A STEP BACKWARDS - A PLEA FOR COMMON SENSE IN SERVICE OF THE CLAIM FORM

John Collins

1.    In the recent case of Barton v Wright Hassall LLP [2018] 1WLR 1119 the Supreme Court were divided in dismissing Mr Barton’s appeal 3:2.  I am firmly on the side of the minority.

2.    Mr Barton was a litigant in person.  He may well have been a victim of the scandalous destruction by successive governments, Labour and Conservative, of the part of the wealth of what was recognised as the welfare society, namely the Legal Aid System.  Just because he was a litigant in person does not mean that he was entitled to disregard the rules.  But because he was a litigant in person it was inevitable that he would be unaware of the details of the rules.  Those details are known to those who practise in particular fields but very often not even to the solicitors who instruct them, let alone lay persons.  It may be said – and it was said in the Supreme Court in the case with which I am concerned, that the rules are expressed in reasonably clear English and if one studies them carefully, one can steer between Scylla and Charybdis of legal complications.  But as any practical judge will tell you, your unrepresented litigant often does not see the hazard ahead at all, let alone realise that he should be taking steps to make sure that he is compliant with the detailed rules. 

3.    The facts of Barton v Wright Hassall are in essence quite simple.  Mr Barton claimed that the Defendant solicitors were negligent in their conducting of litigation on his behalf.  They disputed that.  He threatened to sue and Wright Hassall instructed Berrymans (to abbreviate their name), a very substantial firm of solicitors, to act on their behalf.   Berrymans notified Mr Barton that they were ready to accept service.  Their letter was sent to him by email and it of course had on it their email address.  Mr Barton’s claim was almost statute-barred, but although he issued his Claim Form in time, he served the Claim Form and substantially detailed Particulars of Claim on the very last day he could safely do so.  He served the documents by email.  After the claim had been statute-barred Berrymans politely pointed out to Mr Barton that he had failed to seek their permission to serve them by email – as the rules required - and accordingly he had failed to serve his claim in time. 

4.    Mr Barton of course applied for relief from sanctions under rule 6.15, though it was also contended on his behalf that his service actually did comply with the rules because Berrymans had in effect indicated that they would accept service by email.

5.    The only basis on which Mr Barton could succeed on that issue was that Berrymans had in fact communicated with him by email and had put their email address on their notepaper.  That argument fell foul of the Practice Direction 6A para 4.1 where it is said in terms that where there has been an email address set out on the writing paper of the solicitor acting for the party to be served, one can serve by email “but only where it is stated that the email address may be used for service”, which was not stated in this case.  It was indeed pointed out that in a work published shortly after Mr Barton made his error, the same error was made, namely that if the address of the solicitor’s writing paper included an email address that was sufficient to justify such service – an error by Judge Bailey and others in “A Handbook for Litigants in Person”.  But the fact remained that the rules state otherwise and Mr Barton’s error, whilst understandable, arose primarily because he did not read or study the rules and the practice directions relating to service.

6.    The District Judge refused to exercise his power under rule 6.15 to order that steps already taken “to bring the Claim Form to the attention of the Defendant by an alternative method…. is good service”.  In Abela v Baadarani [2013] 1WLR 2043, it was laid down by the Supreme Court that the question which has to be asked is whether there is good reason for the Court to validate the mode of service used, not whether the Claimant had good reason to choose that mode.  The test was whether in all the circumstances there was good reason to order that the steps taken to bring the Claim Form to the attention of the Defendant amounted to good service.  It was held that the mere fact that the Defendant learned of the existence and content of the Claim Form could not, without more, constitute a good reason to make an Order under rule 6.15.  In this case, Mr Barton had no justification to wait to the last minute and no reason why he could not have served the necessary documents personally in the normal fashion.  Therefore, said the District Judge – and he was upheld by the Higher Courts – it was quite unjustifiable for the Court to exercise discretion in his favour simply because he was a litigant in person.

7.    Mr Barton battled his way on successive appeals to Judge Godsmark QC and then after being given permission to appeal to the Court of Appeal to the Court of Appeal by way of a second appeal.  Each Judge held that he had no case to claim a declaration that his service should be validated.

