Phoenix Healthcare Distribution Ltd v Woodward & Anor [2018] EWHC 2152 (Ch)

[2018] EWHC 2152 (Ch)

Case No CH-2018-000086

IN THE HIGH COURT OF JUSTICE

BUSINESS & PROPERTY COURTS

APPEALS LIST (Ch D)

Venue Rolls Building, Fetter Lane, London EC4

Date Thursday 26 th July 2018

Before

HIS HONOUR JUDGE HODGE QC

sitting as a Judge of the High Court

Between

PHOENIX HEALTHCARE DISTRIBUTION LIMITEDAppellant

- v –

Between

SALLY WOODWARDRespondent

MARK ADDISONRespondent

Mr aNDREW onslow QC and MISS HANNAH GLOVER (instructed by Mills & Reeve LLP) appeared for Appellant

MR Tim PENNY QC and MISS Narinder jhittay (instructed by Collyer Bristow LLP) appeared for Respondents

APPROVEDJUDGMENT

[1]This my extemporary judgment on the hearing of an appeal from a decision of Master Bowles in proceedings brought by Mrs Sally Woodward and Mr Mark Addison against Phoenix Healthcare Distribution Limited under appeal number CH-2018-000086.

[2]On this appeal, the defendant (and appellant) is represented by Mr Andrew Onslow QC leading Miss Hannah Glover (of counsel) and the claimants (and respondents) are represented by Mr Tim Penny QC leading Miss Narinder Jhittay (also of counsel).

[3]The order of Master Bowles from which the defendant appeals was made on 16th March 2018 following a hearing on 16th November 2017. By his order, the Master granted the application of the claimants, dated 23rd October 2017, for an order retrospectively validating service of the claim form on the defendant under CPR 6.15 (2), and the Master also dismissed the defendant's cross-application, dated 27th October 2017, for the claim form to be set aside for want of jurisdiction on the grounds that service was defective and that the claim was by then statue-barred.

[4]The appeal raises the following interesting and difficult question: On an application for retrospective validation of what is now accepted to be the defective service of a claim form, and where any new claim would now be statute-barred, is it appropriate for the court to allow a respondent to take advantage of an honest mistake on the part of his opponent giving rise to the defective service, or does the furtherance of the overriding objective of the Civil Procedure Rules, or the court's reluctance to allow a party to play technical games in respect of service, require the respondent to alert his opponent to the mistake where to do so would be contrary to the respondent’s substantive interests in the litigation?

[5]The brief facts giving rise to the applications and appeal may be summarised as follows: The claimants' causes of action, in contract and in misrepresentation, accrued on 20th June 2011. Those causes of action therefore became potentially time-barred as from 20th June 2017. The claim form was issued on 19th June 2017. The claim form and particulars of claim were sent, expressly by way of service, by the claimants' solicitors, Collyer Bristow, to the defendant's solicitors, Mills & Reeve, by email and by first class post on 17th October 2017.

[6]Collyer Bristow's letter of 17th October 2017 referred to an earlier letter from Mills & Reeve in which they had requested further particularisation of the claimants' claim. The letter continued:

"In order to do so in as cost-effective a manner as possible, and in order to protect our clients’ position on limitation, we enclose by way of service on you the following documents: (1) Claim form issued on 19th June 2017; (2) Particulars of claim filed with the court and despatched by first class post to you today; (3) Annexes to the particulars of claim; and (4) a response pack. Please acknowledge safe receipt."

[7]That email received an email response some five minutes after it had been sent which made it clear that the email had been read within five minutes of it having been sent to Mills & Reeve by Collyer Bristow. There was no further response from Mills & Reeve until 20th October 2017, by which time the time for service of the claim form had expired; it had done so at midnight on 19th October 2017.

[8]The letter from Mills & Reeve referred to Collyer Bristow's email and attachments, and the hard copy letter which had apparently been received on 18th October 2017. The letter stated that, for the reasons set out below, the defendant's position was that Collyer Bristow had not served the claim form and that therefore the court did not have jurisdiction to hear it; the four months period for service having by then expired, the claim form had expired also.

[9]The letter went on to refer to the provisions for service on a solicitor set out in CPR 6.7. Mills & Reeve pointed out that they were not authorised to accept service of the claim form; neither they nor the defendant had confirmed to Collyer Bristow in writing that they were authorised to accept service of any claim form on the defendant's behalf at Mills & Reeve's address. The letter pointed out that where no solicitor was authorised to accept service, the claim form should be served on the defendant, and gave particulars as to where that might be done in the case of the defendant as a company registered in England and Wales. The letter pointed out that the claimants' solicitors had, on the claim form, correctly identified the correct address for service as being the defendant's address in Runcorn. The letter stated that Collyer Bristow had not served the claim form on the defendant at that address, and since service had not taken place within the period of validity of the claim form, the defendant's position was that there were no live proceedings. The claimants' agreement was sought to that position. If confirmation to that effect was not received by a certain date, or unless the claimant was able to demonstrate valid service, it was said that Mills & Reeve would have no alternative but to file an acknowledgment of service contesting jurisdiction. Following that, they would make an application for an order declaring that the court had no jurisdiction to hear the claim, with an order that the claimants pay the defendant's costs.

[10]Collyer Bristow immediately took steps to effect service of the claim form on the defendant at the address stated in the claim form. That was done by email. But that was done on 20th October 2017. Unfortunately, that was one day too late.

[11]In due course, and with remarkable speed, applications were issued by the claimants seeking to validate service of the claim form and by the defendant challenging that service.

[12]Mr Onslow, for the defendant, accepted during the course of this hearing that if Collyer Bristow had been informed on 17th October 2017 of the defective service on Mills & Reeve, it could, and would, have effected valid service on the defendant company before the claim form expired on 19th October 2017.

[13]Master Bowles's decision was handed down on 16th March 2018. His order declared, pursuant to CPR 6.15 (1) and (2), that the steps taken by Collyer Bristow on 17th October 2017 to serve the claim form and particulars of claim by first class post and by email on the defendant's legal representatives, Mills & Reeve, constituted good service. He ordered that the defendant's application should be dismissed, and he made consequential provision for costs. Paragraph 5 of the Master's order gave the defendant permission to appeal paragraphs 1 and 2 of his order in respect of the Master's decision under CPR 6.15. He also stayed the substantive claim pending the resolution of the defendant's appeal.

