Barton v Wright Hassall [2018]


Service of the claim form on the proposed defendant is a critical step in the procedural life of a claim. Its importance is reflected by the existence of very specific rules governing the methods that can be adopted to serve a claim form validly, ranging from personal delivery of the document, through service by post, to service via the various electronic media now available. Essentially, the rules form a set of conditions that a claimant must satisfy before a defendant has to respond to a claim, and to confer jurisdiction on the court to deal with it.

Despite the potentially serious consequences of getting service of the claim form wrong examples abound of claimants and their solicitors failing to comply with the rules. Invalid service at the first attempt may not be of any great consequence if a claim is still within time but is potentially fatal where a limitation defence has accrued before the claimant appreciates their error. In those circumstances, unless the claimant can simply blame their lawyer and sue them instead, the only escape route may lie in seeking to persuade the court that, notwithstanding the mistakes made, the claim form should be treated as having been validly served.

In the Supreme Court judgment today in Barton v Wright Hassall LLP the court has again had to deal with such an application, here where service by email had been attempted unsuccessfully. Service by email is permitted under the rules but only if certain steps have been complied with (CPR 6APD.4) including a requirement that the party to be served (or their solicitor) has agreed to accept service by email.

A further consideration in the case was that the claimant was a litigant in person, who claimed not to fully understand or appreciate the rules on service of a claim form by email. The Supreme Court therefore had to consider the extent to which that was material to the exercise of the court’s discretionary powers.

The facts

On 25 February 2013 Mr Barton, a litigant in person, issued a claim form against Wright Hassall LLP (“WH”) making allegations of professional negligence, strenuously disputed by WH, arising from an earlier claim brought by Mr Barton against his previous solicitors. BLM, acting for WH, communicated with Mr Barton by email in March and April 2013 to inform him of their appointment and indicated that they would await service of the claim form and particulars of claim. Agreement to service by email was neither requested nor volunteered.

On 24 June 2013 (the day before the expiry of the validity of the claim form) Mr Barton purported to serve the claim form and particulars of claim on BLM as an attachment to an email. The point was then taken that this did not constitute valid service in the absence of express agreement to accept service in that way.

As he could not simply issue and serve fresh proceedings because his claim was by then statute barred, Mr Barton has instead sought to persuade the courts to validate retrospectively his attempted service of the claim form. He was unsuccessful at first instance and his appeals to a Circuit Judge and then to the Court of Appeal were both rejected, in the latter case unanimously.

Several of the grounds upon which Mr Barton initially sought to rely were rejected as being hopeless by the lower courts. His later appeals to the Court of Appeal and Supreme Court were therefore allowed to proceed only on the issue of whether there was good reason to validate under CPR 6.15(2) his purported service of the claim form by email but without agreement.

In full, the relevant provision at CPR rule 6.15 is as follows;

(1) Where is appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

The Supreme Court decision

Before the Supreme Court it was argued on Mr Barton’s behalf that his attempted service of the claim form by email had been effective in bringing to the defendant’s attention the fact that he had issued proceedings and was seeking to serve them; that he was entitled to assume from the fact that earlier communication had been by email, that service would also be accepted in the same manner; and that the failure to inform him otherwise in the 24 hours before his claim form expired (and the claim became statute-barred) amounted to technical game-playing.

Although the same or similar arguments had been rejected unanimously in the courts below, the first at least struck a sufficient chord with two of the Supreme Court Justices to produce a split decision but the majority found against Mr Barton and his appeal was dismissed.

In the leading judgment for the majority, Lord Sumption delivers a clear endorsement of the way in which the application of CPR 6.15(2) was approached by all the courts below, concluding clearly that under the existing rules there was no sufficiently good reason on the facts of this case to justify retrospective validation of the defective service. Successfully bringing a claim form to the attention of a defendant was a necessary component of valid service but certainly not sufficient in itself.

