The respondent’s solicitors did not notify the appellants that they were authorised to accept service. They had not been asked. After taking instructions, the respondent’s solicitors deliberately did not inform the appellants that they were not authorised to accept service, until after expiry of the deadline for service.
The appellants applied for retrospective validation of service under the court’s discretion because the respondent could have informed the appellants, so that the appellants could have served proceedings in time. The Master granted the application on the basis of the respondent solicitor’s duty to assist the court to achieve the overriding objective, rather than engage in “technical game playing”. On appeal, this decision was reversed.
Grounds of appeal
There were two main grounds of appeal: 1) the respondent’s conduct was not contrary to the duty of the parties to help the court to further the overriding objective, through failure to notify the appellants before the claim form expired that their solicitors were not authorised to accept service on their behalf; and 2) such conduct was not “game playing”.
The Court of Appeal analysed Barton v Wright Hassal LLP  UKSC 12,  3 All ER 487. Asplin LJ – handing down the leading judgment – identified the “nature of the exercise to be undertaken” by an appellate court. A decision in relation to the service of documents is discretionary, based upon an evaluative judgment of the relevant facts. “Accordingly, it is not for us … to seek to substitute our own exercise of evaluative judgment [but rather] to determine whether the Master erred in principle or reached a conclusion which was plainly wrong.”
“Simply conditions on which the court will take cognisance”
Asplin LJ found that “the facts of Barton were all but indistinguishable from the ones with which the Master and the Judge were dealing and the Supreme Court had distilled the appropriate principles to be applied.” Lord Sumption said that the rules governing the service of a claim form are “simply conditions on which the court will take cognisance of the matter”. They “do not impose duties, in the sense which, say, the rules governing the time for the service of evidence, impose a duty.”
The CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitors, to draw attention to that mistake. Even if there is still time for the opposing party to cure that error. “It is hard to see that taking the point that service was invalid, as in Barton, together with acting in a proper professional manner in researching the position, advising the client and taking their instructions can be recast as ‘technical games.’” Nicola Davies and Bean LJJ concurred.