Last week, the Supreme Court handed down judgment in the case of Barton v Wright Hassall LLP  UKSC 12, in which the unrepresented claimant sought to argue that service of proceedings, via an email to the defendant’s solicitors, constituted ‘good service’. In this article, we examine the significance of the court’s ruling, on appeal.
In edition 203 of BC Disease News (here), we reported that Barton v Wright Hassall  EWCA Civ 177 had been granted appeal to the Supreme Court.
In Barton, the claimant attempted to serve the Claim Form on the defendant’s solicitor as an email attachment.
In the CPR, Rule 6.3 prescribes service by method of electronic communication:
However, the claimant did not comply with the relevant Practice Direction (below), as the defendant’s solicitors had not given express written permission:
Subsequently, the claim form expired, unserved, the following day. The claim was statute-barred. The claimant applied, under CPR 6.15 that he had effected service by bringing the claim form to the attention of the defendant by an ‘alternative method’.
The defendant contended that the conduct of the claimant did not constitute an ‘alternative method’ of service, pursuant to CPR 6.15, and
COURT OF APPEAL JUDGMENT
The claimant applied to retrospectively validate service, but the Court of Appeal Judge dismissed the application, as the District Judge and County Court Judge had done before him. Indeed, Floyd LJ ruled that the Civil Procedure Rules did not intend an ‘alternative method’ to mean any method which had not been expressly prohibited.
THE BASIS OF THE APPEAL
The premise of the appeal was to further seek ‘special dispensation’ for Litigants in Person ‘ill-equipped to understand the Civil Procedure Rules’. It is therefore the first Supreme Court decision to consider the ‘unrepresented status of a non-compliant litigant’, seeking the introduction of ‘special rules or indulgences’.
The claimant, represented by direct access counsel, argued that the Civil Procedure Rules are ‘too complex’ for litigants in person to navigate and, in attempting to access information, are ‘lost in a myriad of online options and jargon’, rendering compliance with the rules, ‘impossible’. Counsel submitted that:
‘Judges at all levels appear to have substantially underestimated the difficulty that a LiP would have in relation to the commencement and service of a claim’.
SUPREME COURT JUDGMENT
Lord Sumption clarified that the ‘rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all’.
As a result, he indicated that ‘“good reason” for validating the non-compliant service of a claim form is essentially a matter of factual evaluation’, meaning that there is little authority on the subject. However, ‘good reason’ was discussed by Lord Clarke JSC, in the case of Abela v Baadarani  UKSC 44, where a test was established for exercising discretion of the powers available under CPR 6.15:
- ‘The test is whether, “in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service” (para 33).
- Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served (para 37). This is therefore a “critical factor”. However, “the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)” (para 36).
- The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode’'
As such, Lord Sumption accepted the general principles raised by Lord Clarke, stating:
‘... 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, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant 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’.
Lord Sumption, in tackling the appeal, reasoned, at paragraph 18, that a lack of legal representation ‘... 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 ... The rules do not in any relevant respect distinguish between represented and unrepresented parties’.
He went on to cite R (Hysaj) v Secretary of State for the Home Department  1 WLR 2472 and Nata Lee Ltd v Abid  EWCA Civ 1652 as authorities establishing that unrepresented applicants, bringing applications under CPR 3.9 for relief from sanctions, will not benefit from strict enforcement of the Civil Procedure Rules, simply as a result of their status. Lord Sumption did, however, agree with Briggs LJ, in Nata Lee, who reasoned that, ‘at best, it [status of the litigant] may affect the issue “at the margin”’.
Sumption JSC interpreted that ‘litigant in person’ status‘... may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, which is less significant in the case of applications to validate defective service of a claim form’.
Nevertheless, the Supreme Court Judge highlighted ‘... good reasons for applying the same policy to applications under CPR rule 6.15(2) simply as a matter of basic fairness. 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. 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’.
Are the Rules and Directions Inaccessible or Obscure?
At paragraph 19, Lord Sumption was unaccepting of the claimant’s argument that the rules on service were ‘inaccessible’ and ‘obscure’:
They are accessible on the internet’. Furthermore, when the claim form was issued, the Courts Service sent Mr Barton ... a blank certificate of service for him to complete when he had served it. This included the statement: “Rules relating to the service of documents are contained in Part 6 of the Civil Procedure Rules (www.justice.gov.uk) and you should refer to the rules for information.” ... apart from looking at the legal notices ... (which said nothing about email service), he took no steps to check ... or to ascertain what the rules regarding service by email were, but simply relied on his own assumption’.
He went on to say that the claimant’s assumption was not ‘in itself reasonable’. The claimant knew that not all solicitors accepted service by email and he was an ‘experienced litigant’.
Considering his ‘relevant factors’ for warranting the use of discretionary CPR 6.15 powers, he said, at paragraph 22:
‘... it is not necessarily a condition of success in an application for retrospective validation that the claimant should have left no stone unturned. It is enough that he has taken such steps as are reasonable in the circumstances to serve the claim form within its period of validity. But in the present case there was no problem about service. The problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules’.
The judge went on to say, at paragraph 23:
‘A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(2). By comparison, the prejudice to Wright Hassall is palpable. They will retrospectively be deprived of an accrued limitation defence if service is validated. If Mr Barton had been more diligent, or ... [the defendant’s solicitor] ... had been in any way responsible for his difficulty, this might not have counted for much. As it is, there is no reason why Mr Barton should be absolved from his errors at Wright Hassall’s expense’.
