The Court of Appeal’s recent decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 has been making the headlines in confirming that a solicitor is not under a duty to tell an opponent when they have made a mistake in service. Here, just before the deadline for service, the claimants’ solicitors had sought to effect service on the defendant’s solicitors but without obtaining confirmation that those solicitors were instructed to accept service. The defendant’s solicitors took instructions and waited until the deadline for service had passed (and consequently limitation had likely expired) before notifying the claimants’ solicitors of their error.  

Was this a breach of their duty to the court to further the overriding objective? No, said the Court of Appeal. In the absence of “technical game playing” by the defendant, which this was held not to be, or any contribution by the defendant to the mistake, they may sit back and watch the deadline pass and potentially acquire a valuable limitation defence.

There is however one further important caveat, mentioned almost in passing by the Court of Appeal, quoted below. The court did not expand on this comment and it begs at least two questions:

·        What constitutes a “substantial period”? Clearly a day or two would not meet this, nor presumably would a week or two. One infers that the court had in mind a defendant in receipt of a defectively served claim form waiting perhaps a number of weeks or possibly months, during which time limitation expired, before notifying the claimant. In such a situation, one imagines the matter may be flushed out anyway, since if the defendant withheld filing an acknowledgment of service or defence, the claimant could seek to apply for judgment in default.

·        And why should the length of time matter? The importance to a defendant of acquiring a limitation defence was recognised and respected by the Court of Appeal, as it was by the Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12. Perhaps the court had in mind that the longer the period, the greater the likelihood that a situation would arise obliging the defendant to respond or the smaller the prejudice to the defendant in not accruing a limitation defence. However, such is the brevity of the court’s observation that one is left only to speculate.

The Court of Appeal’s decision leaves the door ajar on these points and means the ruling is perhaps not so definitive as the headlines would suggest.