Time to Modernise Civil Procedure?
Are Civil Procedure Rules too complex? Should the layman be given a “fair footing” in a litigation battle? Does a solicitor owe any duty to their opponent? The ensuing debate about ‘Litigants in Person’ has raised all of these questions and more. At the centre of this debate sits the case of Barton v Wright Hassall LLP, upon which the Supreme Court has passed judgment today.
In 2013 the Claimant, a Litigant in Person (or “LiP”),sought to serve a Claim Form and Particulars of Claim on the Defendant. These documents were attached to an email sent to the Defendant’s solicitors. However, as the Defendant had not previously agreed to accept service by electronic means, that service was, technically, ineffective.
Ten days later the Claimant received a reply, acknowledging receipt of his email but informing him that the Claim Form had not been properly served in accordance with the Civil Procedure Rules, and that the limitation period for issuing his claim had, in that 10 day period, now expired.
The Claimant sought validation of his service pursuant to CPR 6.15. This states “the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service”.
At first instance, the district judge held that ignorance of the procedure was not a good enough reason to serve documents incorrectly and that no special rules or indulgencies should be granted to litigants in person. It was added that the obligation was not on the Defendant’s solicitor to promptly inform the Claimant of his incorrect service and, barring logistical difficulty or a particularly unusual situation, the rules on service should be adhered to.
This decision was upheld in the Court of Appeal and the Court of Appeal’s verdict has today been reinforced by the Supreme Court, albeit not unanimously.
Supreme Court Judgment
By a majority of 3 to 2, with Lord Sumption giving the leading judgment, the Supreme Court has stated that “the rules provide a framework within which to balance the interest of both sides” and that this balance “is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent”.
The conduct of the Defendant’s solicitor was not criticised, with Lord Sumption claiming that “they were under no duty to give him advice of this kind” and “nor could they properly have done so without their client’s instructions”.
There were however two dissenting voices, Baroness Hale and Lord Briggs, who would have allowed the appeal. Their view was that service by email before the limitation deadline did constitute good reason.
While the judgments on the underlying issue were split, there was a unified belief that the vagaries of document submission should be reconsidered by the Rules Committee, no doubt with their being some degree of sympathy for Mr Barton.
Mr Barton’s appeal may have been unsuccessful, but off the back of this case it seems a review of certain antiquated features of the CPR will be urgently forthcoming. In the 21st century, where the inbox is the backdrop to a solicitor’s working life, where emails form the primary mode of formal communication in most instances, the rules on service by electronic means, having been last updated in 2008, are certainly overdue a review.
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