Woodward & Anor v Phoenix Healthcare Distribution Ltd

By a Claim Form issued on 19^th June 2017, the Claimants, Sally Woodward and Mark Addison, bring proceedings against the Defendant, Phoenix Healthcare Distribution Limited (Phoenix), as assignees of two companies, Trihealth Ltd and J E & N A Richardson (Chemists) Ltd. The causes of action assigned are said to be causes of action in breach of contract and misrepresentation and the Claim is said to have a value in excess of £5M.

The events giving rise to the Claim and to the alleged causes of action arise out of a contract entered into, on 20^th June 2011, between one, or other, of the two companies and Phoenix, for the purchase of a drug called atorvastatin, at a price of £448,707.00 exclusive of VAT. The core allegation is that, by reason of the fact that the drug was still under patent to Pfizer and was, nonetheless, sold by Phoenix as a generic drug in breach of that patent, Phoenix was in breach of contract in selling the drug when it had no entitlement to do so. The alternative allegation is that Phoenix negligently, or fraudulently, misrepresented, when negotiating the contract, that the generic drug was no longer under patent and, therefore, available for sale.

The consequences, it is said, of Phoenix’s breach of contract and/or misrepresentation, coupled with its refusal to accept a return of the drugs in question and to refund, or credit, the contract price, is that the relevant companies suffered severe cash flow difficulties leading, ultimately, to the entire group of companies, of which they formed a part, entering into administration and being sold out of administration at a price, whether for the individual companies, or for the group, very much lower than would have been the case had the matters complained of not occurred and leading, further, to the companies losing profits which would otherwise have been made.

It is apparent from the foregoing that both the alleged causes of action accrued at the date of the contract and, therefore, that the Claim was, potentially time barred as from 20^th June 2017. As set out above, the Claim was issued on 19^th June 2017. Accordingly, pursuant to CPR 7.5(1) the Claim Form should have been served by no later than 12.00 midnight on the calendar day four months after that date. Depending upon the mode of service selected, that service should have been effected by the Claimant taking, as appropriate, one, or other, of the steps set out in CPR 7.5(1). The available methods of service are set out in CPR 6.3 and the appropriate place of service, in any particular instance, is to be found in CPR 6.7 to CPR 6.13.

Relevantly to this case, where the defendant is a company, service could have been effected, pursuant to the provisions of section 1139 of the Companies Act 2006 and CPR 6.9, at either the registered office of the company, or at its principal office, or at any other place of business of the company within the jurisdiction having a real connection with the Claim. The exception to the foregoing is that, if Phoenix had given in writing to the Claimants the business address of its solicitor as an address at which it might be served, or, if Mills & Reeve LLP (Mills & Reeve), the solicitor acting for Phoenix, had notified the Claimants that it was instructed to accept service on behalf of Phoenix, then, pursuant to CPR 6.7(1), service would have had to be effected upon Mills & Reeve.

Additionally, to the foregoing, the CPR contains a number of what I might call saving provisions designed to deal, on a discretionary basis, with problems, or difficulties arising in respect of service, including, where appropriate, defects, or failures, in respect of service.

In regard to the time available for the service of a Claim Form, CPR 7.6(1) allows a claimant to apply for an extension of time for service. CPR 7.6(2), however, provides that, as a general rule, such an application must be made either prior to the expiry of the original validity of the Claim Form (i.e. the four month period for service provided by CPR 7.5(1)), or within any extension of the period for service permitted by the court pursuant to an application under CPR 7.6(1). If that is not the case and if extension is sought, therefore, after the expiry of the period specified in CPR 7.5(1), or any extension of that period, then the application will only be granted if either there has been a failure of service by the court, or the court can be satisfied that the claimant has taken all reasonable steps to serve but yet been unable to do so, provided, in each case, that the claimant has acted promptly in making the application.

In regard to the mode, or method, of service, CPR 6.16 allows the court, but only in exceptional circumstances, to dispense with service altogether. CPR 6.15(1) allows the court, where there is ‘good reason’ so to do, to authorise service by a method, or at a place, not otherwise authorised under the rules and, by CPR 6.15(2), to order that steps already taken to bring the claim to the attention of a defendant, by an alternative method, or at an alternative place, will constitute good service. The effect of CPR 6.15(1) and (2), taken together, is, in an appropriate case and where good reason is shown, to validate a mode of service, or a place of service, which would not otherwise constitute good service and to do so retrospectively. As appears later in this judgment, a central question in this case is whether there is good reason, on the facts of this case, to validate, retrospectively, pursuant to CPR 6.15, the steps which the Claimants, in this case, by their solicitor, Collyer Bristow LLP (Collyer Bristow), took to bring the Claim Form, in this case, to the attention of Phoenix.

The basic facts as to service, in this case, are not in dispute. The circumstances leading to the form of service effected will, however, require more detailed consideration.

By letter dated 17^th October 2017, Collyer Bristow sent to Mills & Reeve, by first class post, the Claim Form, the Particulars of Claim, various annexes to the Particulars of Claim and a Response Pack. It did so by way of purported service of the proceedings and it did so, as appears from the foregoing, within the four month period allowed for service of the Claim Form, but in circumstances where, if that service was defective, if that defective service was not validated, if no extension of the four month period was granted and if no further steps constituting good service were taken within the relevant four month period, the validity of the Claim Form would have expired at midnight on 19^th October 2017. In that event, as indicated earlier in this judgment, it is highly likely that any new Claim in respect of the matters raised against Phoenix in this Claim would have been time barred.

In addition to sending the Claim Form and the accompanying documents to Mills & Reeve, by post, by way of service, the same documents were emailed to Richard Dawson-Gerrard, a partner at Mills & Reeve at 10.37 a.m. on 17^th October 2017 and, at 10.43 a.m. the same day, a so-called Read Receipt was received by Collyer Bristow, acknowledging the receipt of the relevant email and that the email had been read. The letter, which accompanied the Claim Form and which, therefore, formed part of the tranche of documents emailed to Mills & Reeve on 17^th October 2017, stated, in terms, that ‘in order to protect our client’s position on limitation, we enclose by way of service on you the following documents’. There was then listed the Claim Form, the Particulars of Claim and the other documents sent by way of service, which documents were themselves attached to Collyer Bristow’s email.

It is, again, not in any dispute, both that the email, with its attachments, including, therefore, the letter making it clear that the Claim Form and other documents posted to Mills & Reeve were sent by way of service, was received and read as set out above, and that the hard copy letter enclosing the Claim Form and other documents was, itself, received by Mills & Reeve on 18^th October 2017. Other than the Read Receipt, however, Mills & Reeve did not respond to the email, or to the purported postal service, until 20^th October 2017, by which date the four month period for taking the necessary step to constitute good service had passed.

On 20^th October 2017, by way of an email letter of that date, Mills & Reeve wrote to Collyer Bristow to the effect that service of the Claim Form upon Mills & Reeve had constituted defective service, in that, in serving the Claim Form on Mills & Reeve, service had been on the wrong person. Mills & Reeve had never been instructed to accept service and neither Mills & Reeve, nor Phoenix, itself, had ever confirmed in writing to Collyer Bristow that Mills & Reeve had been authorised by Phoenix to accept service.

On that footing and since, on any view, the period for service had by now expired (Mills & Reeve put the expiry at midnight on the 18^th October), Mills & Reeve contended that the Claim Form and with it the proceedings had expired. In the absence of an acknowledgment of this position, or Collyer Bristow being able to demonstrate valid service, Mills & Reeve put Collyer Bristow on notice that it would apply, on behalf of Phoenix, for an order declaring that, because of the expiry of the Claim Form, the court had no continuing jurisdiction to hear the Claim.

Faced with this letter, Collyer Bristow’s immediate reaction was to seek to serve Phoenix by all potential forms of service. The Claim Form and associated papers were couriered to Phoenix’s trading address in Runcorn and delivered just after eleven o’clock on 20^th October. The same papers were sent to Phoenix by first class post the same day and also sent by email.

In respect of Mills & Reeve’s letter of 20^th October, the gist of Collyer Bristow’s response, by letter dated 23^rd October, was that, objectively construed, the course of correspondence which had passed between Collyer Bristow and Mills & Reeve in respect of the putative claim, from September 2015 onward, amounted to a written confirmation that Mills & Reeve had been authorised to accept service, such that service had been good.

