all solicitors face a delicate balancing act as they seek to weigh their duty to their client against their duty to the court.

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