NO DUTY ON A PARTY TO INFORM AN OPPOSING PARTY THEY ARE MAKING AN ERROR: THE APPEAL JUDGMENT IN PHOENIX IN FULL:

I have already noted that the judgment at first instance in  Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) has been overturned. The full appeal judgment is now available on BAILLI at [2018] EWHC 2152 (Ch), a decision of HH Judge Hodge QC, sitting as a judge of the High Court. The judgment is of some significance on the issue of the duty that litigants owe to each other, particularly in relation to service of the claim form.  I have set the relevant passages out in some detail.

 

“The difficulties were of the making of the claimant’s own solicitors. In those circumstances, I see no reason why the claimant should be absolved from its, or its solicitors’, errors at the expense of the defendant’s accrued limitation defence.”

None of that, in my judgment, requires the court to impose on a party a duty to inform an opposing party of an error which has been made, even if there is still time for the opposing party to cure that error.

THE DECISION AT FIRST INSTANCE

The claimant served a claim form (within time) on solicitors who were not nominated to accept service.

The Master exercised his discretion under CPR 6.15 on the grounds that the defendant should have pointed out the error to the claimant’s solicitors.   The case is considered in detail here. 

ON APPEAL

 

  • The rules relating to service of the claim form were not to be construed in a way similar to relief from sanctions.
  • There had not been a refusal by the defendant to cooperate in relation to procedural issues – mere a failure to point out an apparent error.
  • It was not playing “technical games” to allow the claim form to expire without responding to technical service.
  • The claimants had courted disaster by waiting until serving the claim form until the last minute.
  • It was unreasonable for the claimant to delay and run the risk of failing to serve within the period of validity.
THE JUDGMENT ON APPEAL
    1. I must first address the proper approach to this appeal. The Master’s decision involved a value judgment, rather than an exercise of his discretion. It was based upon an evaluation of a number of different factors. If the Master committed no error of principle and was not plainly wrong in reaching the conclusion that he did, then there is no legitimate basis for the appeal court to interfere. That is made clear by passages in Abela at paragraph 23, in Barton at paragraphs 9 and 15, and by the Court of Appeal in Societe Generale at paragraphs 14, 36 and 40.
    2. Against that background, I turn to the Master’s judgment. At paragraphs 1 to 3 he addressed the issue of the claim form and the nature of the claim. At paragraphs 4 to 8 he set out the applicable provisions governing service of the claim form and dispensation therefrom. At paragraphs 9 to 12 he addressed the basic facts as to service, or purported service, of the claim form, which were not in dispute. At paragraphs 13 to 19 he addressed the correspondence and conduct subsequent to service of the claim form. At paragraphs 20 to 24 he addressed the applications to the court and the ambit of the dispute as it was before him.
    3. In his submissions, Mr Onslow described paragraphs 1 to 24 of the judgment as a ‘model summary of the overall case and of the events and issues’. He said that it was ‘an exemplary introduction, on the Master’s part, to the issues in the case’. Mr Penny, as I have already remarked, described the judgment as a whole as ‘a model of detailed analysis of the issues arising’.
    4. At paragraph 22 the Master recorded that a number of possible arguments originally advanced by the claimants’ solicitors had fallen away. At paragraph 24 he identified the issues left for his determination as threefold: First, had Mills & Reeve, on the true construction of the correspondence passing between the two firms of solicitors, provided written notification to Collyer Bristow that Mills & Reeve was instructed to accept service of the proceedings? The Master proceeded to address that issue at paragraphs 25 to 36. His conclusion was that there was nothing in the various exchanges of correspondence between Collyer Bristow and Mills & Reeve in respect of the claim during the period prior to the purported service on Mills & Reeve such as to constitute, explicitly or implicitly, a written notification that Mills & Reeve were instructed to accept service. There is no challenge to that decision.
    5. The second of the remaining issues was that even if there had been no such written notification, were Mills & Reeve’s estopped from denying that it was so instructed, such that the service effected upon Mills & Reeve fell to be regarded as good service? The Master addressed those arguments at paragraphs 37 to 68 of his judgment. His decision was that the claimants had failed to establish the breach of any alleged duty to speak out. At paragraph 59 he found that no estoppel by silence had arisen, such as to estop the defendant from denying that Mills & Reeve had authority to accept service. Again, there is no challenge to that decision.
    6. That left the third of the issues, which was: should the purported service upon Mills & Reeve be retrospectively validated pursuant to CPR 6.15.1 and 2? The Master addressed that issue at paragraphs 69 and following of his judgment, to which he added an addendum to address the Supreme Court’s decision in the Barton case.
