Phoenix Healthcare Distribution v Woodward and another  EWHC 2152 (Ch) was an appeal in a contract and misrepresentation claim brought by Sally Woodward and Mark Addison against Phoenix Healthcare Distribution.
Mills & Reeve were the Solicitors instructed to act on behalf of the Defendants and on 17 October 2017 the Claimant, via its Solicitors Collyer Bristow, served the Claim Form and Particulars of Claim on Mills & Reeve, two days before the deadline for service.
Mills & Reeve sent an email response within five minutes of receiving the documents to Collyer Bristow confirming that the email had been read, however, Mills & Reeve did not provide any further response until 20 October 2017, after the deadline for service had passed. Within their response Mills & Reeve highlighted that they were not authorised to accept service of the Claim Form and that the Claim Form ought to have been served on the Defendants themselves. As a result, they submitted that Collyer Bristow had not served the Claim Form and as a result the Court did not have jurisdiction to hear the matter.
At the hearing of the matter it was accepted by the Defendants that had they alerted the Claimant to the issue on 17 October 2017 when the documents were received, the Claimant could and would have served the Claim Form on the Defendants directly before the deadline expired.
Having heard the arguments of the parties, His Honour Judge Hodge stated:
“In my judgment, 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 judgment, not required by CPR 1.3; and it does not amount to ‘technical game playing’.
“In my judgment, ‘technical game playing’ is 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, in terms of furthering the overriding objective”.
“There is, in my judgment, a qualitative difference between seeking to resist a meritorious application and omitting to draw attention to a perceived mistake on the part of the opposing party to litigation, where to do so would be contrary to the best interests of the party in question and would deprive that party of a substantive defence.”
His Honour Judge Hodge concluded that the Defendants were entitled to put forward a limitation defence, and the Claimants could have “sought specific confirmation that the service was to be treated as effective”. Indeed, it was noted that the Defendants’ Solicitor could not have highlighted to the Claimant that service of the Claim Form was invalid without first taking instructions from their clients and advising them that to do so would deprive them of a limitation Defence.
In the circumstances His Honour Judge Hodge allowed the appeal against the original Order of Master Bowles and ordered that the Claim Form issued on 19 July 2017 be set aside.