[14]The appeal file does contain an order from Henry Carr J, dated 2nd May 2018, giving permission to appeal but it seems to me that that was redundant in view of the terms of paragraph 5 of the Master's order. This is an appeal brought with the permission of the Master from whose decision the appeal lies.

[15]The appellant's notice was dated 5th April 2018. It was accompanied by a skeleton argument from Mr Onslow and Miss Glover dated 4th April 2018. They summarised the essential facts, which were described as 'simple' at paragraph 2. The claimants had issued proceedings on the last, or possibly the next to last, day of the applicable limitation period. Some two days before the expiry of the four months period allowed for service, the claimants had purported to serve the claim form and particulars of claim only on solicitors, Mills & Reeve, who had previously corresponded on the defendant's behalf about the claim. The claimants had been represented at all relevant times by solicitors, Collyer Bristow. Service in that way was said to be invalid because Mills & Reeve were not instructed to accept service, and neither the defendant nor Mills & Reeve had notified the claimants that Mills & Reeve were so instructed.

[16]Having considered the applicable rules and the history of the matter, Mills & Reeve had come to appreciate that there had not been good service. They had taken the view that neither they, nor their clients, had been obliged to alert the claimants to their error. After consultation with Mills & Reeve, the defendant had decided not to alert the claimants to their error until after the time for service had expired.

[17]On the claimants' application for an order under CPR 6.15 (2) that the steps taken by way of purported service on Mills & Reeve amounted to good service, the Master had decided that there was good reason to make such an order. The sole basis for that decision was that in accordance with the obligation under CPR 1.3 to help to further the overriding objective, and in order to avoid inappropriate ‘technical game playing’ in respect of service, the defendant and/or Mills & Reeve had been obliged to alert the claimants to their error.

[18]The Master's decision is said by the defendant to break new legal ground. There was no finding that the defendant, or its solicitors, had caused or contributed to the claimants’ error in any way. Indeed, the Master had explicitly rejected the claimants' case to that effect. The decision was based solely on the Master's view of the consequences in law of the parties' duties under the CPR, and to avoid inappropriate technical game playing, leading him to the conclusion that, in failing to alert the claimants to their error, the defendant, by itself and/or by its solicitors, had acted inappropriately and in breach of its obligation to help to further the overriding objective. There is said to be no previous case in which a court has so held. What is more, the Master's conclusion is said to stand in sharp conflict with his rejection of the claimants' case that neither the defendant, or Mills & Reeve, were in breach of any legal duty owed to the claimants, or arising under the Solicitors’ Regulation rules.

[19]The facts of the instant case are, with some variation in the detail of the relevant defects in service, said to be common to many other cases. If the Master's decision is correct, the implications are said to be significant and wide-ranging. It would mean that the introduction by the CPR of the overriding objective has had a much more radical effect on the conduct of litigation, and the rules governing the service of proceedings, than had previously been appreciated by the many courts who have considered such matters.

[20]The Master's decision is said to be wrong for the following reasons:

[21]First, it is said to be contrary to, or inconsistent with, the recent judgment of the Supreme Court in the case of Barton v Wright Hassall LLP

[2018] UKSC 12

, reported at [2018] I WLR 1119, to other authority, and to the well-established principle that a litigant is not generally obliged to point out an opponent's mistake, and also the Master's own reasoning.

[22]Secondly, it is said to require acceptance of the proposition that a potential defendant is obliged to notify the claimant of a defect in service even when doing so would deprive him of a limitation defence. It is said that the Master wrongly took no account of the fact that prejudice would thereby be caused to the defendant.

[23]Thirdly, the Master's decision is said to be inconsistent with his own reasoning and conclusions in rejecting the submission that there is a duty as between the parties and/or imposed by professional conduct rules to notify an opponent of mistakes such as the present.

[24]Fourthly, it is said that the Master wrongly disregarded the fundamental importance of the service of proceedings and its strict regulation by the CPR and the court, especially in situations engaging limitation issues.

[25]Fifthly, it is said that the Master's decision wrongly deprived CPR 6.15 of its intended force and purpose and/or it reverses its effect, contrary to the terms of CPR 6.15 and to consistent legal authority.

[26]On the Master's reasoning:(a) a defendant who knows that purported service is defective is under a duty to waive non-compliance with the rules of the service; and

(b) to establish a good reason, it is sufficient for the claimant, or its solicitors, to prove that an honest mistake known to, or suspected, by the defendant, or its solicitors, has been made, and that there is time still to correct that mistake. Neither proposition is said to represent a correct application of CPR 6.15.

[27]The grounds of appeal originally took a further, and preliminary, point: that at the time of Mills & Reeve's receipt of the claim form, CPR 1.3 was not engaged at all because the defendant was not yet a ‘party’ to the proceedings. That threshold point was abandoned shortly before the hearing of the appeal and, in my judgment, rightly so.

[28]

CPR 7.2

(1) makes it clear that proceedings are started when the court issues a claim form at the request of the claimant. Provisions for service within and outside the jurisdiction clearly recognise that someone may be a ‘party’ to proceedings before they have been served. CPR 6.21 (4) speaks in terms of the provision of a copy of a document for each ‘party’ to be served, as does CPR 6.22

(2) (a). CPR 6.40 (1) contains provisions about the method of service of a claim form or other document on a ‘party’ out of the jurisdiction. CPR 19.4 (1) also recognises that a person may be a ‘party’ prior to service.

[29]If CPR 1.3 were not engaged prior to service, then it seems to me that neither would the provisions of CPR 1.1 (2) (a), which requires the court, so far as is practicable, to ensure that the ‘parties’ are on an equal footing. The Pre-Action Protocols also refer to persons as ‘parties’ pre-action.

[30]So, in my judgment, the defendants were right to abandon the threshold point that CPR 1.3 was not engaged in the present case at all.

[31]The defendant's arguments in support of their appeal were developed at paragraphs 45 and following of its skeleton argument dated 4th April 2018.

[32]The claimants respectfully invite the court to uphold the Master's order for the reasons that he gave in what is described as ‘a comprehensive and detailed’ reserved judgment (the neutral citation number of which is

[2018] EWHC 334 (Ch)

), but also, and alternatively, for the further reasons outlined in the respondents' notice. The respondents develop their arguments in support of the Master's decision at paragraphs 18 to 38 of their skeleton argument dated 25th April 2018.

