SERVICE OF THE CLAIM FORM: DEFENDANTS HAVE A DUTY UNDER THE CPR TO POINT OUT TECHNICAL ERRORS (OR WHY LIFE HAS SUDDENLY GOT A LOT HARDER FOR DEFENDANT LAWYERS)

I wrote earlier this week about the “tantalising” judgment of Master Bowles in the case of  Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch). At that stage the addendum to a judgment on service of the claim form was released but not, apparently, the judgment itself.  That judgment is now released in full and makes for interesting reading. It is a decision that means some defendants are going to have to make very difficult decisions.  The Master exercised his discretion under CPR 6.15 because the defendant’s solicitors had the opportunity to, and should have, pointed out to the claimant that they did not have authority to accept service.

“it further seems to me that, whatever may have been the position in the past, it is inherent in the scheme created by the CPR and, in particular by CPR 6.15(2), itself, and by the approach to that rule, as expressed in Abela, that a rather more flexible approach is now intended to be taken in respect of the service of the claim form, that errors in the service of a claim form are not to be treated as irredeemable and incapable of correction and, correspondingly, that there is nothing special in respect of the service of a claim form to negate an opposing party’s obligation not to take inappropriate advantage. The very fact that the proper approach to CPR 6.15 requires the court to discourage technical game playing in respect of service seems to me to point very strongly towards the conclusion that the obligation not to take inappropriate advantage applies to issues of service of the claim form just as much as it does to other issues arising under the CPR.”

THE CASE

  • The claimants served a claim form on the defendant’s solicitor on the 17th October 2017. This was in purported service of the proceedings.   The time for service expired at midnight on the  19th October 2017.
  • The defendant’s solicitors received the claim form on the 18th October.
  • On the 20th October the defendant’s solicitors wrote stating that service was defective. The solicitors had never been nominated to accept service, nor had they stated they would accept service.
  • The claimant’s solicitors then sent copies of the claim form to the defendant at two addresses.
  • The defendant sought a declaration that the court had no jurisdiction to hear the matter. The claimants made a number of applications in relation to dispensing with service or the court exercising its discretion.

THE MASTER’S FINDINGS: 1 NO LETTER FROM THE DEFENDANT’S SOLICITORS STATING THEY WOULD ACCEPT SERVICE

The Master found that there was nothing in the correspondence between the solicitors that indicated that indicated that they accepted service.

  1. I can see nothing in the foregoing correspondence that can, realistically, be said to amount to a written notification to Collyer Bristow, or the Claimants, that Mills & Reeve were instructed to accept service of proceedings.
  2. There is no doubt but that Mills & Reeve was instructed by Phoenix to deal with the allegations made by the Claimants and with the putative proceedings threatened and, ultimately, issued by the Claimants. That, however, does not equate to an instruction to accept service and, accordingly, the fact, that Mills & Reeve notified Collyer Bristow, in correspondence, that it was instructed and the fact that it chose to inform Collyer Bristow of the steps that it was instructed to take, should proceedings be issued, did not constitute a written notification that it was instructed to accept service.
  3. In so far as that proposition requires support from authority, then that support emerges, clearly, from, for example, the decision of Arnold J, in Personal Management Solutions Ltd v Gee 7 Group Ltd [2016] EWHC 891 (Ch), where a statement by defending solicitors, that they were instructed in the particular matter and that all correspondence relating to that matter should be sent to them, was, rightly, held not to constitute a written confirmation of an instruction to accept service. No argument was advanced, or could have been, that the fact of the solicitors’ instruction, itself, carried within it an authority to accept service, such that notification of that fact amounted to a notification of that authority. Rather, as Arnold J explained, at paragraph 27, it is well established that, even a solicitor, who is acting for his client in all respects relating to an intended claim, does not have implied authority to accept service of the claim form. In that context, it is plain that the mere notification of instruction, as in this case, cannot and does not constitute a notification of a qualitatively different thing, namely an instruction to accept service.
  4. I add that I do not think that the fact that, by its letter of 27th July 2017, Collyer Bristow had stated its intention to serve the proceedings, by way of service upon Mills & Reeve, changes any of the foregoing. While, as discussed later in this judgment, that letter and the lack of an explicit response to Collyer Bristow’s statement of intention, is, undoubtedly, relevant to the question of estoppel, I cannot see that the failure of Mills & Reeve to warn Collyer Bristow that it lacked authority to accept service can, possibly, amount, as a matter of the construction of the relevant correspondence, to a written notification that it, Mills & Reeve had instructions to accept service.”

