The Supreme Court has, by a narrow majority, refused a litigant in person's appeal relating to the service of a claim by email.
In Barton v Wight Hassall the Supreme Court has considered whether to grant an extension of time for the service of a Claim Form and Particulars, or alternatively validate service despite non-compliance with the rules. It is unusual for the Supreme Court to consider matters of court procedure, but this case had an additional aspect: the claimant who had failed to serve his Claim documentation correctly was a litigant in person and argued that the court should allow him a greater margin of appreciation. By a margin of three to two, the Supreme Court has favoured certainty of the rules over leniency to those acting without lawyers.
Service by email: the rules
Despite email having long been the default means of communication, service of court documents by email is tightly constrained by the rules. These provide that service by email is only valid where the receiving party has indicated in writing that they will accept service by this method and provided an address for it. An email address included in correspondence will not suffice without an express indication that it can be used for service. However, an email address included on a statement of case or response to a claim filed with the court is sufficient to authorise service by email to that address. Where service is to be made by email, the serving party must also contact the receiving party and ask whether there are any limitations such as format or file size for documents to be served by email.
Mr Barton filed a claim against his former solicitors, Wright Hassall LLP, over their conduct of a professional negligence claim against other solicitors who had acted on his divorce. Wright Hassall instructed another firm to conduct its defence and this firm emailed Mr Barton and stated that they were instructed to receive service of the claim, though no mention was made of service by email. On the last day of validity of his Claim Form, Mr Barton emailed it and his Particulars of Claim by way of service. More than a week later the solicitors responded to say they did not accept service by email, the Claim Form had now expired, and the claim was thus time-barred.
Mr Barton sought relief by way of an extension for service under CPR 7.5 or an order for service to be effected by alternative means under CPR 6.15. At first instance and in the Court of Appeal his applications were rejected.
Supreme Court ruling
The majority of the Supreme Court rejected the appeal. The judgment identifies three criteria for determining whether a “good reason” required by CPR 6.15 exists to validate non-compliant service:
- Did the claimant take reasonable steps to serve in accordance with the rules?
- Did the steps taken by the claimant bring the claim to the attention of the defendant before the deadline?
- What prejudice would be suffered by the defendant if the non-compliant service was retrospectively validated?
The two dissenting judges emphasised the second of these factors: Mr Barton had clearly succeeded in making the defendant aware of the claim before the Claim Form expired. However, the majority held that this was not enough and that there was no good reason for Mr Barton to have failed to follow the rules. The prejudice suffered by the defendant would also be serious, as it would be deprived of a defence of limitation to which it was entitled.
No leniency for litigants in person?
As well as being a stark reminder of the rules on service by email, the case is of interest for parties who often face claims from unrepresented litigants, which are becoming more common. The court did not grant Mr Barton much leeway on compliance with the rules, but the judgment falls short of a clear signal that litigants in person will be held as strictly to the rules as represented parties, and not just because of the narrow majority.
The court considered whether the rules on service were obscure or inaccessible. It held that they were not, despite the fact that there are other cases where lawyers have fallen foul of them. This may mean that a litigant in person’s failures in relation to more technical aspects of the CPR (eg Part 36?) might get a more lenient reception.
The judgment also comments on the fact that, as Mr Barton had been involved in numerous disputes with his solicitors, he was actually quite familiar with litigation by the time of these events. He admitted that he was aware that not all firms accepted service by email. This leaves scope for the less experienced litigant in person to distinguish their situation.
Nonetheless, there are aspects of this judgment which will be of assistance to those dealing with claims by unrepresented litigants. The fact that Mr Barton had left service of his claim until the last day counted heavily against him: this is always risky behaviour and the court’s sympathy will be thin in such cases, regardless of whether or not a party is represented. Mr Barton’s argument that the receiving solicitors had “played technical games” was also given short shrift. There does at least seem to be firm support here for the position that solicitors are not obliged to alert the other side to procedural errors, even when the party in error is unrepresented.