Legal Viewpoint October 2018 

In Phoenix Healthcare Distribution v Woodward and another [2018] EWHC 2152 (Ch) the High Court has upheld the principle that litigation lawyers are not under a duty to alert their opponents to errors which they have not caused. In the case, the defenant’s lawyers acknowledged receipt of an email attaching court proceedings, but did not take the point that service by email was ineffective, fatal to the claim, until well past the limitation deadline. HHJ Hodge decided: “the culture introduced by the CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitors, to draw attention to that mistake… That is, in my judgment, not required by CPR 1.3; and it does not amount to ‘technical game playing’.”

The principles of legal professional privilege - to protect the confidentiality of communications between clients and professional advisers when litigation is in prospect - have been upheld by the Court of Appeal n SFO v ENRC [2018] EWCA Civ 2006, defeating Serious Fraud Office demands for their disclosure in respect of an international fraud investigation. The ruling has been widely welcomed by lawyers, because without protections from risk of accountability to public investigators, parts of their job would be impossible.

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