THE MASTER’S FINDINGS 2: NO ESTOPPEL

The Master found that the fact that the claimant had written a letter referring to service on the defendant’s solicitor did not give rise to any form of estoppel.

  1. It did not seem to me that, in the context of a letter, which was not directed, at all, to the question of the service of the Claim, but, rather, where the focus and purpose of the letter was to assure Mills & Reeve that the Claim had issued and was not, therefore, time barred and, consequentially, to seek Mills & Reeve’s substantive response to the Claimants’ 19th June 2017 letter of claim, I could be adequately satisfied that the part of the letter which touched upon service and which referred to service on Mills & Reeve by the use of the words service ‘on you’ was so sufficiently brought to the attention of Mills & Reeve as to enable me to conclude that Mills & Reeve was aware that Collyer Bristow had mistakenly assumed that Mills & Reeve had authority to accept service. In that regard, it seemed to me, also, that, even if the relevant part of the letter had attracted the attention of Mills & Reeve, in any detailed way, the letter, nonetheless, did not, unequivocally, make it at all clear to Mills & Reeve that Collyer Bristow was acting in the belief that authority had been given to Mills & Reeve to accept service. Rather, the letter stated, as was the case, that the Claim had not been served on Mills & Reeve and that the reason that it had not been served (whether on Mills & Reeve, or anyone) was because it was hoped that the parties could proceed towards a settlement without recourse to litigation. A solicitor, in receipt of that letter and aware, as I hold, that no confirmation of Mills & Reeve’s authority to accept service had been sought or given, would, if he, or she, thought about it at all, consider the statement as indicating, merely, an intention that, if matters came to proceedings, then those proceedings would, subject to appropriate confirmation of authority, be served on Mills & Reeve.”

