Zenith Personal Injury Current Awareness

Latitude for litigants in person? Apparently not (just about...)

26 February 2018

Christopher Rafferty

On 21 February 2018 judgment was given in the case of Barton -v- Wright Hassall LLP [2018] UKSC 12.

Mr Barton had sought to bring professional negligence proceedings against the Respondent solicitors, doing so by serving a Claim Form via e-mail on solicitors who had not previously given the necessary express permission to render such service valid. The Supreme Court was concerned with the application of CPR r6.15(2), which could permit the Court to find that good service had been effected despite non-compliance with the strict letter of the rules:

‘On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service’

Mr Barton also asked the Court to consider whether a decision in favour of the Respondent would amount to a breach of his Article 6 rights under the Convention.

It was undisputed that service of the Claim Form had not been effective under the rules, but that nonetheless service had been brought to the attention of those representing the Respondent.

In giving judgment Lord Sumption noted that in the current climate of restricted legal aid and CFAs, acting as a litigant in person is not always a matter of choice, leading to some justifiable allowances being made at the case management and final hearing stages of litigation. Nonetheless he concluded that the overriding objective requires the Court to enforce compliance with the rules so far as practicable, therefore non-representation:

“ ...will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.”

Lord Sumption commented that the rules do not distinguish between represented and unrepresented parties, and found that (contrary to Mr Barton’s assertions) r6.3 and PD 6A are neither inaccessible nor obscure, both being available on the internet and clearly marked.

It was finally decided that:

‘it cannot be enough that Mr Barton’s mode of service successfully brought the claim form to the attention of [the Respondent’s solicitors]... otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process.’

The ECHR point was dealt with briefly, repeating the idea that the rules are sufficiently accessible and that, in any event, it is not the rules which had deprived Mr Barton of his remedy but the Limitation Act. As a reasonable limitation period does not contravene any person’s Article 6 rights, such submissions were held to be without merit.

That, however, may not be the end of the matter, as the appeal was lost only on a 3-2 basis with both Lord Briggs and Lady Hale (President) dissenting.

Whilst accepting that any change to the rules is a matter for the Civil Procedure Rule Committee, Lord Briggs remarked that the constraint on service via e-mail was introduced at a time when such service was a new phenomenon. Now that documents are routinely and mandatorily filed online, the requirement is surely to be reviewed.

Three purposes behind the rules on service of the claim form were identified:

i.     to ensure that the contents of the claim form were brought to the person due to be served

ii.   to notify the recipient that an action has been commenced against the relevant Defendant on a particular day

iii.    to ensure that sufficient administrative provisions are put in place to deal with service by e-mail

Given the commonplace nature of service by e-mail and the presence of the remaining two factors, the dissenting judgment considered that in the index appeal there were sufficient grounds to activate the dispensing provision under r6.15.

Notably both Lord Sumption and Lord Briggs remarked that it would desirable for the Rules Committee to consider a change to the rules on service – watch this space.

Current Awareness

By the Personal Injury team