With the number of cases brought by unrepresented parties rising, 2018 will see a Supreme Court decision that may affect how lawyers are expected to deal with them.

In brief

  • Supreme Court decision expected early in 2018 on the expectations upon represented or legally qualified parties when dealing with litigants in person.
  • The case considers to what extent litigants in person can be expected to comply with the Civil Procedure Rules.
  • The judgment will be relevant to organisations that regularly deal with claims by unrepresented individuals or small businesses.

In November 2017 the Supreme Court heard the case of Barton v Wright Hassall, concerning the defective service upon the defendant law firm of proceedings in a claim for negligence by Mr Barton. Mr Barton was unrepresented and purported to serve his claim by sending it as an attachment to an email to the solicitors representing Wright Hassall. The solicitors did not respond to point out that they did not accept service by email until the time limit for service of the claim had expired.

Are you being served?

Mr Barton applied for an order that service had been effected “by a method or at a place not otherwise permitted” under CPR 6.15 to retroactively allow his email to stand as service of the claim. He admitted that he knew that some law firms did not accept service by email but said the relevant solicitors’ website did not state that they would not accept service by this method. He was unaware of the detailed rules on service by email contained in CPR 6.3(1)(d) and the accompanying Practice Direction. Under these rules service by email is only allowed if the receiving party has consented to this method of service either expressly or impliedly by including an email address on a statement of case. Even then it is necessary to check in advance that the recipient’s email system can cope with the size of documents to be attached.

The judge at first instance refused Mr Barton’s application and this was upheld on appeal. The case was listed for a single day before the Supreme Court, to include dealing with separate issues as to the defendant’s costs, but the decision could have widespread ramifications.

With the dramatic reduction in the availability of legal aid for civil claims over the last five years, the number of litigants bringing actions without professional representation has ballooned. Defending claims brought by litigants in person can often be frustrating for professional lawyers and costs can be increased by unrepresented parties failing to comply with procedural rules and timetables. Yet access to justice must obviously be maintained. The Civil Rule Procedure Committee has acknowledged that any changes to rules must now be drafted with the principle in mind that lay people need to be able to understand them.

What it means for you

The Supreme Court’s decision will signal whether litigants in person are to be afforded a degree of latitude not extended to lawyers when it comes to procedural rules. If the appeal is rejected, parties can continue to act on the basis that unrepresented parties will be held to the same rules as those with lawyers. If the appeal is allowed, it will merit close scrutiny to see what degree of latitude they are to be allowed and what is expected of represented parties when dealing with them.