    7. The Master set out the background to that exercise at paragraphs 70 and 71. He set out the principles to be applied at paragraphs 72 to 78, where he addressed the Supreme Court’s decision in the Abela case; and he dealt with subsequent authorities, including Barton in the Court of Appeal, at paragraphs 80 to 82. Those paragraphs also addressed Popplewell J’s decision at first instance in Societe Generale.
    8. The Master proceeded to apply the principles to the facts of the case at paragraphs 83 to 111. At paragraph 83 he concluded that, notwithstanding the defective nature of the purported service, the clear purpose underlying service had been fully achieved during the lifetime of the claim form and, therefore, that that critical factor operated in favour of validation, and was a serious step towards the conclusion that good reason existed to validate the purported service. However, at paragraph 84 he recognised that the fact of the receipt by solicitors of the claim form in time was a necessary, but not necessarily a sufficient, condition for validation. He said that were that not the case, the provisions as to service, and, in particular, the provisions as to service upon solicitors, would become nugatory.
    9. At paragraph 86 the Master recognised that the good reason warranting validation must impact upon limitation. He therefore identified the next matter for consideration as whether, on the facts of the case, there were other matters, including matters impacting upon limitation, which, when taken with the de facto service of the claim form, together gave rise to a good reason for the validation of that service. On the other side of the argument, consideration had also to be given to matters tending against the grant of relief.
    10. At paragraph 87 the Master referred to Mr Penny’s submission that, in the instant case, the key additional matter warranting validation was to be found in the conduct of Mills & Reeve upon receipt of the 17th October email and letter showing Collyer Bristow’s mistaken belief that service could be effected upon Mills & Reeve, and then its continuing conduct when in receipt of the actual purported served claim form on 18th October. There were then 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. The Master also referred to Mr Penny’s submission that the conduct of Mills & Reeve, with, on the evidence, the explicit authority of the defendant, 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 the defendant 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.
    11. At paragraph 88 the Master referred to the further submission that Mills & Reeve’s game-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 professional obligations as solicitors. The submission was that Mills & Reeve’s failure to inform Collyer Bristow of its mistake in time to allow Collyer Bristow to rectify that mistake amounted to a breach of one, other, or all of those obligations and constituted a weighty reason whereby the de facto, but defective, service of the claim form should be validated.
    12. The Master dealt relatively shortly with two aspects of that submission at paragraphs 89 to 91. For the reasons the Master had already given in respect of estoppel, he did 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. He also took the view that a solicitor was under no duty to 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 was not of his making and arose in a situation not calling for a response
    13. In my judgment, that is an important paragraph because in it the Master recognised that the circumstances of the instant case were ones in which the mistake was not of the making of the defendant, or its solicitors, and also arose in a situation which did not call for a response.
    14. The third aspect of Mr Penny’s submission was said to call for rather more detailed treatment, which the Master accorded to it at paragraphs 93 through to 111. At paragraph 93, the Master identified the essence of the submission. It was that by reason of the overriding objective, parties to litigation now owed a duty to the court to co-operate in respect of procedural matters; that that duty extended, 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 to enable Collyer Bristow to correct it, amounted to a breach of that duty; and that it therefore afforded 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.
    15. At paragraph 94, the Master said that there could be no doubt but the parties were required by CPR 1.3 to help the court to further the overriding objective, or that that objective required the court, insofar as it could do so, to ensure that matters were dealt with expeditiously, efficiently, fairly and at proportionate cost, and with an appropriate allotment of the limited resources of the court. He said that there could also be no doubt either that in fulfilment of the parties’ duty to further those objectives, the courts had endorsed, since the inception of the CPR, a duty to act in a co-operative and collaborative manner in bringing cases to a hearing. Mr Onslow accepted that there was nothing in that to which he could take exception.
    16. It was paragraph 95 that Mr Onslow characterised as ‘the root of the problem’. There, the Master said that part of the duty was to avoid unnecessary, expensive and time-consuming satellite litigation. He made reference to Denton v White; and said that the consequence of that duty was that, as stated in that case, it was wholly inappropriate for litigants, or their lawyers, to take advantage of mistakes made by opposing parties in the hope that relief from sanctions would be denied, and that they would obtain a windfall strike-out or other litigation advantage.
    17. The Master recognised that that passage related directly to relief from sanctions under CPR 3.9; but he said that it was relevant to the situation with which he was concerned. First, the validation of Collyer Bristow’s defective service would, if allowed, amount to a relief from sanction, the sanction being that, without the validation, the current claim would be unable to proceed. Secondly, it was 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.
