In the recent case of Woodward v Phoenix Healthcare Distribution Limited the Court of Appeal had to consider the issue of whether a solicitor had a duty to point out a mistake by his opponent in circumstances where not doing so would be fatal to his opponent’s case.

In that case the Claimant had issued a Claim Form on 19 June 2017 and pursuant to the Civil Procedure Rules (the court rules which govern civil claims) the Claim Form had to be served on the Defendant within four months i.e. by no later than 19 October 2017.

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The Claimant’s solicitors emailed and posted the Claim Form and Particulars of Claim to the Defendant’s solicitors on 17 October 2017. However, as the Defendant’s solicitors had not notified the Claimant’s solicitors that they were authorised to accept service on behalf of its client, the Claim Form was not validly served as it had to be served on the Defendant itself.

The Defendant’s solicitors were instructed by its client not to highlight this error and they therefore waited until after the period for service had expired before pointing out to the Claimant’s solicitors that service was defective.

The Claimant’s solicitors immediately sought to serve the Defendant itself by way of courier, post and email even though it was too late.

The Claimant subsequently applied for retrospective validation of service under the Court’s discretion on the grounds that the Defendant could have informed the Claimant of their solicitors’ mistake so that the Claimant could have served the proceedings in time.

At first instance, the Master granted the application on the basis of the Defendant’s solicitors’ duty to assist the Court to achieve the Overriding Objective (a Civil Procedures Rule which states that the Court must deal with cases justly and at proportionate costs) rather than engage in “technical game playing”.

However, this decision was reversed upon appeal by the High Court where the Court found that there was no requirement for a solicitor who had not contributed to an opponent’s mistake to draw attention to that mistake. The Defendant therefore appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal on the grounds that the Defendant’s solicitors were under no obligation to warn the Claimant of its error.

The Defendant’s solicitors had no duty to highlight the errors which the Claimant’s solicitors had made regarding serving the Claim Form and, indeed, the Defendant’s solicitor had been specifically instructed by its client not to do so.

This decision reinforces the view that there is no duty requiring a solicitor to draw attention to an opponent’s mistake although the decision may have been different if the Defendant’s solicitors had actively contributed to the misunderstanding or mistake of their opponent.

If you are involved in any commercial or civil dispute then Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or send an email at

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