The recent judgment in the case of Barton (Appellant) v Wright Hassall LLP (Respondent) provides much needed clarification regarding whether a litigant in person should be granted a special status in the civil litigation process.
In a somewhat bizarre factual background, Wirght Hassall LLP (the Defendant in the proceedings to which this judgment relates) were instructed by Mr Barton in a professional negligence claim against Bowen Johnsons. At some point during that litigation, Mr Barton and Wright Hassall LLP had a dispute regarding fees, which culminated in Wright Hassall LLP being successful in an application to come off record. Mr Barton unsuccessfully contested the application and was ordered to pay costs.
Mr Barton (Appellant) then issued professional negligence proceedings against Wright Hassall LLP (Respondent) in 2013, the Claim Form was issued on 25th February 2013, and the Appellant requested that the claim form was returned for personal service. The Appellant therefore had four months from the date of issue to serve the Claim Form which expired on 25th June 2013.
The Respondent firm instructed Berrymans Lace Mawer to act on their behalf in defending the claim. Berrymans emailed to the Appellant to make him aware they were instructed in March 2013 and stated that they would await service of the Claim Form and Particulars of Claim.
The Appellant took no further action until the day before the Claim Form expired when he emailed the Claim Form to Berrymans as a method of attempted service on 24th June 2013. Berrymans responded on 4th July 2013 stating that they did not confirm that they would accept service by email and consequentially the Claim Form had expired, and the claim was statute-barred.
The Appellant failed in an application seeking that the service was effective; and the subsequent appeal also failed. This was then upheld in the Court of Appeal. Not to be deterred, the Appellant appealed to the Supreme Court which brings us to the latest judgment.
The Supreme Court dismissed the appeal; and the key points to be noted from the judgment are as follows:
1) Good reason for validating non-compliant service is a matter of factual evaluation.
The three main factors to consider are: 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 from validation of non-compliant service.
2) The Civil Procedure Rules are easily accessible, and the rules are not obscure as far as the rules relating to service are concerned. A Litigant in Person would be expected to familiarise themselves with the rules prior to issuing a claim.
3) The outcome of the lower courts did not infringe in any way on the Appellants right to a fair trial under Article 6 of the European Convention on Human Rights.
In this case, the Appellant took no reasonable steps to serve the Claim Form in compliance with the rules. He merely presumed that service by email was acceptable and left no time to rectify his mistake.
As Lord Sumption stated in his majority judgment “…lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to [LiPs] a lower standard of compliance with rules or orders of the court… The rules do not in any relevant respect distinguish between represented and unrepresented parties.”
As such, there is no differential treatment when it comes to complying with rules or orders of the Court.
The decision was a 3:2 majority with Lady Hale & Lord Briggs dissenting. Lord Briggs would have allowed the appeal as he states that the main reason for service was to make the defendant aware that a claim had been brought, and on a particular day and that this had been achieved.
The dissenting judgment states that the provision in Practice Direction 6A were put in place to regulate service by email when it was still a relatively new means of service. With technological enhancements meaning that every law firm in the country most probably has appropriate measures in place to be capable of accepting service by email, this is an issue that is likely to be re-visited in the future and could result in possible amendments to the Civil Procedure Rules.
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