THE MASTER’S FINDINGS 3: EXERCISING A DISCRETION UNDER CPR 6.15

However the Master did go on to find that this was an appropriate case in which to exercise his discretion under CPR 6.15.
  1. Firstly, the test under CPR 6.15(1) and (2) is not confined to exceptional cases. The question for the court under both CPR 6.15(1) and CPR 6.15(2) is whether good reason exists to order that steps taken to bring the claim to the attention of a defendant, even if, in themselves, they did not amount to good service under the relevant CPR provisions, are, nonetheless, to be regarded as constituting good service. Where CPR 6.15(2) is invoked, there must be good reason to order that the steps taken to bring the claim to the attention of the defendant constitute good service, even although the effect of that order, as pointed out in Abela, at paragraph 36, may be to enable a claimant to avoid the consequences of a failure to validly serve within the period provided for service under CPR 7.5 and, potentially, to avoid the claim being, or becoming time barred.
  2. Secondly and relevantly to this case, where a large body of authority has been cited, the question of good reason is dependent upon particular facts in a particular case and should not, therefore, turn upon the analysis of other judgments in other equally fact sensitive cases.
  3. Thirdly, although it is, I think, obviously the case that the mere fact that a defendant has learnt of the existence and content of a claim form cannot, of itself and automatically constitute a good reason for a retrospective validation, nonetheless, the fact that the defendant has been made aware, within the period provided for service, of the existence and content of the Claim Form is, necessarily a, if not ‘the’, critical factor. Quite plainly, there could be no good reason to validate retrospective service where the steps taken to bring the claim form to a defendant’s attention, were ineffective to that purpose.
  4. Fourthly, in regard to service, itself, the ‘whole purpose’ of service is to inform the defendant of the content of the claim form and the nature of the claimant’s case. It is not, quoting Lewison J, at an earlier stage in Abela, where he had granted an extension of time in respect of service, ‘about playing technical games’.
  5. Fifthly, the focus of the enquiry, as to whether there is good reason to retrospectively validate attempts at service, is not upon the period prior to the issue of the claim (save in exceptional circumstances) but upon the reasons why the claim form was not served within the period of its validity.
[The Master then considered the relevant case law and principles]
  1. Mr Penny’s submission is that, in this case, the key additional matter warranting validation is to be found in the conduct of Mills & Reeve, upon receipt, firstly, of the 17th October email letter, showing Collyer Bristow’s mistaken belief that service could be effected upon Mills & Reeve and, secondly, its continuing conduct, when in receipt of the actual purportedly served Claim on 18th October; there being still over 24 hours from that latter date and something over 48 hours from the former date within which service could have been validly effected within the lifetime of the Claim Form. What is, simply, said is that the conduct of Mills & Reeve, with, on the evidence, the explicit authority of Phoenix, in deliberately failing to draw attention to Collyer Bristow’s mistake, fell squarely within the ambit of ‘games playing’ and of ‘playing technical games’ as to service and that that conduct, in circumstances where, if Mills & Reeve had not acted in that way and had, instead, elected to draw attention to the mistake, Collyer Bristow would have had ample time to serve Phoenix within the lifetime of the Claim Form, amounted to a good reason impacting upon limitation, which, when coupled with the de facto service which had taken place, warranted the validation of that de facto service.
  2. By way of reinforcement of that submission, Mr Penny, further, submitted that Mills & Reeve’s ‘games playing’ was contrary to and in breach of duties owed, to the Claimants and to the court, pursuant to the overriding objective, and contrary, also, to its, or its members, professional obligations as solicitors. His submission was that Mills & Reeve’s failure to inform Collyer Bristow of its mistake, in time to allow Collyer Bristow to rectify its mistake, amounted to a breach of one, other, or all of these obligations and constituted a weighty reason whereby the de facto, but defective, service of the Claim Form should be validated.
  3. I can deal relatively shortly with two aspects of that latter submission. For the reasons already given, in respect of estoppel, I do not think that any, inter partes, duty arose, whereby, as between the parties, Mills & Reeve, or its client, was obligated to inform Collyer Bristow of its mistake.
  4. Correspondingly, while a solicitor is, undoubtedly, under a duty not to take unfair advantage of a third party (see Chapter 11 of the SRA Handbook) and while, as, perhaps tentatively foreshadowed, albeit in passing, by Floyd LJ, in Barton, the possibility exists that a solicitor’s breach of that duty might give rise to, or constitute, upon particular facts, a good reason to validate an otherwise ineffective mode of service, I do not think that that situation arises in this case.