In the alternative, if good service had not been effected, by way of service on Mills & Reeve, then, it being accepted that service had had to be effected, in ordinary course, by the taking of an appropriate step, by midnight on 19^th October, Collyer Bristow, nonetheless, denied that the effect was to bring the Claim automatically to an end. In that regard, reference was made to the court’s powers, as set out earlier in this judgment, to dispense with service, or to validate, retrospectively, the steps taken by Collyer Bristow, as to service, prior to 20^th October, such that service upon Mills & Reeve had constituted good service by an alternative method. Reference was also made to the court’s power to extend the time for service of the Claim Form, pursuant to CPR 7.6 and CPR 3.1, and, if necessary, the court’s power to relieve from sanction under CPR 3.9.

Reference was also made to the parties’ duty to co-operate, pursuant to the overriding objective and to their consequent obligation not to take advantage of inadvertent errors, or to unreasonably oppose extensions of time for tactical advantage. In respect of the apparent decision of Mills & Reeve not to draw attention to any defect in service prior to the expiry of the four month period for service, reference was further made to their professional duty not to take unfair advantage of third parties.

Against the entirety of this background, Collyer Bristow suggested that the matter should be resolved either by Mills & Reeve accepting that service had been good, or by the agreement of an appropriate extension. In the absence of, or pending, such a solution, however, Collyer Bristow indicated that it would (as, indeed, it did) make an immediate application to the court.

That application was issued on 23^rd October 2017. By the application, as issued, Collyer Bristow, as foreshadowed in correspondence, sought an order that the steps that had been taken on 17^th October 2017 to bring the Claim Form and Particulars of Claim to the attention of Phoenix by first class post and email to Mills & Reeve, constituted good service; alternatively that, in light of those steps, service be dispensed with; alternatively that the court should validate the purported service on Phoenix on 20^th October by granting an appropriate extension of time.

That application was, in due course, met by a corresponding application, dated 27^th October 2017, by Mills & Reeve, pursuant to CPR 11, for an order that the Claim Form be set aside and a declaration that the court was without jurisdiction to hear the Claim, on the grounds that the Claim Form had not been served within the time allowed by CPR 7.5(1). This judgment relates to both applications.

In the event, a number of the possible arguments originally advanced by Collyer Bristow, on behalf of the Claimants, have fallen away. It is not now suggested that the court should dispense with service, pursuant to CPR 6.16. Nor is it argued that the court should grant an extension of time, pursuant to CPR 7.6(1), or that, in granting, or allowing to be granted, such an extension, the court should exercise its relieving powers under CPR 3.9.

Those concessions, if that is what they are, have been rightly made. It cannot be said, in this case, that the circumstances which arise, in this case, have the quality of exceptionality, which is required to be established before the court can dispense with service. Likewise, given that any extension of time required to validate service on Phoenix would fall to be considered in respect of an application issued after the date when the time for service had expired and on the premise that Mills & Reeve had not confirmed its instruction to accept service, it is very hard to see how such an application could satisfy the requirement, in CPR 7.6(3), that the Claimants had, during the period of the validity of the Claim Form, taken all reasonable steps to effect service, such as to open up the jurisdiction to grant a retrospective extension of time. Absent confirmation by Mills & Reeve, or Phoenix itself, of Mills & Reeve’s authority to accept service, it was always open to the Claimants to serve directly upon Phoenix, by the delivery of the Claim Form to Phoenix in precisely the manner in which Collyer Bristow sought to serve Phoenix following receipt of Mills & Reeve’s letter of 20^th October 2017. In regard to the possibility that the Claimants be relieved from the sanction arising from their failure to serve during the validity of the Claim Form, namely their inability to continue the Claim without relief from sanction by way of the grant of a retrospective extension of time, it was, I think, sensibly recognised that CPR 3.9 could not be used to secure an extension of time in circumstances where the conditions set out in CPR 7.6(3) were not satisfied.

In the result the issues left for my determination were threefold. Firstly, had Mills & Reeve, on the true construction of the correspondence passing between Collyer Bristow and Mills & Reeve, provided written notification to Collyer Bristow that Mills & Reeve was instructed to accept service of the proceedings? Secondly, even if there had been no such written notification, was Mills & Reeve estopped from denying that it was so instructed, such that the service effected upon Mills & Reeve fell to be regarded as good service? Thirdly, in the absence of written notification, or estoppel, should the purported service upon Mills & Reeve be retrospectively validated, pursuant to CPR 6.15(1) and (2)?

Dealing, first, with the question of construction, I am satisfied that there is nothing in the various exchanges of correspondence between Collyer Bristow and Mills & Reeve in respect of this claim, during the period prior to the purported service on Mills & Reeve, such as to constitute, explicitly, or implicitly, a written notification that Mills & Reeve was instructed to accept service.

The relevant correspondence commences with a letter before action from Slater & Gordon (UK) LLP (Slater & Gordon) dated 6^th October 2014 and sent to Phoenix. That letter was responded to by Mills & Reeve, on behalf of Phoenix, by letter dated 4^th September 2015. In that letter, Mills & Reeve complained as to the inadequacy of a prior letter written on behalf of the Claimants and indicated that if a claim was formulated ‘we’ (meaning Mills & Reeve) would refer to the relevant correspondence in respect of costs. In the same letter, Mills & Reeve indicated that, in the event of a claim, ‘we’ (meaning, again, Mills & Reeve) ‘are instructed to issue an application to strike it out and to seek indemnity costs’.

Matters then went into abeyance for a year, following which Slater & Gordon wrote to Mills & Reeve a further letter of claim, dated 16^th October 2016. That letter gave rise to Mills & Reeve’s reply, dated 3^rd November 2016. In that letter, Mills & Reeve confirmed that they were instructed by Phoenix in respect of the Claimants’ prospective claim and stated, again, that, in the event of proceedings and given the Claimants’ alleged want of particularity as to their claim, ‘we’ Mills & Reeve) ‘shall refer to this correspondence with regard to costs’.

Matters again went into abeyance until June 2017, at which date, by letter dated 19^th June 2017, Collyer Bristow (now instructed by the Claimants) wrote to Phoenix with a yet further letter of claim. Mills & Reeve were copied into that letter, Collyer Bristow indicating that it was unsure as to whether Mills & Reeve retained instructions. On the same day, limitation, no doubt, being much in mind, the Claim Form was issued. The address given for service on the Claim Form was Phoenix’s address and not that of Mills & Reeve.

Mills & Reeve reacted to the copied letter of claim the same day, confirming that they still acted for Phoenix and rebuking Collyer Bristow (albeit in mild terms) for its failure to verify whether Mills & Reeve were still acting before approaching Phoenix. Its further response to the letter of 19^th June followed on 18^th July 2017. In that letter, Mills & Reeve indicated its intention, should proceedings issue, to act as it had previously set out (that is, to raise, in respect of costs, its complaints about the Claimants’ lack of particularity and to move to strike out the claim). Relevantly and given that over six years had now elapsed since the events of 20^th June 2011, which underwrite this Claim, the point was taken that, unless the Claim Form had been issued, or delivered to the court office for issue, on, or prior, to 19^th June 2017 (as, in point of fact, it had) the claim was statute barred. In light of that, no substantive response to the claim would be provided unless and until it had been confirmed that proceedings had issued.

That confirmation was given by Collyer Bristow, by letter dated 27^th July 2017, albeit that Collyer Bristow did not, thereby, concede that limitation had expired on 19^th June. Importantly, from the point of view of the case being advanced by Collyer Bristow, in respect of the current applications, the letter of 27^th July, having dealt with the fact of issue and with the fact that Phoenix (‘your client’) had been invited to put forward a proposal for settlement, went on to say ‘We have not yet served this claim on you in order that the parties can sensibly proceed on a pre-action basis such that good faith efforts are made to reach appropriate settlement’.

Faced with that letter and with the fact that a claim had now issued, Mills & Reeve, by letter dated 30^th August 2017 did, for the first time, provide substantive response to the matters raised against Phoenix by the Claimants. Mills & Reeve did not make any comment, at all, in respect of the statement, in Collyer Bristow’s 27^th July letter, that Collyer Bristow had not yet served the claim ‘on you’ (meaning on Mills & Reeve).

No further correspondence ensued, until, by letter, dated 17^th October 2017, sent both by email and first class post, Collyer Bristow purported, as previously stated, to serve the proceedings upon Mills & Reeve. The covering letter stated, as material, that ‘in order to protect our clients’ position on limitation, we enclose by way of service on you the following documents’. There are then enumerated the Claim Form, the Particulars of Claim and certain annexes and the response pack.