[33]By their respondents' notice, the claimants submit that even if the Master was wrong in that:(1) the appellant was not in breach of a duty to the court arising under the overriding objective and/or

(2) its silence cannot properly be characterised as technical game playing, there is said to be, nevertheless, good reason, on the facts of the present case, to justify retrospective alternative service by reason, in particular, of the following:

[34]First, that the respondents acted reasonably in not taking steps to serve the claim form until after the particulars of claim had been signed off (as the Master found). This is said not to be a case where they courted disaster by waiting until the last week of the claim form's validity. But for this reasonable delay and, in particular, the first claimant's serious illness, service would have been attempted earlier; and had the same error been made more than two weeks earlier, then that would have become apparent to Collyer Bristow as and when no acknowledgment of service was received, or an acknowledgment of service objecting to the jurisdiction was served, and the defect could have been remedied before the claim form expired.

[35]Secondly, the appellant was aware from the inter-partes correspondence of the nature of the claims against it and of the fact that a claim form had been issued.

[36]Thirdly, the appellant not only became aware of the existence of the contents of the claim form before its expiry, but they did so as a result of purported service.

[37]Fourthly, the error by Collyer Bristow in purporting to serve on Mills & Reeve rather than on the defendant was a single, one-off, inadvertent and honest mistake, arising from the inter-partes correspondence, as opposed to a continuing, egregious and negligent course of conduct, and therefore does not weigh materially against the grant of relief.

[38]Fifthly, even if the defendant's silence following the sending of a ‘read receipt’ was not a breach of duty and/or technical game playing, it is still relevant to note that:(a) there would have been time to remedy the error had Collyer Bristow been notified of it, and

(b) the defendant made a deliberate decision not to disclose the error, and such conduct was inconsistent with the wording, or the spirit, of the overriding objective, even if no duty was owed pursuant to CPR 1.3.

[39]Sixthly, the application under CPR 6.15 (2) was made at the earliest possible opportunity.

[40]Seventhly, the prejudice to the defendant in losing a limitation defence is more than matched by the other factors identified by the claimants.

[41]The appellant's response to the respondents' notice is set out in their supplementary skeleton argument dated 25th May 2018. They say that the claimants have no real prospect of upholding the Master's decision on the basis of the facts and matters alleged in the respondents' notice. To do so would require the court to substantially depart from well-settled principles as to:(1) the consequences of a party courting disaster by delaying service of a claim form;

(2) the impact of a claimant’s solicitor's negligence on the availability of CPR 6.15 relief; and

(3) the significance of a defendant's accrued limitation defence.

[42]At paragraphs 3 to 5 of their supplemental skeleton argument, the appellant submits that the Master's finding that the claimants, through their solicitors, Collyer Bristow, acted reasonably in not taking steps to serve the claim form until after the particulars of claim were settled was plainly wrong and should be overturned for the reasons that they develop at paragraphs 8 to 17 of the supplemental skeleton argument.

[43]At paragraph 12.2(b) of a respondents' note dated 19th June 2018, which was primarily directed to the Court of Appeal's recent judgment in the case of Societe Generale v Goldas Kuyumculuk

[2018] EWCA Civ 1093

, the respondents point out that the Master's finding that they acted reasonably in waiting to finalise the particulars of claim before serving the claim form was not challenged by the defendant in its grounds of appeal; and in his oral closing Mr Penny, for the claimants, reiterated this point. This provoked strong objection from Mr Onslow, for the defendant, who pointed out that the challenge arose only as a result of the respondents' notice, and not as a separate ground of challenge to the Master's decision on this appeal.

[44]In my judgment, this ground of challenge to the Master's finding was clearly foreshadowed by, and developed in, the appellant's supplemental skeleton; and, as Mr Penny disarmingly acknowledged in his very brief rejoinder, he was not taken by surprise by the argument. In my judgment, it is indeed open to the defendant, on this appeal, to challenge the Master's finding as to the reasonableness of the claimants' conduct in delaying service of the claim form until after the particulars of claim had been finalised.

[45]I do not propose to recount in detail what is set out in the parties' written skeleton arguments and submissions. Leading counsel for both parties to the appeal delivered and developed their oral submissions with clarity and conviction over the two days on which this appeal was heard, Tuesday 24th and Wednesday 25th July, concluding at about 2.30 yesterday afternoon.

[46]Mr Onslow submitted that although theoretically two issues arose on this appeal, in reality there was only one, namely whether a duty under CPR 1.3 to speak out arose on the facts of the instant case. Those facts were said to be extremely simple and rather common. If the Master was right, it was very hard to see how his conclusion would not apply across the board in cases such as this, or in all areas of litigation where it was known that the opposing parties' solicitors had made a mistake.

[47]The two issues were:(1) whether the defendant's obligation to comply with CPR 1.3 to help the court to further the overriding objective meant that the defendant was under a duty to notify the claimants, via their solicitors, before the time for service expired, of the defective service, and

(2) if not, as raised by the respondents' notice, nevertheless whether there was some good reason for validation retrospectively under CPR 6.15.

[48]Mr Onslow made three important overall points. First, the respondents argue that the decision was one of case management, or an evaluative matter. The appellant accepted that the decision as to good reason was a matter of overall evaluation for the Master. But this appeal was concerned with the question whether the Master was right or wrong as a matter of principle in the way he had interpreted and applied CPR 1.3. If he was wrong in that, then his validation order could only stand if, on an assessment of the relevant facts, other than the duty under CPR 1.3, the court were to find a good reason to validate the defective service. Mr Onslow accepted that the defendant had the burden of showing an error of law on the Master's part.

[49]Secondly, the Supreme Court in the Barton case was said to have warned against copious citation of authority on the issue of good reason. But this appeal court did need to look at the authorities on the issue of the duty to warn.

[50]Thirdly, this appeal could only be concerned with the first of the two issues because the loss of a limitation defence was at the heart of the issues the court must consider. The loss of a limitation defence was a very weighty factor against validation. Unless the circumstances were exceptional, the claimants must show that the good reason on which they relied, and which the Master had found, impacted upon the expiry of the limitation period or, more precisely, the period of validity of the claim form. Good reason must establish that it had been difficult to effect valid service in time.