Whilst emphasising that the exercise of discretion under CPR 6.15(2), and the question of what constituted “good reason” for validating non-compliant service of a claim form, were not matters that could or even should be codified prescriptively, Lord Sumption saw no reason to depart from the view previously taken by the Supreme Court in Abela v Baadarani [2013] 1 WLR 2043. In general, the main relevant factors were likely to be (1) whether the claimant had taken reasonable steps to effect service in accordance with the rules; (2) whether the defendant was aware of the content of the claim form by the time it expired; and (3) what if any prejudice the defendant would suffer as result of retrospective validation, bearing in mind what he knew about the contents of the claim form.

The judgment therefore confirms that the reasons why a claim form was not properly served within its validity remain very relevant to any application under CPR 6.15(2). Attempts to justify the invalid service on the grounds of Mr Barton being a litigant in person, and insufficiently familiar with the rules, were rejected. It was not accepted that the rules on email service were inaccessible or obscure as Mr Barton asserted; nor was there any justification for this assumption that service by email would be accepted. Whilst it was accepted that a claimant does not have to demonstrate that valid service within the validity of the claim form had been impossible (i.e. the claimant does not have to …leave no stone unturned), here Mr Barton had made no attempt to serve in accordance with the rules.

The allegations of technical game-playing were also firmly rejected. In the view of Lord Sumption the real cause of Mr Barton’s misfortune was that he had left service to the eleventh hour, and a person who courts disaster in this way can have only a very limited claim on the court’s indulgence. That was particularly so as there would be palpable prejudice to WH if service were to be validated as an accrued limitation defence would be lost.

What this means for you

Restrictions on conditional fee agreements and the rare availability of legal aid have led to rising numbers of litigants in person across a range of civil claims and the Supreme Court may have had that in mind when granting permission to appeal here, given that the issues involved included both questions of compliance with rules by litigants in person and their treatment by opposing solicitors.

The judgment therefore provides some welcome guidance for those dealing with claims involving an unrepresented party. Whilst there it recognition that the involvement of a litigant in person may justify the allowance of some leeway in case management decisions and in the conduct of hearings, it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. Even in the view of the Supreme Court Justices in the minority, there was little comfort for litigants in person who do not comply with the rules, with Lord Briggs commenting that he was nowhere near saying in relation to Mr Barton’s claim that "…being a litigant in person constitutes a free-standing reason why his botched attempt at service should be validated."

Equally, if not more, helpful is the guidance that can be found for the practicalities of dealing with an unrepresented party. Lord Sumption is clear that a solicitor has no obligation to point out the mistakes of an opposing litigant in person, and indeed cannot do so without appropriate authority from their own client which he recognised was unlikely to be forthcoming in circumstances such as these:

Even on the assumption that they [the solicitors] realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind. Nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it.

In addition to the guidance it provides on the proper approach to applications under CPR 6.15 and on the treatment of litigants in person, the judgment also provides an interesting insight into how this area of the law may develop in the future. When the rules on service by email were first introduced, the use of email was far less prevalent than now but the world has moved on. In what seems likely to be the first stage of a process that may be extended to all civil proceedings, the Business & Property Courts now require online filing.

From his comments on that, the dissenting judgment of Lord Briggs does seem to reflect an underlying belief that there is no longer any practical justification for the CPR requirement to obtain prior express agreement before serving a claim form by email. That may well be a perfectly justified view in this day and age but it is not where the law stands at the moment and will require a change in the Rules to bring about. Lord Sumption concluded his judgment by commenting on the desirability of these issues being considered by the Rule Committee. In a wider setting, work to that effect is already underway, with the Committee developing specific rules for use when the Online Solutions Court[1] is set up. In addition, there may also be a need for rules on electronic service and communications generally with unrepresented parties in small track personal injury claims, given that increases in the track limit proposed by the Government (to £5,000 for motor injury claims and £2,000 for others) are expected to lead to increased numbers of litigants in person. Given the comments in today’s judgment and in light of these other initiatives it is probably only a matter of time before that change happens."