Barton v Wright Hassall: Why litigants in person still have to play by the rules

Andrew Mason*, a trainee in the Business and Financial Disputes team at Collyer Bristow considers a Supreme Court ruling that confirms that, from a Rules perspective, the playing field between litigants in person and represented parties must remain level.
*with editorial assistance from Vuyi Stutley, Associate

In a judgment handed down on 21 February 2018 in Barton v Wright Hassall LLP [2018] UKSC 12, the Supreme Court has endorsed strict compliance with the Civil Procedure Rules even for litigants in person, while at the same time suggesting that it is time the rules on email service be reconsidered.

Facts

On 25 February 2013, the Claimant, an experienced litigant in person, issued a claim form in professional negligence against his former legal representative. He chose to serve the claim form himself, rather than allowing the Court to do so. There followed some limited pre-action correspondence by email with the Defendant’s solicitors. Then on 24 June 2013, the last day before expiry of the claim form, he emailed the claim form to the Defendant’s solicitors. The solicitors had not given previous consent in writing to being served by email.

The Defendant’s solicitors replied on 4 July stating that they had not consented to service by email and that the Claimant’s claim had now expired
and was therefore statute barred. The Claimant applied to a District Judge on three grounds: that his service was valid because by engaging in email
correspondence the Defendant’s solicitors had “indicated” that they would accept service by email; alternatively, that this supposed indication was “good reason” for retrospective validation of service under CPR 6.15; and thirdly the validity of the claim form should be extended under CPR 7.6.

By way of reminder, current CPR 6.15 grants the Court discretion to make an order authorising service “by a method or at a place not otherwise permitted” where there is “good reason” to do so.

The District Judge rejected all three arguments, but allowed the Claimant to appeal on the CPR 6.15 point, which he duly did. His argument was ejected
by both a Circuit Judge and by the Court of Appeal and the Claimant then appealed to the Supreme Court.

Judgment

The Supreme Court dismissed the appeal by a majority of 3:2. Giving the leading judgment, Lord Sumption highlighted that, while the most important purpose of service is to bring the claim form to the attention of the defendant, this alone cannot be a “good reason” to validate service under CPR 6.15 (endorsing the Supreme Court’s decision in Abela v Baadarani[2013] UKSC 44). The Court must also look at the surrounding circumstances.

In the circumstances, the fact that the Claimant was a litigator in person did not justify allowing him a lower standard of compliance with the rules. The Claimant had not read the rules and instead proceeded on his own (incorrect) assumptions. It was reasonable to expect a litigant in person to familiarise himself with the rules, especially where those rules are clearly written and easily accessible on the Internet. The Claimant had also “courted disaster” in waiting until the very last moment to serve the claim form, allowing himself no room to rectify any mistake.

The rules of procedure exist to “provide a framework within which to balance the interests of both sides”and to grant indulgences to litigants in erson would be to disadvantage represented parties.

Lord Sumption also made the point that the Defendant’s solicitors were under no duty to warn the Claimant of his mistake and for them to have done so would have prejudiced their client by potentially depriving them of a limitation defence. Further, retrospectively validating the Claimant’s service would have the same prejudicial effect on the Defendant.

Giving the dissenting judgment (with which Lady Hale agreed), Lord Briggs would have allowed the appeal as the Claimant’s purported service had “albeit in a modestly non-compliant way” achieved the major purpose of service by bringing the claim to the Defendant’s attention; this, in his judgment, was a “good reason” to retrospectively validate service.

There was, however, consensus between the judgments that the issues raised in this appeal ought to be reviewed by the Rule Committee to ensure that the rules on service are still fit for purpose in an increasingly digitised profession.

Comment

By confirming that litigants in person will be held to the same level of compliance as represented parties, this judgment will be welcomed by practitioners who feel that courts are often unduly lenient towards unrepresented parties.However, practitioners themselves would be well advised to ensure that they are aware of the niceties of the rules on service by email as it seems that the court will accept nothing less than full compliance with the letter of the rule. The court is unlikely to entertain arguments of implied consent to accept service even where there has been previous email correspondence –in this case the last email from the Defendant’s solicitors to the Claimant before service was attempted had stated, “I will await service of the Claim Form and Particulars of Claim”!

Also noteworthy is Lord Sumption’s confirmation that the Defendant’s solicitors owed no duty to the Claimant to warn him of his defective service, on account of the potential prejudice to their own client.

One final point is that this is an essentially conservative judgment from the Supreme Court. Lord Sumption is undoubtedly correct that there must be a
“bright line” whereby parties can determine when a claim is commenced. However, it is suggested that there may be no brighter line than a service via
private message on social media that informs the sender of the exact time when it is read by the recipient.

The rules on service in other jurisdictions (Canada, Australia, Singapore, New Zealand to name but a few) are being increasingly relaxed in favour of service both by email and by social media and, while small inroads have been made in England and Wales, the CPR may well need to catch up with the times.

127 thoughts on “Barton v Wright Hassall: Why litigants in person still have to play by the rules”

  1. I discovered your blog site on google and check a few of your early posts. Continue to keep up the very good operate. I just additional up your RSS feed to my MSN News Reader. Seeking forward to reading more from you later on!…

  2. I am often to blogging and i really appreciate your content. The article has really peaks my interest. I am going to bookmark your site and keep checking for new information.