[51]If the Master was right about the duty to notify, then the defendant accepted that that did impact upon the expiry of the limitation period because if there was a duty to warn, then Collyer Bristow could have effected service in time. If the Master's reasoning stood up to scrutiny, then Mr Onslow did not dispute that it impacted upon the limitation period; but otherwise it did not. The need to wait to serve the particulars of claim with the claim form did not impact upon the expiry of the limitation period. It was not right to wait for the particulars of claim if the claimants were thereby courting disaster. This appeal was therefore said to be really only about issue 1.

[52]It also raised the question what was meant by 'technical game playing'. That was said by Mr Onslow to amount to a breach of CPR 1.3.

[53]Whilst Mr Onslow and his junior had advanced seven separate submissions in support of their appeal in their main skeleton, there were in fact said to be four essential points.

[54]The first was that the Master's conclusion was either contrary to binding Supreme Court authority, or to compelling reasoning at the highest level on almost identical facts. A litigant was generally under no obligation to tell his opponent of his mistakes.

[55]Secondly, the Master's approach was said to turn CPR 6.15 on its head and could not be reconciled with the binding authority of the Supreme Court decisions in Abela v Baadarani

[2013] UKSC 44

, reported at [2013] I WLR 2043, and in Barton v Wright Hassall LLP (previously cited). On the Master's approach, all that a claimant had to do in order to obtain an order validating defective service was to demonstrate:(1) that the claim form had come to his opponent's attention;

(2) that an honest mistake had been made; and

(3) that that mistake had come to the attention of the opponent in time to notify the claimant so as to enable him to do something about the mistake. Mr Onslow submitted that that was simply not enough; there had to be something more. The Master was said to have sanctioned a result which was inconsistent with the basic ratio and/or reasoning in the cases of Abela v Baadarani and Barton v Wright Hassall LLP.

[56]Thirdly, the Master had failed to take any account of limitation, save to say that the Master's good reason for validating service trumped the defendant's limitation defence.

[57]Fourthly, the Master had derived the principles he applied from the well-known case of Denton v White

[2014] EWCA Civ 906

, reported at

[2014] 1 WLR 3926

. That was said to make no sense at all because the observations in Denton had been concerned with a party's response to an application for relief from sanctions. One could not adapt the Denton principles to match the circumstances of the instant case.

[58]The claimants' reasons for failure to serve the claim form in time had been relegated by the Master in his judgment. He had not tackled the frontline question of the explanation for the difficulty in effecting service head on.

[59]The claimants were said to have completely ignored the issue of the potential impact of a limitation period. They had been working hard under circumstances of some difficulty to get the particulars of claim completed, but that was really not to the point when the claim form had to be served by a specific date. The claimants had been courting disaster by not achieving that service. Mr Onslow made the point that there had been solicitors acting for the claimants throughout. Despite the expiry of the limitation period the day after the claim form was issued, and despite the knowledge that the claimants might be courting disaster by delaying service of the claim form, their solicitors had chosen not to serve the claim form timeously, but rather to await completion of the particulars of claim. However, an application to extend time for service of the particulars of claim could have been made.

[60]The solicitors for the claimants had made an error - which Mr Onslow characterised as ‘negligent’ - in thinking that everything had to be done before the claim form was served. Disaster then did occur because the claimants' solicitors assumed that they could simply serve Mills & Reeve. The Master found that there was no proper basis for making that assumption.

[61]Mr Onslow pointed out that at the time the claim form was issued, it had been prepared with a view to service on the defendant at its offices in Runcorn and not on the defendant's solicitors. Collyer Bristow had not checked with Mills & Reeve whether they had been instructed to accept service. The relevant fee earner had just made an assumption; but assumptions do not always work.

[62]Mr Onslow submitted that the Supreme Court decision in Barton v Wright Hassall LLP was remarkably close to the facts of the present case. He referred to paragraph 2 of the headnote, and he submitted that each of the features identified there, with some adjustment, applied to the present case. That was said to be the basis upon which the majority of the Supreme Court in Barton had dismissed the appeal. The defendant could see no valid points of distinction. Lord Sumption's observations for the majority (at paragraph 22 of the judgment in Barton) were said to apply precisely to the situation here. There was said to be nothing to suggest that the minority had disagreed with Lord Sumption's analysis.

[63]The claimants relied on ‘technical game playing’, but what did that mean in the present context? Mr Onslow submitted that it meant simply the taking of arid procedural points which, though technically correct, were contrary to the spirit in which litigation should be conducted in terms of furthering the overriding objective of the Civil Procedure Rules.

[64]It could not be asserted that Lord Sumption, and the majority of the Supreme Court, had simply overlooked the overriding objective. The court had specifically rejected what was said to be an argument similar to that upon which the claimants relied in the present case, and which had led the Master to make his decision.

[65]Mr Onslow also relied upon passages in the more recent judgment of the Court of Appeal in the case of Societe Generale v Goldas Kuyumculuk

[2018] EWCA Civ 1093

. Whilst the Court of Appeal had said that it could not be right to say that negligence or incompetence of a claimant's lawyers was always a bad reason for making an order for alternative service, it did not follow that it was a good reason. That must depend on the facts of the particular case.

[66]At paragraph 24 the Court of Appeal had referred to an observation of the judge at first instance, Popplewell J, at paragraph 49 sub-paragraph (8) (b) of his judgment, to the effect that, save in exceptional circumstances, the good reason to grant relief must impact on the expiry of the limitation period, for instance where the claimant could show that he was not culpable for delay leading to it, or was unaware of the claim until close to its expiry.

[67]At paragraph 30 the Court of Appeal refused to accept that that passage in the judgment of Popplewell J showed any error of principle in his approach to limitation. Thus, the good reason for validating service retrospectively must impact on the expiry of the limitation period and the period for service of the claim form.

[68]Mr Onslow submitted that, shorn of the Master's ‘good reason’ that Mills & Reeve had been obliged to tell Collyer Bristow that the latter had made a mistake, any other reason could not be said to impact on the expiry of the limitation period, as required by the Court of Appeal in Societe Generale v Goldas Kuyumculuk.

[69]Waiting to complete the particulars of claim before serving the claim form was said to be no good reason for the defective service. Rather, it was said to be a thoroughly negligent one.