  5. It seems to me that the professional duty not to take unfair advantage, owed to a third party by a solicitor, can, in the context of a case such as this, be no higher than the duty to speak out imposed upon a party to litigation in circumstances where a reasonable person would expect that party, acting honestly and responsibly to speak out. As I have already explained, at some length, I do not think that that duty, which I might characterise as a duty of fair dealing, goes so far as to require an opposing party in litigation to draw attention to mistakes made by the other party, in circumstances, such as those arising in this case, where the mistake is not of his making and arises in a situation not calling for a response. If honesty and responsibility, or fair dealing, does not give rise to such a duty, as between the parties, I cannot see that a solicitor, acting in his professional capacity is under a larger duty, or can be stigmatised as taking unfair advantage if he fails to draw attention to the relevant mistake.
  6. The third aspect of Mr Penny’s submission calls for rather more detailed treatment.
  7. The essence of the submission is that, by reason of the overriding objective, parties to litigation now owe a duty to the court to co-operate in respect of procedural matters, that that duty extends, in an appropriate case, to a duty to advise, or inform, an opposing party of his mistakes, that that duty arose in this case, that Mills & Reeve’s conduct and that of its client, in not warning Collyer Bristow, timeously, as to its error, such as to enable Collyer Bristow to correct that error, amounted to a breach of that duty and afforded, therefore, a very good reason to validate the defective service and so put the Claimants in the same position as if Mills & Reeve’s obligation to the court had been fulfilled.
  8. There can be no doubt but that parties are required, by CPR 1.3 to help the court to further the overriding objective, or that that objective requires the court, in so far as it can, to ensure that matters are dealt with expeditiously, efficiently, fairly and at proportionate cost and with an appropriate allotment of the limited resources of the court. There can be no doubt, either, that, in fulfilment of the parties duty to further these objectives, the courts have endorsed, since the inception of the CPR, a duty in the parties to act in a co-operative and collaborative manner in bringing cases to hearing.
  9. Part of that duty, as it seems to me, is a duty to avoid unnecessary, expensive and time consuming satellite litigation. That duty emerges, plainly, from the joint judgment of Lord Dyson MR and Vos LJ (as he then was) in Denton v T H White Ltd [2014] EWCA Civ 906 at paragraphs 39 to 43, in a part of their judgment tellingly sub-headed Satellite litigation and non-co-operation. A consequence of that duty, as set out in paragraph 41 of the joint judgment, is that it is ‘wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage’.
  10. That passage, of course, relates, directly, to relief from sanction under CPR 3.9. It is relevant, however, as I see it, to the situation with which I am concerned. Firstly, the validation of Collyer Bristow’s defective service, will, if allowed, amount to a relief from sanction; the sanction being that, without validation, the current Claim will be unable to proceed. Secondly, it is the advantage taken by Mills & Reeve of Collyer Bristow’s mistake, in the shape of Mills & Reeve’s failure to warn Collyer Bristow of that mistake in time for Collyer Bristow to remedy its defective service, which would, if validation was not ordered, give rise to what the Claimants would describe as the windfall strike out, or dismissal, of their current claim.
  11. All that said, it is quite clear, in the context of Denton, that it is not, in every case, inappropriate for an opposing solicitor, or party, to take advantage of an opponent’s mistake and the question, therefore, is whether a mistake of the kind made in this case (i.e. an honest mistake giving rise to defective but de facto service) is one where it would be, or is, inappropriate for an opposing party to take advantage, or whether the quality of the mistake is such that an opposing party, acting in his own best interests, is, notwithstanding his duty to the court, entitled to take advantage. If the former, then, as it seems to me, Mills & Reeve should have drawn attention to Collyer Bristow’s error. If the latter, then they did not need to do so.
  12. In this regard, I was referred to a number of authorities purporting to emphasise the special status of service and the consequential necessity of strict compliance with rules as to service. I note, in particular, the comment of Arnold J, in Personal Management Solutions at paragraph 27, that service of the claim goes to the root of the court’s jurisdiction.
  13. That comment, however, particularly in the context of an application under CPR 6.15, must be set against the underlying purpose of service, as explained by the Supreme Court in Abela at paragraphs 37 and 38 and as referred to earlier in this judgment; namely that the purpose of service is to bring the claim and its contents to the opposing party’s attention and that service is not about playing ‘technical games’. In this case and by that criterion, there is no doubt but that the purpose of service has been achieved. There is no doubt, also, by comparison with other cases, where, for example, a claim form has been provided ‘for information’, that, in this case, Mills & Reeve was aware from 17th October and within the lifetime of the Claim Form, that the service effected was intended to commence the necessary processes under the CPR for dealing with the Claim. On that footing, it can, as it seems to me, well be said that the position adopted by Mills & Reeve, in failing to draw attention to the defect in service, amounted to the playing of a technical game.
