Litigants in person must get familiar with rules, practice directions: Supreme Court

Unless civil procedure rules and practice directions are “particularly inaccessible or obscure”, it is reasonable to expect a litigant in person to familiarise himself with those which apply to any step he is about to take, the Supreme Court has ruled in a majority decision.

Lord Sumption's comments were made in its ruling in Barton (Appellant) v Wright Hassall LLP [2018] UKSC 12.

The background to the case was that the appellant, a litigant in person, had purported to serve the claim form in professional negligence proceedings on the defendant’s solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means.

It was common ground before the Supreme Court that this was not good service. As a result, the claim form expired unserved on the following day.

The question at issue on the appeal was whether the Court should exercise its power retrospectively to validate service. The District Judge, the County Court judge and the Court of Appeal had declined to do so.

If their order stood, the result would be that Mr Barton could proceed with his claim only by a fresh action. The appeal before the Supreme Court was conducted on the assumption that such an action would be statute-barred.

The Supreme Court dismissed the appeal by a majority of three to two.

Lord Sumption, with whom Lord Wilson and Lord Carnwath agreed, said: “Rule 6.3 and Practice Direction 6A…. are not inaccessible and obscure. They do not justify his assumption that Berrymans [the defendant law firm’s solicitors] would accept service by email unless they said otherwise. Others have made the same mistake as Mr Barton, but not for want of clarity in the rules.”

The judge added that by June 2013 Mr Barton was an experienced litigant who knew about limitation and that not all solicitors accepted service by email. “Yet, apart from looking at the legal notices on Berrymans’ website (which said nothing about email service), he took no steps to check whether Berrymans did so, or to ascertain what the rules regarding service by email were, but simply relied on his own assumption.”

Lord Sumption said a claimant need not necessarily show that compliant service was impossible. It was enough that he had taken such steps as were reasonable.

In this case, though, 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 contention that Berrymans, by raising this issue, had been “playing technical games” did not advance Mr Barton’s case: they did nothing before the purported service to suggest that they would not raise it.

Lord Sumption continued: “Naturally, none of this would have mattered if Mr Barton had allowed himself time to rectify any mishap. But having issued the claim form at the very end of the limitation period and opted not to have it served by the Court, he then made no attempt to serve it himself until the very end of its period of validity. 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, validation of service would prejudice Wright Hassall by depriving them of an accrued limitation defence.

Lord Sumption stressed that the rules served a legitimate purpose, and it was the Limitation Act, not those rules, which prevented Mr Barton from bringing his claim.

Lord Briggs, with whom Lady Hale agreed would have allowed the appeal, saying that taking all relevant considerations into account, Mr Barton’s attempt at service by email should be validated.

Howard Elgot, barrister at Parklane Plowden Chambers who appeared for Mr 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.

“We are actively considering an application to the European Court of Human Rights on Article 6 grounds, namely that an “excessive formalism” has caused the loss if Mr Barton’s claim.”