Court of Appeal rules that litigant under no duty to flag opponent’s error

Woodward & Anor v Phoenix Healthcare Distribution Ltd, the relevant facts:

• The claimant’s solicitors purported to have validly served the claim form, by letter and email, on the defendant’s solicitors on the 17 October 2017, two days before expiry of the four month deadline for service (on 19 October 2017);
• The claim form was received by the defendant’s solicitors on 18 October 2017;
• On the 20 October 2017 the defendant’s solicitors wrote stating that service was defective since the they had never been nominated to accept service;
• The claimant’s solicitors then sent copies of the claim form to the defendant at two addresses;
• The defendant sought a declaration that the court had no jurisdiction to hear the matter. The claimants made a number of applications in relation to dispensing with service or the court exercising its discretion;
• The Master exercised his discretion under CPR 6.15 on the grounds that the defendant should have pointed out the error to the claimant’s solicitors, but on appeal His Honour Judge Hodge QC set aside service of the claim form and dismissed the action;
• The claimants’ appeal to the Court of Appeal was unsuccessful

Lady Justice Asplin said there was no “technical game playing” in the case and that the defendant’s solicitors were not under a duty to warn the other side that the purported service was defective. She explained the Master had erred in finding that the duty to the court was more important than the entitlement of a party to litigation to take advantage of an opponent’s mistakes.