Litigants in person do not have it easy. Neither do they make life any easier for the legal profession or the judiciary. A balancing act is required of lawyers: to act in a client’s best interests, while simultaneously assisting the court in the administration of justice, and without causing a litigant in person any disadvantage. A recent Supreme Court judgment, however, has altered the tension of that particular tightrope in lawyers’ favour.
This is me: Mr Barton
The appellant in Barton was a litigant in person, with 12 years of (represented and unrepresented) litigation under his belt. The respondent, Wright Hassall (WH), had acted for him in negligence proceedings against his previous solicitors until 17 May 2007, when the firm came off the record following a dispute about fees. Two further actions followed: a successful claim by WH against Mr Barton for their fees, and the present professional negligence action by Mr Barton against WH. Mr Barton represented himself in those proceedings and the claim form was issued on 25 February 2013.
Ordinarily, the court would have served the claim form under CPR rule 6.4(1). However, Mr Barton elected to serve it himself under CPR6.4(1)(b), a decision which he may now regret.
The other side: Wright Hassall
After the requisite pre-action correspondence, Mr Barton wrote to WH asking for an extension of time to serve the claim form and particulars of claim. WH refused. On 26 March 2013 WH informed Mr Barton that it had instructed Berrymans Lace Mawer (Berrymans) and all future correspondence should be addressed to them. Berrymans subsequently corresponded with Mr Barton by email on 17 April 2013. The email concluded: “I will await service of the Claim Form and Particulars of Claim”.
At 10:50am on 24 June 2013, the last day before the expiry of the claim form, Mr Barton emailed Berrymans and purported to serve the claim form and particulars on the firm by email.
Mr Barton received an automatic response to this email, followed by a substantive response on 2 July stating that Berrymans had not confirmed that it would accept service by email. Consequently, Berrymans argued, as email was not a permitted mode of service, the claim form had expired unserved, and the claim was now statute barred.
Never enough: read the rules
Mr Barton’s case at first instance was that he had complied with the rules because Berryman’s email correspondence with him amounted to an “indication” under CPR PD6A.4.1 that they would accept service by email. In the alternative, he asked for service to be validated under CPR 6.15(2), or for the validity of the claim form to be extended under CPR 7.6. He failed on all three counts, and was only given leave to appeal in relation to CPR 6.15(2).
The High Court and a unanimous Court of Appeal dismissed his appeal. Mr Barton then chose to put his head in the lion’s mouth, and appealed to the Supreme Court.
Rewrite the stars? Barton appeals
Unluckily for Mr Barton, the Supreme Court refused to rewrite the stars in his favour. The case did split the Supreme Court 3:2 though, with Lords Sumption, Carnwath and Wilson dismissing the appeal, and Lord Briggs and Lady Hale dissenting.
Having endorsed the Supreme Court’s approach in Abela v Baadarani, Lord Sumption identified in his leading judgment three main factors which will be relevant in the generality of cases:
- whether the claimant has taken reasonable steps to effect service in accordance with the rules;
- whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and
- what (if any) prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what he knew about its contents.
Lord Sumption did however note that: “None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances” (paragraph 12) – not altogether helpful when balancing on a tightrope such as this!
The greatest show: the Supreme Court
Acting as ringmaster, Lord Sumption held that it could not be enough that Mr Barton’s mode of service successfully brought the claim form to the attention of Berrymans: the manner in which it was done was also important. “Rules of court must identify some formal step which can be treated as making [the defendant] aware of it. This is because a bright line rule is necessary… to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them” (paragraph 16).
The bright line rule matters because time stops running when the claim form is issued: the four month period of validity is essentially an extension of the limitation period, and an order under CPR 6.15 to validate service represents a further extension of it. It is, as Lord Sumption observed, important to have a finite limit on such extensions.
The Supreme Court also found that there are practical measures that solicitors’ offices need to have in place, in order to deal correctly with such important formal communications when they arrive in electronic form. These ringside spectators suspect that most solicitors’ offices are perfectly well equipped to deal with this situation; but rules is clearly rules.
A million dreams: no illusions
The Supreme Court went on to dispel firmly any illusion that Mr Barton would be treated more kindly because of his lack of legal representation. Lack of legal representation will often justify making allowances in case management decisions or the conduct of hearings. However, it will not afford litigants in person a lower standard of compliance with rules or court orders. The courts are required to enforce compliance with the court rules (CPR 1.1(1)(f)), and those rules do not distinguish between parties with or without representation.
