Courting disaster? Litigants in person and the CPR

Posted by Alex Peplow on
Whether represented or not, parties to litigation must comply with detailed procedural rules, or risk losing their case on a technicality.

The Supreme Court has ruled in Barton v Wright Hassall LLP that a client who sued his former solicitors and emailed his claim form to them cannot proceed with his claim because he breached the service provisions of the Civil Procedure Rules ("CPR").

This case highlights the complexity of rules on service in particular, but also more generally the perils that litigants face if they do not get to grips with all the rules of procedure, even if they do not have a lawyer to advise them.

In 1999, Mr Barton was involved in a financial dispute with his ex-wife following his divorce. He later sued his divorce lawyers, alleging professional negligence. When that claim was unsuccessful, he decided to sue his professional negligence lawyers, Wright Hassall.

Mr Barton issued his claim against Wright Hassall without legal representation. He issued it close to the end of the limitation period, and then had four months in which to serve it. On the last day before the end of the four months, Mr Barton emailed his claim form to Wright Hassall's solicitors.

The email arrived before the relevant deadline. However, due to a provision "tucked away" in a Practice Direction, the service was invalid because the solicitors had not agreed to accept service by email or confirmed the correct email address to use. Had Mr Barton posted the claim form to them the week before, he would have been fine.

The Court had the power retrospectively to validate his service of the claim form if there was a good reason for doing so. Mr Barton asked the Court to exercise this power. The original judge refused, as did the first appeal judge, the Court of Appeal, and now the Supreme Court.

Mr Barton had argued that he was a litigant in person and was unaware of the technical rules on email service, and the solicitors were playing technical games with him. A Handbook for Litigants in Person written by six highly experienced judges even contained the same mistake as Mr Barton had made (albeit he had not read it). He also said that it was reasonable for him to think that service by email would be accepted, because he had previously been corresponding with the solicitors by email. Indeed, the solicitors had actually received his claim form when he e-mailed it. None of these points made a difference. He was bound by the rules (which were not "inaccessible or obscure") and he had failed to comply with them. It would be unfair if litigants in person were given greater leeway in relation to compliance than represented parties.

Although one of the essential purposes of formally serving a claim is to bring it to the other person's attention, the rules setting out how to do this are prescriptive and unforgiving. Solicitors for the other side are not obliged to point out breaches or errors committed by an unrepresented party. Getting it wrong can be fatal to your case.

Mr Barton also argued that the refusal to validate his service constituted a breach of his right to a fair trial under the ECHR. The Supreme Court gave this argument short shrift: a reasonable limitation period with procedural requirements does not mean that a person does not have a fair trial.

There are many such rules requiring various things to be done in a particular way, by a particular date, using a particular format, or other specific requirements. Although the Court can forgive some defects, this is not always guaranteed, and non-compliance puts a party immediately on the back foot.

Two of the five Supreme Court justices disagreed with the result in this case and would have validated Mr Barton's service, based on a different interpretation of the specific rule, but the justices were unanimous that litigants in person are not excused from following the rules.

The justices stated that the email service rules should be looked at to ensure that they are still fit for purpose and clear. Nonetheless, a party cannot simply rely on their assumptions or their common sense. The rules are laden with pitfalls and tripwires. Litigants must ensure that they have done their homework on procedure, or instruct lawyers to deal with it for them – there may be no second chances.

About the Author

Alex is a solicitor in the Commercial Litigation team, based in Oxford.

Alex Peplow
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