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Bad news for litigants in person?

21 February 2018

When a litigant in person fails to correctly serve a claim form they can expect the courts to take a firm approach, following the Supreme Court's decision in Barton v Wright Hassall

Litigation can be a tricky business. That is why people pay professionals to do it for them. There are rules and forms and time limits… a walk in the park it is not. Just ask a litigator and they will be the first to tell you: always use a lawyer.

But some people don't like using lawyers and others can't afford them. Surely those persons should be afforded some leniency if they unwittingly commit a procedural error, like failing to serve the claim form in the correct manner, for example.

If you thought that then the Supreme Court's decision in Barton v Wright Hassall LLP might seem a little harsh. In that case, the court ruled that, whilst a litigant in person's lack of representation will often justify making allowances in case management decisions and conducting hearings, "it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court."

The facts

The litigant in person in this case, a Mr Barton, had not had happy experiences of dealing with law firms. In 2005 Mr Barton retained Wright Hassall to sue his former solicitors, Bowen Johnsons, for allegedly under-settling his divorce. Unfortunately, Mr Barton and Wright Hassall became embroiled in a dispute over fees, which resulted in the latter coming off the record. Mr Barton settled his claim against Bowen Johnsons and issued proceedings against Wright Hassall. Wright Hassall (and its insurers) instructed Berrymans Lace Mawer to defend the claim.

On the last day before the expiry of service of the claim form, Mr Barton sent an email to Berrymans attaching the claim form and particulars of claim. In reply (some days later), Berrymans pointed out that they had not confirmed they would accept service by email, the claim form had therefore expired unserved and the claim was now statute barred. In the words of Lord Sumption (who gave the lead judgement), "The stage was set for the present issue."

The legal issue

The lower courts had found that Mr Barton had not complied with CPR 6.3 and Practice Direction 6A, which state that service of the claim form by email is only valid if the recipient has previously indicated in writing that they are willing to accept service by email. Mr Barton was not given leave to re-argue this point and the sole question before the Supreme Court was whether service of the claim form should be validated under CPR 6.15, which states that:

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 the Part, the court may make an order permitting service by an alternative method or at an alternative place. – CPR 6.15(1).

The decision

Lord Sumption found that a person's status as a litigant in person was not (by itself) a "good reason" for validating non-CPR compliant service.

"The rules provide a framework within which to balance the interest 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. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take."

It is hard to picture a subject that Lord Sumption would be likely to find "inaccessible or obscure" (this is man who wrote a history of the Hundred Years' War in his spare time). In any event, he was not persuaded that the rules of service in CPR 6.3 and Practice Direction 6A were either.

He also observed that Mr Barton had left it until the very end of both the limitation period and the period for serving the claim form before he tried to effect service by email. In these circumstances, a litigant in person cannot expect much help from the courts. As Lord Sumption put it, "A person who courts disaster in this way can have only a very limited claim on the court's indulgence."


PI insurers may welcome a ruling that has the potential to scupper claims when the claim form is not issued correctly. However, a few words of caution:

1) Lord Sumption's judgment recognises that the question of whether there is a "good reason" to authorise service is likely to be acutely fact-specific. It is doubtful that this case lays down any definitive rule of wide application. Indeed Lord Sumption carefully avoided doing so, observing that "attempts to codify this jurisdiction are liable to ossify it in a way that is probably undesirable". In other words, in a different case, on different facts, a court may well reach a different conclusion.

2) The fact that other courts (in different cases) might take a more lenient view is underscored by the decision of the minority - Lord Briggs and Lady Hale did not agree with Lord Sumption's lead judgment and preferred a more lenient approach.

3) Finally, it is worth bearing in mind that if a litigant in person can expect the courts to take a tough stance on whether to exercise its discretionary powers in CPR 6.15 – what hope does a legal professional who makes a mistake serving a claim form have in persuading the court to correct their error? This could be bad news for claimant solicitors looking to avoid possible negligence claims. After all, as insurers know only too well, it is not just litigants in person who sometimes fail to familiarise themselves with the White Book...