The Supreme Court has dismissed an appeal by a Claimant, who had failed validly to serve his claim form on the Defendant's solicitors. By a majority of three to two, it was held that a litigant in person, who had emailed the claim form to the Defendant's solicitors, in the absence of an agreement from the Defendant to accept service by that method, would not be validated by the Court.
Lord Sumption made clear that the same rules which applied to solicitors applied equally to litigants in person. Litigants in person would not be treated as a special category in applying the CPR.
The Claimant, Mr Barton, a litigant in person, sought to claim against his former legal representatives, Wright Hassall LLP (the Defendant), for professional negligence. The Defendant instructed solicitors to defend the claim. The Claimant elected to serve the claim form himself.
On the day prior to the end of the limitation period, and without confirmation that service by email would be accepted, the Claimant emailed the claim form to the Defendant's solicitors. Although the email was acknowledged automatically, the solicitors did not reply substantively until approximately 2 weeks later. The solicitors pointed out that they did not accept service by email. Therefore, in the absence of valid service, the claim was now time barred.
The Claimant had argued in the Court below that the service was valid, referring to the previous course of dealings by email with the solicitors. In the alternative, he had sought an extension of the validity of the claim form or, pursuant to CPR 6.15, an order that the service by email be validated.
The District Judge rejected these arguments, but allowed the Claimant to appeal the finding that the purported service by email should not be validated. Neither the Circuit Judge nor the Court of Appeal was prepared to find a good reason to validate the service.
The Claimant appealed to the Supreme Court.
Lord Sumption, giving the lead judgment, agreed with the decisions of the lower courts. He dismissed the appeal. He observed that litigants in person can be expected to familiarise themselves with the appropriate rules. The Claimant had assumed that service by email was acceptable and had not reviewed the relevant rules. The Claimant had also elected to serve the claim form close to limitation. He was an experienced litigant with some knowledge of limitation deadlines. He was also aware that certain solicitors did not accept service by email. Lord Sumption found that he had failed to present a sufficiently good reason why an order validating service should be granted. Lord Wilson and Lord Carnwath agreed.
The Claimant's further submission, that the Courts refusal to ratify service was incompatible with his right to a fair trial under Article 6 of the European Convention on Human Rights, was also dismissed. Notwithstanding that the rules on service were deemed to be "sufficiently accessible and clear", it was because the claim was now time barred that the Claimant could not pursue it. The Limitation Act does not contravene Article 6.
Lady Hale and Lord Briggs, dissenting, would have granted the appeal. They reasoned that Mr Barton's email was sufficient to justify validation in that it fulfilled the objectives of the service provisions. The email had brought the contents of the claim form to the attention of the solicitors. It had also informed them that the Court's jurisdiction had been engaged. As such, they considered that this would provide good reason for ordering the validation unless there were specific circumstances which would swing the balance the other way. However, Lord Briggs did state that simply being a litigant in person does not provide "a free-standing reason why his botched attempt at service should be validated."
Lord Sumption acknowledged that restrictions in legal aid and conditional fee agreements mean that, currently, pursuing a claim as a litigant in person is "not always a matter of choice". In the face of an increasing number of litigants in person, a ruling in favour of the Claimant would have given rise to uncertainty for insurers.
However, Lord Sumption made it clear that to give one particular class of litigant additional indulgences would be unreasonable. The framework of proceedings needs to provide a balance of fairness to both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with rules than his represented opponent. Where a limitation deadline was imminent, as in this case, the litigant in person would enjoy a significant advantage. Litigants in person may receive the grace of the Court in matters of case management, but should not have immunity from the consequences of breaching clear rules and practice directions.
The decision will bring some comfort to solicitors and their insurers. Further, the Court dismissed the Claimant's allegation that the Defendant's solicitors had been "playing technical games". Even if the solicitors had realised that service was invalid in time to warn the Claimant to re-serve properly, the solicitors were under no duty to do so. In any event, they would first need to obtain their client's instructions. The client would be unlikely to have authorised such an approach (where to do so, in this case, would deprive them of a limitation defence). The above said, caution should still be maintained when dealing with a litigant in person given the dissenting judgments and a party's general duty to further the overriding objective throughout the course of proceedings.
It is not surprising that both the leading and dissenting judgments suggested that the provisions of the CPR relating to service by email might need to be considered. Rather than establish circumstances in which a litigant in person might receive protection from the consequences of the rules, Lord Briggs expressed a hope that the Rule Committee might look again at whether the current provisions for service by email are sufficiently clear and fair.
On this point, it is worth noting that the development of rules of service remains a continuous process in other jurisdictions. In Canada, the Ontario Superior Court recently granted permission for legal representatives of an insurance company to serve proceedings via Instagram and LinkedIn, in the absence of a current address for the Defendant.