So far this year there have been over half a dozen cases relating to mis-service of the claim form reported on this blog.   In many of the cases the claimant’s difficulties appear to be virtually self-inflicted.   Several of the cases this year have been multi-million pound actions, issued at the end of the limitation period and failing because of mis-service. It is worthwhile looking again at the Court of Appeal decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 98.  This is the decision that rejected the argument that a defendant is under any duty to point out to a claimant that it had made an error as to service.   There is a good reason that the courts have said, on many occasions, that laxity as to service of the claim form is “dicing with procedural death”.


“…. a person having courted disaster by waiting until the very end of the limitation period to serve the claim form has only very limited claim to the court’s indulgence…”


There is a webinar on the 24th September 2021 “Service of the Claim Form: Key cases and issues”.  This is designed to look at and help identify (and for claimants) avoid key problem areas of service of the claim form. Booking details are available here. 





Looking at the bare facts in Woodward (and this could be any of of dozens of cases on this issue).

This was a £5 million claim.

  • Proceedings had been issued at the last moment.
  • Service had been left until late.
  • There had been no nomination of an address for service by the defendant.
  • The defendant’s solicitors had not stated they would accept service, nor had they been nominated.


The claimant initially found some favour with Master Bowles who found that there was a duty on the defendant to warn the claimant’s solicitors that they had made an error.  That decision was overturned by the Circuit Judge who was then upheld by the Court of Appeal.