  14. Looked at on a broader footing, it further seems to me that, whatever may have been the position in the past, it is inherent in the scheme created by the CPR and, in particular by CPR 6.15(2), itself, and by the approach to that rule, as expressed in Abela, that a rather more flexible approach is now intended to be taken in respect of the service of the claim form, that errors in the service of a claim form are not to be treated as irredeemable and incapable of correction and, correspondingly, that there is nothing special in respect of the service of a claim form to negate an opposing party’s obligation not to take inappropriate advantage. The very fact that the proper approach to CPR 6.15 requires the court to discourage technical game playing in respect of service seems to me to point very strongly towards the conclusion that the obligation not to take inappropriate advantage applies to issues of service of the claim form just as much as it does to other issues arising under the CPR.
  15. I add that the foregoing seems to me to be wholly consistent with the approach adopted by the court in dealing with other areas of litigation where, prior to the CPR, parties were permitted to take advantage of an opposing party’s defaults. By way of example, prior to the CPR it was acceptable practice, in the voluminous litigation in respect of want of prosecution, for a defendant to allow sleeping dog to lie until such time as a claimant’s delay was sufficient to enable an application to strike out to be made. That practice has not survived the CPR (see Asiansky Television Plc v Bayer-Rosin ( a firm) [2001] EWCA Civ 1792 at paragraphs 48 and 67).
  16. The foregoing is also wholly consistent with the decision of HH Judge Hacon, in OOO Abbott v Econwall UK Ltd [2016] EWHC 660 (IPEC). In that case, Judge Hacon took the view, in the context of a claimant’s misunderstanding as to the extent of an offered extension and a consequent failure by the claimant to serve in time, that full compliance with the overriding objective, required that a litigator, aware of the real possibility that a genuine misunderstanding had arisen in respect of a significant matter, should take reasonable steps to clear up that misunderstanding and that, accordingly, the defendant’s solicitor, being aware that there had been a misunderstanding as to the extent of the extension, should have clarified the extent of the extension and so enabled the claimant to serve in time. For that reason, he was prepared to validate, as good service, a copy claim form provided to the defendant prior to the expiry of the period within which service should have taken place.
  17. His reasoning, in reaching that decision (see paragraphs 39 to 42 and paragraph 52), was that the overriding objective required a clear common understanding as to procedural arrangements, that any breakdown in that understanding would waste cost, impair progress and lead to court applications and the use, otherwise avoidable, of court resources. For that reason it was incumbent upon litigators to dispel misunderstandings and, by so doing, ensure the more efficient conduct of litigation. Given that obligation, the defendant’s knowledge of the possibility of misunderstanding, and his, or its, failure to dispel that misunderstanding, it was appropriate to take that failure and its consequences into account in validating, as good service, the earlier provision of a copy of the claim form. Such validation, in those circumstances, was more likely to encourage compliance with the overriding objective than if validation had been refused.
  18. OOO Abbott was considered by Judge Pelling, in Higgins. In that case an application was made under CPR 6.15 to retrospectively validate, as good service, a copy claim form provided to the defendants, at the time of issue, but which, as the judge found, had never been so provided by way of service. Although granted extensions in respect of service, the claimants simply forgot to serve. They were never, within the lifetime of the claim form, of the belief that they had served. On the particular facts, it could only have been on 17th March 2017 (the last day for service being 19thMarch) that the defendants could have had any inkling that the claimants had overlooked the need to serve. There was, in the judge’s view, no basis for the inference that the defendants, or any of them, had, in fact, appreciated, prior to the expiry of the extended date for service, that the need for service had been overlooked. There was, in consequence, no factual basis for any suggestion that the defendants had played technical games in respect of service, or that they, or any of them, had ever come under any duty, pursuant to the overriding objective, or otherwise, to remind the claimants that service had been overlooked. Unsurprisingly, retrospective validation was refused.
  19. In refusing the application and although unnecessary to his decision, Judge Pelling, nonetheless, considered the position which would have arisen had he determined that the defendants had become aware prior to the expiry of the lifetime of the claim form that, unless prompted, the claimants would forget to serve.
  20. His view was that the overriding objective did not require that a solicitor, aware of a mistake made by his opponent, should make that opponent aware of that fact when to do so might be contrary to his client’s substantive interests. Accordingly, had he found that the defendants had become aware, prior to the expiry of the lifetime of the claim form, that the claimants had overlooked and were overlooking service, he would not have regarded the defendants as having any obligation to draw the claimants’ attention to that mistake and remind them of the need to serve, or, therefore, as having established any good reason for validation.
