Legal professionals and litigants-in-person alike will be interested in the recent Supreme Court decision in Barton v Wright Hassall LLP  UKSC 12 which is likely to affect how litigants-in-person are treated by the court when considering compliance with CPR rules and practice directions.
The case was brought after Mr Barton, acting in person, purported to serve a claim form and particulars of claim by email on the defendant’s solicitors, Berrymans Lace Mawer, the day before expiry of the four month period allowed in CPR rule 7.5.
Mr Barton had failed to obtain permission prior to service on Berrymans who refused to acknowledge service. The claim form expired unserved and the action became statute-barred.
Mr Barton then applied for an order for retrospective validation of service under CPR rule 6.15(2). In order to succeed he needed to demonstrate a good reason to grant the application.
The Supreme Court dismissed the appeal by a majority of three to two. Lord Sumption gave the lead judgment and agreed with the decision of the Court of Appeal below. Lady Hale and Lord Briggs provided a dissenting judgment.
At paragraphs 9 and 10 of his judgment, Lord Sumption set out the main factors to consider when granting retrospective validation of service:
- Whether the claimant took reasonable steps to serve in accordance with the rules;
- Whether the defendant or his solicitor knew of the contents of the claim form when it expired;
- What, if any, prejudice the defendant would suffer from validation of the non-compliant service.
Paragraph 18 of the judgment is particularly useful for those who appear against litigants-in-person where there is purported non-compliance with CPR rules or practice directions.
Paragraph 18 reads:
The dissenting judgments of Lady Hale and Lord Briggs allowed the appeal considering that Mr Barton’s service fulfilled the purposes of ensuring that the contents of the claim form were brought to the attention of the person to be served and notifying the recipient that the claim has been commenced against the defendant on a particular day.
Lady Hale and Lord Briggs decided that Mr Barton’s circumstances would provide good reason for validation unless there were specific circumstances which swung in the balance against validation (paragraph 38).
However, Lord Briggs stated:
Lord Sumption’s judgment seems to allow for some leniency towards litigants-in-person when it comes to case management decisions and how hearings are conducted, for example, giving unrepresented parties longer time limits for compliance with case management directions or assisting unrepresented parties to present their evidence during trial. However, when it comes to compliance with CPR rules and practice directions, the clear message is that litigants-in-person should be treated the same as represented parties.
Nevertheless, the message is tempered slightly by the last sentence of paragraph 18 referring to ‘inaccessible or obscure’ CPR rules and practice directions. It is not clear what parts of the CPR are to be considered ‘inaccessible or obscure’ for the purposes of litigants-in-person complying with rules and practice directions but it is assumed that the relevant parts will be identified on a fact-specific, case-by-case basis.
Indeed, both leading and dissenting judgments made tacit admissions that CPR provisions relating to service by email might need to be reconsidered and, to that end, the judgment was referred to the Civil Procedure Rules Committee. Although it could be said that the reference to the Rules Committee is a result of the prevalence of email communication since the rules on service were last considered.
In any event, it is suggested that the starting point for the courts would be to consider any parties’ failure to comply with CPR rules and practice directions without reference to whether a party is represented or not.
Similarly, in the dissenting judgment, Lord Briggs accepts that Mr Barton’s status as a litigant-in-person itself did not provide him with a good reason for the court to grant his application. Accordingly, this would support Lord Sumption’s analysis that CPR rules and practice directions’ failures should not be validated with any reference to parties’ represented or unrepresented status.
Interestingly, the courts may already be taking a tougher approach to compliance given the recent judgment in Reynard v Fox  EWHC 443 (Ch) (08 March 2018) where HHJ Matthews (from paragraph 44) applies the principles in Barton referring to the “unanimous” decision of the Supreme court on the position of litigants-in-person.
Mr Reynard’s claim against the defendant, his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the conduct of the defendant as such trustee in bankruptcy was struck out under CPR r 3.4(2)(a) for re-litigating issues which were decided in a previous application under section 303 of the Insolvency Act 1986. HHJ Matthews commented, at paragraph 46:
“You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.”