A lack of representation may mean that litigants in person (LiPs) are afforded some latitude in case management decisions and in hearings, but it will “not usually justify” applying a lower standard of compliance with rules or court orders, the Supreme Court said today.
The comment by Lord Sumption – giving the majority ruling – came as the Supreme Court, by a majority of 3-2 , found against the appellant LiP in a case where he was seeking retrospective validation of an unauthorised form of service under CPR 6.15.
Mark Barton’s claim form in purported negligence proceedings against Leamington Spa law firm Wright Hassall was sent by email “by way of service” on the last possible day to its solicitors, BLM. However, though there had previously been email correspondence, BLM had not provided specific written permission for email service.
BLM replied some days later, saying that email was not a permitted method of service, that the claim form had expired unserved and that the claim was statute-barred.
Lord Sumption said: “In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves.
“Their 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 or orders of the court.
“The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties.”
The judge observed that any advantage enjoyed by a LiP imposed 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.”
Lord Sumption did not accept that rule 6.3 and Practice Direction 6A were inaccessible and obscure. He said: “The salient facts in his case are that he was by June 2013 an experienced litigant [he had used Wright Hassall to sue his divorce solicitors]. He knew, as he accepts, about limitation. He knew that not all solicitors accepted service by email.
“Yet, apart from looking at the legal notices on [BLM’s] website (which said nothing about email service), he took no steps to check whether [BLM] did so, or to ascertain what the rules regarding service by email were, but simply relied on his own assumption.”
Lord Sumption concluded that Mr Barton had not helped himself by leaving it so late to serve the claim. “A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(2).
“By comparison, the prejudice to Wright Hassall is palpable. They will retrospectively be deprived of an accrued limitation defence if service is validated. If Mr Barton had been more diligent, or [BLM] had been in any way responsible for his difficulty, this might not have counted for much. As it is, there is no reason why Mr Barton should be absolved from his errors at Wright Hassall’s expense.”
In his dissenting judgment – with which Supreme Court president Lady Hale concurred – Lord Justice Briggs said Mr Barton’s attempt at service by email should be validated.
“He may fairly be criticised for having failed to read the relevant part of the rules, and making an incorrect assumption instead, but this does not on balance detract from the good reason constituted by his having, albeit in a modestly non-compliant way, achieved all that which the rules as to service by email are designed to achieve.”
Lord Briggs added that he was troubled that the meaning and effect of CPR 6.15 had been considered by the Supreme Court, “which does not lightly embark upon procedural questions”, twice in recent years and that, on this occasion, its meaning had divided the court.
“I hope that the rule committee might be able to find time to satisfy itself that this rule, and the provisions in the PD about service by email, still satisfy current requirements, in the context of giving effect to the overriding objective, and do so with sufficient clarity.”
Lord Sumption agreed with this, “if only because litigants in person are more likely to read the rules than the judgments of this court”.
Howard Elgot, the barrister at Parklane Plowden Chambers who acted for Mr Barton, said: “The narrow majority by which our client’s case was lost reflects the difficulty judges have in deciding when to apply the dispensing provision for invalid service and what ‘special’ treatment, if any, should be afforded to litigants in person.
“We are actively considering an application to the European Court of Human Rights on article 6 grounds, namely that an “excessive formalism” has caused the loss if Mr Barton’s claim.”
Andrew Twambley, a spokesman for the Access to Justice campaign group, said the decision had implications for the government’s plan to raise the small claims limit for personal injury cases.
“The Supreme Court [has confirmed] that ignorance of the law is no defence, making it more likely that, if the personal injury reforms become law, LiPs will have their cases struck out because they will not be able to access expert legal advice as is the case at the moment.
“The government’s determination to press ahead with the Civil Liability Bill will make a bad situation much worse…
“Now, the government will be required to make the current arcane process LiP-friendly, a herculean task given the number of different elements within a personal injury claim any new system will need to incorporate.”