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Should a solicitor point out the faults of an opposing legal professional?
Authored by ARAG plc In-House Counsel Hector N. Stamboulieh (APIL Fellow)
Well, well, an interesting case reported by John Hyde in the latest edition of the Gazette asked the question whether a solicitor acting for one party should flag up an technical error by the solicitor for the other party, to assist that other party?
If I might summarise - Defendant solicitors who knew service of a claim had been defective, but waited until the claim form expired to flag up the mistake, were under no duty to raise the matter earlier, the Court of Appeal has ruled.
They stated in Woodward & Anor v Phoenix Healthcare Distribution Ltd, that there was no ‘technical game playing’ in the case and that the Defendant solicitors were not under a duty to warn the other side that its purported service was defective.
The claim was therefore set aside.
The Appellants, through their solicitors, Collyer Bristow, had purported to serve the Claim Form and Particulars of Claim on the Respondent’s solicitors, Mills & Reeve, by letter and email just before the expiry of the issue of the claim form and limitation. But, crucially, the Appellants’ solicitors had not confirmed that Mills & Reeve was authorised to accept service, (it was not), and it was common ground that this was not good service.
The claim form expired unserved the following day, by which point the limitation period had also expired.
At first instance, the court agreed to 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’. But on appeal, the claim was dismissed.
The Court of Appeal referred to Lord Sumption’s Supreme Court judgment in the case of Barton, which said that the Defendant’s solicitors were under no duty to give the Claimant advice, nor could they have done so without taking their own client’s advice.
Lord Sumption's approach showed there was no scope for saying Mills & Reeve’s conduct was contrary to procedure rules.
A perfectly logical decision in my opinion. Why should one party’s lawyer be expected to advise the other party’s lawyer of their technical error?
Moral of the story, check you are serving as required by the rules and don’t serve documents at the last minute!
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