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Supreme Court dismisses litigant in person’s appeal to validate defective service

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management

07-03-2018

Barton v Wright Hassall LLP (UKSC 2016/0136)

Judgment has now been handed down by the Supreme Court in this matter who, via a majority of 3 to 2, decided there was no reason to validate a litigant in person’s defective service.

The case

Mr Barton (“B”) was a litigant in person, who had served a claim form on Wright Hassall (“WH”) by email without consent, one day before the claim became time barred by limitation.

The CPR is clear in stating that e-mail is not a permitted method of service unless the party being served has previously indicated in writing that it is willing to accept service by email. WH had not provided this consent but CPR 6.15 allows the court to validate “service by a method or at a place not otherwise permitted”. However, the Court of Appeal ruled that B’s service should not be validated, the time for service of the claim form expired and his claim was therefore time barred.

B said he was “aware that some solicitors did not accept service of documents by email”, but because WH’s website contained no reference to not allowing service by email, he concluded that it did accept service in this way. He also pleaded ignorance of the CPR, being a litigant in person. The Court of Appeal did not consider ignorance of the rules an excuse. It maintained the courts’ hard line in relation to limitation periods and CPR compliance.

The Supreme Court decision

The Supreme Court, before handing down judgment, said it would consider the argument that the Court of Appeal’s ruling breached B’s right to a fair trial and an effective remedy, pursuant to the European Convention on Human Rights.

However, the Supreme Court rejected the fact that B was a litigant in person justified invalid service due to him being unfamiliar with the Rules. The Supreme Court did not accept that the rules on service via e-mail were inaccessible or obscure. The Court was also unsympathetic with B leaving service until the last minute, by stating that a “person who courts disaster in this way can have only a very limited claim on the court’s indulgence”, and referring to the fact that if service in this case was subsequently validated, WH would be prejudiced given that an accrued limitation defence would be lost.

Comment

The Supreme Court judgment is welcome clarification that the courts will not give litigants in person more latitude to remedy defective service. Solicitors opposing an unrepresented litigant are not required to assist litigants in person by reminding them of the rules. The Supreme Court provided guidance when dealing with litigants in person, stating that solicitors have no obligation to highlight errors made by the person, and would need to operate under client instructions when doing so in any event.

That being said, the Supreme Court did accept that the involvement of a litigant in person may justify some leeway in case management decisions and in the conduct of hearings (although it will not usually justify applying a lower standard of compliance with rules or orders of the court to litigants in person). It should also be said that day to day experience in the lower courts suggests many judges do encourage represented parties to spell out requirements and potential adverse consequences to litigants in person and are more willing to make robust decisions where it is clear that has been done. That is particularly the case where litigants in person may have a vulnerability. In such circumstances, it may be appropriate to offer additional assistance.

There was also a dissenting opinion in the Supreme Court, which suggested the rules on e-mail service are not fit for current legal practice i.e. the ever increasing use of e-mail in today’s world could negate the need for express agreement to be given prior to serving via e-mail. However, whilst this may be an area for development of the law in future, it is not a legal consideration right now. The rules are clear, and litigants in person are expected to abide by them.

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