I can see nothing in the foregoing correspondence that can, realistically, be said to amount to a written notification to Collyer Bristow, or the Claimants, that Mills & Reeve were instructed to accept service of proceedings.

There is no doubt but that Mills & Reeve was instructed by Phoenix to deal with the allegations made by the Claimants and with the putative proceedings threatened and, ultimately, issued by the Claimants. That, however, does not equate to an instruction to accept service and, accordingly, the fact, that Mills & Reeve notified Collyer Bristow, in correspondence, that it was instructed and the fact that it chose to inform Collyer Bristow of the steps that it was instructed to take, should proceedings be issued, did not constitute a written notification that it was instructed to accept service.

In so far as that proposition requires support from authority, then that support emerges, clearly, from, for example, the decision of Arnold J, in Personal Management Solutions Ltd v Gee 7 Group Ltd [2016] EWHC 891 (Ch), where a statement by defending solicitors, that they were instructed in the particular matter and that all correspondence relating to that matter should be sent to them, was, rightly, held not to constitute a written confirmation of an instruction to accept service. No argument was advanced, or could have been, that the fact of the solicitors’ instruction, itself, carried within it an authority to accept service, such that notification of that fact amounted to a notification of that authority. Rather, as Arnold J explained, at paragraph 27, it is well established that, even a solicitor, who is acting for his client in all respects relating to an intended claim, does not have implied authority to accept service of the claim form. In that context, it is plain that the mere notification of instruction, as in this case, cannot and does not constitute a notification of a qualitatively different thing, namely an instruction to accept service.

I add that I do not think that the fact that, by its letter of 27^th July 2017, Collyer Bristow had stated its intention to serve the proceedings, by way of service upon Mills & Reeve, changes any of the foregoing. While, as discussed later in this judgment, that letter and the lack of an explicit response to Collyer Bristow’s statement of intention, is, undoubtedly, relevant to the question of estoppel, I cannot see that the failure of Mills & Reeve to warn Collyer Bristow that it lacked authority to accept service can, possibly, amount, as a matter of the construction of the relevant correspondence, to a written notification that it, Mills & Reeve had instructions to accept service.

I turn, accordingly, to the arguments based upon estoppel.

In this regard it is not in doubt but that circumstances may arise whereby a party is estopped by its conduct from relying upon an otherwise defective, or incorrect, mode of service, or, therefore, that, in this case, if the facts and circumstances so warrant, Mills & Reeve and their client might be estopped from denying that the purported service of the Claim Form upon Mills & Reeve, by way of Collyer Bristow’s letter of 17^th October 2017, constituted good service. The question, here, is whether, on the facts of this case, such an estoppel arises.

The form of estoppel sought to be raised by the Claimants is an estoppel arising from the alleged inaction, or silence upon the part of Mills & Reeve. The inaction, or silence, said to raise the estoppel is submitted to be twofold. Firstly, it is said to arise out of Mills & Reeve’s inaction, or failure to respond, when in receipt of Collyer Bristow’s letter of 27^th July 2017 and, in particular, when, as the Claimants submit, it was made aware, by that letter, that Collyer Bristow intended to serve the claim upon Mills & Reeve, in the apparent belief that Mills & Reeve were instructed to accept service. Secondly, it is said to arise from Mills & Reeve’s failure, on and from 17^th October 2017, when made aware by Collyer Bristow’s email of that day, that service was purportedly being effected upon Mills & Reeve, to advise, or inform, Collyer Bristow that it, Mills & Reeve, had no instructions to accept service.

The possibility of such an estoppel, in the circumstances of a case such as the present, derives from a dictum of Webster J, in Pacol Ltd and Others v Trade Lines Ltd and R/I Sif IV (‘The Hendrik Sif’) [1982] 1 Lloyd’s Rep 456 at 465, as considered and approved (albeit obiter), in The Stolt Loyalty [1993] 2 Lloyd’s Rep 281 and as applied, or considered, further, in the context of the service of proceedings, in Bethell Construction Ltd and Bethell Group Plc v Deloitte and Touche [2011] EWCA Civ 1321.

In ‘The Hendrik Sif’, Webster J, in considering the circumstances in which an estoppel can arise as a result of mere inaction, concluded that such an estoppel could only arise where the party said to be estopped was under a duty to take action. In so doing, he relied, inter alia, upon a well-known passage in the judgment of Oliver J, in Taylor Fashions Ltd v Liverpool Victoria Trustees Co. Ltd [1982] 1 QB 133, at page 147, namely that ‘in a case of mere passivity, it is readily intelligible that there must be shown a duty to speak, protest or interfere which cannot normally arise in the absence of knowledge or at least a suspicion of the true position’ Such a duty would arise ‘where ‘a reasonable man would expect’ the person against whom the estoppel is raised ‘acting honestly and responsibly’ to bring the true facts to the attention of the other party known by him to be under a mistake as to their respective rights and obligations’.

The effect, as I understand it, of such an estoppel, if created, is that the estopped party, having failed, in breach of duty, to inform the party raising the estoppel of the true position, is treated as having made a representation that the mistaken position is the true position and, subject to reliance upon the representation arising from the estopped party’s breach of his, or her, duty to speak out, is estopped from denying that the position advanced by the party raising the estoppel is the true position.

Accordingly, in The Stolt Loyalty, in a case where, on the facts assumed in respect of this aspect of the judgment, an extension of time for proceeding with the claim in question was, inadvertently, sought by the claimant against one only of two defendants and where those acting for the defendants and being ‘virtually certain’ that the claimant had made a mistake had deliberately elected to deal with the request without drawing attention to the fact that the request only embraced one defendant, Clarke J concluded, in application of the Hendrik Sif principle, that the defendants, or their advisers, had, in responding to the request, been under a duty to inform the claimant of its error, that, in failing to do so they had been in breach of their duty to speak out, that, in those circumstances it was, or would be, unconscionable for the defendants to be allowed to rely upon the fact that the extension had been sought against one defendant only and that, consequentially, the defendants were estopped from so relying.

In reaching those conclusions, Clarke J took the view that, in dealing with the request for an extension, a reasonable person would expect that someone in the position of the defendants, acting honestly and responsibly and knowing, or even suspecting, that the claimant’s solicitors had mistakenly failed to make their request for an extension to both defendants, would, when dealing with the request, draw that mistake to the claimant’s attention, that, in consequence, the defendants had been under a duty, in dealing with the request, to provide a full reply to that effect and that it was their failure to take that course that rendered it unconscionable for the defendants, thereafter, to rely upon the lack of an extension of time as giving rise to a time bar.

By purported parity of reasoning, Mr Penny, for the Claimants, submits, in this case, that a reasonable person would take the view that Mills & Reeve, on receipt of the letter of 27^th July 2017 and upon consideration of its contents and of the stated intention therein that the contemplated proceedings would be served on Mills & Reeve, should, acting honestly and responsibly, have drawn Collyer Bristow’s attention to its apparent and mistaken belief that Mills & Reeve had authority to accept service, when it did not, that, in consequence, Mills & Reeve, or its client, was under a duty to draw Collyer Bristow’s attention to its mistake and that, in failing so to do, it was in breach of that duty and, consequentially, now estopped from denying Mills & Reeve’s want of authority.

The same broad submission is made in respect of Mills & Reeve’s failure to respond to the email letter received on 17^th October, showing Collyer Bristow’s belief that Mills & Reeve was authorised to accept service, until after the four month period for service of the Claim Form had elapsed. Here it is said that, acting honestly and responsibly, Mills & Reeve should, upon receipt of the email letter of 17^th October, have informed Collyer Bristow that, contrary to Collyer Bristow’s evident belief, it, Mills & Reeve, did not have authority to accept service, that, in failing so to do, Mills & Reeve, or its client, was in breach of its duty owed to Collyer Bristow, or Collyer Bristow’s clients, and is, consequentially, now estopped from denying that authority.

In respect of both instances of alleged breach of duty by inaction, it is said, on behalf of the Claimants, that, had Mills & Reeve advised, either following the 27^th July letter, or receipt of the 17^th October email letter, that it was not instructed to accept service, then service could and would have been effected on Phoenix. I see no reason to doubt that fact.

A number of matters require consideration, in dealing with these submissions.

Firstly, they assume, in respect of Mills & Reeve’s alleged lack of proper response to the letter of 27^th July, that Mills & Reeve noticed, or appreciated, when in receipt of that letter, that Collyer Bristow was acting under the mistaken belief that Mills & Reeve had authority to accept service. If Mills & Reeve did not appreciate that fact and did not, therefore, know that that was Collyer Bristow’s belief then there can be no question of Mills & Reeve, or its client, falling under any duty, or obligation, to put right that error and, consequentially, no question of Mills & Reeve’s silence, or inaction, giving rise to any estoppel.

