Housing Law Bulletin: the Supreme Court and Litigants in Person

In this bulletin, Matthew Feldman discusses the important recent Supreme Court case of Barton v. Wright Hassall LLP [2018] UKSC 12, a case that is of relevance well beyond the housing law field.

Service of claim form by email, litigants in person and validation of service under CPR 6.15(2)

Barton v Wright Hassall LLP [2018] UKSC 12

In this case, the appellant Mr Barton, a litigant in person, purported to serve a claim form on the defendant’s solicitors by email without obtaining any prior indication that they were willing to accept service by that means.

The Supreme Court considered whether the Court should exercise its power under CPR 6.15(2) retrospectively to validate service. This issue was critical to the appellant because without such a validating order, he would only be able to proceed by a fresh action, and such an action would be statute-barred. By a majority of three to two, the Supreme Court dismissed the appeal.

The Facts

In October 2005, the appellant issued a claim alleging professional negligence against a firm of solicitors, Bowen Johnsons, which had acted for him in 1999 in proceedings for ancillary relief following his divorce. Wright Hassall LLP (‘Wright Hassall’) initially acted for him in that negligence claim until they applied to come off record following a dispute about fees. That application to come off record was unsuccessfully opposed by the appellant and he was ordered to pay costs, and an appeal against the costs order was dismissed with a further order for costs against him.

On 25 February 2013, the appellant issued a claim against Wright Hassall alleging that they had breached their duties to him in their conduct of the action against Bowen Johnsons and in coming off the record when they did. He claimed damages and the costs of resisting Wright Hassall’s application to come off the record and of his appeal on costs. Wright Hassall had by then instructed solicitors, Berrymans Lace Mawer (‘Berrymans’), to act for them.

On 24 June 2013, namely the last day before the expiry of the issued claim form, the appellant sent Berrymans an email enclosing a claim form and response pack. On 4 July 2013, Berrymans responded indicating that they had not confirmed that they would accept service by email, adding that the claim form had expired unserved and that the claim was now statute-barred.

Before the District Judge, the appellant applied for an extension of time in which to serve the claim form under rule 7.6 and/or an order under rule 6.15 that an otherwise non-compliant step be treated as good service. The District Judge dismissed both limbs of the application but granted permission to appeal as to whether service by email should be validated under rule 6.15. The Circuit Judge dismissed the appeal, and the Court of Appeal upheld that order.

The Judgment

By a majority of three to two, Lord Sumption with whom Lord Wilson and Lord Carnwath agreed, gave the lead judgment, with Lady Hale and Lord Briggs dissenting. It was held that what constituted “good reason” for validating the non-compliant service of a claim form was essentially a matter of factual evaluation which did not lend itself to over-analysis or copious citation of authority. However, the main considerations were likely to be (i) whether the claimant took reasonable steps to serve in accordance with the rules, (ii) whether the defendant or his solicitor knew of the contents of the claim form when it expired, and (iii) what, if any, prejudice the defendant would suffer should the non-compliant service be validated. It was not enough in this case that the appellant’s email brought the claim form to Berrymans’ attention.

Further, it was held that unless the rules and practice directions were particularly inaccessible or obscure, it was reasonable to expect a litigant in person to familiarise himself with the applicable rules, and that rule 6.3 and Practice Direction 6A were not inaccessible and obscure. In addition, having issued the claim at the very end of the limitation period, and having made no attempt to serve it until the very end of its period of validity, the appellant could ‘have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(1)’. By contrast, validation of service would prejudice Wright Hassall by depriving them of a limitation defence.

The Supreme Court was not at all persuaded by the appellant’s contention that the result arrived at in the lower courts was incompatible with his right to a fair trial under article 6 of the Convention. The rules governing the validity of a claim form and mode of service were sufficiently accessible and clear, and served a legitimate purpose in the procedure of the Court. Further, it was the Limitation Act, not the rules that had deprived the appellant of his ability to pursue his claim. However, Lord Sumption agreed with Lord Briggs that it would be desirable for the Civil Procedure Rule Committee to look at the issues dealt with on this appeal.

Lord Briggs, with whom Lady Hale agreed, delivered a dissenting judgment. He would have allowed the appeal because the most important purpose of service was to ensure that the contents of the claim form were brought to the attention of the person to be served, and a further important purpose was to notify the recipient that the claim had been commenced on a particular day.

Further, the provisions in Practice Direction 6A regulating service by email were to ensure that recipients had the opportunity to put in place arrangements for monitoring and dealing with what was at that time a new mode of service. Where all three of those purposes were achieved, that was a good reason for validating service under rule 6.15 provided that there were not sufficient adverse factors against it. The power to validate service was not limited to cases where an independent ‘good reason’ was identified, beyond satisfaction of those underlying purposes.

Conclusion

It seems clear that litigants in person may be afforded some allowances concerning the making of case management decisions and in conducting hearings, but applying to litigants in person a lower standard of compliance with rules or orders of the court will not usually be justified. The rules do not distinguish between represented and unrepresented parties.

Moreover, given the prevalence of email in today’s world, and that issue and filing is required to be carried out online by legally represented parties in the Business and Property Courts in London, it may only be a matter of time before the Rules Committee revisit and clarify the issue of service of claims by electronic means.

Matthew Feldman is a member of the Housing team at 42BR Barristers and specialises in all aspects of housing law.

DISCLAIMER: This bulletin is no more than a summary of the case, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.