In Barton v Wright Hassall LLP, the court underlined that there is a very high bar to excuse claimants (even litigants in person) from the strict rules for service set out in CPR 6. The certainty of the decision will come as a relief to many practitioners.
Facts
Mr Barton, acting in person, issued a claim form alleging negligence against his former solicitors, Wright Hassall, on 25 February 2013.
He elected to serve the claim form himself pursuant to CPR 6.4(1)(b), instead of the default position of service by the court. At 10:50am on 24 June 2013, which was within the four month period of validity of the claim form, he emailed it to Wright Hassall’s solicitors.
He received an automatic reply, and on 4 July 2013 was informed by the solicitors that they had not provided prior agreement to accept service by email (as required by Practice Direction (PD) 6A paragraph 4.1), so the claim form had expired and the claim was statute barred.
Mr Barton asked the court to validate service pursuant to CPR 6.15, which gives the court the discretion to order, where “there is a good reason” to do so, that the method of service used was good service, even though it was not otherwise permitted by the rules.
The District Judge, a Circuit Judge and Court of Appeal rejected that argument, and Mr Barton appealed to the Supreme Court.
Decision
Mr Barton’s case was rejected by a majority.
The court pointed to the following three key objectives of service, though each was not itself sufficient to show good service:
- That the contents of the claim form are brought to the attention of the defendant.
- That there is a “bright line” which determines the exact point of service after which consequential steps can be taken.
- That the defendant, in the case of email service, has an opportunity to put in place arrangements for monitoring and dealing with service.
A court must also have regard to the surrounding facts. The Lords agreed that being a litigant in person does not excuse compliance with the rules. Lord Sumption, in his leading judgment, set out why there was still no “good reason” to validate service in this case, despite the main factors more or less being satisfied:
- The rules and practice directions are accessible (on the internet), clear and not obscure.
- Mr Barton was an experienced litigant and knew about limitation and that not all solicitors accepted service by email.
- Mr Barton made no attempt to check the rules, served the form himself and left service until the last minute, thereby “courting disaster”.
- The defendant would be deprived of a limitation defence if Mr Barton was excused for his conduct, which was serious.
Practical application
The Supreme Court has endorsed quite strict compliance with the rules for service, even for litigants in person.
It would be wise to familiarise oneself with the rules, as even “technical” arguments can be successful, and nothing short of prior express agreement of email service may be accepted.
Parties should also remind themselves of the often overlooked requirement to ask the party to be served about any technical limitations to the recipient’s agreement to accept service (PD 6A paragraph 4.2). Whilst this was not directly addressed in the judgment, Lord Sumpton mentioned that the requirements for prior agreement to email service might change as the profession moved to digital practice; any relaxation of the rules was a matter for the Civil Procedure Rule Committee.
This case dealt with service of a claim form, but the principle is also applicable to documents other than the claim form (see CPR 6.27).
The decision is binding on lower courts until some change is made to the CPR, as even Lord Briggs (who wrote the dissenting judgment) acknowledged. Therefore, despite not being unanimously agreed, the factors set out by Lord Sumption in considering whether Mr Barton should be excused from non-compliance could be useful when dealing with litigants. Mr Barton was given less leeway because he was an experienced litigant and reckless about the rules, but pointing a litigant in person to the CPR early on and stating that there were serious consequences for non-compliance could lead a court to having just as little sympathy should service not properly be effected.
Whilst both leading and dissenting judgments distinguished validation of service from the relief from sanctions regime, Lord Sumption thought that the factors for weighing up “basic fairness” and the extra advantage to be given to litigants in person were equally applicable to both regimes.
As a final point regarding service, the importance given by Lord Sumption to the defendant’s potential loss of its limitation defence, albeit not agreed by Lord Briggs or Lady Hale, could be a particularly powerful tool. Lord Sumption stated clearly that there was no duty on the solicitors to alert Mr Barton of the defective service, prior to the expiration date of the claim form: that would conflict with their own duty to their client to benefit from the limitation defence.