Secondly, there is, as it seems to me, at least one potentially important difference between the facts of this case and those of The Stolt Loyalty. In The Stolt Loyalty, a request for an extension was made which, necessarily had either to be answered, or ignored. Clarke J’s conclusion was that, if the request was to be answered, then it had to be fully answered and not answered in such a way as failed to draw attention to the opposing party’s mistake. In this case, there was no request made by Collyer Bristow, either in the July 27^th letter, or in the email letter of 17^th October, in respect of service, or otherwise. The July 27^th letter simply contained a statement by Collyer Bristow that it intended to serve on Mills & Reeve, which, even if appreciated, or noticed, by Mills & Reeve, did not, in itself, call for a response. The email letter of 17^th October, likewise, contained no more than a statement that service was being effected.

Dealing, first, with the estoppel said to arise from the letter of 27^th July and Mills & Reeve’s lack, so it is said, of proper response thereto, the evidence filed by Mills & Reeve, which was before me at the hearing of the two applications did not touch upon the question as to whether Mills & Reeve, when in receipt of the letter of 27^th July 2017, had ‘taken on board’ the fact that Collyer Bristow, by an associate solicitor, Ms Laing, had assumed that Mills & Reeve had formed the assumption that Mills & Reeve had authority to accept service. All that was said, by Mr Dawson-Gerrard, a partner at Mills & Reeve, was that the correspondence relied upon by Collyer Bristow did not (as it did not) amount to a written confirmation that Mills & Reeve was authorised to accept service. That is not, in itself, a criticism of Mills & Reeve, since both the tenor of the pre-application correspondence (in particular Collyer Bristow’s letter of 23^rd October 2017 (sent contemporaneously with the issue of Collyer Bristow’s application notice)) and of Ms Laing’s witness statement was to the effect that the totality of the correspondence passing between the Claimant, by their advisers, and Mills & Reeve had amounted to a notification that Mills & Reeve was authorised to accept service. While Ms Laing’s witness statement made reference to the letter of 27^th July and to Mills & Reeve’s failure to warn Collyer Bristow that it lacked authority to accept service, no suggestion that Mills & Reeve was under any duty so to inform, or that that failure of response gave rise to an estoppel, was made until very late in the day .

At the hearing, however, it became very clear that the Claimants were attaching considerable weight to the letter of 27^th July and were inviting the court to infer both that Mills & Reeve had been made aware, by reason of the content of the letter, that Collyer Bristow was acting in the belief that Mills & Reeve had authority to accept service and that, Mills & Reeve’s failure, when responding to the letter of 27^th July, to draw attention to the mistaken nature of that belief, was deliberate. It was said that the fact that the letter recorded an invitation to Mills & Reeve’s client to put forward a proposal for settlement, while, in the subsequent paragraph, referring to Collyer Bristow’s intended service on ‘you’, must have made it clear to Mills & Reeve that the ‘you’ in question was not Mills & Reeve’s client but Mills & Reeve itself. It was further said that, in that context, Mills & Reeve’s failure to make any mention of its lack of authority was only sensibly explainable upon the footing of a deliberate intent that Ms Laing’s error be not corrected.

Had matters stopped there, I would not have felt able to draw those inferences.

It did not seem to me that, in the context of a letter, which was not directed, at all, to the question of the service of the Claim, but, rather, where the focus and purpose of the letter was to assure Mills & Reeve that the Claim had issued and was not, therefore, time barred and, consequentially, to seek Mills & Reeve’s substantive response to the Claimants’ 19^th June 2017 letter of claim, I could be adequately satisfied that the part of the letter which touched upon service and which referred to service on Mills & Reeve by the use of the words service ‘on you’ was so sufficiently brought to the attention of Mills & Reeve as to enable me to conclude that Mills & Reeve was aware that Collyer Bristow had mistakenly assumed that Mills & Reeve had authority to accept service. In that regard, it seemed to me, also, that, even if the relevant part of the letter had attracted the attention of Mills & Reeve, in any detailed way, the letter, nonetheless, did not, unequivocally, make it at all clear to Mills & Reeve that Collyer Bristow was acting in the belief that authority had been given to Mills & Reeve to accept service. Rather, the letter stated, as was the case, that the Claim had not been served on Mills & Reeve and that the reason that it had not been served (whether on Mills & Reeve, or anyone) was because it was hoped that the parties could proceed towards a settlement without recourse to litigation. A solicitor, in receipt of that letter and aware, as I hold, that no confirmation of Mills & Reeve’s authority to accept service had been sought or given, would, if he, or she, thought about it at all, consider the statement as indicating, merely, an intention that, if matters came to proceedings, then those proceedings would, subject to appropriate confirmation of authority, be served on Mills & Reeve.

The corollary, or consequence, of my inability to draw the inference that Mills & Reeve was made aware, by the letter of 27^th July 2017, of Collyer Bristow’s mistaken belief that Mills & Reeve had authority to accept service is that I would have been, correspondingly, unable to draw the further suggested inference, namely that, in responding to the letter of 27^th July in the way that it did, Mills & Reeve had deliberately failed to draw attention to Collyer Bristow’s mistake. If Mills & Reeve was unaware of the mistake, then its response to the letter of 27^th July could not have been a deliberate attempt to induce Collyer Bristow to continue in its mistake, or constitute a deliberate failure to draw attention to the mistake.

Matters do not, however, stop with the evidence which was before me at the hearing and with the putative inferences from that evidence that I was invited to make. Since the hearing, I have been invited to admit and have regard to a further witness statement prepared by Mr Dawson-Gerrard and dated 20^th November 2017. No formal application has been made for its admission, but it is submitted, contrary to my experience, that this is commonplace in interlocutory matters. Ironically, it was Mills & Reeve’s leading counsel, Mr Onslow, who cautioned me, at the end of the hearing and when he asked me for permission to respond, as necessary, to a so-called ‘speaking note’ prepared by Mr Penny and presented during the hearing, as to the danger of allowing the parties too much licence in regard to post-hearing materials.

I have to say that I am not at all happy as to this development, which I do not regard as commonplace, nor, generally acceptable. I do, however, have some sympathy with Mills & Reeve’s position. As earlier stated, the emphasis upon estoppel and with it the greater emphasis upon the conduct of Mills & Reeve in regard to the letter of 27^th July 2017 came late in the day and was not, significantly, foreshadowed in Ms Laing’s witness statement. For that reason and because the Claimants, by their counsel, have not formally objected to my consideration of the further evidence, I have decided to take it into account.

Having done so, I see nothing in that evidence to change the overall conclusions that I would have reached in the absence of that evidence. In particular, I note that in paragraphs 14 and 15 of his witness statement, Mr Dawson-Gerrard both confirms that he did not read the 27^th July letter as indicating that Collyer Bristow intended, without more, to serve on his firm and that, in responding to that letter, he was doing no more than meeting Collyer Bristow’s request that he address the substance of the Claimants’ projected claim. He, rightly, points out, that there was nothing in Collyer Bristow’s reference to service to warrant a specific reply and that, as stated earlier in this judgment, service, or the absence of service, was only mentioned at all in the context of a desire that settlement discussions take place without recourse to proceedings.

In the light of Mr Dawson-Gerrard’s further evidence and of my own conclusions, even absent that evidence, I do not think that an estoppel by silence arises out of the letter of 27^th July and Mills & Reeve’s response to that letter, such as to estop Phoenix from denying that Mills & Reeve had authority to accept service.

As is clear from the authorities to which reference has already been made and as is set out in paragraph 49 of this judgment, a core requisite of an estoppel arising from silence is that the party said to be estopped must have appreciated, or, at the least, suspected, that the party acting under a mistake was so acting. It is that knowledge, or suspicion, which gives rise to the duty to speak out and it is the breach of that duty which estops the party in breach from denying the matter in respect of which a mistake was made. On my conclusions, Mr Dawson-Gerrard did not, following receipt of the 27^th July letter, know, appreciate, or suspect, that Collyer Bristow was acting under a mistake. Accordingly, no duty to speak arose. Phoenix, by its advisers was not, therefore, in breach of that duty and no estoppel consequent upon that breach has arisen.

