Barton v Wright Hassall  UKSC 12
The claim form was issued on 25 February 2013 and the four month period for service expired on 25 June 2013. On 24 June 2013, the claimant purported to serve the claim from on the defendant’s solicitors by email despite the fact that they had not stated that they were prepared to accept service by this method.
Paragraph 4.1 of PD 6A specifically provides that where a document is to be served by fax or other electronic means, the party being served or their solicitors, must previously have indicated in writing that they were prepared to accept service by this means.
The claimant applied for service to be validated under CPR, r. 6.15(2) and the matter went before the Supreme Court after the Court of Appeal dismissed the application.
Supreme Court decision
The Supreme Court stated that what had to be determined was whether there was a “good reason” under CPR, r. 6.15(2) for validating service. It was stated that what constituted a “good reason” was essentially a matter of factual evaluation.
It was held that the main relevant factors for consideration were likely to be whether the claimant had taken reasonable steps to effect service in accordance with the rules, whether the defendant or their solicitors were aware of the content of the claim form when the time for service had expired and whether the defendant would suffer any prejudice by retrospective validation of a claim form taking into account what they knew of its contents.
It is not enough that the mode of service successfully brought the claim form to the defendant’s attention as the manner in which it was done was also important. It was stated that the rules of court had to identify some formal step which was required for a defendant to be made aware that service had been carried out. It was stated that rules were necessary to determine the exact point from which time ran for the taking of further steps or for entering judgment in default of them. Also, the exact time for when service had been carried out is relevant when considering the limitation period.
The Supreme Court specifically concluded that a lack of legal representation would not usually justify lower standards of compliance for litigants in person. It was stated that the rules provide a framework to balance the interests of both parties and opponents could be disadvantaged if more lenience is given to litigants in person.
The Supreme Court held that unless the rules were particularly inaccessible or obscure, it was reasonable to expect a litigant in person to read and understand them and to follow them.
In this case, it was noted that the claimant had made no attempt to serve the claim form in accordance with the rules. It was held that the rules in respect of service were not inaccessible or obscure and the claimant should have appreciated that their method of service was not in accordance with the rules. Also, the Supreme Court noted that the claimant had served the claim form at the very end of its period of validity and due to acting in such a way would only have a very limited claim on the court’s indulgence.
The Supreme Court held that there would be considerable prejudice to the defendant if service was validated because it would be deprived of an accrued limitation defence. Also, the defendant was not under any obligation to advise the claimant that service was invalid or to warn them to re-serve properly or to begin a fresh claim within the limitation period.
What this means for you
This case supports that litigants in person should not be given additional leeway just because they are not legally represented. In most cases, the rules and accompanying practice directions will be found to be sufficiently clear and accessible for litigants in person to familiarise themselves with and to follow.
Importantly, the Supreme Court made clear that it is not for a defendant to point out their opponent’s mistakes. Also, it was made clear that the rules are there to provide a framework to balance the interests of both sides and are there to provide certainty. If unrepresented litigants were provided with greater indulgence then this would ultimately disturb the balance that the rules are in place to achieve.
The Supreme Court reached a sensible and perhaps unsurprising conclusion because it would be unfair and prejudicial to an opponent if the rules were applied differently to litigants in person.
A further, more detailed analysis of this judgment can be accessed here.