  3. Знаете ли вы?
    Согласно мифу, Марута Сар пыталась примирить Арарат и Арагац, но не смогла.
    Китайскую пустыню засадили лесами и открыли там фешенебельный курорт.
    «Бикини» для лица помогает китаянкам уберечь кожу от медуз и загара.
    Советские военные операторы на базе ленд-лизовского кинопулемёта и ППШ создали киноавтомат.
    По выбору Утёсова дорога на Берлин шла то через Минск, то через Киев.

    arbeca

  4. I really like your writing style, excellent information, regards for posting :D. “In university they don’t tell you that the greater part of the law is learning to tolerate fools.” by Doris Lessing.

  5. I simply want to mention I am just very new to blogging and really enjoyed your web blog. Almost certainly I’m want to bookmark your blog post . You certainly have fantastic articles and reviews. Thanks for revealing your web-site.

  6. This site is known as a walk-by for all the data you needed about this and didn’t know who to ask. Glimpse right here, and also you’ll undoubtedly uncover it.

  7. I have been exploring for a little bit for any high-quality articles or weblog posts on this kind of space . Exploring in Yahoo I ultimately stumbled upon this web site. Reading this info So i am satisfied to show that I’ve an incredibly just right uncanny feeling I came upon exactly what I needed. I so much certainly will make sure to do not put out of your mind this web site and give it a glance regularly.

  8. I like the valuable info you provide in your articles. I will bookmark your weblog and check again here regularly. I am quite certain I’ll learn many new stuff right here! Best of luck for the next!

  9. Howdy very cool blog!! Man .. Excellent .. Superb .. I’ll bookmark your blog and take the feeds additionally…I am glad to search out a lot of useful info right here in the submit, we want develop extra strategies in this regard, thank you for sharing.

  10. I was just searching for this info for a while. After six hours of continuous Googleing, finally I got it in your web site. I wonder what’s the lack of Google strategy that don’t rank this type of informative websites in top of the list. Normally the top web sites are full of garbage.

  11. I’m so happy to read this. This is the type of manual that needs to be given and not the random misinformation that’s at the other blogs. Appreciate your sharing this best doc.

  12. Fascinating blog! Is your theme custom made or did you download it from somewhere? A theme like yours with a few simple tweeks would really make my blog shine. Please let me know where you got your theme. Thank you

  13. I am really enjoying the theme/design of your website. Do you ever run into any internet browser compatibility issues? A small number of my blog audience have complained about my site not operating correctly in Explorer but looks great in Safari. Do you have any advice to help fix this problem?

  14. Thanx for the effort, keep up the good work Great work, I am going to start a small Blog Engine course work using your site I hope you enjoy blogging with the popular BlogEngine.net.Thethoughts you express are really awesome. Hope you will right some more posts.

  15. I feel that is one of the such a lot vital information for me. And i am happy reading your article. But want to remark on some normal issues, The web site style is wonderful, the articles is in reality great : D. Just right process, cheers

  16. I’m impressed, I must say. Really not often do I encounter a weblog that’s both educative and entertaining, and let me tell you, you’ve gotten hit the nail on the head. Your concept is outstanding; the difficulty is something that not sufficient individuals are speaking intelligently about. I’m very glad that I stumbled throughout this in my seek for something regarding this.

  17. Hey, you used to write wonderful, but the last few posts have been kinda boringK I miss your great writings. Past few posts are just a little out of track! come on!

  18. Very nice post. I just stumbled upon your blog and wanted to mention that I’ve really loved surfing around your blog posts. After all I’ll be subscribing for your feed and I hope you write once more soon!

  19. The very crux of your writing whilst appearing agreeable at first, did not settle well with me after some time. Somewhere throughout the paragraphs you managed to make me a believer unfortunately just for a while. I nevertheless have a problem with your leaps in assumptions and one would do nicely to fill in all those gaps. In the event that you can accomplish that, I will definitely be impressed.

  20. Hiya, I’m really glad I’ve found this information. Nowadays bloggers publish just about gossips and web and this is actually frustrating. A good web site with exciting content, that is what I need. Thank you for keeping this web-site, I will be visiting it. Do you do newsletters? Can not find it.

  21. Hi there, i read your blog occasionally and i own a similar one and i was just wondering if you get a lot of spam responses? If so how do you prevent it, any plugin or anything you can suggest? I get so much lately it’s driving me mad so any help is very much appreciated.

  22. Excellent read, I just passed this onto a friend who was doing some research on that. And he actually bought me lunch because I found it for him smile Thus let me rephrase that: Thanks for lunch!

  23. Good day! This is my first visit to your blog! We are a collection of volunteers and starting a new initiative in a community in the same niche. Your blog provided us valuable information to work on. You have done a wonderful job!

  24. The other day, while I was at work, my sister stole my iphone and tested to see if it can survive a thirty foot drop, just so she can be a youtube sensation. My iPad is now broken and she has 83 views. I know this is totally off topic but I had to share it with someone!

  25. I am not sure where you’re getting your information, but great topic. I needs to spend some time learning much more or understanding more. Thanks for magnificent information I was looking for this info for my mission.

  26. It’s really a nice and helpful piece of information. I’m glad that you shared this helpful information with us. Please keep us informed like this. Thank you for sharing.

  27. I¦ve been exploring for a little for any high-quality articles or blog posts in this sort of house . Exploring in Yahoo I finally stumbled upon this web site. Studying this information So i¦m satisfied to express that I have an incredibly just right uncanny feeling I found out exactly what I needed. I most definitely will make sure to do not omit this site and provides it a glance on a constant basis.

Leave a Reply

Your email address will not be published.