I add that even if I had concluded that Mills & Reeve, by Mr Dawson-Gerrard, had, arising out of the letter of 27^th July, the requisite knowledge, or suspicion, to bring a potential duty to speak out into play, I am not persuaded that, upon the facts of this case, such a duty would have arisen, or, consequentially, any estoppel would, or could, arise.

As set out in paragraph 50 of this judgment, the conduct of the defendants, in that case, which was complained of in the Stolt Loyalty, and which, ultimately, gave rise to an estoppel, was their deliberate failure, when replying to a request for an extension, to draw attention to the fact that the extension only embraced one of the two defendants. It was that failure, having elected to respond to the request, to respond fully which was held by Clarke J to render it unconscionable for the defendants, thereafter, to rely, on behalf of the defendant against whom extension had not been sought, upon the mistake made in the application for an extension and which, accordingly, brought The Hendrik Sif principle into play. Put in Hendrik Sif terms, Clarke J’s conclusion was that a reasonable person, would expect that, when dealing with the request for the extension, those so dealing would, acting honestly and responsibly, respond fully to the request by drawing attention to the apparent mistake made by those making the request and that, consequently, those dealing with the request were under a duty to deal with the request in that way.

Such a duty is, as it seems to me, something very different from that contended for by Mr Penny in this case. In this case, as already set out, neither of the two letters, that of 27^th July and that of 17^th October, sought, or called for, any response. The suggestion, here, is that, despite that fact, a duty arose to draw attention to the apparent mistake. I am not at all persuaded that the application of the Hendrik Sif principle to the facts of this case takes the matter that far. It seems to me that honesty and responsibility plainly require that, if matters are raised which fall to be dealt with, they should be dealt with fully and fairly. I do not think, however, that, as between potential parties to contested litigation, it is incumbent upon a party, aware of a mistake on the other side, not of his making and not requiring a response, to, nonetheless, raise the matter, by way of response. It does not seem to me that, as between parties to litigation, honesty and responsibility so requires.

The foregoing seems to me to be wholly consistent with the decision of Morland J, in Mark Smith v David Probyn 2000 WL191146 (Unreported 25 February 2000). In that case, Morland J took the view that the inactive omission by defendant’s solicitors to respond to a letter, very similar, in essence, to that of 27^th July, in which it was stated ‘that the Claim Form has been issued and will be served upon you’ could not, in a case where the defendant had not been authorised to accept service, reasonably have misled the claimant’s solicitor, in that case, into believing that the defendant’s solicitors were so authorised. Although, the matter was not put, expressly, in terms of estoppel, or of a duty to speak out, it is abundantly plain that Morland J did not consider that it was incumbent upon the defendant’s solicitor to draw attention to the error, in circumstances where the letter, in question had not, in itself, called for a response, or that their failure so to do constituted any kind of representation that the defendant’s solicitors had had authority to accept service.

In light of the foregoing, I can deal relatively shortly with Mr Penny’s alternative suggestion that an estoppel arose by reason of Mills & Reeve’s lack of response to the content of the email letter of 17^th October and to the fact, evident from that letter, that Collyer Bristow was acting in the belief that Mills & Reeve had authority to accept service.

In regard to evidence, Mr Dawson-Gerrard’s first witness statement recorded, as I read it, his awareness that a copy of the Claim Form was received by the email letter of 17^th October and that the Claim Form, itself, was received in the post by Mills & Reeve on 18^th October. Although he does not say, in terms, that he was aware that Collyer Bristow had acted in the mistaken belief that Mills & Reeve were authorised to accept service, it is, I think, implicit in his evidence, in particular in his assertion that there was no requirement upon him to inform an opponent that he was not authorised to accept service and no duty upon him to draw an opponent’s attention to ‘perceived mistakes’, that he was fully aware of Collyer Bristow’s mistake.

That position is clarified in his second witness statement. In that witness statement, he makes clear that he was fully aware that Collyer Bristow was purporting to serve on Mills & Reeve, that he satisfied himself that there had been no notification to Collyer Bristow that his firm was instructed to accept service and that he had, further, satisfied himself, apparently by reference to a case, Higgins v ERC Accountants & Business [2017] EWHC 2190 (Ch), to which I will refer later in this judgment, that he was not under any duty to inform Collyer Bristow, timeously, or at all, as to its mistake. On that footing and in consultation with Phoenix, Collyer Bristow was not informed of its error until such time as the last date for service had passed.

For the reasons already discussed, I would accept that Mr Dawson-Gerrard, notwithstanding his state of knowledge, was not under any duty, as between the opposing parties to this litigation, to draw Collyer Bristow’s attention, prior to the expiry of the period for service of the Claim Form, to its mistake. As with the letter of 27^th July, the email letter of 17^th October did not call for, or seek, a response and, for the reasons already discussed, I am satisfied that, as between the parties, Mills & Reeve were under no duty to speak out in respect of Collyer Bristow’s mistake and, consequentially, that its failure to speak out did not give rise to, or constitute, any representation that Mills & Reeve had authority to accept service, or give rise to an estoppel to that effect.

In the result, the third and final matter for consideration is whether, in the events as they have occurred, I should exercise my discretion under CPR 6.15(1) and (2) and order that the steps taken by Collyer Bristow to bring the Claim Form to the attention of Phoenix, namely the purported service on Mills & Reeve, under cover of the letter of 17^th October 2017, should constitute good service upon Phoenix, by a method and at a place not otherwise permitted by CPR 6, and, thereby, validate that service. The effect of such an order, if made, is that the Claim Form, received by Mills & Reeve on 18^th October 2017, will have been served within the period provided by CPR 7. (1) and the claim against Phoenix will not have expired.

In considering this aspect of the matter, I approach it upon the footing that Collyer Bristow’s error in serving Mills & Reeve without first ascertaining that Mills & Reeve had authority to accept service was just that. Collyer Bristow had, as it seems to me, conflated the fact that Mills & Reeve was acting in the matter with the distinct and different question as to its authority to accept service and had simply overlooked the fact that it had not, prior to service, confirmed that Mills & Reeve had that authority.

For the reasons already discussed, at some length, in respect of estoppel, I do not approach the matter upon the basis that Collyer Bristow’s conduct, in purporting to serve on Mills & Reeve, was induced by any conduct of Mills & Reeve, or by any representation made by Mills & Reeve, such as to lead Collyer Bristow reasonably to believe that Mills & Reeve had authority to accept service. Nor, in this case, is there, in my view, anything in the course of dealing between Collyer Bristow and Mills & Reeve, objectively viewed, such as to lull Collyer Bristow into the incorrect belief that Mills & Reeve was authorised to accept service. In this regard, I do not think that the decision of the Court of Appeal, on the very special and, one hopes, unusual facts of Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898 is of assistance to the Claimants. In this case, Collyer Bristow, simply overlooked the need to ensure that Mills & Reeve had authority and simply and incorrectly assumed that Mills & Reeve had that authority.

The principles to be applied in determining whether there is a good reason to authorise an alternative mode of service and, in particular, whether to retrospectively authorise a mode of service other than that dictated by the CPR, such as to validate service which would otherwise fall outside the period permitted for service of the Claim Form, have been authoritatively set out in the judgment of Lord Clarke in the Supreme Court, in Abela v Baadarani [2013] UKSC 44 at paragraphs 33 to 48.

Although the facts of Abela are very different from the current facts, a number of matters are clear.

Firstly, the test under CPR 6.15(1) and (2) is not confined to exceptional cases. The question for the court under both CPR 6.15(1) and CPR 6.15(2) is whether good reason exists to order that steps taken to bring the claim to the attention of a defendant, even if, in themselves, they did not amount to good service under the relevant CPR provisions, are, nonetheless, to be regarded as constituting good service. Where CPR 6.15(2) is invoked, there must be good reason to order that the steps taken to bring the claim to the attention of the defendant constitute good service, even although the effect of that order, as pointed out in Abela, at paragraph 36, may be to enable a claimant to avoid the consequences of a failure to validly serve within the period provided for service under CPR 7.5 and, potentially, to avoid the claim being, or becoming time barred.

Secondly and relevantly to this case, where a large body of authority has been cited, the question of good reason is dependent upon particular facts in a particular case and should not, therefore, turn upon the analysis of other judgments in other equally fact sensitive cases.

Thirdly, although it is, I think, obviously the case that the mere fact that a defendant has learnt of the existence and content of a claim form cannot, of itself and automatically constitute a good reason for a retrospective validation, nonetheless, the fact that the defendant has been made aware, within the period provided for service, of the existence and content of the Claim Form is, necessarily a, if not ‘the’, critical factor. Quite plainly, there could be no good reason to validate retrospective service where the steps taken to bring the claim form to a defendant’s attention, were ineffective to that purpose.

