25 July, 2019
The Court of Appeal has confirmed that a party is not required to draw attention to mistakes made by another party.
The Claimants, through their solicitors, purported to serve a Claim Form and Particulars of Claim valued in excess of £5million on the Defendant's solicitors, before the expiry of the issue of the Claim Form. The Defendant's solicitors did not have authority to accept service and as a result, the claim form expired unserved and limitation subsequently expired.
After taking instructions, the Defendant deliberately did not inform the Claimant until after expiry of the deadline for service that they were not authorised to accept service.
At first instance before Master Bowles, the Claimant successfully applied for retrospective validation of service under the court's discretion on the basis that the Defendant's solicitor could have informed the Claimant's representative in which case they could, and would have served in time. The Master held that the solicitors had an obligation to the court to give effect to the overriding objective rather than to employ inappropriate "technical game playing".
However, HHJ Hodge QC, sitting in the High Court, allowed an appeal from the Master setting aside the Claim Form and dismissing the action.
The Court of Appeal unanimously reversed the decision and 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.
It is worth noting that Lady Justice Asplin commented that depending on the facts, the position might be different if there is a substantial period before the expiry of the limitation period or where the other party has contributed to the mistake. The situation is far from straightforward and parties must therefore carefully consider the possible repercussions of failing to notify an opponent of a procedural error.