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Litigants in Person – The Supreme Court’s view

The Supreme Court’s decision in Barton v Wright Hassall LLP not only provides welcome clarification to solicitors and insurers alike, it reiterates the extent to which the Courts will be lenient to Litigants in Person when they claim to be unfamiliar with the rules

Summary

In October 2017 we provided some general guidance on dealing with LiPs.  The Supreme Court has now handed down its Judgment in the matter of Barton v Wright Hassall LLP [2018] UKSC 12, which sheds further light on how the Court will apply the rules in cases involving a Litigant in Person (“LiP”).  

The decision clarifies the extent to which the Courts will assist LiPs.

Mr Barton appealed his unsuccessful application for validation of service of his Claim Form and Particulars of Claim by email despite the Defendant’s solicitors not having said that they accepted service by electronic means (a necessary prerequisite for service to be valid).

Mr Barton’s appeal rested on three arguments:

1)    The non-compliant method of service had brought the documents to the Defendant’s attention;

2)    Mr Barton was entitled to assume that the Defendant’s solicitor accepted service by email.  This, in turn, was based on two sub-points:

  1. the Civil Procedure Rules regarding service by email (Practice Direction 6A) were obscure and, effectively, buried away and therefore inaccessible to the LiP; and
  2. the solicitors had corresponded with him by email previously;

3)    Finally, by not informing Mr Barton that they did not accept service by email prior to expiration of the limitation period, he accused the Defendant of “playing technical games”.

By the narrowest of margins (3-2), the Supreme Court rejected Mr Barton’s arguments and dismissed his appeal.  

We discuss below the points of particular importance in relation to cases with LiPs.

LiPs’ compliance with the Court rules

Lord Sumption directed his attention to Mr Barton’s particular status as a LiP (paragraph 18).  He said that “lack of representation will often justify making allowances in making case management decisions and in conducting hearings.  But it will not usually justify applying to litigants in person a lower standard of compliance with rules of orders of the court” (our emphasis added) and “it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of the Court against him” (our emphasis added).

The conclusion to be drawn from this is that, whilst the Court will do what it can to assist those unfamiliar with the Court process, ultimately the rules are the same for everyone.

Lord Sumption identified the underlying reason why the rules should be applied equally – “The rules provide a framework within which to balance the interest [sic] 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.”

Entitlement to assume that the Defendant accepted service by email

Mr Barton’s argument that the relevant rules were “inaccessible to a litigant in person”

Lord Sumption made short shrift of this, noting quite simply that “[t]hey are accessible on the internet.”  Furthermore, the Court provided Mr Barton with a blank certificate of service that referred him to both the relevant part of the Civil Procedure Rules and where he could find them (www.justice.gov.uk).

Referring to paragraph 4.1(2)(b) of the relevant Practice Direction, Lord Sumption’s view was that it was clear that service by email was only permissible “where it is stated that the email address may be used for service”. 

Of note, and particularly useful in matters where litigation has been underway for some time and/or the LiP is experienced, in reaching his decision that the alleged obscurity did not justify Mr Barton’s assumption that the Defendant accepted service by email, Lord Sumption refers to the fact that Mr Barton was, by that point, “an experienced litigant” who was familiar with both the concept of limitation and that not all solicitors accepted service by email.

It is not unusual for a LiP to have been embroiled in litigation in one form or another for a number of years, as was the case with Mr Barton who had been “locked in litigation for the past 12 years”. 

Mr Barton’s argument that the Defendant’s solicitor corresponded with him by email 

This was rejected by the District Judge at first instance, who found that simply corresponding by email did not amount to an indication that a firm accepted service by email.  Lord Sumption agreed and found it “difficult to see how Mr Barton could be entitled to assume” that the Defendant’s solicitor would accept service by email without any indication from them that they would.

Allegation of technical game playing

The sole basis for this argument was that the Defendant’s solicitors had taken the point about invalid service.  This argument was dismissed as Defendant’s solicitors did nothing before the attempted service to suggest they would not take the point.

Of more interest for someone dealing with a LiP is the statement:

“Even on the assumption that they realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind.  Nor could they have properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence.  It is hardly conceivable that in those circumstance the client would have authorised it” (our emphasis added). 

A solicitor is obliged, as set out in the SRA Code of Conduct, not to “take unfair advantage of third parties in either [their] professional or personal capacity” (outcome 11.1).  And the indicative behaviours specifically includes “not taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer” (indicative behaviour 11.7).  This may necessitate assisting an unrepresented party, such as providing copies of rules/Pre-Action Protocol etc.

Whilst the situation in this case may be considered extreme (i.e. service of the claim form at the last possible moment leaving little time to rectify any error of service – a cautionary tale to all litigators), it does provide a welcome demonstration of the extent to which the Court will expect a solicitor to point out a LiP’s mistake where it will prejudice their own client’s position.    

Dissenters

Lord Briggs gave the dissenting judgment, with which Lady Hale agreed.  This concentrated on the underlying purposes of the relevant rules, which both Judges considered had been achieved by the steps taken by Mr Barton.  Notably, for this reason, Lord Briggs “questioned for how long these constraints upon service upon solicitors by email will continue to serve a useful purpose” - a question for the Civil Procedure Rules Committee.

Lord Briggs pointedly did not consider Mr Barton’s status as a LiP to be relevant:

“The good reason in the present case is not that he is a litigant in person,…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”.

As per above, Lord Briggs real concern was the meaning and effect of the rules, given that CPR 6.15 has been considered by the Supreme Court twice in recent years.  This is a sentiment that was echoed by Lord Sumption in the majority judgment.

Therefore, whilst the Judges may have disagreed on whether there was a good reason for validating service, they were in agreement that the fact the issue had been raised again in itself supported a review of the situation.  Following on from Lord Briggs’ earlier comment, it may well be service by email on solicitors becomes a standard process in the future, which solicitors will need to be mindful of.

Conclusion

Many will consider this decision to be one of common sense.  That being so, the sometimes difficult issues posed by dealing with a LiP and the sympathetic views of the Court are highlighted by the fact that it went all the way to the Supreme Court where it split the Judges 3 to 2.  As ever, no one case can provide definitive guidance and each will turn on its facts.  However, it is reassuring to know that the rules apply to everyone.

Contact

For more information please contact Sheona Woods, Partner or Ian Dinning, Solicitor.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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