By Haris Ahmed
Borneo Martell Turner Coulston
WITH the squeeze on the legal funding system, hike in court fees and the general costs of legal representation combined with the irrecoverability of legal costs in small claims, there is sometimes little option for individuals but to act on their own behalf without legal representation and to navigate the labyrinth of the Civil Procedure Rules themselves. The legal colloquial for such DIY litigants or unrepresented parties is Litigant(s) in Person.
To accommodate such LiP, judges, especially at county court level, have often shown some flexibility. Indeed the overriding objectives in the Rules require the courts to ensure that the parties are on an equal footing. This is fine as long as both sides in a litigation are unrepresented. However, when LiP bring or defend proceedings against a represented party, the over-emphasis on equal footing has been mutated into affording additional latitude to LiP sometimes to the disadvantage of the represented party.
In Barton v Wright Hassall the Supreme Court was recently asked to validate service of a claim form which had not been properly served under the Rules. As an adjunct, the court also shed light on whether as an LiP Mr Barton should be afforded some greater indulgence by the court as he was not sufficiently equipped to deal with the Rules. Mr Barton sought to bring professional negligence proceedings against his former solicitors Wright Hassall and purported to serve the claim form himself on Wright Hassall’s legal representatives Berrymans Lace Mawer via email a day before the four months deadline for service of the claim form was due to expire, without first seeking an indication from them if they were prepared to accept service via email. This is despite the fact that Berrymans had previously communicated with Mr Barton via email. On emailing his claim, Mr Barton received an automatic reply from Berrymans but no substantive acknowledgment or response was received until after the four months deadline had expired at which point Berrymans wrote to Mr Barton stating that they had not confirmed they will accept service via email. In the absence of such confirmation, under the Rules, email service was not permitted; Mr Barton was effectively out of time.
Mr Barton argued that Berrymans’ position was tantamount to ‘playing technical games’ with a LiP and that in any event the claim form had sufficiently been brought to their attention via email service. Surely, Berrymans could have alerted Mr Barton to the defective service within the four months deadline.
Lord Sumption, giving the lead judgement, rejected Mr Barton’s argument stating that “Even on the assumption that [Berrymans] realised that service was invalid in time to warn [Mr Barton] to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind.”
Lord Sumption indicated that although it may be justified allowing some leeway to LiP while making case management decision and in the conduct of hearing, such discretion ‘will not usually justify applying to a [LIP] a lower standard of compliance with rules or order’, in other words ignorance to the Rules was not excused by the fact that Mr Barton was a LiP.
Although the case seems to have wider implications for LiP especially with the emphasis on compliance with the Rules, it has to be borne in mind that in this case allowing Mr Barton’s appeal would have had a significant prejudicial effect on Wright Hassall in that they would have lost their rights under the Limitation Acts.
Under the current provisions of the Rules email service is invalid unless the other party being served has indicated that they will accept email service. Interestingly, Lord Sumption in his judgment referred to the Law Society’s Practice Guidance on electronic email (from May 2005) quoting that ’email represents new problems, because it can arrive unperceived by other members of staff’. He went on to say that ‘volume of emails and other electronic communications received by even a small firm may be great… there must be arrangements in place to ensure that the arrival of electronic communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents distributed to appropriate people within the firm…’ The wisdom of such perceived technical constraints could be questioned especially in light of the courts themselves moving towards electronic filing. The Chancery Division of the High Court and the Technology & Construction Court has been using an e-filing system since 2014, Admiralty & Commercial Court since 2015 and this has now been extended to all jurisdictions of the Rolls Building of the High Court in London.
Surely a lay person could be forgiven for thinking that solicitors firms will have adequate systems in place for monitoring emails. There may yet be scope for some changes to be made to the Rules.
The writer is a solicitor at Borneo Martell Turner Coulston LLP and is available on 01604 622101 or email
