What should you do if your opponent makes a procedural error?

“Never interrupt your enemy when he is making a mistake.” - Napoléon Bonaparte

As litigators, we generally regard it our overriding duty to obtain the best possible result for our clients by (within reason) every means available to us. However, the duty to our clients is tempered in several respects. One of the quandaries that can, and does, arise in litigation is whether or not one is obliged to highlight the errors of another party, particularly where it is in your client’s best interests not to do so.

In its report entitled Walking the Line: The balancing of duties in litigation, published in March 2015, the SRA gives as an example an instance of a solicitor unduly prioritising the client’s interest over their duties owed to the courts, third parties, and to the public interest as:

“taking unfair advantage of a third party. For example, by exploiting another party’s procedural errors or lack of legal knowledge in certain circumstances”

We are all also aware of the duty of the parties to help the court further the overriding objective (CPR 1.3). These abstract professional duties and regulatory requirements can, however, be difficult to apply in practice. One area in which this difficulty has arisen and fallen to be analysed by the courts is in cases where service of a claim form has been defective. If there is a limitation issue, then the stakes cannot, in litigation terms, really be higher. If, for any reason, good service has not been effected in time, then (from a defendant’s perspective) there may be a complete defence to the claim, whatever its merits.

Contrast, for example, the recent decisions in Barton v Wright Hassall and then Abbott v Econwall. These were both cases concerning applications under CPR 6.15(2) for an order that steps taken to bring the claim form to the attention of a defendant by “alternative method or at an alternative place” (that is, prima facie defective service) be deemed to be good service on the defendant.

In Barton, the Court of Appeal decided not to allow the application by the claimant (a litigant in person), where the claimant had served on the defendant firm by email without the defendant firm’s express consent. By contrast, in Abbott the claimant’s application was allowed where there had been a misunderstanding between the claimants’ solicitors and the defendants’ solicitors as to terms of an agreement to extend time for service. On reading the facts of these cases, both outcomes seem (at first blush) somewhat counter-intuitive. Where does this leave us?

If the situation arises, I would suggest that the following considerations, among others, apply:

• Consider your professional duties. There is a difference, for example, between allowing an opponent to labour under a mistake and positively encouraging them to do so.

• Obtain your client’s instructions. If your client does not give you their consent to alert your opponent as to a procedural error, particularly one that may result in a claimant’s claim being statute barred, then consider taking advice/consulting the SRA as to your professional duties. If you have done this, then it seems to me you cannot easily be criticised for following instructions (although your client may be and may be penalised in costs).

• Consider your reputation and the reputation of your client. Unless you wish to positively cultivate a reputation for sharp practice (astonishingly, some do) then make sure you have done as much as you reasonably can to clarify any agreed terms. For example, endeavour to avoid (as in Abbott) agreeing that something can be done “within one week/14 days/one month” or, if you do, follow up with “that is, by 4pm on [ ]”, so that any errors cannot be put down to mistaken understanding on the part of one party.

This article was first published on the Practical Law Dispute Resolution blog.