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  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.
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.
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 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.
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.