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Further guidance on what constitutes ‘technical game playing’ in litigation?

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management


Phoenix Healthcare Distribution Limited v Sally Woodward & another [1]

The High Court has overturned the Master’s decision to retrospectively validate the claimants’ (respondents’) defective service of the claim form pursuant to the court’s discretion under CPR 6.15. The court ruled that the defendant’s (appellant’s) failure to draw the claimants’ attention to the invalid service until after expiry of the limitation period did not justify the exercise of the court’s discretion. The decision reconciles the case with the recent Supreme Court decision in Barton [2]


The case concerns a claim for damages for breach of contract and misrepresentation. The claim form was issued on 19 June 2017 which was the day before limitation expired. Under CPR 7.5, the claimants had four months in which to serve the claim form, giving a deadline of midnight on 19 October 2017. The claimants’ solicitors sent the claim form to the defendant’s solicitors by way of purported service by e-mail and by first class post on 17 October 2017.  On 20 October 2017, after the claim form had expired, the defendant’s solicitors acknowledged receipt of the claim form but said that service was defective as they were not authorised to accept service. In response, the claimants’ solicitors sought to serve the claim form by all methods available but none were effected before 11am on 20 October 2017 – at least 11 hours after the claim form had expired.

The application

The claimants made an application for an order declaring that service had been effected or retrospectively validating it under CPR 6.15(1) and 6.15(2). The defendant cross-applied for a declaration that the court had no jurisdiction to hear the claim because the claim form had expired.

The Master’s decision

Master Bowles held that the defective service should be validated retrospectively because although the defendant’s solicitors had no duty to warn the claimants’ solicitors, a party taking advantage of an opponent's mistake was qualified by its duty under CPR 1.3 to help further the overriding objective[3] and the defendant’s solicitors’ conduct had constituted ‘technical game-playing’.  The defendant appealed.  

The decision of the High Court on appeal

HHJ Hodge QC overturned the Master’s decision and held that the defective service should not have been retrospectively validated as CPR 1.3 did not impose a duty on solicitors to draw attention to mistakes made by the other side in circumstances where neither the party or their solicitors had contributed to those mistakes. In this case there had been no refusal to cooperate in respect of procedural matters, only a failure to point out an apparent error when to do so would have allowed the claimants time to correct the mistake. The defendant’s solicitors’ conduct did not amount to technical game playing in circumstances where the service did not call for a response. The claim was struck out.   To avoid this outcome, HHJ Hodge QC suggested that the claimants could have served the claim form and sought an extension of time for service by agreement or application to the court. It had been unreasonable to delay and run the risk of failing to serve on time, which is what ultimately happened. 


The court considered Barton where the Supreme Court had held by a 3:2 majority that the rules on service should be strictly applied (even where the error was made by a litigant in person) and that a defendant’s solicitor would need their client’s express instructions to alert a claimant to a defect in service. There was however a difference in Barton in that there was no opportunity to remedy the defect unlike in this case. Master Bowles distinguished the two cases by stating that the Supreme Court in Barton had not considered 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…mistakes”. However, HHJ Hodge QC held that the decision in Barton would not have been reached if the court had considered the conduct inconsistent with the duties owed under CPR 1.3.


The decision is in line with Barton and brings further guidance on the conduct expected of a party and their solicitors when faced with a mistake by the other side to which they did not contribute and where no response is expected. In those circumstances there is no breach of the overriding duty nor is there ‘technical game playing’ even if the error could have been remedied.

That said, the court did stress that on the facts of this case, service called for no immediate response but raised the possibility that the position could be different if the claimants had sought specific confirmation that service was to be treated as effective and had received no response.  With this in mind,  a party may wish to include wording in the covering letter of service seeking such confirmation but it remains to be seen whether a party failing to respond would be considered ‘game playing’ and in breach of the overriding duty, especially where client instruction would be needed and where it would be adverse to that client’s interests.

Whilst both decisions reiterate that there is no obligation on a party to remind the other party of the rules even if one party is a litigant in person, the courts are prepared to give  litigants in person more leeway in case management conferences and hearings and assistance should be offered especially if there is a vulnerability.  As always regulated institutions will also need to reflect on their regulatory obligations.

[1] [2018] EWHC 2152 (Ch)

[2]  Barton v Wright Hassall LLP [2018] UKSC 12 

[3] Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 considered