    18. The Master went on to say (at paragraph 97) that it was quite clear, in the context of Denton, that it was not, in every case, inappropriate for an opposing solicitor, or party, to take advantage of an opponent’s mistake, and the question therefore was whether a mistake of the kind made in the present case – an honest mistake giving rise to defective but de facto service – was one where it would be, or was, inappropriate for an opposing party to take advantage; or whether the quality of the mistake was such that an opposing party, acting in his own best interests, was, notwithstanding his duty to the court, entitled to take advantage. The Master recognised that if the former were the case, then, as it seemed to him, Mills & Reeve should have drawn attention to Collyer Bristow’s error; if the latter, then they had not needed to do so.
    19. It seems to me that the Master has there correctly identified the issue which he had to decide.
    20. The Master then went on to make reference 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. He noted a comment that service of the claim form went to the root of the court’s jurisdiction. That comment, however, he said (at paragraph 99) must be set against the underlying purpose of service, which was to bring the claim, and its contents, to the opposing party’s attention, and that service was not about ‘playing technical games’. He said that in this case, and by that criterion, there could be no doubt but that the purpose of service had been achieved.
    21. There was also no doubt that Mills & Reeve had been aware, from 17th October, and within the lifetime of the claim form, that the service effected had been intended to commence the necessary processes under the CPR for dealing with the claim. On that footing, he said that it could 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.
    22. It does seem to me that in that passage the Master is losing sight of the fact that, as he had made clear earlier at paragraph 91, the mistake was not one of Mills & Reeve’s own making, and that it arose in a situation which did not call for any response.
    23. It also seems to me that in his earlier passage (at paragraphs 95 and 96) the Master had insufficiently taken into account the fact that the observations in Denton v White which he cited were essentially addressing inappropriate resistance to applications for relief from sanctions. As Lord Sumption was to make clear later in Barton (at paragraph 8), CPR 6.15 is rather different to CPR 3.9, the main difference being that the disciplinary factor is less important in relation to the rules governing service of a claim form. As Lord Sumption said, the rules governing service of the claim form do not impose duties, in the sense in which the rules governing the time for the service of evidence impose duties. They were simply conditions on which the court would take cognisance of the matter at all. Although the court might dispense with service altogether, or make interlocutory orders before it had happened if necessary, as a general rule, service of the originating process was the act by which the defendant was subjected to the court’s jurisdiction. Later in his judgment (at paragraph 18), Lord Sumption reiterated that the disciplinary factor was less significant in the case of applications to validate defective service of a claim form than in the case of applications for relief from sanctions.
    24. At paragraph 100, the Master said that whatever might have been the position in the past, it was inherent in the scheme created by the CPR, and in particular by CPR 6.15 (2), and by the approach to that rule as expressed in Abela, that a rather more flexible approach was now intended to be taken in respect of the service of the claim form, that errors in the service of claim forms were not to be treated as irredeemable and incapable of correction, and, correspondingly, that there was 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 required the court to discourage technical game playing in respect of service seemed, to the Master, to point very strongly towards the conclusion that the obligation not to take inappropriate advantage applied to issues of the service of the claim form just as much as it did to other issues arising under the CPR.
    25. My concern about that paragraph is that the judge makes no reference there to the consequences, in terms of the removal of the limitation defence, that that more flexible approach might give rise to, and also the fact that he has not sufficiently identified what is meant by ‘technical game playing’ in respect to service.
    26. At paragraph 101, the Master said that his approach seemed to be wholly consistent with the approach adopted by the court in dealing with other areas of litigation where, before the CPR, parties were permitted to take advantage of an opposing party’s defaults; he instanced the change in practice in relation to applications to strike out.
    27. That approach was also said to be wholly consistent with Judge Hacon’s decision in the Abbott case. In that case, Judge Hacon was said to have taken the view, in the context of a claimant’s misunderstanding as to the extent of an offered extension of time and a consequent failure by the claimant to serve in due time, that full compliance with the overriding objective required that a litigator, who was 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, Judge Hacon had been prepared to validate, as good service, a copy claim form that had been provided to the defendant prior to the expiry of the period within which service should have taken place.
    28. Judge Hacon’s reasoning in reaching that decision was said to have been that the overriding objective required a clear common understanding as to procedural arrangements, and that any breakdown in that understanding would waste costs, impair progress, and lead to court applications and the use, otherwise avoidable, of court resources. For that reason, it was said to be 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 said to be more likely to encourage compliance with the overriding objective than if validation had been refused.