Lord Sumption drew a comparison with applications for relief from sanctions under CPR 3.9, where it is well established that court rules will be enforced against an unrepresented party. Lack of representation may affect the decision “at the margin” (Nata Lee Ltd v Abid). The same policy should apply in applications under CPR 6.15 in the interests of fairness, despite the fact that there is less of an emphasis on disciplinary factors.
After all, “The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights” (paragraph 18) – which of course, in this case, it did.
Lord Sumption held that it was reasonable to expect a litigant in person to familiarise themselves with the rules, unless they were “particularly inaccessible or obscure” (the CPR? Surely not!). The practice direction is well signposted in the certificate of service, so in this case, the rules were not inaccessible. Nor were they obscure – although, “since he did not in fact refer to them, their alleged obscurity is perhaps immaterial” (paragraph 19). The fact that the (judicial) authors of the Handbook for Litigants in Person had made the same mistake as Mr Barton did not indicate a lack of clarity in the rules (and it was in any event published after the relevant dates).
Practitioners will take comfort from Lord Sumption’s clear dismissal of Mr Barton’s argument that, by taking the service point, Berrymans had been “playing technical games”. Berrymans was not under a duty to advise him to re-serve properly or begin a fresh claim; it could not have done so without seeking instructions; and it was inconceivable that WH would have agreed to waive its limitation defence.
Tightrope: dissenting judgment
Lord Briggs (Bailey to Sumption’s Barnum?) threw his hat into the ring in some style too. He formulated three slightly different purposes to service. First, to ensure that the contents of the claim form are brought to the attention of the person to be served. Secondly, to notify the recipient that the claim has not merely been formulated but actually commenced against a particular defendant upon a particular day. Thirdly, and historically, in relation to the specific provisions in Part 6APD, to ensure that recipients have a chance to make administrative arrangements for what was then a new mode of service (ie email). Given the increasing move to online filing, Lord Briggs wondered how long these constraints “will continue to serve a useful purpose, but any relaxation of them is of course a matter for the Civil Procedure Rules Committee” (paragraph 29).
If all three of those purposes have been achieved, Lord Briggs held that this is, at least prima facie, a good reason for validating service under CPR6.15. The court would also, however, have to review all the circumstances for other adverse factors, including deliberate failure to comply, failure due to negligence by a professional, or “failure due to sheer neglect of the requirement for due service until the very last moment” (paragraph 30). The presence of any of these adverse factors may well carry more weight than all three service boxes having been ticked, because of the procedural importance of service, and also in order to uphold the overriding objective and avoid “procedural anarchy” (paragraph 31).
That said, Lord Briggs did not agree with the Court of Appeal that Abela introduced a requirement that a separate good reason be identified in every case beyond the fulfilment of the relevant rules of service. Lord Briggs’ view was that Lord Clarke, in Abela, had described a single test, based upon a weighing of the relevant circumstances. Lord Briggs would weigh all the circumstances leading to defective service to determine whether the claimant’s culpability is or is not large enough to displace the prima facie good reason discussed above.
Having reviewed the evidence for and against validation, Lord Briggs respectfully disagreed with Lord Sumption. The fact that WH would lose its limitation defence if service was validated did not militate against validation; in fact, he regarded the firm retaining it as a “windfall” (paragraph 40). Similarly, the fact that the judicial authors of the handbook should have made the same mistake as Mr Barton (“even after… reading the relevant rules”) mitigated his offence. Although he could fairly be criticised for failing to read the rules, and making an assumption, in fact he had (“in a modestly non-compliant way”) achieved all that the service rules had set out to achieve.
From now on: practical pointers
The dissent in the Supreme Court shows just how easily either party could lose their balance on this particular legal highwire. Lord Briggs agreed however, despite dissenting in his judgment, that “there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them” (paragraph 42). The safety net would appear to have moved slightly more in the direction of the represented party than the litigant in person.
Simply put, for all parties: read the rules. If the Supreme Court expects litigants in person to read and abide by them, we can be sure that there will be little to no margin of error allowed for represented parties. Make sure you receive written confirmation that service by email is accepted; and ask about limitations or requirements in terms of attachments, sizes and formats, etc. Until (as is now inevitable) the CPRC brings the service rules into the 21st century, we will need to dot the 'i's and cross the 't's.
Finally, don’t leave it to the last minute to serve: “a person who courts disaster in this way can have only a very limited claim on the court’s indulgence” (paragraph 23). No safety net or harness in sight for this one.
This article was published in Commercial Litigation Journal in March 2018.