Defective Service of the Claim Form Post-Barton: Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch)

In this article, we discuss an addendum to the judgment from Master Bowles, in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch). Significantly, this was handed down after the Supreme Court decision in Barton v Wright Hassall LLP [2018] UKSC 12, which we discussed in edition 221 (here). Both cases considered ‘good service’ of the claim form, under CPR 6.15:  

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Master Bowles was invited to reconsider his initial judgment by counsel for the defence, who informed the judge of the Supreme Court ruling in Barton v Wright Hassall. He accepted this invitation and, in doing so, saw no reason to change or modify his original conclusions.

In Barton, the court found:

‘The fact that the claimant in Barton was a litigant in person did not, in the view of the majority, provide a sufficient additional factor such as to give rise to a good reason for validation.’

Although this factor was not considered in Woodward, the Barton ruling demonstrates that the status of a litigant’s legal representation does not affect the judicial interpretation of the Civil Procedure Rules, when non-compliance is alleged.

Nevertheless, Master Bowles stated that Barton was:

‘... one of a number of cases where validation under CPR 6.15 had been refused upon the primary basis that, although de facto service had been effected, there was nothing other than de facto service to constitute good reason for validation.

He went on to analyse the leading judgment of Lord Sumption, in Barton, who ‘took the view that the solicitors in Barton were not, even had they had the time to do so, under any duty to advise the claimant of his mistake as to service.’

However, Master Bowles recognised that the Supreme Court had not been asked to:

‘... consider ... any developed argument, as to the impact and effect of the duty to further the overriding objective, as giving rise to a duty to the court to warn an opposing party of his, or her, mistakes.

With respect to the individual facts in Woodward, Master Bowles found that purported service by the claimants' solicitors did fulfil the objectives of ‘good service’. An additional requirement for ‘good reason’ to validate service was provided by defendant’s solicitors’ failure to adhere to its ‘duty to further the overriding objective by warning the claimant ‘that its purported service was defective, such that good service could have been effected in time.’

As such, Master Bowles found that the defendant’s solicitors’ failure to warn the claimant’s solicitors that it did not have authority to accept service, constituted the ‘deliberate playing of a technical game’ and, thus, ‘outweighed’ the claimant solicitors’ mistake.

However, at the end of the addendum, the judge explained that he would grant permission to appeal his decision, pursuant to CPR 52.23:

‘… because of the weight … [attached] … to further the overriding objective, by drawing … attention to [the claimant’s] mistake, because, also, of the conflict of authority on the point and because, as it seems to me, an important point of practice arises ...’

The full text of the addendum to the judgement can be found here.