Fourthly, in regard to service, itself, the ‘whole purpose’ of service is to inform the defendant of the content of the claim form and the nature of the claimant’s case. It is not, quoting Lewison J, at an earlier stage in Abela, where he had granted an extension of time in respect of service, ‘about playing technical games’.

Fifthly, the focus of the enquiry, as to whether there is good reason to retrospectively validate attempts at service, is not upon the period prior to the issue of the claim (save in exceptional circumstances) but upon the reasons why the claim form was not served within the period of its validity.

The principles outlined by Lord Clarke in Abela have, inevitably, been the subject of further consideration and elaboration in subsequent cases.

In Barton v Wright Hassall LLP [2016] EWCA Civ 177, a case where service within the validity of the claim form was defective because service had been effected by email on the day preceding the last day for service and where validation was refused, Floyd LJ, in a helpful summary of the relevant principles, made clear that, although there was an inevitable focus upon reasons why the claim form had not been served within the period of its validity, this was by no means the only area of inquiry. He also made clear that the conduct of both the claimant and the defendant was relevant to the enquiry, that, in that regard, the conduct of a party playing technical games as to service would count against it, but that it was not necessary for the party seeking validation to show that he had taken all reasonable steps to effect service by the proper method. Importantly, given one of the arguments advanced by the Claimants as to good reason (as discussed below), Floyd LJ noted in his judgment, at paragraph 49, that, it had not been argued, as it is in this case, that the defendant’s solicitors, even although, in Barton, the court was dealing with a litigant in person, had been under any professional duty to inform the claimant of his procedural error prior to the expiry of the validity of the claim form. Importantly, also, on the facts of Barton, the court acquitted the defendant’s solicitors of any suggestion of ‘games playing’.

In Societe Generale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS and others [2017] EWHC 667 (Comm), Popplewell J, in seeking to summarise the Abela principles and any subsequent extension, or refinement, of those principles, while endorsing the critical importance of the defendant’s awareness of the existence and content of the claim form, drew attention, also, to the differential weight that might attach to that factor. It will carry the greatest weight when, as here, the defendant becomes aware of the claim form and its contents by reason of a defective attempt at formal service. It will carry less, or, even, no weight where the contents of the claim form come to the attention by other means.

Popplewell J, also drew attention to the necessity, when determining the presence or absence of good reason, of evaluating all the factors militating for or against the grant of relief, rather than focusing on any single factor. He emphasised the possible importance of delay when making any application for relief under CPR 6.15 and reiterated the fact that the Abela test of good reason applies whether or not the grant of relief would, or might, deprive a defendant of a limitation defence. In respect, however, of limitation, his view was that, where limitation is in play, then the good reason for granting CPR 6.15 relief by way of retrospective validation must, save in exceptional circumstances, ‘impact’ on the expiry of the limitation period, or, more strictly, I think, upon the expiry of the period of the validity of the claim form. In the absence of such good reason, retrospective validation would, in his view, only be available in exceptional circumstances.

Applying the foregoing principles to the facts of this case, the steps taken to bring the Claim Form to the attention of Phoenix, within the period provided by CPR 7.5(1) for service of the Claim Form consisted of the purported service of the Claim Form and Particulars of Claim upon Phoenix’s solicitor, in circumstances where that solicitor was already instructed to deal with the Claim. The effect, or result, of the taking of those steps, as is now clear from the evidence, is that Phoenix and its solicitor became fully aware of the Claim Form, of its contents and of the fact that the Claim Form had been sent to Mills & Reeve, not, merely, for information, but as an active step in pursuit of the Claimants’ Claim, all within the period provided by the CPR for service. Accordingly, it seems to me that, notwithstanding the defective nature of the purported service, the clear purpose underlying service was fully achieved during the lifetime of the Claim Form and, therefore, that that ‘critical’ factor operates in favour of validation and is a serious step towards the conclusion that good reason exists to validate the purported service.

That said, it is clear, I think, that, as it was put by HH Judge Pelling QC, in Higgins, the fact of the receipt by solicitors of the Claim Form, in time, is a necessary, but, not, necessarily, a sufficient condition for validation. Were that not the case, the provisions as to mode of service and, in particular, the provisions in the CPR as to service upon solicitors would become nugatory.

It is, as I see it, primarily for this reason that, in cases such as Brown v Innovatorone Plc [2009] EWHC 1376 (Comm) and Barton, validation was refused. Although Kuenyehia v International Hospitals Group Ltd [2006] EWCA Civ 21 was a case where the court was being asked to dispense with service, rather than validate defective service, one can discern a similar approach being adopted.

Granted, therefore, the need, in establishing good reason, to point to something other than the fact of de facto service within the lifetime of the Claim Form and granted, also, in this case, where it is common ground that validation of the service of the Claim Form might deprive Phoenix of a possible limitation defence to Phoenix’s Claim, such that, as analysed by Popplewell J, in Societe Generale, the good reason warranting validation must impact upon limitation, the next matter for consideration is whether, on the facts of this case, there are other matters, including matters impacting upon limitation, which, when taken with the de facto service of the Claim Form, together give rise to a good reason for the validation of that service. On the other side of the argument, consideration, as Popplewell J highlighted, must also be given to matters which tend against the grant of relief.

Mr Penny’s submission is that, in this case, the key additional matter warranting validation is to be found in the conduct of Mills & Reeve, upon receipt, firstly, of the 17^th October email letter, showing Collyer Bristow’s mistaken belief that service could be effected upon Mills & Reeve and, secondly, its continuing conduct, when in receipt of the actual purportedly served Claim on 18^th October; there being still over 24 hours from that latter date and something over 48 hours from the former date within which service could have been validly effected within the lifetime of the Claim Form. What is, simply, said is that the conduct of Mills & Reeve, with, on the evidence, the explicit authority of Phoenix, in deliberately failing to draw attention to Collyer Bristow’s mistake, fell squarely within the ambit of ‘games playing’ and of ‘playing technical games’ as to service and that that conduct, in circumstances where, if Mills & Reeve had not acted in that way and had, instead, elected to draw attention to the mistake, Collyer Bristow would have had ample time to serve Phoenix within the lifetime of the Claim Form, amounted to a good reason impacting upon limitation, which, when coupled with the de facto service which had taken place, warranted the validation of that de facto service.

By way of reinforcement of that submission, Mr Penny, further, submitted that Mills & Reeve’s ‘games playing’ was contrary to and in breach of duties owed, to the Claimants and to the court, pursuant to the overriding objective, and contrary, also, to its, or its members, professional obligations as solicitors. His submission was that Mills & Reeve’s failure to inform Collyer Bristow of its mistake, in time to allow Collyer Bristow to rectify its mistake, amounted to a breach of one, other, or all of these obligations and constituted a weighty reason whereby the de facto, but defective, service of the Claim Form should be validated.

I can deal relatively shortly with two aspects of that latter submission. For the reasons already given, in respect of estoppel, I do not think that any, inter partes, duty arose, whereby, as between the parties, Mills & Reeve, or its client, was obligated to inform Collyer Bristow of its mistake.

Correspondingly, while a solicitor is, undoubtedly, under a duty not to take unfair advantage of a third party (see Chapter 11 of the SRA Handbook) and while, as, perhaps tentatively foreshadowed, albeit in passing, by Floyd LJ, in Barton, the possibility exists that a solicitor’s breach of that duty might give rise to, or constitute, upon particular facts, a good reason to validate an otherwise ineffective mode of service, I do not think that that situation arises in this case.

It seems to me that the professional duty not to take unfair advantage, owed to a third party by a solicitor, can, in the context of a case such as this, be no higher than the duty to speak out imposed upon a party to litigation in circumstances where a reasonable person would expect that party, acting honestly and responsibly to speak out. As I have already explained, at some length, I do not think that that duty, which I might characterise as a duty of fair dealing, goes so far as to require an opposing party in litigation to draw attention to mistakes made by the other party, in circumstances, such as those arising in this case, where the mistake is not of his making and arises in a situation not calling for a response. If honesty and responsibility, or fair dealing, does not give rise to such a duty, as between the parties, I cannot see that a solicitor, acting in his professional capacity is under a larger duty, or can be stigmatised as taking unfair advantage if he fails to draw attention to the relevant mistake.

The third aspect of Mr Penny’s submission calls for rather more detailed treatment.