Lord Wilson and Lord Carnwath agreed with Lord Sumption, in dismissing the appeal by 3:2.
Dissenting, was Lord Briggs, who would have allowed the appeal. Lady Hale agreed.
Firstly, Briggs JSC, without wishing to depart from Lord Clarke’s dictum in the Abela case, stated, at paragraph 28, that although ‘... the most important purpose of service is to ensure that the contents of the claim form (or other originating document) are brought to the attention of the person to be served, there is a second important general purpose. That is to notify the recipient that the claim has not merely been formulated but actually commenced as against the relevant defendant, and upon a particular day. In other words it is important that the communication of the contents of the document is by way of service, rather than, for example, just for information. This is because service is that which engages the court’s jurisdiction over the recipient, and because important time consequences flow from the date of service, such as the stopping of the running of limitation periods and the starting of the running of time for the recipient’s response, failing which the claimant may in appropriate cases obtain default judgment.'
He went on, in the next paragraph, to highlight the third purpose, also mentioned by Lord Sumption, ‘namely to ensure that recipients or their solicitors have the opportunity to put in place administrative arrangements for monitoring and dealing with what was then a new mode of service before being exposed to its consequences’.
Tackling the three distinct and separate purposes in order, the dissenting Judge reasoned:
'As to the first, it is and always has been common ground that the defendant firm was, through its agent solicitors, fully appraised by the email of the contents of the claim form. As to the second, the claim form was sent expressly “by means of service upon you”. The recipient solicitors could have been in no doubt that Mr Barton was seeking to achieve service, with its important consequences, rather than just sending the claim form by way of information. As to the third, it has not been suggested that, by comparison with postal service, the recipient firm was in any way hampered by not having appropriate monitoring procedures in place, or that its email systems were insufficient to permit prompt receipt of the whole of the documentation actually sent, although the particulars of claim were voluminous.'
Since Lord Briggs perceived all three purposes to have been achieved, he saw that there was, prima facie, ‘good reason’ to validate service under CPR 6.15. Only adverse factors, such as a deliberate failure to comply with the Rules, failure due to negligence, or failure due to neglect, could change his ‘prima facie’ judgment, as these factors could encourage ‘procedural anarchy’.
Further, he discussed, at paragraph 32, that:
‘There are bound to be cases where the purposes have been fully achieved but there are no other good reasons for validation, where the failure to comply with the rules, though not excusable by a good reason for failure, is nonetheless only a minor or technical breach, or one readily understandable either because the relevant rule is obscure, or less accessible to a litigant in person than to an experienced and skilled lawyer’.
If cases where this is apparent, he advised that there ‘should not be a vain search for an additional good reason beyond full achievement of the purposes of the rules as to service, but rather a weighing of all the circumstances leading to defective service, to see whether the inevitable element of culpability of the claimant is or is not sufficiently large to displace the prima facie good reason constituted by the full achievement of those purposes’.
The judge also disagreed with Lord Sumption, in that he perceived that there would be no prejudice, on limitation, suffered by the defendant.
Additionally, Lord Briggs spoke briefly about the effect of adherence to the CPR on litigants in person, at paragraph 42:
‘If, as many believe, because they have been designed by lawyers for use by lawyers, the CPR do present an impediment to access to justice for unrepresented parties, the answer is to make very different new rules (as is now being planned) rather than to treat litigants in person as immune from their consequences.'
Nevertheless, he made sure to distinguish that ‘the good reason in the present case is not that he is a litigant in person, but rather the fact that Mr Barton’s attempted service by email achieved all the underlying purposes of the relevant rules. His being a litigant in person, with the particular consequences described above merely mitigates, at the margin, the gravity of non-compliant conduct which, had it been done by a legal representative, would have been more serious as an impediment to validation ... Taking all the relevant considerations into account, I consider that Mr Barton’s attempt at service by email should be validated. He may fairly be criticised for having failed to read the relevant part of the rules, and making an incorrect assumption instead, but this does not on balance detract from the good reason constituted by his having, albeit in a modestly non-compliant way, achieved all that which the rules as to service by email are designed to achieve’.
Lord Briggs, upon consideration of the effect of this decision, shared his aspiration that:
‘the Rule Committee might be able to find time to satisfy itself that this rule, and the provisions in the PD about service by email, still satisfy current requirements, in the context of giving effect to the Overriding Objective, and do so with sufficient clarity’.
Earlier in the judgment, at paragraph 25 of Lord Sumption’s majority judgment, professed:
‘I agree with the observations of Lord Briggs in his final paragraph that it is desirable that the Rules Committee should look at the issues dealt with on this appeal, if only because litigants in person are more likely to read the rules than the judgments of this court’.
Full text judgment can be accessed here.
Howard Elgot, instructed as claimant counsel in Barton, said:
‘The narrow majority by which our client’s case was lost reflects the difficulty judges have in deciding when to apply the dispensing provision for invalid service and what ‘special’ treatment, if any, should be afforded to litigants in person’.
An application to the European Court of Human Rights, on the grounds of Article 6 of the Convention, is being considered.[i]
[i] Neil Rose, ‘Supreme Court: No dispensation for LiPs in complying with rules and orders’ (21 February 2018 Litigation Futures) <https://www.litigationfutures.com/news/supreme-court-no-dispensation-lips-complying-rules-orders > accessed 1 March 2018.