8.    He was given permission to appeal to the Supreme Court.  That Court divided 3:2 against him.  Lord Sumption, whose speech was for the majority recognised that service of originating process did have the primary purpose of ensuring that the contents of the documents which were served were brought to the Defendant’s attention.  The question of validation did depend upon what steps the Claimant had taken to serve in accordance with the rules.  In this case Mr Barton had not served in accordance with the rules.  That was because he did not study the rules.  Unrepresented Claimants were not entitled to any greater indulgence in complying with the rules than represented parties unless the particular rule or practice direction was inaccessible or obscure. It was reasonable to expect a litigant in person to familiarise himself with the applicable rules.

9.      In other words, nobody is stopping a person litigating without legal assistance, but if one chooses to do that, it is up to oneself to make sure you are complying with the rules of the Court.  It is a legitimate argument.  There is a terrible temptation to a Judge when faced with a litigant in person, to make all sorts of allowances for the ignorance of the law of the litigant.  Often, those allowances are made to the disadvantage of the party to the proceedings who has gone to the trouble and expense of instructing legal representatives.

10. Lord Sumption adduced additional reasons.  After pointing out that it had been clearly established that it cannot be enough that Mr Barton’s mode of service successfully brought the Claim Form to the attention of Berrymans.  He claimed that there are “particular problems associated with electronic service”.  This is a very dubious proposition in the 2010’s.  Granted that when first introduced problems could arise by use of email, how can that be said today?  Lord Sumption pointed out that a solicitor’s office must be properly set up to receive such communications as Claim Forms.  Is anyone going to believe that a great concern such as Berrymans is not so set up?  The Law Society’s Practice Guidance on electronic mail in May 2000 did declare that the email presents new problems, but we are nearly 20 years on from that sort of situation.  It is true that the volume of emails and other electronic communications received by even a small firm may be very great and indeed they will be of unequal importance.  Anyone who has suffered from the unceasing flow of emails to his computer knows that.  Obviously there have to be arrangements to ensure that the arrival of electronic communications is monitored, but what solicitor’s office does not do that these days?  In the old days communication came in by “snail mail”.  The solicitor’s office was often flooded with a very considerable volume of documents which had to be sorted out and with perhaps more difficulty than email documents are these days.  It seems to me that this point has no merit.

11. The minority, Lord Briggs and Lady Hale disagreed with Lord Sumption and indeed disagreed with his point, which seems to me a valid point, that validation would deprive the Defendant of an accrued limitation defence and that that fact was a factor militating against validation.  They pointed out that Mr Barton had made an innocent mistake and that his reasoning that solicitors who had authority to accept service who had communicated with him by email were impliedly content to be served by email, was at the very least understandable.  It is to be emphasised that Mr Barton did not simply serve a Claim Form but he served a detailed – indeed a very detailed – Particulars of his Claim, so that within the time limited Berrymans were fully informed of the nature and details of his claim.  They pointed out that this mistake was shared by distinguished legal writers and that surely was a factor which might be taken into account in exercising the Court’s discretion to validate the service which had been made in a manner not permitted by the rules.  As Lord Briggs said the good reason for validating the service in this case was not that Mr Barton was a litigant in person but rather the fact that his attempted service by email achieved all the underlying purposes of the relevant rules.  With respect, I agree.

12.  

However I would take the matter further.  If the District Judge had sat back and thought about the situation, he should surely have said “This is ridiculous”.  Everyone nowadays communicates by email.  The standard method of instructing Counsel is by email.  Solicitors communicate with each other by email.  There is no sensible reason why anybody should refuse to accept service by email.  There was therefore no sensible reason why the District Judge or indeed the higher Courts should not have validated the service. 

13. In saying that, I do not agree with the otherwise excellent submissions of Mr Elgot for Mr Barton that Berrymans were “playing technical games”.  They had a good point in law and they were under a duty to take it.  It was for the Judge to say, “This is today contrary to common sense”. 

14. There is one further point.  That Mr Barton had to apply for validation of his service arose because he did not carry out the fundamental duty of a litigant in person, to make sure that he knew all the legal rules.  He said, obviously truthfully, that he had no idea of this particular rule.  He should have taken more trouble.  For that it would have been just for him to have been mulcted in costs for the unnecessary application that he had to make.  Thus far justice would lie.  That the Court has refused him to go forward with what may well have been a perfectly legitimate and proper claim for negligence against a firm of solicitors is little short of a scandal.