The essence of the submission is that, by reason of the overriding objective, parties to litigation now owe a duty to the court to co-operate in respect of procedural matters, that that duty extends, in an appropriate case, to a duty to advise, or inform, an opposing party of his mistakes, that that duty arose in this case, that Mills & Reeve’s conduct and that of its client, in not warning Collyer Bristow, timeously, as to its error, such as to enable Collyer Bristow to correct that error, amounted to a breach of that duty and afforded, therefore, a very good reason to validate the defective service and so put the Claimants in the same position as if Mills & Reeve’s obligation to the court had been fulfilled.

There can be no doubt but that parties are required, by CPR 1.3 to help the court to further the overriding objective, or that that objective requires the court, in so far as it can, to ensure that matters are dealt with expeditiously, efficiently, fairly and at proportionate cost and with an appropriate allotment of the limited resources of the court. There can be no doubt, either, that, in fulfilment of the parties duty to further these objectives, the courts have endorsed, since the inception of the CPR, a duty in the parties to act in a co-operative and collaborative manner in bringing cases to hearing.

Part of that duty, as it seems to me, is a duty to avoid unnecessary, expensive and time consuming satellite litigation. That duty emerges, plainly, from the joint judgment of Lord Dyson MR and Vos LJ (as he then was) in Denton v T H White Ltd [2014] EWCA Civ 906 at paragraphs 39 to 43, in a part of their judgment tellingly sub-headed Satellite litigation and non-co-operation. A consequence of that duty, as set out in paragraph 41 of the joint judgment, is that it is ‘wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage’.

That passage, of course, relates, directly, to relief from sanction under CPR 3.9. It is relevant, however, as I see it, to the situation with which I am concerned. Firstly, the validation of Collyer Bristow’s defective service, will, if allowed, amount to a relief from sanction; the sanction being that, without validation, the current Claim will be unable to proceed. Secondly, it is the advantage taken by Mills & Reeve of Collyer Bristow’s mistake, in the shape of Mills & Reeve’s failure to warn Collyer Bristow of that mistake in time for Collyer Bristow to remedy its defective service, which would, if validation was not ordered, give rise to what the Claimants would describe as the windfall strike out, or dismissal, of their current claim.

All that said, it is quite clear, in the context of Denton, that it is not, in every case, inappropriate for an opposing solicitor, or party, to take advantage of an opponent’s mistake and the question, therefore, is whether a mistake of the kind made in this case (i.e. an honest mistake giving rise to defective but de facto service) is one where it would be, or is, inappropriate for an opposing party to take advantage, or whether the quality of the mistake is such that an opposing party, acting in his own best interests, is, notwithstanding his duty to the court, entitled to take advantage. If the former, then, as it seems to me, Mills & Reeve should have drawn attention to Collyer Bristow’s error. If the latter, then they did not need to do so.

In this regard, I was referred to a number of authorities purporting to emphasise the special status of service and the consequential necessity of strict compliance with rules as to service. I note, in particular, the comment of Arnold J, in Personal Management Solutions at paragraph 27, that service of the claim goes to the root of the court’s jurisdiction.

That comment, however, particularly in the context of an application under CPR 6.15, must be set against the underlying purpose of service, as explained by the Supreme Court in Abela at paragraphs 37 and 38 and as referred to earlier in this judgment; namely that the purpose of service is to bring the claim and its contents to the opposing party’s attention and that service is not about playing ‘technical games’. In this case and by that criterion, there is no doubt but that the purpose of service has been achieved. There is no doubt, also, by comparison with other cases, where, for example, a claim form has been provided ‘for information’, that, in this case, Mills & Reeve was aware from 17^th October and within the lifetime of the Claim Form, that the service effected was intended to commence the necessary processes under the CPR for dealing with the Claim. On that footing, it can, as it seems to me, well be said that the position adopted by Mills & Reeve, in failing to draw attention to the defect in service, amounted to the playing of a technical game.

Looked at on a broader footing, it further seems to me that, whatever may have been the position in the past, it is inherent in the scheme created by the CPR and, in particular by CPR 6.15(2), itself, and by the approach to that rule, as expressed in Abela, that a rather more flexible approach is now intended to be taken in respect of the service of the claim form, that errors in the service of a claim form are not to be treated as irredeemable and incapable of correction and, correspondingly, that there is nothing special in respect of the service of a claim form to negate an opposing party’s obligation not to take inappropriate advantage. The very fact that the proper approach to CPR 6.15 requires the court to discourage technical game playing in respect of service seems to me to point very strongly towards the conclusion that the obligation not to take inappropriate advantage applies to issues of service of the claim form just as much as it does to other issues arising under the CPR.

I add that the foregoing seems to me to be wholly consistent with the approach adopted by the court in dealing with other areas of litigation where, prior to the CPR, parties were permitted to take advantage of an opposing party’s defaults. By way of example, prior to the CPR it was acceptable practice, in the voluminous litigation in respect of want of prosecution, for a defendant to allow sleeping dog to lie until such time as a claimant’s delay was sufficient to enable an application to strike out to be made. That practice has not survived the CPR (see Asiansky Television Plc v Bayer-Rosin ( a firm) [2001] EWCA Civ 1792 at paragraphs 48 and 67).

The foregoing is also wholly consistent with the decision of HH Judge Hacon, in OOO Abbott v Econwall UK Ltd [2016] EWHC 660 (IPEC). In that case, Judge Hacon took the view, in the context of a claimant’s misunderstanding as to the extent of an offered extension and a consequent failure by the claimant to serve in time, that full compliance with the overriding objective, required that a litigator, aware of the real possibility that a genuine misunderstanding had arisen in respect of a significant matter, should take reasonable steps to clear up that misunderstanding and that, accordingly, the defendant’s solicitor, being aware that there had been a misunderstanding as to the extent of the extension, should have clarified the extent of the extension and so enabled the claimant to serve in time. For that reason, he was prepared to validate, as good service, a copy claim form provided to the defendant prior to the expiry of the period within which service should have taken place.

His reasoning, in reaching that decision (see paragraphs 39 to 42 and paragraph 52), was that the overriding objective required a clear common understanding as to procedural arrangements, that any breakdown in that understanding would waste cost, impair progress and lead to court applications and the use, otherwise avoidable, of court resources. For that reason it was incumbent upon litigators to dispel misunderstandings and, by so doing, ensure the more efficient conduct of litigation. Given that obligation, the defendant’s knowledge of the possibility of misunderstanding, and his, or its, failure to dispel that misunderstanding, it was appropriate to take that failure and its consequences into account in validating, as good service, the earlier provision of a copy of the claim form. Such validation, in those circumstances, was more likely to encourage compliance with the overriding objective than if validation had been refused.

OOO Abbott was considered by Judge Pelling, in Higgins. In that case an application was made under CPR 6.15 to retrospectively validate, as good service, a copy claim form provided to the defendants, at the time of issue, but which, as the judge found, had never been so provided by way of service. Although granted extensions in respect of service, the claimants simply forgot to serve. They were never, within the lifetime of the claim form, of the belief that they had served. On the particular facts, it could only have been on 17^th March 2017 (the last day for service being 19^th March) that the defendants could have had any inkling that the claimants had overlooked the need to serve. There was, in the judge’s view, no basis for the inference that the defendants, or any of them, had, in fact, appreciated, prior to the expiry of the extended date for service, that the need for service had been overlooked. There was, in consequence, no factual basis for any suggestion that the defendants had played technical games in respect of service, or that they, or any of them, had ever come under any duty, pursuant to the overriding objective, or otherwise, to remind the claimants that service had been overlooked. Unsurprisingly, retrospective validation was refused.

In refusing the application and although unnecessary to his decision, Judge Pelling, nonetheless, considered the position which would have arisen had he determined that the defendants had become aware prior to the expiry of the lifetime of the claim form that, unless prompted, the claimants would forget to serve.

His view was that the overriding objective did not require that a solicitor, aware of a mistake made by his opponent, should make that opponent aware of that fact when to do so might be contrary to his client’s substantive interests. Accordingly, had he found that the defendants had become aware, prior to the expiry of the lifetime of the claim form, that the claimants had overlooked and were overlooking service, he would not have regarded the defendants as having any obligation to draw the claimants’ attention to that mistake and remind them of the need to serve, or, therefore, as having established any good reason for validation.

For the reasons already set out, I do not share Judge Pelling’s view. I think that the views expressed by Judge Hacon are to be preferred, that, as set out in paragraph 40 of OOO Abbott, the entitlement of a party to litigation to take advantage of an opponent’s mistakes is qualified by the obligations that litigants owe to the court to give effect to the overriding objective and that, in consequence and contrary, perhaps, to the litigation culture that preceded the CPR, litigants no longer have the absolute entitlement that they may once have had to take advantage of an opponent’s mistakes. I do not think that mistakes relating to service fall into any separate category.

