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“Taking advantage of another’s mistake, is not merely a pleasure, but a duty” (Oscar Wilde)

In the recent UK case of Woodward v Phoenix Healthcare the English Court of Appeal (EWCA) determined there is no duty on a lawyer to warn an opponent of an error in serving a claim. The case is a stark reminder to all those practising in the offshore jurisdiction always to check whether a firm is authorised to accept service and to allow sufficient time to do so before the expiry of the claim and limitation period. 

The EWCA had no sympathy for the argument that the recipient firm was engaging in “technical game playing” in not telling the plaintiff about the error until after expiry of the claim form (and as it transpired, after expiry of the limitation period).  The claimant’s lawyers issued the claim form the day before the expiry of the limitation period, and purported to serve the claim form before the expiry of the claim form, without having confirmed that the firm was authorised to accept service.  The recipient firm was not so authorised and the claim form (and with it the limitation period) expired unserved the following day. 

The Court had found at first instance that there was good reason retrospectively to validate service on the basis that the entitlement of a party to litigation to take advantage of an opponent’s mistakes is qualified by the obligations that litigants owe to the court to give effect to the overriding objective (of enabling the court to deal with cases justly and at proportionate cost).  The High Court overturned the decision on appeal.  The EWCA upheld the High Court’s decision.

The EWCA found there was no good reason retrospectively to validate service, drawing support from the recent decision of the UK Supreme Court in Barton. The rules governing service do not impose duties on receiving lawyers – they are conditions on which the court will take cognisance of a matter at all, and as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction.  Even on the assumption the recipient lawyer realised that service was invalid in time to warn the plaintiff to re-serve properly or begin a fresh claim within the limitation period; they are under no duty to give the plaintiff advice of this kind.  Nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it. 

As the UKSC put it in Barton a person who “courts disaster” by issuing a claim form at the end of a limitation period, and makes no attempt to serve it until the end of its period of validity, can have only a very limited claim on the court’s indulgence.  However, the EWCA indicated (without giving further guidance) that the position might be different if there is a substantial period before the expiry of the limitation period. 

“Taking advantage of another’s mistake, is not merely a pleasure, but a duty” (Oscar Wilde)

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