Lady Justice Asplin considered the claimant’s arguments that the the judge was wrong to overturn the Master’s decision and did not accept them.
(i) CPR 1.3 and the limitation defence
    1. It seems to me that in the light of the approach taken by Lord Sumption in the Barton case both in the passage in his judgment at paras 8 – 10 and at paras 22 – 23, there is no scope for Mr Berkley’s argument that the Judge was wrong to hold that the Master erred in finding that Phoenix/M&R’s conduct was contrary to CPR r 1.3.
    1. The Master in the Addendum to his judgment took the view that the Supreme Court in Barton had not been asked to consider the effect of the duty to further the overriding objective as giving rise to a duty to warn the opposing party of its mistakes and proceeded accordingly. As I have already mentioned, he held that there was such a duty, that M&R had indulged in technical game playing, and that the fact that validation would deprive Phoenix of a limitation defence should not preclude such a step and that validation would do no more than preclude Phoenix from procuring a windfall. It seems to me, therefore, that despite making reference to the Supreme Court decision in the Addendum to his judgment, the Master, in effect, ignored the judgment of the majority, which although perhaps understandable, given the timing of his judgment and the handing down of the judgments in Barton, is fatal to the appeal. He also appears to have preferred the judgment of the minority in relation to the effect of limitation upon an evaluative judgment under CPR r 6.15.
    1. I place reliance both on the principles set out in the Barton case and its factual matrix despite the warnings both from Lord Clarke in the Abela case and Lord Sumption in Barton that the evaluative exercise which has to be undertaken when exercising the discretion under CPR r 6.15 is highly fact-sensitive and does not lend itself to copious citation of authority to which I have already referred. It seems to me that the facts of Barton were all but indistinguishable from the ones with which the Master and the Judge were dealing and the Supreme Court had distilled the appropriate principles to be applied.
    1. Although Lord Sumption did not expressly mention CPR r 1.3 or specifically address that duty as opposed to a duty inter partes to warn a claimant, I agree with the Judge at para 194 of his judgment that it is hard to imagine 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. It seems to me that those considerations were implicit in paras 22 and 23 of his judgment when coupled with his distillation of the guiding principles when exercising the discretion under CPR r 6.15(2) at paras 8 – 10.
    1. At para 8 he made clear that the considerations under CPR r 6.15 are different from those which relate to the provisions of the Civil Procedure Rules empowering the court to waive compliance with procedural conditions or the “ordinary consequences of non-compliance”, the most significant of which is CPR r 3.9. He went on to state that the rules governing the service of a claim form are “simply conditions on which the court will take cognisance of the matter at all” and “do not impose duties, in the sense which, say, the rules governing the time for the service of evidence, impose a duty.” In addition, he included in the main relevant factors at para 10, any prejudice the defendant would suffer by retrospective validation of non-compliant service. It was in this context that the observations at paras 22 and 23 were made.
    1. Lord Sumption made clear that even if there had been time to warn, the defendant’s advisers were under no duty to give advice, they could not have done so without taking instructions and it was inconceivable that they would have been authorised to do so, and that a person having courted disaster by waiting until the very end of the limitation period to serve the claim form has only very limited claim to the court’s indulgence and by comparison the prejudice in losing an accrued limitation defence is “palpable.” It seems to me that the emphasis placed upon the prejudice which would arise and the lack of a duty to warn in such circumstances is entirely inconsistent with a positive duty under CPR r 1.3.
    1. Furthermore, it is inconsistent with the distinction which Lord Sumption drew at para 8 of his judgment between provisions enabling the court to waive compliance with procedural conditions and the rules concerning service of proceedings which are conditions on which the court will take cognisance of the matter at all. As Lord Sumption noted, CPR r 6.15 is “rather different”.
    1. As I have already mentioned, Mr Berkley sought to draw a distinction between the facts in Barton and the present case. He said that there was time to rectify the mistake in this case, had the Appellants been warned, whereas there was not time in Barton. Although it is true to say that there was an additional day or two in this case, I cannot see that such fine timing can make a difference. Lord Sumption made clear at para 22 of his judgment that even if there had been time to warn, there was no duty to advise of the error. Of course, depending on the facts, the position may well be different if there is a substantial period before the expiry of the limitation period.
    1. It seems to me, therefore, that the Judge was right to decide that the Master was in error in taking little or no heed of the majority of the Supreme Court in relation to the existence and nature of any duty to warn of ineffective service in circumstances where the claim form is served very near the end of the limitation period and the implications in relation to a duty under CPR r 1.3, and in preferring the judgment of Lord Briggs in the minority in relation to the relevance of the loss of a limitation defence in such circumstances.
    1. Furthermore, I do not consider that the Court of Appeal’s decision in Denton v White can have any bearing on the specific issue that arises in this case in the light of the distinction between CPR r 3.9 and r 6.15 drawn by Lord Sumption at para 8 of his judgment in Barton. As he pointed out, there is a disciplinary element in the decision whether to impose or relieve from sanctions for non-compliance with the rules or orders of the court. That element is less important in relation to r 6.15 which is directed specifically to the rules governing the service of a claim form and contains the conditions upon which the court will take cognisance of a matter. The Judge was right to note that the comment at para 41 of Denton v White that it was “wholly inappropriate” to take advantage of an opponent’s mistake was directed at inappropriate resistance to applications for relief from sanctions which are bound to succeed and was made in a different context. Nor does the application of the Denton v White principles in Wilton UK Ltd v Shuttleworth assist the Appellants: it was agreed by the parties in that case that those were the relevant principles and in any event Judge Davis White QC expressly rejected a submission that the same principles were applicable for retrospective validation of service of a claim form under CPR r 6.15 and retrospective permission to bring a derivative claim under the Companies Act 2006 as an “oversimplification”. See paras 126 – 130 and 156.
    1. Furthermore, although I do not agree with the Judge’s characterisation of the case of OOO Abbott v Econwall UK Ltd, a case which was also concerned with the application of CPR r 6.15, upon which the Master relied, as a case in which the defendant had “contributed” to a misunderstanding, I do agree that the Master was wrong to rely upon it. It seems to me that on a fair reading of the facts in the OOO Abbott case, the claimants’ solicitor had simply misread the defendants’ offer for an extension of time for service. However, in my judgment, the absence of a limitation defence in that case is sufficient to distinguish it from the facts with which the Master was concerned.
(ii) Technical game playing
    1. I also consider that the Judge was right to decide that the Master had been wrong to decide that there was technical game playing in this case. The only relevant difference between the facts of the present case in relation to the conduct of those in receipt of the defective service and those in Barton is that in this case, it is clear from the facts that Mr Dawson-Gerrard, of M&R, quite properly considered the authorities, advised his client and took their instructions, whereas in Barton it was only clear that the claimant had received an automatic reply with a number to contact if the case was urgent. There was no evidence that Berrymans appreciated that service was irregular prior to the deadline (although Floyd LJ was prepared to assume that this was the case in the Court of Appeal at para 49), and Berrymans had not met with its clients to seek instructions. I cannot see that this makes any difference, particularly in the light of what Lord Sumption said at para 22 of his judgment about the likely course of events. It is hard to see that taking the point that service was invalid, as in Barton, together with acting in a proper professional manner in researching the position, advising the client and taking their instructions can be recast as “technical games.” The position is entirely different from that in Abela where the defendant had deliberately obstructed service.
    1. As the conduct of M&R, or Phoenix, cannot be characterised as a breach of a CPR r 1.3 duty to warn CB of the defect in service and/or technical game playing, it follows that there is nothing in Mr Berkley’s submission that M&R, or Phoenix, ran the risk of their conduct being characterised as such in these proceedings.
(iii) Good reason – Courting disaster
    1. This ground of appeal was not pursued with any vigour, if at all, before us. In fact, Mr Berkley merely commented that it was not open to the Judge to go behind the Master’s finding that on the facts the delay was “wholly reasonable” in the absence of a challenge on the basis of perversity. In fact, the Judge dealt with this matter at paras 43 and 44 of his judgment and decided that it was indeed open to the defendant/Phoenix to challenge the Master’s finding as to reasonableness. There is no appeal against that decision. Furthermore, the manner in which the Judge dealt with whether the Appellants courted disaster by waiting until the end of the limitation period to serve the proceedings is consistent with the approach endorsed by Lord Sumption at para 23 of his judgment in Barton.
  1. For all the reasons set out above, I would dismiss the appeal.