Reverting to the instant case, I am not persuaded that the error made by Collyer Bristow was of a type, or nature, that excluded Mills & Reeve from any duty to inform Collyer Bristow of its mistake, or, conversely, rendered it appropriate and acceptable for Mills & Reeve to act, deliberately, in the way that it did.

In so saying, I intend no personal criticism of the conduct of Mr Dawson-Gerrard. I have no doubt that he was of the view that he was acting, legitimately, in the interests of his client and that, as he says, he was fortified in that view by his understanding of Higgins. In my view, however, in acting and advising as he did, he misjudged the correct balance to be drawn between his duty to his client and his duty under the rules to give effect to the overriding objective.

In my view, his conduct, in the context of the circumstances with which he was confronted, did amount to the playing of a technical game as to service. I have to say I find it hard to see, if his conduct did not so amount, that the phrase ‘technical games’ is left with any realistic, or significant, meaning.

It follows that I consider that, standing in isolation, the de facto service of the Claim Form, within the lifetime of the Claim Form, taken in conjunction with the conduct of Mills & Reeve, in respect of that service, affords good reason to validate the de facto service, by way of an order under CPR 6.15(2). It was the conduct of Mills & Reeve, in failing to draw attention, when it readily could, to its lack of authority to accept service, which resulted in Collyer Bristow’s failure to serve in time. The good reason advanced and established by the Claimants is, accordingly, a good reason impacting upon service within the lifetime of the Claim Form and, consequentially, upon limitation.

The remaining question is whether, good reason being a holistic exercise, there are any other facts and circumstances to which I should have regard and which, when all matters are taken as a whole, should persuade me that, notwithstanding my conclusion above, nonetheless, overall good reason is not made out.

Two matters potentially arise.

The point is properly taken by Phoenix that the necessity for validation arises out of the mistaken conduct of Collyer Bristow. So it does. An honest mistake was made. I do not think, though, that the fact of that mistake, given Mills & Reeve’s conduct in respect of that mistake and its duty under and in respect of the overriding objective, detracts significantly from the good reason otherwise made out.

The final point pertains to delay. It is said that the Claim Form could have been served a great deal earlier and that it was the fact that service was initiated so late in the day that lies at the source of the Claimants’ difficulty.

It is, obviously, true that the Claim Form could have been served earlier and that, if it had been, the issue as to service would have surfaced earlier. The reason that it was not served earlier, as I accept, on the evidence, is not that the Claimants were sitting on the matter, but that, for reasons related to the availability of papers, funding, ATE insurance and, most significantly, the fact that the First Claimant, Sally Woodward, whose input was key to the preparation of the proceedings, suffered the onset of very serious ill health, the Claimants were faced with serious difficulties in the preparation of the Particulars of Claim intended to be served with the Claim Form.

It seems to me that the decision to await service of the Claim Form until Particulars of Claim could also be served was a wholly reasonable one, particularly where there were problems in obtaining information and instructions from Sally Woodward. The early service of the Claim Form, without complete instructions as to the content of the Particulars of Claim could very well have caused difficulties in respect of the service of that document.

More importantly, however, than any of the last foregoing is that, in point of fact, the Claim Form with accompanying Particulars of Claim was ready well before the last date for service, was purportedly and de facto served by 18^th October and was in the hands of Mills & Reeve, by way of the email letter of 17^th October, on that day. In those circumstances, had Mills & Reeve acted as it should have acted, there was ample time to take the relevant step in respect of service on Phoenix before midnight on 19^th October and there is no good reason to believe, given the steps taken by Collyer Bristow, following receipt of Mills & Reeve’s letter of 20^th October, that effective service would not have been achieved.

In these circumstances, I cannot see that the suggested delay in the serving of the Claim Form detracts significantly, if at all, from the other factors discussed in this judgment and which, in my view establish that good reason exists in this case to treat the purported service effected under cover of the Claimants’ letter of 17^th October 2017 as good service and to justify an order to that effect.

In the result, I will dismiss the Defendant’s application and I will make an order in favour of the Claimants, under and pursuant to CPR 6.15(1) and (2), to the effect that the steps taken by the Claimants to bring the Claim Form to the Defendant’s attention by sending the Claim Form to Mills & Reeve by email and first class post on 17^th October 2017 constitute good service.

This is an addendum to my judgment in this case.

After my draft judgment had been sent to the parties and while arrangements were being made for handing down, I was informed by Counsel for the Defendant that the Supreme Court had handed down its judgment in Barton v Wright Hassall LLP [2018] UKSC 12 and I was asked to reconsider my judgment in the light of that decision, having particular regard to the fact that Barton, in the Court of Appeal, [2016] EWCA Civ 177, was referred to, quite extensively, in my judgment.

I have now had the opportunity to consider the decision of the Supreme Court, together with a helpful note prepared by Counsel for the Defendant, and, having done so, I see no reason to change, or modify, the conclusions that I have previously reached.

In my judgment, I characterised the Court of Appeal decision in Barton as being one of a number of cases where validation under CPR 6.15 had been refused upon the primary basis that, although de facto service had been effected, there was nothing other than de facto service to constitute good reason for validation. The majority decision in the Supreme Court seems to me to bear this out. The fact that the claimant in Barton was a litigant in person did not, in the view of the majority, provide a sufficient additional factor such as to give rise to a good reason for validation. Likewise, on the facts and on the very limited arguments deployed (see paragraph 22 of the Supreme Court judgment in Barton) the conduct of the defendant’s solicitors, in that case, did not amount to the playing of technical games.

It is true that Lord Sumption, giving the majority judgment, took the view that the solicitors in Barton were not, even had they had the time to do so, under any duty to advise the claimant of his mistake as to service. The Supreme Court, however, was not asked to consider and did not consider, as I have been asked to, any developed argument, as to the impact and effect of the duty to further the overriding objective, as giving rise to a duty to the court to warn an opposing party of his, or her, mistakes. I do not regard the majority in Barton (and I do not think that the majority in Barton would have regarded themselves) as having given a definitive, or any, answer, in respect of that argument.

It is true, also, that, in endorsing the principles to be derived from Abela, Lord Sumption gave, it might be said, new, or greater, weight to the fact that validation might deprive a defendant of a limitation defence than has, perhaps, emerged from the earlier authorities. He was, however, at pains to say that the point was not, necessarily, decisive. As explained by Lord Briggs in his dissenting judgment, the point can, indeed, be put the other way; namely that, in a case where the de facto service fulfils all the objectives of good service, a refusal to validate may provide the defendant with a windfall.

In the current case, I consider that the de facto service effected by Collyer Bristow did fulfil all the objectives of good service (see, in particular, paragraphs 83 and 99 of my judgment and paragraphs 28 to 30 of the Supreme Court judgment in Barton) and that, to the extent that something additional is required in order to give rise to a good reason to validate, then that good reason was provided by the failure of Mills & Reeve, contrary, as I find, to its, or its client’s, duty to further the overriding objective, to warn Collyer Bristow that its purported service was defective, such that good service could have been effected in time. It was that failure which constituted the deliberate playing of a technical game.

As I set out in my judgment, I do not think that the undoubted culpability of Collyer Bristow, in overlooking the fact that Mills & Reeve had not indicated that it had authority to accept service, outweighs Mills & Reeves conduct, in failing to draw Collyer Bristow’s attention to its mistake. Had Mills & Reeve acted as it should have done, Collyer Bristow’s mistake would not have precluded good service being effected in the lifetime of the Claim Form.

For the same reason, I do not think that, in this case, the fact, that validation will, or may, deprive Phoenix of a limitation defence, should preclude validation. Had Mills & Reeve acted as it should have done, good service would have been effected in time. In that context, validation does no more than to preclude Phoenix from procuring a windfall.

In the result and as set out in my judgment, I will order that the steps taken by Collyer Bristow in purported service of the Claim Form stand as good service.

I have already indicated to the parties that, because of the weight I attach to the duty of Mills & Reeve and its client to further the overriding objective, by drawing Collyer Bristow’s attention to its mistake, because, also, of the conflict of authority on the point and because, as it seems to me, an important point of practice arises, I will give permission to appeal. I am, subject to the views of the parties, minded to assign the appeal to the Court of Appeal, pursuant to CPR 52.23.