The courts will expect Litigants-in-Person ("LIPs") to comply with the Civil Procedure Rules ("CPR") when the Rules are clear.
The Supreme Court handed down judgment on 21 February 2018 in Barton v Wright Hassall LLP  UKSC 12: LIPs will not get special consideration if they have failed to comply with the CPR where the Rules are clear.
Mr Barton, the LIP, attempted to serve a claim form by email. The court refused his applications to extend the time for service beyond the initial four month period of validity and also retrospectively to authorise service by an alternative method. As a result the claim form expired and the claim became statute-barred. After two unsuccessful appeals Barton was permitted to appeal to the Supreme Court only on the issue of retrospective validation of service.
Historically the impression has been given that Courts will allow LIPs a certain amount of forbearance if they fail to abide by the CPR. This inevitably and frustratingly leads to greater uncertainty and higher costs for those dealing with Claims from LIPS. The decision will therefore be welcomed by many, in particular Financial Services institutions and solicitor firms, who are often faced with claims from LIPs.
Claim forms may not be served by email unless the receiving party expressly consents (CPR 6.3 and 6PD.4). The party to be served must indicate that it is willing to accept service by email. The party's solicitor may do so by giving an email address on its writing paper, but must also expressly indicate that it is willing to accept service by email. In addition a party seeking to serve by email must enquire whether there are any limitations to the recipient's agreement to accept service by email. The court, however, does have a general discretion under CPR 6.15 to authorise service of a claim form through alternative means not otherwise set-out in the CPR. It may do so either prospectively or retrospectively.
Barton issued his claim form on 25 February 2013. He elected to serve the claim form himself instead of the court serving it on his behalf. Berrymans Lace Mawer were instructed to represent the defendants. Berrymans wrote to Barton via email stating that they were to be contacted on Wright's behalf and that they awaited service of the claim form and particulars. They said nothing about serving the claim form by email, and Barton didn't ask them about it.
On 24 June 2013, Barton emailed the claim form to Berrymans stating that he was effecting service. The claim form expired the following day. Berrymans subsequently refused to acknowledge service, pointing out that they had not expressly consented to accepting service by email.
Barton's applications to extend the validity of the claim form and/or for permission to serve using a method not set out in the CPR were rejected at first instance and in two appeals.
In a majority decision (Lady Hale and Lord Briggs dissenting) the Supreme Court (Lord Sumption) considered:
- Whether the claimant had taken reasonable steps to effect service in accordance with the Rules;
- Whether the defendant was aware of the contents of the clam form at the time when it expired; and
- What, if any, form of prejudice would the defendant suffer in validating service retrospectively.
Barton's status as a LIP did not, in Lord Sumption's view permit a "lower standard of compliance with rules or orders of the court". He considered that the Rules on service "are…conditions on which the court will take cognizance of the matter at all" and in that respect were different from the way in which the court might manage cases once proceedings are before the court: dealing with a LIP in ongoing proceedings "will often justify making allowances in making case management decisions and in conducting hearings" (para 18). The Rules on service were in his view neither inaccessible nor obscure and were specifically referred to on the certificate of service.
Lord Sumption noted that Barton had made no attempt to effect service within the Rules. His appeal therefore failed.
It is worth noting that both Lord Sumption and Lord Briggs (who delivered a dissenting judgment) observed that now that many court processes in the Business and Property Courts are dealt with online, the Civil Procedure Rules Committee may want to revisit the Rules on electronic service.
Prospective litigants now have the certainty that they can insist that the Rules on service should be followed by LIPs, especially where a claimant, as in this case, has made no effort during the period of validity of the claim form to serve in accordance with the Rules. This decision may also assist when faced with a LIP who has not adhered to other Rules within the CPR during litigation. Addleshaw Goddard LLP has considerable experience of dealing with claims from LIPs, particularly on behalf of financial institutions. If you would like to know more about this decision or, alternatively, to discuss strategy for cases involving LIPs further then please contact either Sally Emerton or Ben Oliver.