    29. My concern about that passage is twofold. First, that the Master does not refer to the earlier passage, at paragraph 40 of Judge Hacon’s judgment, where he says in terms that parties to litigation are plainly not obliged to inform the opposing side of its mistakes, in the sense of steps taken or positions adopted which appear not to be in that other side’s best interests. Each side must look after itself. The passage cited by the Master from Judge Hacon’s judgment is expressed to be a qualification to that general position. The second concern I have is that, as was made clear at paragraph 50 of Judge Hacon’s judgment, no point arose in that case under the Limitation Act.
(Luncheon adjournment)
————–
JUDGE HODGE QC:
  1. At paragraphs 104 to 107 of his judgment the Master considered Judge Pelling’s judgment in the Higgins case. The Master pointed out that, on Judge Pelling’s analysis of the evidence, his observations were unnecessary to his decision. However, Judge Pelling had expressed the view that the overriding objective did not require that a solicitor, who was 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. Judge Pelling concluded that 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 had any obligation to draw the claimants’ attention to that mistake, or to remind them of the need to effect service or, therefore, as having established any good reason for retrospective validation of the defective service of the claim form.
  2. The Master said that he did not share Judge Pelling’s view. He thought that the views expressed by Judge Hacon in Abbott were to be preferred: that the entitlement of a party to litigation to take advantage of an opponent’s mistakes was qualified by the obligations that litigants owed to the court to give effect to the overriding objective, and that, in consequence, and contrary perhaps to the litigation culture that had preceded the CPR, litigants no longer had the absolute entitlement that they might once have had to take advantage of an opponent’s mistakes. The Master did not think that mistakes relating to service fell into any separate category. That was, in my judgment, a crucial part of the Master’s judgment; and it lay at the root of his decision.
  3. In my judgment, the Master should have had regard to the fact that Judge Pelling had considered Judge Hacon’s judgment, and that Judge Pelling had found some support for his views in that judgment. At paragraph 41 of Judge Pelling’s judgment, he had cited Judge Hacon’s observation that: “… parties to litigation are plainly not to obliged to inform the opposing side of its mistakes – in the sense of steps taken or positions adopted which appear not to be in that other side’s best interests. Each side must look after itself”.
  4. At paragraph 42, Judge Pelling had rejected a submission founded upon the qualification to Judge Hacon’s general proposition to be found at paragraph 41 of his judgment. Judge Pelling had taken the view that, whatever the true scope of any exception to the general principle might be, it did not extend to requiring a solicitor, acting for one party, to inform his or her opponent of an apparent error made by that opponent in the absence of instructions from his or her client to do so, when to do so might be contrary to the substantive interests of that solicitor’s client.
  5. True it is that Judge Pelling’s decision on that point was strictly unnecessary, in the light of Judge Pelling’s finding (at paragraph 43) that it had not been established that the defendants’ solicitors had either known, or suspected, that the claimants’ solicitors had made an error. But as I read Judge Pelling’s decision, his view on the scope of a solicitor’s duty formed an independent ground for his decision, irrespective of his finding on the particular facts of the case before him. Judge Pelling had concluded paragraph 43 of his judgment with the statement: “In any event, as I have said, I do not consider that the defendants’ solicitors were under a duty to correct the errors by the claimants’ solicitors assuming that they knew or suspected they had been made”.
  6. At paragraph 108 of his judgment the Master said, reverting to the instant case, that he was not persuaded that the error made by Collyer Bristow was of a type, or nature, that excluded Mills & Reeve from any duty to inform them of its mistake, or, conversely, rendered it appropriate and acceptable for Mills & Reeve to act deliberately in the way that they did. He made it clear that he thereby intended no personal criticism of the conduct of Mr Dawson-Gerrard of Mills & Reeve. The Master had no doubt that he had been of the view that he was acting legitimately in the interests of his client, and that he was fortified in that view by his understanding of Higgins. But in the Master’s view, in advising as he did, Mr Dawson-Gerrard had 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. In the Master’s view, Mr Dawson-Gerrard’s conduct, in the context of the circumstances with which he was confronted, “did amount to the playing of a technical game as to service”. The Master found it “hard to see, if his conduct did not so amount, that the phrase ‘technical games’ is left with any realistic, or significant, meaning.”
  7. In paragraph 111, the Master said that it followed that he considered that, standing in isolation, the de facto service of the claim form, within its lifetime, taken in conjunction with the conduct of Mills & Reeve, in respect of that service, afforded 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.
  8. For reasons that will become apparent, I do not agree with the Master’s decision on that point. In my judgment, he erred in principle, and he was plainly wrong in the decision that he reached.
  9. At paragraphs 112 and following, the Master went on to consider whether “good reason being a holistic exercise”, there were any other facts and circumstances to which he should have regard, and which, when all matters were taken as a whole, should persuade him that, notwithstanding his conclusion, nonetheless overall good reason was not made out.
