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Supreme Court: no indulgence for litigants in person

Date:22 FEB 2018
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Solicitor Advocate

Attempt at service by email

Mr Barton is a seasoned litigator. He first sued, and eventually settled with, lawyers who had dealt with financial relief proceedings for him. The defendants in the later Barton v Wright Hassall LLP [2018] UKSC 12 acted for him in his claim against those original lawyers after Wright Hassall (WH) had come of the court record in a dispute over fees. WH sued him for their fees and obtained a summary judgment. Mr Barton, acting in person (a litigant in person (LiP)) claimed against WH in professional negligence.
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Normally his claim form would have been served by the court. Mr Barton chose to serve it himself. WH instructed solicitors who contacted Mr Barton by email to say that they were acting and that they were awaiting service of his particulars of claim. The last day before expiry of the issued particulars (and after the limitation period had expired) Mr Barton sent an email which included the particulars of claim issued out of the Chesterfield County Court. Ten days later the solicitors said that email was not a permitted method of service, and that therefore they would take no further steps in connection with Mr Barton’s claim.

Civil Procedure Rules 1998 (CPR 1998) Pt 6 deals with service of documents. Ch 2 of Pt 6 deals with service in the jurisdiction. Family Procedure Rules 2010 (FPR 2010) Pt 6 Ch 3 is derived largely from CPR 1998 Pt 6 Ch 2 and deals with service of family proceedings documents other than divorce etc petitions (which are covered in FPR 2010 Pt 6 Ch 2). Service is by CPR 1998 r 6.3 which includes (at r 6.3(1)(d); and see FPR 2010 r 6.23(d)) fax or email ‘in accordance with practice direction 6A’. Reference to PD6A para 4.1 shows that if email is to be permitted the solicitor to receive the documents must agree to this (and the same is the case under FPR 2010 Pt 6); and WH’s lawyers had not agreed.

All was not lost for Mr Barton. CPR 1998 r 6.15(1) enables a claimant to apply for service by an alternative method (from which FPR 2010 rr 6.19 and 6.35 are derived). The court may grant a r 6.15(2) application, said Lord Sumption, where:

'[10] … In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and… (iii) what if any prejudice the defendant would suffer by the retrospective validation of a noncompliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.'

Mr Barton applied under r 6.15(2) and was refused an order by the district judge who gave him limited permission to appeal. The judge refused his appeal, as did the Court of Appeal. So too, finally, did the Supreme Court (Lord Sumption, Wilson and Carnwath) over dissent from Lord Briggs and Lady Hale.

Mr Barton as a litigant in person

So what allowance, if any should be made for Mr Barton’s position as a litigant in person? The rules make no allowance for whether a person is a LiP or is represented. Lord Sumption addressed the position as follows:

'[18] Turning to the reasons for Mr Barton’s failure to serve in accordance with the rules, I start with Mr Barton’s status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f).'

Any indulgence to Mr Barton must be balanced by a disadvantage to the defendant. Lord Sumption explained this:

'[18] … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example [this was a case where limitation applied: if unable to serve Mr Barton was out of time]. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.'

Lord Briggs (with Lady Hale) would have let Mr Barton in (see eg [41]): he had communicated by email already with the solicitors; the rules about email service are ‘tucked away in a practice direction’; and an otherwise authoritative handbook for litigants in person (published later than Mr Barton’s error) made the same mistake as him.

Bothe Lord Sumption and Lord Briggs urged the rules committee to look again at this part of the rules.

Lessons for family proceedings: lawyers and litigants in person

The rules for family proceedings that are derived from civil proceedings are the same; but there will rarely be the same pressures since limitation issues do not arise in the same way (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972). That said, issues of timeous service may arise in forum races; time for filing an answer to a petition depends on correct service (FPR 2010 r 7.12(8)); and attendance and effectiveness of certain interim remedies (such as freezing orders) where applied for on notice may depend on correct service under the rules.

If indulgence is not permitted to LiPs, how much more punctilious, perhaps, will judges and district judges be where indulgence is requested by practising lawyers. If service is to be effective then it must be by one of the means set out in FPR 2010 r 6.23 (for family proceedings documents generally) and for divorce etc petitions as required by r 6.4 (bearing in mind that a petitioner cannot serve the petition: r 6.5(3)).

For LiPs: if the approach adopted in a technical sphere is to be followed generally, then the status of LiP is unlikely to attract any special indulgence. That a person is a LiP is unlikely to provide a defence when it comes to relief from sanctions. This is so even though they plead that they have no means to pay for a lawyer (see Lord Sumption at [18] cited above). Further they must understand the mixture in the rules of provisions in rules supplemented by practice directions (a feature which is much more extensive in FPR 2010 (see eg FPR 2010 Pt 12 and its voluminous PDs)).