The recent Court of Appeal decision in Woodward and another -v- Phoenix Healthcare Distribution Limited held that a solicitor for a defendant had no obligation to advise solicitors for the claimant that they have made a fatal procedural error.
This case concerned the defective service of a claim form. The claim form should have been served on the defendant as the solicitor for the defendant was not authorised to accept service. The defendant’s solicitor did not to notify the claimant’s solicitor of their error and the defendant later claimed the claim was statute barred (i.e. could not be pursued) as the claim form was served late.
The Court of Appeal decision respects the adversarial nature of litigation by not imposing a duty on solicitors to advise their opponent of a mistake without instructions from their client. The court found it was ‘inconceivable’ that the defendant would have instructed their solicitors to advise the claimant’s solicitors of their (fatal) error.
Solicitors do owe a duty to assist the court in furthering the overriding objective. This duty does not extend to advising the court of an error by an opponent.
The responsibility for the error in the case lay with the solicitors instructed by the claimant. A claimant in these circumstances may well have a claim against their (former) solicitors for breach of contract and/or negligence.
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