[70]Mr Onslow drew an analogy between the present case and the Barton v Wright Hassall LLP case. In both cases, no attempt had been made to serve in accordance with the CPR. As in Barton, Collyer Bristow had just assumed, without checking, that they could effect service in the manner that they did where there had been no good reason to make that assumption. Collyer Bristow had thereby been courting disaster because they had left service very close to the expiry of the claim form. There had been no good reason for doing that.

[71]As in Barton v Wright Hassall LLP, retrospective validation in the present case had the effect of depriving the defendant of what was said to be a cast-iron limitation defence. The defendant would therefore suffer palpable prejudice if relief were granted.

[72]There had been no possible reason for misunderstanding what had been required in terms of service because the rules for service on solicitors were clear and were basic. The failure to serve had been the result of a negligent error by a trained professional in relation to an important aspect of the CPR.

[73]It was not a valid reason for not serving the claim form that the particulars of claim were awaited. What should have happened is that the claim form should have been served in time, and in good time; and the claimants' solicitors should then have sought, either by agreement or court order, an extension of time for service of the particulars of claim.

[74]The suggested reason for leaving service so late, namely the need to prepare the particulars of claim, had not impacted upon the expiry of the limitation period or the period of validity of the claim form. There was nothing exceptional amounting to a good reason.

[75]Crucially, neither Mills & Reeve nor the defendant had done anything to lead Collyer Bristow to think that Mills & Reeve had instructions to accept service, or that any error could be corrected.

[76]When all the factors, other than the allegation of breach of the overriding objective and technical game playing were taken into account, Mr Onslow submitted that it was impossible to find that there was good reason for validating service.

[77]If the Master was right in the reasons that he gave in that regard, Mr Onslow submitted that it would transform the legal landscape completely. Mr Onslow submitted that the decision of his Honour Judge Hacon, sitting in the Intellectual Property Enterprise Court in the case of OOO Abbott & Anor v Econwall UK Limited & Anor

[2016] EWHC 660 (IPEC)

, reported at

[2017] FSR 1

, was not in point. If it were in point, he submitted that it was wrongly decided on the point in issue.

[78]Mr Onslow invited the court to adopt the approach of his Honour Judge Pelling QC in the case of Higgins v ERC Accountants & Business Advisors Ltd

[2017] EWHC 2190 (Ch)

. Judge Pelling had, Mr Onslow submitted, correctly identified no difference between his approach and that of Judge Hacon. Insofar as there was any difference, the court should prefer Judge Pelling's view that solicitors were under no duty to correct errors by their opponent's solicitors, even assuming that they knew, or suspected, that such errors had been made.

[79]Limitation was said to be a very weighty factor to be weighed in the balance, and the Master had failed properly to do so.

[80]This was not a case of ‘technical game playing’ because it was a fundamental principle that a litigant was not obliged to point out an opponent's mistake.

[81]Mr Penny (for the claimants) sought to uphold the Master's judgment, which he described as ‘a model of detailed analysis of the issues arising’. He emphasised that Mr Onslow had to persuade the appeal court both that the Master's analysis of the overriding objective issue was wrong, and also that he had been wrong to characterise the defendant's behaviour as ‘playing technical games’.

[82]Mr Penny identified six factors that had been taken into account by the Master.

[83]First, that the claimant had acted reasonably in not serving the claim form until after the particulars of claim had been signed off on or around 14th October 2017.

[84]Secondly, that the claimants' solicitor had made a one-off honest mistake in purporting to serve Mills & Reeve rather than the defendant. She had formed the impression that she was duty-bound to serve on the defendant's solicitors.

[85]Thirdly - and this was something that Mr Penny criticised Mr Onslow for not having mentioned - the defendant's solicitors, having received the claim form and particulars of claim, had caused a ‘read receipt’ to be sent to the claimants' solicitors. The defendant's solicitor had readily identified a genuine mistake. He had immediately researched the relevant law. He had taken his client's instructions, and together the defendant and its solicitors had decided that it would not be in the defendant's best interests to alert the claimants' solicitors to the error that had been made.

[86]Fourthly, the claim form had been brought to the attention of the defendant by purported service within the period of validity of the claim form. That was a factor that had been identified by Popplewell J at first instance in Societe Generale v Goldas Kuyumculuk as one of importance.

[87]Fifthly, it was clear from copious passages in his judgment that the Master had fully appreciated that if he allowed the claimants' application to validate service of the claim form, the defendant would thereby lose a limitation defence. Mr Penny cited paragraphs 4, 10, 28, 32, 82, and 86 of the main judgment, and paragraphs 6 and 9 of the Master's addendum. To those it seems to me can also be added references in paragraphs 69, 74 and 87.

[88]Sixthly, in the face of deliberate and calculated silence by the defendant, and its solicitors, in the light of a perceived obvious error by the claimants' solicitors, the Master had formed the view that there was both a breach of the overriding objective and also’ technical game playing’.

[89]Mr Penny pointed out that by CPR 10.3, if no particulars of claim had been served with the claim form, then the time for service of an acknowledgment of service would have been extended until 14 days after service of the particulars of claim. There would have been, on the defendant's analysis, no duty to alert the claimants' solicitors to the obvious error about service until the defendant came to file its acknowledgment of service. The defendant had taken the deliberate decision not to alert the claimants' solicitors to their mistake.

[90]It could only be right that at some point in time the defendant had come under a duty, by reason of the overriding objective, to notify the claimants that they had misunderstood the position as to the party to be served. That must be once the defendant had had a chance to speak to its solicitors and give instructions. On the evidence, that had taken place on the day of service.

[91]In a second witness statement, the relevant fee earner at Mills & Reeve, Mr Richard Dawson-Gerrard, had stated (at paragraphs 16 and 17) that following receipt of the claim form, he and his trainee had considered whether Mills & Reeve had said or done anything to notify Collyer Bristow, or its predecessor solicitors, that Mills & Reeve had been instructed to accept service. They had concluded that there had been no such notification. They had then considered, in particular by reference to the Higgins case, whether there had been any obligation to notify Collyer Bristow that Mills & Reeve were not so instructed. They had concluded that there was no such obligation. Consultation with the defendant, their client, had then taken place. The decision had been made not to inform Collyer Bristow that Mills & Reeve were not instructed to accept service. If Mr Dawson-Gerrard had formed the view that there was an obligation to inform Collyer Bristow, he said that he would have acted on that view by informing that firm that Mills & Reeve were not instructed to accept service.

