Is there a duty to correct an opponent’s mistakes?

The Court of Appeal has recently considered whether an opposing party in litigation has a duty to inform the party that has committed an error of its mistake.

In Woodward v Phoenix Healthcare Distribution Limited [2019] the error related to the service of documents.

Background

The deadline for the Claimant to bring a claim was 20 June 2017. Proceedings were issued on 19 June 2017 and consequently the Claimant had 4 calendar months to serve the proceedings (which expired on 19 October 2017). Proceedings were served on the Defendant’s solicitor (but not the Defendant directly) on 18 October 2017. However, as the solicitor had not confirmed it was instructed to accept service of proceedings, the proceedings had not been properly served. The Defendant’s solicitor was instructed by his client not to bring this error to the attention of the Claimant.

Application

The Claimant applied for retrospective validation of service of the Claim. The first instance Judge declared that the proceedings were validly served, reasoning that the failure to correct the error of the Claimant amounted to ‘technical game playing’, which was to be discouraged. This decision was overturned and so a further appeal was made.

Appeal to the Court of Appeal

The appeal was brought on 3 grounds:

(i) That the Judge was wrong that the Defendant’s conduct (in failing to bring the deficient service to the attention of Claimant) was contrary to the Overriding    Objective contained in the Civil Procedure Rules;
(ii) That the Judge was wrong to find that the omission amounted to ‘game playing’; and
(iii) That the facts did not give good reason to permit alternative service.

The Court of Appeal held that there was no duty to inform an opponent of the error (although it was observed that the position could be different if there was a substantial period before the end of the limitation period). It was also noted that the Defendant had not contributed to the error in any way and that the Claimant had “courted disaster” by waiting until the end of the limitation period to serve the proceedings.

The Judge was wrong to decide that there had been ‘technical game playing’. It was held that the Defendant’s solicitor had acted in a proper and professional manner by researching the position, advising the client and taking instructions. This was held to be wholly distinguishable from other cases where parties had deliberately obstructed service.

Whilst similar issues had previously been considered by the Courts, this case has brought clarification that where a party has not contributed to an error and has not been obstructive to another party, retrospective validation of deficient service of Court proceedings will not be easily granted and some good reason as to why alternative service should be permitted will need to be shown.

If you require assistance in relation to the service of proceedings or any other aspects of Civil Procedure, please contact a member of our Dispute Resolution team on 0161 819 4900.

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