  10. The Master referred to two other matters. The first was that the need for validation had arisen out of the mistaken conduct of Collyer Bristow. But he did not think that the fact of that mistake, given Mills & Reeve’s conduct in respect of that mistake, and their duty under and in respect of the overriding objective, detracted significantly from the good reason otherwise made out.
  11. The other point pertained to delay. It was 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 lay at the source of the claimants’ difficulty. The Master’s conclusion was that the decision to await service of the claim form, until the particulars of claim could also be served, was a wholly reasonable one, particularly where there were problems in obtaining information and instructions from the first claimant, Sally Woodward. The early service of the claim form, without complete instructions as to the contents of the particulars of claim, could very well have caused difficulties in respect of the service of that document. In those circumstances, the Master could not see that the suggested delay in the service of the claim form detracted significantly, if at all, from the other factors discussed in his judgment, and which, in his view, established that good reason existed to treat the purported service, effected under cover of the claimants’ letter of 17th October, as good service, and to justify an order to that effect.
  12. After paragraph 120 of the approved transcript of his judgment, the Master appended an addendum. The addendum was directed to considering the decision of the Supreme Court in Barton, with the assistance of a helpful note prepared by counsel for the defendant. Having done so, the Master said that he saw no reason to change, or modify, the conclusions that he had previously reached.
  13. At paragraph 4 of the addendum, the Master acknowledged that on the facts and the very limited arguments deployed in Barton, the conduct of the defendant’s solicitors in that case did not amount to “the playing of technical games”. At paragraph 5 the Master acknowledged that Lord Sumption, in giving the majority judgment, had taken 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. But, the Master said, the Supreme Court had not been asked to consider, and had not considered, as he had 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. He did not regard the majority in Barton (or think that the majority in Barton would have regarded themselves) as having given a definitive, or any, answer in respect of that argument.
  14. At paragraph 6 the Master acknowledged that in endorsing the principles to be derived from Abela, Lord Sumption had given new, or greater, weight to the fact that validation might deprive the defendant of a limitation defence than had perhaps emerged from the earlier authorities. But he had been at pains to say that the point was not “necessarily decisive”. I interpose to observe that it seems to me that that is a fair reading of Lord Sumption’s judgment, having regard to what was said at paragraphs 9 and 10. The Master also referred to the point made in Lord Briggs’s dissenting judgment that the point could be put the other way, namely that in a case where the de facto service fulfilled all the objectives of good service, a refusal to validate might provide the defendant with a windfall.
  15. In the current case the Master considered that the de facto service effected by Collyer Bristow had fulfilled all the objectives of good service, and that to the extent that something additional had been 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 the Master found, 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”.
  16. The Master did 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, outweighed Mills & Reeve’s 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.
  17. For the same reason, the Master did not think that, in that case, the fact that validation would, or might, deprive the defendant of a limitation defence should preclude validation. Had Mills & Reeve acted as they should have done, good service would have been effected in time. In that context, validation did no more than to preclude the defendant from procuring a windfall.
  18. That addendum to his judgment emphasises the part that the view taken by the Master as to Mills & Reeve’s conduct, in failing to draw Collyer Bristow’s attention to its mistake, had upon the decision the Master reached to validate service. That point was reiterated at paragraph 11, where the Master emphasised that he had already indicated to the parties that, because of the weight he attached to the duty of Mills & Reeve, and its client, to further the overriding objective by drawing Collyer Bristow’s attention to its mistake, and because, also, of the conflict of authority on the point, and because an important point of practice arose, he would give permission to appeal.
  19. The Master indicated that he was, subject to the parties’ views, minded to assign the appeal to the Court of Appeal. In the event, that was not done; and it seems to me there was good reason for that. If there is to be a second appeal to the Court of Appeal, which will require the permission of that court, it does seem to me that it would be of benefit to that court to have the benefit of two reasoned judgments, albeit, in the event, to opposite effects.
  20. I pay tribute to the clarity and depth of the Master’s reasoning. But in my judgment, as I have said, I do consider that he fell into error in principle, and that his decision was plainly wrong.
  21. In my judgment, the culture introduced by the CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitors, to draw attention to that mistake. That is, in my judgment, not required by CPR 1.3; and it does not amount to ‘technical game playing’.
  22. Looking first at CPR 1.3. It is headed “Duty of the Parties” and requires the parties to help the court to further the overriding objective. CPR 1.2 provides that the court must seek to give effect to the overriding objective when it exercises any power given to it by the rules or interprets any rule. The content of the overriding objective is identified in CPR 1.1. By sub-rule (1), the CPR are said to be a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. CPR 1.1 (2) contains a non-exhaustive elaboration of what is meant by dealing with a case justly and at proportionate cost. It includes, so far as practicable: ( a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate to (i) the amount of money involved, (ii) the importance of the case, (iii) the complexity of the issues, and (iv) the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.