[92]The defendant may well have taken the view that its own interests did not align with their duty to further the overriding objective, but the existence of that duty could not, on Mr Penny's submission, be confined by the consequences of compliance with the duty.

[93]The Master had been fully entitled to weigh in the balance what he considered to be ‘technical game playing’, and a breach of the overriding duty on the part of the defendant to further the overriding objective, when weighing in the balance whether there was good reason to validate retrospectively service of the claim form on the defendant's solicitors.

[94]Mr Penny emphasised that the defendant had not complied with its duty because it had hoped to attain a litigation windfall. He pointed out that all of the authorities relied on by Mr Onslow were ones where the defendant's solicitors had not had time to take instructions on whether any error could be corrected. The present case was unlike the position in OOO Abbott v Econwall UK Limited because here it was clear that a considered decision had been taken by the defendant, after consultation with its solicitors, not to raise the point. Mr Penny submitted that where there was knowledge that the opposing party had formed a clear misunderstanding, there was an obligation to correct it.

[95]Reference was made to a number of authorities where reliance had been placed on the overriding objective and the duty under CPR 1.3 so as to give rise to a duty to speak. The Denton v White case was said to be of general application, and it represented the spirit in which the CPR must be approached.

[96]OOO Abbott v Econwall UK Limited was an example of a case where the claimant's solicitor had made an honest mistake by misreading a letter and the court had held there to be a duty on the part of the opposing party, and its solicitor, to correct that mistake. The fact that the case did not engage the Limitation Act was said not to affect the judge's analysis. The Master had been perfectly justified in choosing to follow the Abbott decision.

[97]Higgins v ERC Accountants & Business Advisors Ltd was said to be distinguishable in two respects. First, because there had been no time, on the facts, to correct the mistake so as to enable remedial action to be taken. Secondly, and in any event, Judge Pelling had directed his observations to the position of the defendant's solicitors, and not to the position of the defendant itself. The defendant's solicitors had been under a duty to act in their client's best interests. The defendant's solicitors had been under no personal obligation under the Civil Procedure Rules. Higgins was not in point because the actual defendant had never been consulted, and there had been no opportunity to do so. In Higgins the claim form had expired before the defendant had known of the purported, but invalid, service.

[98]Mr Penny submitted that the Barton case was clearly distinguishable; that was because there was no evidence in that case that the defendant's solicitors had had enough time to consider the issue and take instructions from their client.

[99]In the present case by contrast, immediately the claim form had been received, the position had been analysed, and the defendant had been consulted. That was said to be fundamentally distinguishable from the position in the Barton case.

[100]Lord Sumption, in the course of his judgment, had given a green light to the ad hoc development of principles in this area. The observations at paragraph 22 of Lord Sumption's judgment were obiter. Lord Sumption had been saying that the solicitor was under no duty to the claimant to advise him of his errors; but he had not been addressing the question whether any duty arose on the part of the defendant, or the question whether any such duty might have arisen under the overriding objective. There had been no citation in Barton of either of the decisions in Abbott or Higgins. Lord Sumption had simply not been considering whether there was any duty to correct any misunderstanding arising as a result of the overriding objective and CPR 1.3

[101]Mr Penny emphasised that the Master had founded his decision on two separate matters. There was not only the duty under CPR 1.3, but there was also the duty to speak out so as to avoid ‘technical game playing’ in relation to the service of proceedings. That was said to be a separate ground for his findings.

[102]Mr Penny referred me to the position in the Abela v Baadarani case. That appeared to be the origin of the phrase 'playing technical games': see the citation from Lewison J's judgment at paragraph 38.

[103]At paragraph 39, Lord Clarke had accepted the submission made on behalf of the respondent that he had been under no duty to disclose his address. Nevertheless, his refusal to co-operate was seen by Lord Clarke as a highly relevant factor in deciding whether there was a good reason for treating as good service the delivery of the documents in the circumstances of that case. That showed, Mr Penny submitted, that there was a distinction between the duty to further the overriding objective and’ technical game playing’ in respect of service. Mr Penny emphasised that it had been the conduct of the defendant, and not that of his solicitor, which had been treated as ‘game playing’, and that that finding had not been founded upon the duty under CPR 1.3. Mr Penny pointed out that the Abbott case was the only one of the cases, other than Abela, where ‘technical game playing’ had been made out.

[104]Mr Penny submitted that what had been referred to in Higgins had been the conduct of the solicitor. The conduct in that case could not have been ‘technical game playing’ because the claimant had given no instructions to his solicitors to conduct themselves in any particular matter.

[105]In Barton the Supreme Court had not been grappling with a case where the defendant's solicitor had spoken to the defendant client, had taken instructions, and the defendant client had made a decision not to disclose, or had instructed his solicitors not to say anything. That situation had not arisen. Lord Sumption's observations at paragraph 22 of Barton had to be treated with some caution. Although the appellant had asserted that the client had been ‘playing technical games’, in Barton that assertion could not be made out on the facts. Here, by way of contrast, a deliberate and calculated decision had been made to sit out the point. It was not Mills & Reeve who had been playing technical games but rather the defendant, albeit in consultation with its solicitors.

[106]Mr Onslow intervened at this point in the argument to object that the Master's criticisms had been directed to Mills & Reeve and not to the defendant. Mr Penny pointed out that at paragraph 87 of his judgment the Master had referred to 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, and that it had fallen squarely within the ambit of ‘game playing’. Mr Penny submitted, in my judgment correctly, that when the Master had been referring to Mills & Reeve, he was plainly doing so in the context of the solicitors acting as agent, and with the express authority, of their client, the defendant. Mills & Reeve had effectively been acting vicariously on behalf of the defendant. The target of the Master's finding, although in terms addressed to Mills & Reeve and the relevant fee earner, had ultimately been addressed to the defendant itself, on whose behalf Mills & Reeve had been acting. There had been ‘game playing’ with the authority of the defendant. Mills & Reeve had simply been the solicitors instructed by the defendant to deal with the issue.

