The withdrawal of legal aid for most areas of civil law, combined with tightening of the rules concerning no win no fee agreements has caused a perfect storm curtailing access to justice. Litigation is an expensive process and many people simply cannot afford to instruct solicitors without some financial assistance. The inevitable consequence of this is that we have a significant raise in the last decade in litigants in person. Litigants in person are people attempting to bring their case before a court without the assistance of legal professionals.

This increase brings with it a number of issues: most litigants in person are not familiar with either the law underpinning their case, or the rules by which the civil courts operate. The Civil Procedure Rules (CPR) are complicated and can appear intimidating. It is therefore not uncommon for litigants in person to fall foul of the CPR’s strict time limits or procedures. This then raises the question, should the courts treat litigants in person more leniently than lawyers? Should courts excuse them from complying with the letter of the CPR? The Supreme Court has looked at this in the case of Barton v Wright Hassall LLP [2018] UKSC 12.

What were the issues?

Mr Barton looked to bring a claim for professional negligence against a firm of solicitors, Wright Hassall LLP. Wright Hassall had previously acted for Mr Barton in a claim, but had come off the record because of a dispute over fees. Mr Barton alleged that Wright Hassall had caused damage to his case by coming off the record.

Mr Barton issued a claim form on 25 February 2013, shortly before the limitation period on his claim expired. Pursuant to the CPR, he then had four months to serve the claim form. On 24 June 2013, the final day before the claim form expired, Mr Barton sent the claim form by email to Wright Hassall’s solicitors, Berrymans Lace Mawer (BLM). He intended that the email would constitute service of the claim form. Unfortunately for Mr Barton, BLM responded to him on 4 July 2013 informing him that they had never agreed to accept service by email. They therefore stated that the service of his claim form was invalid and his claim was now limitation barred.

Mr Barton applied for an order validating the service of the claim form. However, the District Judge rejected this application. Subsequent appeals to a Circuit Judge and then to the Court of Appeal also failed. Mr Barton then appealed to the Supreme Court.

What were Mr Barton’s grounds of appeal?

Mr Barton’s appeal was three-fold. He argued that:

  • Sending the claim form by email had fulfilled the basic aim of service in that it brought the claim form to the defendant’s attention. Therefore, the service should be validated;
  • As a litigant in person he should be given special treatment and excused from the consequences of technical errors in complying with the CPR; and
  • The relevant rule is, in any event, incompatible with article 6 of the European Convention on Human Rights (ECHR); his ability to receive a fair trial.

What was the Supreme Court’s decision?

By a majority of 3 to 2, the Supreme Court rejected Mr Barton’s appeal (Lord Briggs and Lady Hale dissenting).

The Supreme Court rejected Mr Barton’s first ground of appeal. They stated, simply, that drawing the claim form to the defendant’s attention is not enough to constitute good service. Further, Mr Barton’s actions (issuing the claim shortly before expiry of limitation, attempting to serve the claim form the day before it expired and not checking in advance with BLM as to whether they would accept service by email) all counted against granting Mr Barton relief.

The Supreme Court rejected Mr Barton’s second argument that litigants in person should be given special treatment or leeway. Except where the rules are “particularly inaccessible or obscure”, the court concluded that litigants in person should be expected to made make themselves aware of and follow the CPR. The Supreme Court considered that the rules concerning the service of a claim form are easy to understand. Therefore, there was no reason to give Mr Barton any special leeway.

Finally, the Supreme Court rejected the argument that the rules on the service of claim forms, or the lower courts’ decisions, breached article 6 ECHR. The court noted that the rules are widely accessible and are easy to understand. Further, clear rules with consequences are required to ensure the efficient conduct of civil litigation. Therefore, the CPR serve a legitimate purpose.

Conclusion

The Supreme Court has now made it very clear that, with the exception of special cases, litigants in person are under the same duty as lawyers to comply with the CPR. This of course increases the difficulty of pursuing litigation as a litigant in person. There is simply no substitute for the expertise, advice and security gained from instructing a solicitor to litigate your case for you.