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Playing Technical Games: CPR Part 6

In February 2018, we reported  on the well-publicised Supreme Court decision in Barton v Wright Hassall LLP [2018] UKSC 12 ('Barton'), which provided welcome clarification to solicitors and insurers alike on the extent to which the courts will be lenient to Litigants in Person when they claim to be unfamiliar with the rules regarding good service of a claim form. More recently, in Woodward and Another v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) ("Woodward"), the Court were again asked to consider the extent of a solicitor's duty to warn an opposing party of their mistakes in circumstances where doing so would not be in the best interests of their client. Whilst both cases considered "good service" under CPR 6.15, the Woodward judgment highlights that no one case can provide definite guidance and each case will turn on its own facts.


The facts are relatively straightforward. The Claimant's solicitors, Collyer Bristow (CB) served a claim form on the Defendant's solicitors, Mills and Reeve (MR) on 17 October 2017, two days before the validity of the Claim Form was due to expire (on 19 October 2017).  Although MR received the form by email on 17 October and by post on the 18 October, CB had not asked whether MR had instructions to accept service of proceedings. On 20 October, after time for service had expired, MR advised CB that purported service had been defective. CB subsequently applied for an order either declaring that service was valid or asking the Court to retrospectively validate service of a Claim Form and Particulars of Claim under CPR 6.15(1) and (2). MR cross-applied for a declaration that the Court had no jurisdiction to hear the claim because the Claim Form had not been served in time.

Master Bowles, who heard the application, considered three main issues: 

  1. Had MR, via its correspondence with CB, provided written notification that it was instructed to accept service of the proceedings?

  2. Was MR otherwise estopped from denying it was so instructed, rendering attempted service good service?

  3. In the absence of written notification or estoppel, should the attempted service by CB be retrospectively validated pursuant to CPR 6.15(1) and (2)?

On issue (1), the Court decided that nothing said in the correspondence amounted to a written agreement to accept service of the proceedings. Similarly, on issue (2), the Court deemed that MR lacked the knowledge or suspicion of the Claimant's mistake for estoppel to apply.

However, for issue (3), the Court exercised its discretion in the Claimant's favour, placing considerable weight behind Abela v Baadarani [2013] UKSC 44. This case is the leading authority as to the circumstances in which alternative methods of service will be authorised by the Court to validate service of a Claim Form which would otherwise have expired.  Specifically, it interpreted CPR 6.15(1) and (2) as "not confined to exceptional cases" – the test simply being whether there are good reasons for the attempted service to constitute good service. The fact that the Defendant was aware of the "existence and content" of the claim was described as a "critical factor". The Court also outlined the principle that the purpose of service is informing the Defendant of the claim against it – "not playing technical games".

What about Barton?

The judgement in Barton was handed down after judgment had been given in this case and Master Bowles was asked to reconsider his judgment in light of it. He delivered an addendum judgment which distinguished Woodward from the Supreme Court judgment in Barton by reference to the Defendant (and its solicitors') duty to further the overriding objective. In Barton, much analysis was focused on whether litigants in person should be afforded leniency when applying the requirements under the CPR. Notwithstanding the different approach taken by Master Bowles by reference to the overriding objective, Master Bowles acknowledged that case law was far from clear on this point and granted leave to appeal to the Court of Appeal given the importance of the point of practice.


Prevention is always better than cure. A party wishing to serve proceedings should ask whether solicitors are authorised to accept service and if not, alternative methods of direct service on the party itself should be arranged. If the address for service is not ascertainable, an application under CPR 6.15(1) and (2) can be sought pre-emptively.  Not taking these steps may lead to satellite litigation. It will be interesting to see the approach taken by the Courts to the parties legal representative's duties in such circumstances in the context of the overriding objective.


For more information, please contact or Camarley McIntosh, Trainee Solicitor
on 020 7645 4221 or email

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.