[107]Mr Penny submitted that, following Abela, ‘technical game playing’ was relevant. It had been technical game playing by the defendant to fail to disclose the error. Mr Penny analysed Lord Sumption's observations at paragraph 22 of Barton as saying that it could not be characterised as ‘game playing’ for a solicitor to omit to say something before the solicitor had had a chance to take instructions from his client, to advise the client, and to take instructions as to how to proceed. That was because the solicitor had a duty to act in the best interests of his client. That was said to be why, in Higgins, Judge Pelling had rejected the submission that the solicitors had been engaged in game playing. That was also why the position in the present case was different. Here, a decision had been taken by the client to supress the error. That was also why, in Abbott, the opposite conclusion had been reached from that in Higgins. There it was quite clear, from paragraph 38 of Judge Hacon's judgment, that the defendant's solicitors had discussed the uncertainty with their client, and a decision had been made not to clear up that misunderstanding. As a result, Judge Hacon had come to a different conclusion from that of Judge Pelling. That was because the solicitor had had an opportunity to take instructions from the defendant in that case, and it had been ‘game playing’ by the defendant not to draw his opponent's attention to the obvious misunderstanding. There could be no game playing by a defendant if he did not know the relevant facts.

[108]In Barton, the Supreme Court had not proceeded to analyse, because it was not addressing, the situation where the client had gone on to discuss the position with his solicitors and had made a decision not to disclose. In the instant case, the defendant's conduct was obviously a factor relevant to the service of the claim form. As in Abela, it had made it more difficult to effect valid service of the claim form. It was similar to the defendant's exercise of his right in Abela not to disclose his address.

[109]Mr Penny submitted that ‘technical game playing’ was ‘conduct, whether by action or inaction, the purpose of which was to frustrate the service of the claim form within the period of its validity’. It was something different from compliance with the duties owed under CPR 1.3 and the overriding objective. To be ‘technical game playing’, there did not have to be a breach of the overriding objective.

[110]The defendant's conduct was said to be highly relevant to the CPR 6.15 analysis. It was conduct of the defendant, not of his solicitor absent the defendant's instructions. It could encapsulate conduct or inaction that the defendant was entitled to do, or not to do, under the Civil Procedure Rules. That was made clear by Abela.

[111]Mr Penny submitted that this case was not about nurse-maiding one's opponent but rather about clarifying genuine misunderstandings. He repeated his submission that the scope of the duty to correct a misunderstanding could not be determined by reference to its consequences.

[112]The court in the present case was not bound by Barton because the crucial facts in this case had not arisen in Barton, and the Supreme Court in Barton had not considered those issues. Higgins did not apply and could not be a compelling authority on the facts of this case because in that case the client had not had the opportunity to give instructions about the service of the claim form.

[113]Mr Penny rejected Mr Onslow's ‘floodgates’ argument. The analysis under CPR 6.15 would always be fact-specific, and the Master's analysis would only apply in a case where there was a genuine error which impacted upon the limitation period, and which could be corrected within the period of validity of the claim form. The defendant's conduct was said always to be a relevant factor.

[114]In his reply, Mr Onslow reiterated that one ‘courted disaster’ simply by leaving service of the claim form too late. He submitted that one could not sensibly distinguish between solicitor and client for present purposes. There was no principled basis to distinguish between the duties owed by a solicitor and his client. The client was to be treated as one with the solicitor. Any other view would lead to satellite litigation about the extent of the client's knowledge of the relevant error. It would lead, potentially, to perverse distinctions being drawn towards the end of the limitation period.

[115]Mr Onslow accepted that it was clear - and the defendant had always accepted - that CPR 1.3 was capable in certain circumstances of imposing on a party, or their solicitor, certain duties in relation to the conduct of litigation, and of denying an advantage conferred by the CPR. But there was said to be no unifying principle other than CPR 1.3 itself, which was to be applied on a case by case, and situation by situation, basis, in cases of infinite variety.

[116]Mr Onslow refuted Mr Penny's submission that Judge Hacon in Abbott had established any broad general principle to be applied in all cases and across the broad. One could not read paragraph 41 of Judge Hacon's decision in Abbott as establishing some general principle in relation to service or otherwise because the judge had already made it clear, at paragraph 40, that there was no general duty. The issue in Abbott had been the correction of a genuine misunderstanding. Where Mr Penny fell into error was in seeking to equate the concept of genuine misunderstanding with that of mistake. That could not be right because it would be inconsistent with what Judge Hacon had already said at paragraph 40. Abbott was simply addressing a particular case of misunderstanding in the course of correspondence between solicitors.

[117]Mr Onslow submitted that neither the pursuit of the overriding objective, nor compliance with the requirement to avoid ‘technical game playing’, could require the defendant to give up a limitation defence or compel him to waive defective service. He submitted that a party was not required to nursemaid his opponent. He submitted that the court should enquire whether the conduct in which the claimants submitted that the defendant should have engaged was really required of the defendant in order to help it to further the overriding objective. The rules themselves specified what the claimant must do to obtain relief from his mistake.

[118]Mr Onslow reiterated his submission, founded on Societe Generale, that if all that the claimant was able to rely on in a case such as the present, where limitation issues were engaged, was that the claimants had delayed service of the claim form whilst they prepared their particulars of claim, then that was not conduct which impacted on the expiry of the relevant period of validity of the claim form because the claimant himself bore responsibility for the decision to delay service of the claim form in order to prepare the particulars of claim, and that was nothing to do with the expiry of the validity of the claim form, and gave rise to no duty to speak out.

[119]Those were the submissions in summary; but I have had regard to all that has been written in the skeleton arguments as well.

[120]I therefore propose to set out my decision, and the reasons for it.

[121]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.

[122]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.

[123]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’.

[124]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.

[125]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.

[126]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.

[127]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.

[128]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.

[129]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.

[130]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.

[131]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.

[132]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

[133]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.

[134]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.

[135]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.

[136]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.

[137]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.

[138]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.

[139]It seems to me that the Master has there correctly identified the issue which he had to decide.

[140]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.

[141]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.

[142]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.

[143]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.

[144]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.

[145]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.

[146]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.

[147]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.

[148]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.

[149]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:

[150]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.

[151]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.

[152]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”.

[153]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.

[154]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”.

[155]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.”

[156]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.”

[157]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.

[158]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.

