Supreme Court to hear appeal against defective service ruling in law firm negligence case

Supreme Court: one-day hearing in November

The Supreme Court will hear an appeal in November by a litigant in person over the defective service of a negligence claim against a Midlands law firm, it has been confirmed.

The Court of Appeal agreed with Wright Hassall last spring that Mark Barton should not be granted an order that his service of a claim form as an attachment to an email could be regarded as good service.

The Supreme Court said it would consider the argument that the Court of Appeal’s ruling breached Mr Barton’s rights to a fair trial (article 6) and an effective remedy (article 13) under the European Convention on Human Rights.

The court said it would also examine whether the costs awarded by the Court of Appeal to the law firm were “disproportionate to the work undertaken”. The hearing is listed for one day.

Lord Justice Floyd told the Court of Appeal in Barton v Wright Hassall [2016] EWCA Civ 177 last year that the facts of the negligence claim against Wright Hassall were “not material” but Mr Barton wanted to bring it “in respect of their conduct in refusing to continue to act on his behalf in separate professional negligence proceedings which he had commenced against other solicitors”.

Floyd LJ said the “central rule under consideration” was CPR 6.15, which provides that a court may validate “service by a method or at a place not otherwise permitted” as good service.

Th Court of Appeal heard that Mr Barton’s claim form was issued by Chesterfield County Court on 25 February 2013, with an expiration date of 25 June 2013. In April 2013, an associate solicitor at Berrymans Lace Mawer (BLM), acting for Wright Hassall, sent Mr Barton an email saying the firm would “await service of the claim form and particulars of claim”.

On 24 June 2013, one day before the deadline, Mr Barton sent an email to the solicitor saying the claim form and particulars of claims were attached, following by a further email that afternoon attaching an additional document.

BLM did not give a “substantive reply” to these emails until 4 July 2013, when the firm wrote to the claimant pointing out that “pursuant to CPR part 6 and the associated practice direction, email was not a permitted method of service unless the party being served has previously indicated in writing that it is willing to accept service by email”.

BLM said that as Mr Barton had not done so, “the claimant had not served the proceedings” and was now out of time to serve the claim form.

The court heard that Mr Barton issued an application the following month, asking the court to order that his service of the claim form by email was good service.

In his statement of truth, Mr Barton said he was “aware that some solicitors did not accept service of documents by email”, but because Wright Hassall’s website contained no reference to not allowing service by email, he concluded that it did accept service in this way.

Floyd LJ said: “The judge did not specifically consider whether there was anything in the defendant’s conduct in relation to service which could be criticised, although, as a point much stressed on behalf of Mr Barton, he cannot have failed to have been aware of it.

“The cases do show that technical game-playing by a defendant will count against him. I am wholly unable to accept, however, that any criticism can be levelled at the conduct of the defendant or its solicitors in this case.”

Floyd LJ dismissed Mr Barton’s appeal. Mr Justice Moylan and Lady Justice Black agreed.

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