The Risks of Do-it-Yourself – Barton v Wright Hassall

There are a lot of Litigants in Person (people acting for themselves) about these days. With the virtual abolition of civil Legal Aid and much more rigorous selection by No Win No Fee providers, a large number of people are more or less forced to act for themselves in many circumstances when this is far from ideal.

Predictably, they tend to make something of a mess of things from time to time, usually caused by lack of the technical knowledge needed for litigation, with a sketchy knowledge for the Civil Procedure Rules that govern the process, and little experience of how courts operate, and what they need to be told and how to do it. This has lead to calls in some circles for LiPs to be excused from complying with the CPR, provided they are not so far adrift that they cause serious prejudice to their opponents, or real inconvenience to the courts. In fact some people have been saying that the CPR should be interpreted this way already. Others say that the way forward is either to simplify the CPR for everybody, or to provide a simplified system that LiPs have to follow, leaving the detailed rules to those proceeding with professional representation.

Now, those on the front line in litigation will know that a combination of these views have been applied in practice by the District Judges who have to deal with the bulk of the LiPs from day to day. If you are appearing against a LiP then you will know that there is rarely much point in taking technical points about procedure against them – short service of documents, failure to include all the correspondence, vague allegations in the Statements of Case, or in the evidence in support. Most DJs will just raise their eyebrows and extend the time or whatever, and you won’t get anywhere unless they are miles out of line. You do better to fight things on the merits, when the fact that their case has not been properly argued or supported by evidence will count against them in the end. I have written about this before, here.

Now last week the Supreme Court gave judgment on a case which some commentators said would enshrine the new flexibility for LiPs in law. Others were more sceptical. So read on.

Barton v Wright Hassall [2018] UKSC 12 was a professional negligence claim by Mr Barton against his former solicitors, a well known local firm in Leamington Spa. Mr Barton had fallen out with the solicitors acting on his divorce and engaged Wright Hassall to sue them for negligence. Then he fell out with WH and wanted to sue them as well. He either couldn’t find a third firm to help him, or possibly thought that he could do better himself – either way, he issued the claim himself and in the summer of 2013 the time came for him to serve it.

Wright Hassall had instructed solicitors to act for them – Berrymans Lace Mawer – and they confirmed that they were authorised to accept service of proceedings for their clients, so all Mr Barton had to do was to stick the papers in the post, or deliver them by hand to their offices. However Mr Barton decided that, as he had left things to the last day for service, he would serve them by email, and sent the appropriate paperwork off to BLM on 24th June 2013. His email itself was fine, and he appears to have enclosed the right documents with it. However, he had missed a vital point, and so service was held to be invalid. This is that in order to validly serve by email the recipient has to confirm that they are prepared to accept service in that way. Just giving an email address in ordinary correepondence won’t do, they have to say they will accept service by email. PD 6A to r 6 CPR is specific:

Service by fax or other electronic means

4.1  Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –

(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –

(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and

(b) the fax number, e-mail address or other electronic identification to which it must be sent; and

(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –

(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;

(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or

(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.

4.2  Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

It all looks a bit dated now, although it was probably entirely relevant when it was introduced a number of years ago. BLM had given their email address, but hadn’t confirmed that they would accept formal service there, Mr Barton made no enquiries, and so he was all set up for failure. His email arrived, was acknowledged, but was not responded to until 4th July, by which time not only had the 4 months for service expires, but so had the limitation period of 6 years for his claim itself, so he couldn’t re-issue and serve properly. A lesson not to leave things so late.

The various courts all held that this was not good service. What is more, Mr Barton’s application for an order under r6.15 CPR, which allows the court to validate service in some circumstances, was refused. The rule provides:

Service of the claim form by an alternative method or at an alternative place

6.15

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service….

Unfortunately for Mr Barton, the District Judge, the Circuit Judge on appeal, the Court of Appeal and the Supreme Court all refused to approve service under para 6.15(2), although the SC was split 3:2 against him. Lord Sumption, giving the majority judgment said that:

  • The fact that the email actually brought the claim to BLM’s attantion was not enough. If it was, then any form of service would suffice, which was not the case.
  • Service of proceedings is important as it is the start of the timing for a lot of what follows, and stops limitation running.
  • Service by email could be a problem in case it took place without the solicitors being aware of it – for example by arriving at an address whose holder was away. Hence there are rules which ought to be followed.
  • There is no special treatment for LiPs in obeying the CPR. “Unless the rules are particularly inaccessible or obscure, it is reasonable to expect an LiP to familiarise himslef with the rules which apply to any step which he is about to take.”
  • These rules are neither inaccessible nor obscure. They are published on the internet and referred to in the instructions sent out by the court when they issued the claim. They are clear to read and if Mr Barton had read them (which he hadn’t) he would have easily understood what they said.
  • It is incorrect to say that BLM were “playing technical claims” with Mr Barton. They had not said that they would accept service by email. They were under no duty to advise him, contrary to their own clients’ interests, that he should re-serve or re-issue before limitation expired.
  • There was no reason to rescue the claim using r6.15, which would cause Wright Hassall considerable prejudice.
  • The Human Rights argument  – that this was a breach of Mr Barton’s rights to a fair trial under Art 6 – got nowhere. Rules on service and limitation periods are widespread and fair.

He did however urge the Rules Committee to look at redrafting the relevant rules in the light of developments since they were first drafted.

Lord Briggs and Lady Hale dissented, and would have allowed the appeal and validated service, on the grounds that the steps taken were effective to bring the service to the Defendants’ attention. But they repeated that there was no special treatment for litigants in person, other than the fact that they generally broke the rules by ignorance rather than as part of the tactics of a professional litigator.

So that is that. No special rules for LiPs for now, but perhaps a little bit more flexibility (depending on who is judging your case).

And finally it is perhaps ironic that if Mr Barton had put the documents in the post on that last day they would still be in time even if the Royal Mail took a week to deliver them. Because the rules on the time for service of a claim form, contained in r7.5 CPR provide:

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

And the step for service by post (or DX) is just the posting of the document, not its delivery.

More details in the usual places –  Civil Litigation Brief gives practical advice as well.

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Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

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