  23. None of that, in my judgment, requires the court to impose on a party a duty to inform an opposing party of an error which has been made, even if there is still time for the opposing party to cure that error.
  24. I agree with the view of Judge Pelling that a defendant’s solicitors are under no duty to correct errors by the claimant’s solicitors even if they know, or suspect, they have been made, at least in a case where they have in no way contributed to those errors. I do not regard Judge Hacon, in Abbott, as taking any different view. Judge Hacon prefaced the observations relied upon by the claimants in the present case with the clear acknowledgment that parties to litigation are plainly not obliged to inform the opposing side of its mistakes, in the sense of steps taken, or positions adopted, which appear not to be in that other side’s best interests. Each side must look after itself. I accept Judge Hacon’s qualification to that general proposition. The overriding objective does require parties to take reasonable steps to ensure, so far as is reasonably possible, that there is a clear, common understanding between them as to the identity of the issues in the litigation, and also as to related matters, including procedural arrangements. But that requires there to have been a genuine misunderstanding that has arisen between the parties regarding a significant matter.
  25. In this case, there is no such significant matter to which the defendant or its solicitors had in any way contributed. If one looks at Judge Hacon’s recital of the terms of the relevant correspondence, at paragraphs 11 through to 14 of his judgment, one can see quite readily how the judge found that the defendant’s solicitor came to consider that his opposite number had wrongly interpreted the offer that had been made to him to extend time for service. At paragraph 38, Judge Hacon recorded that the defendant’s solicitor had discussed the uncertainty of what his opposite number had agreed to with the defendant, his client, and a decision had been made to take no steps to clear up any misunderstanding. The present case is different because the defendant and its solicitors had not contributed to the misunderstanding. It was akin to the case considered by Judge Pelling, where the defendants’ solicitors had in no way participated in correspondence which had given rise to any misunderstanding. Where the Master, in my judgment, fell into error was in taking the view that it was incumbent upon a litigator, or his client, to dispel a misunderstanding in circumstances where, as the Master had found at paragraph 91, the mistake had not been of the defendant’s making, or that of his solicitors, and had arisen in a situation which did not call for a response.
  26. In those circumstances, I do not consider that the furtherance of the overriding objective required the defendant, or its solicitors, to alert the claimants, or their solicitors, to the error. Like Mr Onslow, I do not consider that one should draw any distinction between the party to litigation and its solicitors, at least in circumstances where there is an opportunity for those solicitors to take their client’s instructions.
  27. I acknowledge that on the facts of Higgins, the solicitors had not taken, and in all probability had had no opportunity to take, their clients’ instructions before the time for taking remedial action had lapsed. But I do not view that as an inherent part of Judge Pelling’s reasoning or decision.
  28. I do not accept Mr Onslow’s submission that the Master’s decision was inconsistent with his own earlier conclusions that no obligation was owed by the defendant to notify the claimants or their solicitors of the error, and that the defendant’s solicitors were not in breach of their professional duties as solicitors. The Master’s conclusions in that regard do not necessarily negate the existence of a duty owed to the court to further the overriding objective, or the fact that the breach of any such duty might constitute a good reason for defective service which impacted upon the expiry of the claim form or the limitation period. But I do consider that there is no obligation on a party, or its solicitor, to correct a misunderstanding to which they have in no way contributed, and where to do so would deprive a defendant of a substantive limitation defence to the claim.
  29. In my judgment, the situation is very different from that in Abela, where the defendant was under no duty to co-operate, and had refused to do so, in effecting service. The courts have for many years addressed the situation of defendants who make service difficult by taking steps to evade service. Here, neither the defendant, nor its solicitors, had done anything by way of refusing to co-operate in effecting service of the claim form on the defendant. Such service was readily capable of being effected, as indeed happened as soon as the defective service came to light. Here there was no refusal to cooperate in effecting service; rather the defendant, through its solicitors, Mills & Reeve, had merely failed to point out an apparent error on the part of the claimant’s solicitors in circumstances where, as the Master had found, there was nothing to create any duty to speak out.
  30. It does seem to me, particularly in the light of Lord Clarke’s observations in Abela about the defendant’s refusal in that case to co-operate in effecting service, notwithstanding that he had no duty to cooperate, that ‘technical game playing’ may come into play in circumstances where there would be no breach of CPR 1.3 because there is no duty to assist in furthering the overriding objective. But I do not consider that ‘technical game playing’ extends to the situation in the present case where, as the Master expressly found at paragraph 91 of his judgment, the mistake was not of the defendant’s own making, or that of his solicitor, and it arose in a situation which did not call for any response.