  21. For the reasons already set out, I do not share Judge Pelling’s view. I think that the views expressed by Judge Hacon are to be preferred, that, as set out in paragraph 40 of OOO Abbott, the entitlement of a party to litigation to take advantage of an opponent’s mistakes is qualified by the obligations that litigants owe to the court to give effect to the overriding objective and that, in consequence and contrary, perhaps, to the litigation culture that preceded the CPR, litigants no longer have the absolute entitlement that they may once have had to take advantage of an opponent’s mistakes. I do not think that mistakes relating to service fall into any separate category.
  22. Reverting to the instant case, I am not persuaded that the error made by Collyer Bristow was of a type, or nature, that excluded Mills & Reeve from any duty to inform Collyer Bristow of its mistake, or, conversely, rendered it appropriate and acceptable for Mills & Reeve to act, deliberately, in the way that it did.
  23. In so saying, I intend no personal criticism of the conduct of Mr Dawson-Gerrard. I have no doubt that he was of the view that he was acting, legitimately, in the interests of his client and that, as he says, he was fortified in that view by his understanding of Higgins. In my view, however, in acting and advising as he did, he misjudged the correct balance to be drawn between his duty to his client and his duty under the rules to give effect to the overriding objective.
  24. In my view, his conduct, in the context of the circumstances with which he was confronted, did amount to the playing of a technical game as to service. I have to say I find it hard to see, if his conduct did not so amount, that the phrase ‘technical games’ is left with any realistic, or significant, meaning.
  25. It follows that I consider that, standing in isolation, the de facto service of the Claim Form, within the lifetime of the Claim Form, taken in conjunction with the conduct of Mills & Reeve, in respect of that service, affords good reason to validate the de facto service, by way of an order under CPR 6.15(2). It was the conduct of Mills & Reeve, in failing to draw attention, when it readily could, to its lack of authority to accept service, which resulted in Collyer Bristow’s failure to serve in time. The good reason advanced and established by the Claimants is, accordingly, a good reason impacting upon service within the lifetime of the Claim Form and, consequentially, upon limitation.
  26. The remaining question is whether, good reason being a holistic exercise, there are any other facts and circumstances to which I should have regard and which, when all matters are taken as a whole, should persuade me that, notwithstanding my conclusion above, nonetheless, overall good reason is not made out.
  27. Two matters potentially arise.
  28. The point is properly taken by Phoenix that the necessity for validation arises out of the mistaken conduct of Collyer Bristow. So it does. An honest mistake was made. I do not think, though, that the fact of that mistake, given Mills & Reeve’s conduct in respect of that mistake and its duty under and in respect of the overriding objective, detracts significantly from the good reason otherwise made out.
  29. The final point pertains to delay. It is said that the Claim Form could have been served a great deal earlier and that it was the fact that service was initiated so late in the day that lies at the source of the Claimants’ difficulty.
  30. It is, obviously, true that the Claim Form could have been served earlier and that, if it had been, the issue as to service would have surfaced earlier. The reason that it was not served earlier, as I accept, on the evidence, is not that the Claimants were sitting on the matter, but that, for reasons related to the availability of papers, funding, ATE insurance and, most significantly, the fact that the First Claimant, Sally Woodward, whose input was key to the preparation of the proceedings, suffered the onset of very serious ill health, the Claimants were faced with serious difficulties in the preparation of the Particulars of Claim intended to be served with the Claim Form.
  31. It seems to me that the decision to await service of the Claim Form until Particulars of Claim could also be served was a wholly reasonable one, particularly where there were problems in obtaining information and instructions from Sally Woodward. The early service of the Claim Form, without complete instructions as to the content of the Particulars of Claim could very well have caused difficulties in respect of the service of that document.
  32. More importantly, however, than any of the last foregoing is that, in point of fact, the Claim Form with accompanying Particulars of Claim was ready well before the last date for service, was purportedly and de facto served by 18th October and was in the hands of Mills & Reeve, by way of the email letter of 17th October, on that day. In those circumstances, had Mills & Reeve acted as it should have acted, there was ample time to take the relevant step in respect of service on Phoenix before midnight on 19th October and there is no good reason to believe, given the steps taken by Collyer Bristow, following receipt of Mills & Reeve’s letter of 20th October, that effective service would not have been achieved.
  33. In these circumstances, I cannot see that the suggested delay in the serving of the Claim Form detracts significantly, if at all, from the other factors discussed in this judgment and which, in my view establish that good reason exists in this case to treat the purported service effected under cover of the Claimants’ letter of 17th October 2017 as good service and to justify an order to that effect.
  34. In the result, I will dismiss the Defendant’s application and I will make an order in favour of the Claimants, under and pursuant to CPR 6.15(1) and (2), to the effect that the steps taken by the Claimants to bring the Claim Form to the Defendant’s attention by sending the Claim Form to Mills & Reeve by email and first class post on 17th October 2017 constitute good service.”

