Phoenix Healthcare – here we go again

Phoenix Healthcare Ltd v Woodward & Anor [26.07.18]

Date published





Following on from our June article “You made a mistake!”, judgment has now been handed down on Phoenix Healthcare’s appeal.

The facts

To recap, the claimant’s solicitors, Collyer Bristow, served proceedings on Phoenix’s solicitors, Mills & Reeve, without seeking confirmation that Mills & Reeve were authorised to accept service. The proceedings had been issued at the very end of the limitation period. Collyer Bristow then delayed service of the claim form to allow time for the particulars of claim to be finalised. The net result was that proceedings were purportedly served just one day before the time for service expired on 19 October 2017. Mills & Reeve wrote to Collyer Bristow on 20 October 2017 pointing out that service of the proceedings was defective.

At first instance, Master Bowles found that Mills & Reeve were under a duty to further the overriding objective pursuant to the Civil Procedure Rules (CPR) Part 1.3 and warn Collyer Bristow that its purported service was defective, such that good service could have been effected in time and that failure constituted the deliberate playing of a technical game. This notwithstanding the Supreme Court’s decision in Barton v Wright Hassall, which had been handed down immediately prior to Master Bowles’ decision, where it was found that the defendant’s solicitors were not under a duty to point out to a litigant in person his error in serving proceedings.

Decision on appeal

On appeal His Honour Judge Hodge found that whilst Master Bowles had correctly identified the issue to be decided, the Master had erred in principle and was plainly wrong in deciding to validate service.

In reaching that conclusion the Judge found that “the culture introduced by 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. That is in my judgement, not required by CPR1.3 and it does not amount to technical game playing.

HHJ Hodge found that Mills & Reeve had not contributed to the misunderstanding on Collyer Bristow’s part. This he considered was where the Master had fallen into error in concluding that it was incumbent on a litigator, or his client, to dispel a misunderstanding in circumstances where the mistake had not been of the defendant’s making, or that of his solicitors, and had arisen in a situation which did not call for a response from the defendant.

Technical game playing was conduct “such as taking arid procedural points which are, or may be, technically correct, but which are contrary to the spirit in which litigation should now be conducted.

The Judge did not therefore consider it to be technical game playing to allow the claim form to expire in circumstances where the defendant, and its solicitors, were in no way responsible for the defective service and where no immediate response was called for by Mills & Reeve.

Whilst not strictly relevant to his decision on the appeal, HHJ Hodge also considered whether the Master had been correct to take the view that Collyer Bristow’s decision to delay service of the claim form until the particulars of claim were available was reasonable. Perhaps unsurprisingly the Judge found that leaving service to the last moment did “risk” or “court disaster” and that it was not reasonable to delay service of the claim form in circumstances where limitation had already expired.

In conclusion the HHJ Hogde stated “The instant case is not one in which the defendant, or its solicitors, were in any way responsible for the claimant’s difficulty. The difficulties were of the making of the claimant’s own solicitors. In those circumstances, I see no reason why the claimant should be absolved from its, or its solicitors’, errors at the expense of the defendant’s accrued limitation defence.


This decision is of relevance to all litigants and their advisors and provides clarification as to when a duty of care may (or may not in this case) arise to point out an error on the part of an opponent. It seems unlikely however that this will be the final word on the matter. Following judgment being handed down, counsel for the respondents invited the Judge to certify the matter as fit to be referred to the Supreme Court on appeal.

The case also serves as a timely reminder that it is never a good idea to delay service of proceedings until the last minute. As the Judge put it “something may always go wrong”.

Related item: You made a mistake!