  31. In my judgment, ‘technical game playing’ is conduct such as taking arid procedural points which are, or may be, technically correct, but which are contrary to the spirit in which litigation should now be conducted, in terms of furthering the overriding objective. ‘Technical game playing’ is conduct such as resisting meritorious applications for relief from sanctions in circumstances where, in accordance with the criteria in Denton v White, such an application is bound to succeed.
  32. There is, in my judgment, a qualitative difference between seeking to resist a meritorious application and omitting to draw attention to a perceived mistake on the part of the opposing party to litigation, where to do so would be contrary to the best interests of the party in question and would deprive that party of a substantive defence.
  33. In this case, unlike Barton, there was no inequality of arms between the parties; they were on an equal footing, both being represented by reputable and apparently competent litigation solicitors. True it is that pointing out the error might have saved expense and court time, in terms of dealing with an application such as the present and any appeal from a decision in that regard; but, equally, the position taken by the defendant was likely to save the expense of a substantive defence to an action which was about to become statute-barred.
  34. Here, the defendant was entitled to put forward a limitation defence. The action had already become statute-barred a couple of days after the claim form was issued. The limitation period was only still running because there was a pending claim form. The limitation period would effectively come to an end once the validity of that claim form expired. I do not consider that it was ‘playing a technical game’ to allow the claim form to expire in circumstances where the defendant, and its solicitors, were in no way responsible for the defective service and, as the Master found, service had called for no immediate response. The claimants’ solicitors could have sought specific confirmation that the service was to be treated as effective. What the position might have been had they done so, and there had been no response, I do not need to consider. All the letter of 17th October had sought was acknowledgment of safe receipt, and it had imposed no time limit for that.
  35. So, for those reasons whether viewed in terms of the breach of an alleged duty under CPR 1.3 to further the overriding objective, or in terms of ‘technical game playing’, I consider that the Master erred in principle, and that his decision to validate service was plainly wrong.
  36. That then brings me to the respondent’s notice. That also requires the court to consider whether the Master was right to take the view that he did, at paragraph 117 of his judgment, that “the decision to await service of the claim form until particulars of claim could also be served was a wholly reasonable one”.
  37. I agree with Mr Onslow’s submission that the approach that was in fact taken did court potential disaster. Mr Onslow has pointed out that the courts have long recognised the risks of leaving the service of a claim form to the last moment. In Godwin v Swindon Borough Council [2001] EWCA Civ 1478, reported at [2002] 1 WLR 997, May LJ (at paragraph 27) said that those who delay serving their claim to the last moment risk disaster. A similar observation was made by Dyson LJ in the case of Hashtroodi v Hancock [2004] EWCA Civ 652, reported at [2004] 1 WLR 3206, at paragraph 34. There the point was made that it had often been said that a solicitor who leaves the issue of a claim form almost until the expiry of the limitation period, and then leaves service of the claim form until the expiry of the period of service is imminent, courts disaster. In my judgment, leaving service to the last moment does ‘risk’ or ‘court disaster’; and it does not matter whether the claimant believes that there is good reason for doing so or not. Something may always go wrong, as it did in this case. I do not consider that it was reasonable to delay service of the claim form, given that the limitation period had already expired, until the particulars of claim were available for service.
  38. By CPR 7.4 (1), particulars of claim must be contained in or served with the claim form or (subject to paragraph (2)), they must be served on the defendant by the claimant within 14 days after service of the claim form. The qualification in CPR 7.4 (2) is that particulars of claim must be served on the defendant no later than the latest time for serving the claim form.
  39. The claimant’s solicitors knew that there were difficulties in finalising the particulars of claim. I accept Mr Onslow’s submission that what they should have done is to have served the claim form and then sought an extension of time for service of the particulars of claim, either by agreement with the defendant’s solicitors or on application to the court. I accept the submissions at paragraphs 8 through to 17 of the appellant’s supplemental skeleton argument.
  40. First, and most fundamentally, it is the service of the claim form, and not of the particulars of claim, that engages the court’s jurisdiction. Authority for that proposition is to be found in the judgments of both the majority and the minority in Barton, and also in the judgment of Arnold J in Personal Management Solutions Limited v Gee 7 Group Limited [2016] EWHC 891 (Ch) at paragraph 27. The question of whether an originating process has been properly served is not simply a technical question, but it goes to the root of the court’s jurisdiction. I accept Mr Onslow’s submission that it follows that it would rarely, if ever, be justifiable to delay service of a claim form until particulars have been settled, particularly where limitation is already in issue.
