Google Adwords 0808 278 1398 Bing Ads 0808 274 4482

Barton -v- Wright Hassell [2018]: Litigants in person are not a special case

The civil procedure rules (CPRs) are the rules of procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced after 26 April 1999.

Parties to civil litigation conducted in these courts must comply with the CPRs.  Failure to do so may well result in the court applying penalties against the party at fault, including striking out their claim or defence.

Parties to civil litigation may be represented by lawyers (and certain other parties) or they may simply represent themselves – in which case they are known as “litigants in person”.

Litigants in person are becoming increasingly common.  It is normal for (and the courts encourage) parties to be unrepresented in cases allocated to the so-called “small claims” case management track (which tends to be used for straightforward, low-value claims).  Higher value and/or more complex claims are allocated either to the fast track or the multi-track.  However, given restrictions in recent years in the availability of legal aid and conditional fee (no win no fee) agreements, there has been a significant increase in the number of litigants in person in these tracks – sometimes through choice and other times out of necessity.

The CPRs are sometimes obscure and generally difficult to navigate.  Therefore, while many litigants in person are perfectly able to understand and apply the CPRs to their case, others struggle.  Some make errors.

The case of Barton -v- Wright Hassall [2018] concerned one such litigant in person.  Mr Barton had tried to bring a professional negligence claim against a firm of solicitors.  Mr Barton purported to serve the claim form by emailing it to the opponent, without first obtaining their agreement to accept service by that method.  As a result, under the CPRs he was deemed not to have served the claim form, even though the form had come to the attention of the opponent.  As the claim form expired the following day, Mr Barton could not pursue his case further.  He therefore applied to the court for an order under a “dispensing provision for invalid service”, namely CPR rule 6.15.  The case ended up going to the Supreme Court.  The issue before the court was, in effect, whether there should be special treatment for Mr Barton by virtue of his status as a litigant in person, or whether the CPRs should apply equally to him and to his opponent.

The Supreme Court Justices were divided on the issue but ruled by a 3-2 majority that Mr Barton should have checked with his opponent to establish if they would accept service of the claim form by email.  Lord Sumption, giving the lead judgment, explained that the fact that Mr Barton’s claim form had come to the opponent’s attention was “not enough … otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process”.

Lord Sumption added that lack of representation would often justify making allowances for litigants in person in case management decisions and in conducting hearings, but could not justify a lower standard of compliance with the CPRs, which apply equally to all parties.

The case highlights the divided opinion of the Justices of the UK’s highest court on this issue.  The dissenting judgments from Lord Briggs and Lady Hale leave open the possibility for future potential changes to the treatment of litigants in person.

David Ellis
Associate Solicitor

Have a question or need some help? Call us today on 01905 401 893

Expert legal advice you can rely on,
get in touch today:

Please let us know you are not a robot