AND REMEMBER BARTON -V- WRIGHT HASSALL MADE NO DIFFERENCE

We have already looked at the addendum to the judgment.

ADDENDUM TO JUDGMENT

1. This is an addendum to my judgment in this case.
2. After my draft judgment had been sent to the parties and while arrangements were being made for handing down, I was informed by Counsel for the Defendant that the Supreme Court had handed down its judgment in Barton v Wright Hassall LLP [2018] UKSC 12and I was asked to reconsider my judgment in the light of that decision, having particular regard to the fact that Barton, in the Court of Appeal, [2016] EWCA Civ 177, was referred to, quite extensively, in my judgment.
3. I have now had the opportunity to consider the decision of the Supreme Court, together with a helpful note prepared by Counsel for the Defendant, and, having done so, I see no reason to change, or modify, the conclusions that I have previously reached.
4. In my judgment, I characterised the Court of Appeal decision in Barton as being one of a number of cases where validation under CPR 6.15 had been refused upon the primary basis that, although de facto service had been effected, there was nothing other than de facto service to constitute good reason for validation. The majority decision in the Supreme Court seems to me to bear this out. The fact that the claimant in Barton was a litigant in person did not, in the view of the majority, provide a sufficient additional factor such as to give rise to a good reason for validation. Likewise, on the facts and on the very limited arguments deployed (see paragraph 22 of the Supreme Court judgment in Barton) the conduct of the defendant’s solicitors, in that case, did not amount to the playing of technical games.
5. It is true that Lord Sumption, giving the majority judgment, took the view that the solicitors in Barton were not, even had they had the time to do so, under any duty to advise the claimant of his mistake as to service. The Supreme Court, however, was not asked to consider and did not consider, as I have been asked to, any developed argument, as to the impact and effect of the duty to further the overriding objective, as giving rise to a duty to the court to warn an opposing party of his, or her, mistakes. I do not regard the majority in Barton (and I do not think that the majority in Barton would have regarded themselves) as having given a definitive, or any, answer, in respect of that argument.
6. It is true, also, that, in endorsing the principles to be derived from Abela, Lord Sumption gave, it might be said, new, or greater, weight to the fact that validation might deprive a defendant of a limitation defence than has, perhaps, emerged from the earlier authorities. He was, however, at pains to say that the point was not, necessarily, decisive. As explained by Lord Briggs in his dissenting judgment, the point can, indeed, be put the other way; namely that, in a case where the de facto service fulfils all the objectives of good service, a refusal to validate may provide the defendant with a windfall.
7. In the current case, I consider that the de facto service effected by Collyer Bristow did fulfil all the objectives of good service (see, in particular, paragraphs 83 and 99 of my judgment and paragraphs 28 to 30 of the Supreme Court judgment in Barton) and that, to the extent that something additional is required in order to give rise to a good reason to validate, then that good reason was provided by the failure of Mills & Reeve, contrary, as I find, to its, or its client’s, duty to further the overriding objective, to warn Collyer Bristow that its purported service was defective, such that good service could have been effected in time. It was that failure which constituted the deliberate playing of a technical game.
8. As I set out in my judgment, I do not think that the undoubted culpability of Collyer Bristow, in overlooking the fact that Mills & Reeve had not indicated that it had authority to accept service, outweighs Mills & Reeves conduct, in failing to draw Collyer Bristow’s attention to its mistake. Had Mills & Reeve acted as it should have done, Collyer Bristow’s mistake would not have precluded good service being effected in the lifetime of the Claim Form.
9. For the same reason, I do not think that, in this case, the fact, that validation will, or may, deprive Phoenix of a limitation defence, should preclude validation. Had Mills & Reeve acted as it should have done, good service would have been effected in time. In that context, validation does no more than to preclude Phoenix from procuring a windfall.
10. In the result and as set out in my judgment, I will order that the steps taken by Collyer Bristow in purported service of the Claim Form stand as good service.
11. I have already indicated to the parties that, because of the weight I attach to the duty of Mills & Reeve and its client to further the overriding objective, by drawing Collyer Bristow’s attention to its mistake, because, also, of the conflict of authority on the point and because, as it seems to me, an important point of practice arises, I will give permission to appeal. I am, subject to the views of the parties, minded to assign the appeal to the Court of Appeal, pursuant to CPR 52.23.