16 May, 2018
In the case of Sally Woodward & Mark Addison v Phoenix Healthcare Distribution Limited the Court granted an order for retrospective alternative service of a claim form under CPR 6.15(2). The master found that the defendant's solicitors had breached their duty to further the overriding objective and played "technical games" by failing to inform the claimants' solicitors that they were not authorised to accept service until the claim form had expired.
This decision appears to be at odds with the recent Supreme Court decision in Barton v Wright Hassall LLP. In this case the Court struck out the claim after it refused the application for service to be validated under r.6.15(2). Mr Barton had purported to serve the claim form on the respondent's solicitors by email even though they had stated that they were not prepared to accept service by that means. The Supreme Court pointed out that it made no difference that Mr Barton was a litigant in person and this would not justify applying to them a lower standard of compliance with rules or orders of the court.
Under CPR 6.15(2), the court has the power to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method, or at an alternative place, is good service. However, as demonstrated by these two cases the case law is somewhat inconsistent. Solicitors are under a duty not to take unfair advantage of a third party but are also under a duty to act in the best interests of their clients. The key additional factor in the Woodward case, was the failure to warn the claimant of their procedural mistake. The master considered this to be a breach of the overriding objective and to amount to playing "technical games".