Duty to a client vs duty to the court

There is much discussion as to whether solicitors owe more of a duty to the court than to their clients. Clients will be comforted to hear that the Court of Appeal has decided in their favour, in certain circumstances.

In Woodward and another v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985, the Court of Appeal unanimously dismissed an appeal against a decision which concluded that the overriding objective did not require a defendant to alert a claimant to the fact that its service of the claim form was defective before the limitation period expired.

The facts of the case are that the Claimants brought a claim in respect of a contract for the purchase of a drug alleged to be still under patent.

The Claimants, through their solicitors Collyer Bristow, had purported to serve the claim on the respondent’s solicitors, Mills & Reeve, by letter and email before the expiry of the issue of the claim form. Crucially, the claimant solicitors had not received confirmation from Mills & Reeve that they were authorised to accept service on behalf of the Defendants. Mills & Reeve were not authorised and so by serving the claim on Mills & Reeve, the solicitors for the Claimant had served the wrong people.

The claim form expired unserved the following day, by which point the limitation period had also expired. It was then that Mills & Reeve informed their opponents that they were not authorised to accept service on behalf of their clients.

Master Bowles, at the first hearing of the issue, considered that the court should exercise its power to validate service retrospectively, saying Mills & Reeve had failed to further the overriding objective with conduct which constituted the ‘deliberate playing of a technical game’. Master Bowles found that the duty to the court was more important than the entitlement of a party to take advantage of an opponent’s mistakes.

However, this decision was appealed and the court set aside the claim form and dismissed the action. The Civil Procedure Rules did not require a solicitor to draw attention to an opponent’s mistake, and there was no duty to correct errors even if solicitors knew they had been made. The judge had referred to Lord Sumption’s Supreme Court judgment in Barton v Wright Hassall (2018) where he said solicitors were under no duty to give the claimant advice, nor could they have done so without taking their own client’s advice.

The case reached the Court of Appeal after the Claimants appealed. The Court of Appeal found that there was no games being played and that “Lord Sumption made clear that even if there had been time to warn, the defendant’s advisers were under no duty to give advice, they could not have done so without taking instructions and it was inconceivable that they would have been authorised to do so.”

The Court of Appeal did say that depending on the facts, the position “may well be different” if a substantial period remains before limitation expires.

If you have any further questions on this, please do not hesitate to contact Stephen Foote.