[159]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.

[160]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.

[161]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.

[162]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.

[163]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.

[164]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”.

[165]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.

[166]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.

[167]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.

[168]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.

[169]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.

[170]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’.

[171]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.

[172]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.

[173]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.

[174]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.

[175]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.

[176]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.

[177]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.

[178]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.

[179]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.

[180]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.

[181]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.

[182]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.

[183]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.

[184]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.

[185]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”.

[186]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.

[187]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.

[188]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.

[189]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.

[190]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.

[191]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.

[192]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.

[193]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.

[194]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.

[195]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.

[196]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.

[197]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.

[198]I know that it is very difficult in an extemporary judgment of this length but can you think of any matters that I have omitted to address in my judgment? MR ONSLOW: No, no – no obvious points that I can – I can think of, my Lord --- MR PENNY: No, I don’t think so, my Lord. MR ONSLOW: --- I don’t know whether (inaudible) can comment on it? JUDGE HODGE: No. MR ONSLOW: And, my Lord, it – it’s – well, we’ll come to consequential – other consequential --- JUDGE HODGE: Yes. MR ONSLOW: --- matters in a moment. JUDGE HODGE: Well, apart from costs are there any other consequential matters? I’ve taken the order from page 6, section 9 of the appellant’s --- MR ONSLOW: No. JUDGE HODGE: --- notice. MR ONSLOW: The – the order I – I was about address your Lordship on what the – the substantive order should encompass, and I think your Lordship has it in his last few sentences of your Lordship’s judgment, and my friend and I can – can draw up --- MR PENNY: Yep. MR ONSLOW: --- a – an appropriate minute and get it put before your Lordship as soon as possible. JUDGE HODGE: Yes. MR PENNY: My Lord, can I raise one point before --- JUDGE HODGE: Yes, of course. MR PENNY: --- my learned friend deals with costs? My Lord, I – I suspect it likely when we are considering the terms of your Lordship’s judgment, and whether or not to apply for permission to appeal, that we will give – be giving consideration whether to invite your Lordship to certify the matter as fit for leapfrogging, because of the significance that your Lordship has put on the Barton decision. And really a combination of the fact that (a) your Lordship described, I think, at the beginning of the judgment, the issue as being interesting and difficult, and at the end of the judgment your Lordship plainly regards Barton as being of highly persuasive authority, albeit not binding. JUDGE HODGE: Well, can I say this: as you know I have no power to give permission to appeal --- MR PENNY: No. JUDGE HODGE: --- since this is a second appeal. But can I say that had I had the power, this is a case where I would have given permission to appeal to the Court of Appeal, as a second appeal, because it does seem to me that it does raise issues of more general application, which should be considered by the Court of Appeal, and because, since I’m differing from a well-reasoned judgment of the Master, it is clearly one where the outcome could have gone either way. Having said that, however, I would not consider it an appropriate case for the Supreme Court, without it having been considered by the Court of Appeal in the meantime. I forget who it was in Barton who made the point that it is very rare for the Supreme Court to consider procedural appeals. MR PENNY: Lord Briggs, my Lord. JUDGE HODGE: I thought it might be Lord Briggs, and yet they’ve had to do so twice within about five years in Abela and then in Barton. And, in those circumstances, I don’t think it would be right to give permission for leapfrog, even if the Supreme Court would then have to accept the leapfrog. MR PENNY: Yes. My Lord, the – the test, if I can just – but we – I’m not making the application --- JUDGE HODGE: No. MR PENNY: --- I have 14 days to make the application --- JUDGE HODGE: Yes. 199. Now, I appreciate that those matters weren’t before your Lordship before your Lordship gave the indication, but we’re grateful for the – for the – for the indication and we’ll bear that in mind. But I wanted to flag up --- JUDGE HODGE: Yes. MR PENNY: --- the possibility --- JUDGE HODGE: Well – yes, well, procedural matters are pre-eminently matters for the Court of Appeal rather --- MR PENNY: Yes. JUDGE HODGE: --- than the Supreme Court. MR PENNY: Yes. JUDGE HODGE: Particularly where the relevant provision of the CPR has already been before the Supreme Court twice within the last five years. MR PENNY: Well, my Lord, I’m grateful for the indication. As I say, we have 14 days to apply to your Lordship for that certificate. We will obviously bear in mind your Lordship’s observations i – in that regard. JUDGE HODGE: Yes, it’s at paragraph 44, I think, of Lord Briggs’s judgment:

“It troubles me that the meaning and effect of CPR 6.15 has now been considered by this court, which does not lightly embark upon procedural questions, twice in recent years, and that on this occasion its meaning has divided the court.”

MR PENNY: Yes. JUDGE HODGE: I don’t think the Supreme Court would wish to be troubled a third time; and even it if were, I’m sure it would consider itself – I’m sure that it would consider that it would be beneficial to it to have the benefit of the Court of Appeal’s views. MR PENNY: My Lord, I think the way it works is that your Lordship – if your Lordship gives the certificate, then we have to make an application --- JUDGE HODGE: Yes. MR PENNY: --- for permission to the Supreme Court, and they, of course, would have the decision as to whether or not to grant permission, and presumably in doing so they could indicate that it’s a matter that should go to the Court of Appeal. JUDGE HODGE: Yes. MR PENNY: I merely flag to your Lordship that procedurally there are two routes --- JUDGE HODGE: Yes. MR PENNY: --- for us, and one of them is to invite your Lordship to make a – to grant a certificate, and we have 14 days to do that. JUDGE HODGE: Yes. MR PENNY: Thank you, my Lord. JUDGE HODGE: Well, you’ve heard what I have to say about (inaudible) MR PENNY: Yes, of course. MR ONSLOW: My Lord, I – and I’ve heard what your Lordship has to say, equally (inaudible) your Lordship to hear that in the brief response that we’ll be entitled to make to any application to the Court of Appeal, for permission from my learned friend’s side, we will seek to discourage --- JUDGE HODGE: Yes. MR ONSLOW: --- the Court Appeal from granting permission. JUDGE HODGE: Yes. (There followed a discussion on costs) --------------- We hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

Phoenix Healthcare Distribution Ltd v Woodward & Anor [2018] EWHC 2152 (Ch)

APPROVEDJUDGMENT

Cited in 3 later judgments