The Supreme Court confirms no leniency for a litigant in person who failed to follow the rules on service of a claim form.
In Barton v Wright Hassall LLP, Mr Barton attempted to serve a claim form on the defendant's solicitors by email but he did not obtain prior confirmation that they would accept service in this way. Accordingly, service was not compliant with the Civil Procedure Rules (CPR), which govern procedure in the civil courts.
Mr Barton was acting for himself - a litigant in person. He was in dispute with the firm Wright Hassall LLP (the defendant) and solicitors for the firm emailed him asking him to send all correspondence to them and saying they would "await service of the claim form and particulars of claim". The claim form could have been served on the defendant by the court but Mr Barton chose to serve it himself. Under CPR 7.5 he had four months in which to do so, after the date of issue of the claim form. This was the period during which the claim form was valid. If he did not serve within this timeframe, his ability to bring the claim would be lost because it would be time-barred under the law on limitation.
On the day before expiry of the claim form Mr Barton emailed the solicitors for the defendant attaching the documents "by means of service". He received an automatic reply with a number to contact in case of urgency, which he did not use. The defendant's solicitors replied 10 days later to say they had not confirmed they would accept service by email and it was not a permitted mode of service. The claim form had, therefore, expired without proper service and the claim was statute barred.
Under CPR Part 6, where a document is to be served by email, the party who is to be served or their solicitor must previously have indicated in writing that they are willing to accept service by email. An email address set out on their writing paper will be taken as an indication of willingness to accept email service but only where it is stated that the email address may be used for service.
Mr Barton's case was that his service by email was valid: the email he received from the defendant's solicitors saying they awaited service indicated they were willing to be served by email. Alternatively, he asked for service to be validated by the court under CPR 6.15(2); this required there to be a good reason for authorising bad service. In the further alternative he asked for validity of the claim form to be extended so he would have more time to serve it properly.
In the County Court, Mr Barton failed on all three grounds. The judge held that the only reason why Mr Barton did not comply with the rules on service was that he did not know what those rules were, and that was not a good reason to make the requested order. Mr Barton was given permission to appeal but only on the ground that service be validated by the court under CPR 6.15(2).
Mr Barton's appeals failed in both the High Court and the Court of Appeal and his final appeal was to the Supreme Court.
The Supreme Court said that what constituted a "good reason" for validating service was essentially a matter of factual evaluation.
Generally speaking, the main factors in deciding there was a 'good reason' were whether the claimant had taken reasonable steps to effect service in accordance with the rules, whether the defendant or its solicitor was aware of the contents of the claim form at the time when it expired and whether the defendant would suffer any prejudice by the retrospective validation of a non-compliant service of the claim form, bearing in mind what it knew about its contents.
The court held:
- It was not enough that Mr Barton's email successfully brought the claim form to the attention of the defendant's solicitors because the manner of service was important. Service within the period of validity of the claim form has implications for limitation periods. Time stops running for limitation purposes when a claim form is issued;
- A lack of legal representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify allowing litigants a lower standard of compliance with rules or orders of the court. The rules provide a framework within which the interests of both sides must be balanced. Unless the rules and practice directions are particularly inaccessible or obscure (and the court found the relevant rules in this case were not), it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take;
- By the time it came to serve his claim, Mr Barton was an experienced litigant. He knew about limitation periods and that not all solicitors accepted service by email. However he took no steps to check whether the defendant's solicitors did so, or to see what the rules regarding service by email were.
Although it was not a point being appealed, the court said that it did not consider the email from the defendant's solicitors saying they awaited service was an indication of willingness to accept service by email. Also, it rejected the suggestion that the firm was 'playing technical games' with Mr Barton by taking the point.
Mr Barton did not issue the claim form until the very end of the limitation period and he opted not to have it served by the court. In the view of the Supreme Court, "A person who courts disaster in this way can have only a very limited claim on the court's indulgence in an application under CPR rule 6.15(2)". In conclusion, it found that there was no good reason why Mr Barton should be absolved from his errors at the defendant's expense.
The appeal was dismissed by a majority of three to two.
This decision has to be correct to avoid the floodgates being opened for litigants in person who have failed to understand or observe the rules and their implications.
However, Lord Briggs, who gave a dissenting judgment, expressed concern that the meaning and effect of CPR 6.15 had come before the Supreme Court twice in recent years and that this time its meaning had divided the court. We would echo his concerns: there are many parts of the CPR that are less intelligible than rule 6.15 and with more rules and detail being added each year, it is becoming an increasingly difficult task for legal practitioners to keep account of the changes. It must be considerably more difficult for litigants in person to know what is required.