Competing obligations: could solicitors be required to correct their opponent’s mistakes?
As most clients are aware, solicitors are obligated both contractually and under their regulatory code of conduct to act in their client’s best interest. However, in civil litigation solicitors have an overriding obligation to the Court. You may have heard your solicitor refer to the ‘overriding objective’. This deals with the solicitor’s duty to the Court in dealing with the Civil Procedure.
Up until now, solicitors had no duty to advise their opponents of their procedural errors and in fact, solicitors would often take advantage of these mistakes. The Supreme Court addressed this very point in the case of Barton  where Lord Sumption confirmed that there was no duty to advise mistaken opponents, as clearly this would not be in their client’s best interests.
However, a recent High Court decision threatens the status quo and a solicitor’s duty to the Court may now extend to pointing out an opponent’s procedural error. The facts of the case were as follows:
In Woodward v Phoenix Health Care , the Court considered issues surrounding the claimant’s service of the claim form. The claim was due to be served by midnight on 19 October 2017. The claimant’s solicitor effected service on Mills and Reeve solicitors who had been acting for the defendants. The claimant’s solicitor had not asked whether Mills and Reeve had instructions to accept service however it was agreed that they received the claim form by email on 17 October and by post on 18 October. It was not until the deadline had passed on 20 October, that Mills and Reeve advised the claimant’s solicitor that they were not instructed to accept service. It was therefore argued that service of the claim form was defective.
Master Bowles held that Mills and Reeve had failed to point out their opponent’s procedural mistake and had therefore played “technical games” rather than acting in accordance with the overriding objective. The Court found for the claimant and exercised its discretion under CPR 6.15 to validate the service of the claim form retrospectively.
It will come as no surprise that this case has now been referred to the Court of Appeal.
If the decision is upheld by the Court of Appeal, moving forward the onus may be on the innocent party, to notify the opposition of their irregularity in the context of the overriding objective. Until the issue is decided, it is worth noting that playing ‘technical games’ may be unpopular with the Courts and care will need to be taken by solicitors when advising their clients, to avoid them being penalised by the Court later in costs.
In the meantime, solicitors eagerly await further clarification on their competing obligations to the Court and their client.
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