  41. Secondly, if there was any doubt as to whether the particulars of claim would be finalised in time, it would have been open to the respondents to apply for an extension of time for service of that document. An application to extend time for service of the particulars of claim is not subject to the stringent requirements governing the service of originating process in CPR Part 6. It is instead determined pursuant to the court’s general case management powers, including its general discretion to extend time limits in CPR Part 3, and by reference to the overriding objective. Once the claim form had been served, the court would have had a significant flexibility to grant extensions of time for the service of particulars of claim.
  42. Whilst I accept that the claimant’s solicitors did not sit back and do nothing about service until the end of the life of the claim form, they nevertheless courted the risk that the claim form would not be served validly within the period of its validity.
  43. Once the appeal court has reversed the Master’s finding that it was reasonable to delay service of the claim form until the particulars of claim were finalised, it seems to me there is no merit in the points raised in the respondent’s notice. There is certainly nothing sufficient to overcome the weight of the loss to the defendant of its substantive defence to the claim on limitation grounds.
  44. I would not accept Mr Onslow’s submission that the Master did not weigh the limitation issue in the balance. He may not have done so expressly; but it is quite clear from the mass of references to the limitation defence, and to his recognition that, without validation of service of the claim form on Mills & Reeve retrospectively, the limitation defence was there to be taken. The Master must have weighed it in the balance. In my judgment, the problem is that the Master wrongly took the view that there was a duty to alert Collyer Bristow to the error when, in my judgment, there was no such duty.
  45. I have so far dealt with the reasons for differing from Master without reference to the Supreme Court’s decision in Barton. It does seem to me that Barton provides further support for the defendant’s case. I acknowledge that, on the facts of Barton, there would have been no opportunity to remedy the defective service within time. I also acknowledge Mr Penny’s point that the third of the points identified at paragraph 11 of Lord Sumption’s judgment had no merit on the actual facts of that case. Nevertheless, Lord Sumption clearly considered the point. At paragraph 22 he referred to the submission that the solicitors for the defendant had been playing technical games with the claimant. The sole basis for that submission was said to be that they had taken the point that service was invalid. Lord Sumption said that since they had done nothing, before the purported service by email, to suggest that they would not take the point, that did not advance the claimant’s case. After the purported service by email, Lord Sumption said that there was nothing that they could reasonably have been expected to do which could have rectified the position because the claim form expired the next day. However, Lord Sumption then went on to address the situation on the assumption that the defendant’s solicitors had realised that service was invalid in sufficient time to warn the claimant to re-serve properly, or to begin a fresh claim within the limitation period. Lord Sumption’s view was that the defendant’s solicitors were under no duty to give the claimant advice of that kind, nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. Lord Sumption said that it was hardly conceivable that, in those circumstances, the client would have authorised its solicitors to alert the claimant to the point. There is nothing to suggest that Lord Sumption would have taken the view that, in refusing to authorise its solicitors to do so, the defendant would have been acting in breach of the overriding objective of the Civil Procedure Rules. I accept that there is no reference in Lord Sumption’s judgment to CPR 1.3, or to the argument that has been advanced by Mr Penny to this court, and which succeeded before the Master. Nevertheless, I consider it inconceivable that Lord Sumption would have taken the view that it was inappropriate for the defendant to have refused to authorise the giving of advice of the kind under consideration if he had regarded it as inconsistent with the defendant’s duties under the overriding objective.
  46. There is nothing in the judgment of the minority that would support the contentions of Mr Penny. Lord Sumption reiterated (at paragraph 23) the proposition that a person who courts disaster by leaving it to the very end of the period of its validity to serve a claim form, can have only a very limited claim on the court’s indulgence in an application under CPR 6.15 (2). By comparison, he described the prejudice to the defendant as palpable; he would retrospectively be deprived of an accrued limitation defence if service were validated.
  47. Lord Sumption recognised that if the claimant had been more diligent, or if the defendant, or its solicitors, had been in any way responsible for his difficulty, that might not have counted for much. But he added that, as it was, there was no reason why the claimant should be absolved from his errors at the defendant’s expense. The instant case is not one in which the defendant, or its solicitors, were in any way responsible for the claimant’s difficulty. The difficulties were of the making of the claimant’s own solicitors. In those circumstances, I see no reason why the claimant should be absolved from its, or its solicitors’, errors at the expense of the defendant’s accrued limitation defence.
  48. So, for those reasons, I will allow the appeal and set aside the Master’s order. Consequently, the court’s order will order and declare that the claim form issued on 19th June 2017 be set aside and that the claimant’s application of 23rd October 2017 is dismissed.