Civil Procedure: Barton v Wright Hassall LLP (Supreme Court)

The Supreme Court has dismissed the appeal of a Claimant who failed to validly serve his claim form on the Defendant's solicitors.

By a majority of three to two, it was held that emailing the claim form in the absence of an agreement from a defendant to accept service by that method was not valid service, nor would it be subsequently validated by the Court.

Lord Sumption made clear that litigants in person are not a special category and should not be treated as such in relation to the application of the CPR.  Furthermore, it was not stated that the CPR requires a fundamental rewrite in order to make them easier to navigate for those without legal representation.

Background

The Claimant, a litigant in person, lodged an appeal against his former legal representatives in a claim for professional negligence.  His former representatives instructed solicitors to defend the claim.  The Claimant elected to serve the claim form himself.

On the day prior to the end of the limitation period, and without confirmation that service by email would be accepted, the Claimant emailed the claim form to the solicitors.  No response was received until approximately 2 weeks later, when the solicitors stated service by email was not accepted.  Therefore, in the absence of valid service, the claim was now time barred.

The Claimant argued that the service was valid, referring to the previous course of dealings by email with the solicitors. In the alternative, he sought an extension of the validity of the claim form, or, pursuant to CPR 6.15, an order that the service by email be validated.

The District Judge rejected these arguments, but allowed the Claimant to appeal the issue of whether the purported service by email should be validated.    The Circuit Judge agreed with the first instance decision and found there was no good reason to validate the service.

The Court of Appeal agreed. The Claimant appealed to the Supreme Court.

Judgment

Lord Sumption, giving the lead judgment, agreed with the decisions of the lower courts, and dismissed the appeal.  He stated that it is not unreasonable to expect litigants in person to familiarise themselves with the appropriate rules. Mr Barton had assumed that service by email was acceptable. The solicitors had not, contrary to the submissions of the Claimant, attempted to use the Claimant's standing as a litigant in person against him.

Mr Barton had elected to serve the claim form close to limitation.  He was an experienced litigant, familiar with limitation, and also aware that certain solicitors did not accept service by email.  Lord Sumption, therefore found he deserved little indulgence from the Court, and had failed to present sufficient evidence that an order validating service be granted.  Lord Wilson and Lord Carnwath agreed.

The Claimant's further submission that the previous decisions were incompatible with Mr Barton's right to a fair trial under Article 6 of the European Convention on Human Rights was also swiftly dismissed.  Notwithstanding that the rules on service were deemed to be "sufficiently accessible and clear", it was the operation of the Limitation Act which resulted in the dismissal of the claim, and the Act does not contravene Article 6.

Lady Hale and Lord Briggs, dissenting, would have granted the appeal.

They reasoned that Mr Barton's email fulfilled that which that which the rules regarding service by email are designed to achieve.  The email had brought the contents of the claim form to the attention of the solicitors, whilst also notifying them that the claim had been commenced.

As such, they considered that this would provide good reason for ordering the validation unless there were specific circumstances which would swing the balance against validation.  

However, Lord Briggs did state that being a litigant in person does not provide "a free-standing reason why his botched attempt at service should be validated."

What can we learn?

• Lord Sumption acknowledged that restrictions in legal aid and conditional fee agreements mean that currently, pursuing a claim as a litigant in person is "not always a matter of choice". In the face of increasing number of litigants in person, a ruling in favour of Mr Barton may have given rise to uncertainty for insurers;
• However, Lord Sumption made it clear that to give one particular class additional indulgences would be unreasonable, and that the framework of proceedings needed to provide a balance of fairness to both sides. Litigants in persons may receive the grace of the Court in matters of case management, but not immunity from the consequences of breaching clear rules and practice directions;
• Nonetheless, it is not surprising that both leading and dissenting judgments made tacit admissions that this provisions of the CPR relating to service by email might need to be considered. Rather than establish circumstances in which a litigant in person might receive protection from the consequences of the rules, it is surely more sensible to change the rules to make them fit for purpose. Lord Briggs expressed a hope that the Rule Committee might look again at whether the current provisions for service by email are sufficiently clear and fair.
• On this point, it is worth noting that the development of rules of service remains a continuous process in other jurisdictions. In Canada, the Ontario Superior Court recently granted permission for legal representatives of an insurance company to serve proceedings via Instagram and LinkedIn, in the absence of a current address for the Defendant. This stands in stark contrast to the ruling in Barton;
• Any future changes regarding service would be particularly interesting in light of the expected increase in litigants-in-person due to the reforms to motor claims valued below £5,000. Lord Sumption set out the particular issues with service by email, and any loosening of the restrictions reiterated by Barton could have unintended effects.
• However, it is anticipated the proposed new portal for personal injury claims being funded by the ABI will remove all soft tissue injury from the litigation process entirely. It is expected that the large proportion of these claimants may be litigants in person and therefore, simpler rules covering the conduct of those cases are likely to be established in any event.