Woodward & another v Phoenix Healthcare Distribution Limited


[2019] EWCA Civ 985


12 Jun 2019


Court of Appeal


On 12 June 2019 the Court of Appeal, consisting of Lord Justice Bean; Lady Justice Asplin and Lady Justice Nicola Davies, handed down Judgment in the case of Woodward & anor. v Phoenix Healthcare Distribution Limited (“Phoenix”).


The appeal to the Court of Appeal was a second appeal; HHJ Hodge QC (sitting as a Judge of the High Court), having previously allowed Phoenix’s appeal against the 1st instance decision of Master Bowles whereby the Master acceded to the Appellants’ application to retrospectively validate steps taken to serve Phoenix with the claim form pursuant to CPR 6.15(1) and (2).  


The central question that the Court of Appeal was asked to consider was in what circumstances is it appropriate, on an application for retrospective validation of service under CPR 6.15, to allow a defendant to take advantage of a mistake on the part of a claimant giving rise to defective service where any new claim would be time-barred.


That question arose because the Appellants, who at the material time were represented by Collyer Bristow, had issued a claim form on 19 June 2017 pursuing causes of action that were potentially time barred as of 20 June 2017. In accordance with CPR 7.5(1), the Appellants thus had until midnight on 19 October 2017 to serve the claim form on Phoenix (represented by Mills and Reeve). On 17 October 2017 Collyer Bristow purported to effect service on Phoneix by posting the claim form, particulars of claim and annexes to Mills and Reeve. The same documents were also emailed to Mills and Reeve on 17 October 2017 and a read receipt was received on the same day.


The claim form expired at midnight on 19 October 2017. On 20 October 2017 Mills and Reeve wrote to Collyer Bristow stating that service on them had been defective as they were not instructed to accept service; and neither Mills and Reeve nor Phoenix had ever confirmed in writing to Collyer Bristow that Mills and Reeve were instructed to accept service on behalf of Phoenix. Consequently, the claim form had expired and with it the proceedings by efflux of the limitation period.


View judgment here



The Court of Appeal, affirming the decision of HHJ Hodge QC, held that the Master had erred when concluding that the steps taken to bring the proceedings to the attention of Phoenix via service on Mills and Reeve, ought to be retrospectively validated as amounting to good service.


Whilst accepting that the Master was carrying out an evaluative exercise and thus, as was made by clear by the Supreme Court in Barton v Wright Hassle LLP (2018) 1 WLR, an appeal Court should only interfere in the exercise of the CPR 6.15 discretion where the Judge had erred in principle or reached a conclusion that was plainly wrong, here the Master had erred in principle and the Judge had been right to interfere because:


(1)    The Master had found that Phoenix/Mills and Reeve had failed to comply with the overriding objective (CPR 1.3) in failing to warn Collyer Bristow of the mistake in respect of service. Whilst it was correct to say that Sumption JSC did not address the impact of CPR 1.3 viz. a duty to warn of mistakes inter partes, the Supreme Court’s finding in Barton that there was no positive duty to advise an opposing party of its own error was inconsistent with the Master’s reasoning that there had been a breach of CPR 1.3 occasioned by the failure to warn.


(2) The reasoning in Denton, to the end that it is inappropriate to take advantage of mistakes made by opponents, is significantly less important on an application under CPR 6.15 when compared to an application for relief from sanctions. CPR 6.15 does not have any disciplinary element; rather it is concerned with the conditions which must be satisfied before a Court will take cognisance of a claim.


(3) The Master had incorrectly found that there had been technical game playing on the facts. On the facts, Mills and Reeve has acted legitimately in taking its client’s instructions as to how to proceed, and, ultimately acting on the way that it did. Nothing that Mills and Reeve or Phoenix did contributed to Collyer Bristow’s error.


In the circumstances, the Judge had been correct to interfere with, and overturn, the Master’s decision in the way that he did.


This case again affirms the view taken by the majority in the Supreme Court (Barton) that there is no duty to warn of an error inter partes. The position may be different where one party has contributed to another’s mistake; but on the facts that did not arise. CPR 1.3 cannot be said to encompass a duty to further the overriding objective by warning an opponent of a procedural mistake. It is, therefore, crucial that the rules on service are adheres to rigoursly, most especially when limitation is approaching. 


Chris Snell was instructed by Lexlaw Solicitors & Advocates of 4 Middle Temple Lane, London.



Christopher Snell

Practice Areas

Commercial Litigation