ARE YOU THINKING ABOUT REPRESENTING YOURSELF IN COURT? MAKE SURE YOU READ THIS ARTICLE

The Supreme Court have recently given Judgment on a case in which an individual, Mr Barton took initial steps in respect of his claim without legal representation. The case highlights the fact that litigants in person will be expected to comply with the rules of the Court and absence of knowledge of the Court rules will not save them in failing to follow the procedural steps of litigation.

The facts of the case are particularly interesting as they relate to what the lay person may deem to be a somewhat trivial step, but if not undertaken in accordance with the rules may jeopardise the entire claim.

The individual, Mr Barton, issued proceedings at Court and subsequently served the claim form by email. It is a common ground that service by email is not accepted unless agreed by all parties. Mr Barton had failed to seek or obtain such agreement. As the appropriate steps had not been taken within the relevant time frame, the claim form expired unserved and the question brought to the Supreme Court, was whether they could retrospectively validate service (that the steps taken to effect service were acceptable to the Court and therefore the claim form had not expired). If the Supreme Court decided in the negative, Mr Barton would have to start his claim a fresh, which was considered would be statue barred as it was out of time in any event.

Background

Mr Barton’s litigation started in 2005 when he sought to claim against a firm, who had acted for him in divorce proceedings, Bowen Johnson Solicitors.

Wright Hassall LLP, the defendant and respondent in the current proceedings, acted for Mr Barton against Bowen Johnsons until May 2007 when they were taken off the record as acting for him, due to a dispute about fees. Mr Barton settled the proceedings against Bowen Johnson and two actions followed between Mr Barton and Wright Hassall. The first was in respect of Wright Hassall’s claim for their costs in acting for Mr Barton before they came off the record, they obtained summary judgment (judgment without trial) in this respect. The second was Mr Barton’s claim for professional negligence against Wright Hassall which was the subject of the proceedings which give rise to this article.

Mr Barton, issued his claim (sent the claim form to the Court) on 23 February 2013. The usual course would be for the Court to serve the claim form on the defendant however, Mr Barton elected to serve it himself, which he had four months to do following his issue of the claim. He sought an extension of time for service which was refused.

Wright Hassall instructed Berrymans Lace Mawer to represent them who subsequently wrote to Mr Barton by email. Four months later, on the last day before expiry for service of the claim form, Mr Barton emailed Berrymans enclosing the claim form and the accompanying documentation. Mr Barton received an out of office reply and took no additional steps to serve the claim. Sometime later, once received, Berrymans responded to state that they had not agreed service by email and, as email is not a permitted mode of service, they did not intend to acknowledge service or take any steps to deal with the claim. They added that the claim form had expired unserved and therefore the claim was statue barred (out of time), they highlighted the same to the Court.

Arguments

Mr Barton argued at first instance that:

1. his service complied with the rules because Berrymans previously corresponded with him by email which amounted to an indication that they would accept service by email;

2. in the alternative he requested service to be validated - which can be done where it appears to the Court that there is good reason to serve the claim form by a usually unpermitted method; and/or

3. for validity of the claim form to be extended and time for service of the claim form to be extended.

Mr Barton failed on all three arguments and was given leave to appeal on the second ground only.

Legal Findings

The Court found as follows:

• That there was no good reason to make the order on the basis that the only reason Mr Barton did not comply with the rules of service is that he did not know what those rules were and that was not a good reason to make the order.

• It rejected the suggestion that Mr Barton had been “lulled into a false sense of the positon” by the fact that Berrymans had corresponded with him by email and declined to accept that Mr Barton was entitled to a greater indulgence because he had been unrepresented.

• That the relevant rules were not there to protect litigants in person or those who did not know the rules but were to protect those who, for some good reason, have been unable to effect service satisfactorily within the rules.

• That whilst the claim form had been successfully drawn to Berryman’s attention, this was not enough. It stated that the claimant had done nothing at all other than attempt service in breach of the rules and that through pure ignorance of what the rules were had not done so correctly. The ignorance was not excused by the fact that Mr Barton was unrepresented.

The Supreme Court considered previous case law in which the question the Court asked itself was whether there was good reason for the Court to validate the mode of service used.  

The Supreme Court considered that the relevant factors were:

• whether the claimant took reasonable steps to affect service in accordance with the rules;

• whether the defendant or his solicitor were aware of the contents to the claim form at the time that it expired and;

• what, if any, prejudice the defendant would suffer by the retrospective validation of the non-compliant service of the claim form, bearing in mind they knew about its contents.

Basis of Decision

The Supreme Court stated that none of the factors can be regarded as decisive in themselves and the outcome will vary dependant on circumstances.

In considering the reasons for Mr Barton’s failure to serve in accordance with the rules, the Supreme Court considered Mr Barton’s status as a litigant person. It appreciated that in the current climate, to litigate in person is often a parties only option when the availability of legal aid and conditional fee agreements have been restricted and lack of representation will often justify making allowances in many case management decisions and in conducting hearings, but it will not usually justify applying a lower standard of compliance with the rules or orders of the Court.

The Court did not accept Mr Barton’s case that the relevant rules, are inaccessible or obscure. The Court stated that they are clearly accessible on the internet and would have been brought to his attention within the various documentation he would have received from the Court. The Court ascertained that apart from looking at legal notices on Berryman’s website (which said nothing about email service) he took no steps to check whether Berrymans did accept service by email or to ascertain what the rules regarding service by email were but simply relied on his own assumption; this was not reasonable. They stated that Berrymans previous email correspondence with Mr Barton did not amount to an indication that he could serve the claim form upon them in that way.

In response to the submission that Berrymans had been playing technical games, the Court stated that after receipt of the claim form by email there was nothing Berrymans could reasonably have been expected to do which could have rectified the position as the claim form expired on the next day. Even on the assumption that they realised that service was invalid in time to warn him to reserve properly or begin a fresh claim within limitation they are under no duty to give him this kind of advice nor could they have properly done so without taking their client’s instructions and advising them of the affects such would have on their position. It is unlikely in these circumstances that their client would have authorised such.

None of this would have mattered if Mr Barton had allowed himself time to rectify his error but having issued the claim at the very end of the limitation period and having opted not to have it served by the Court and having made no attempt to serve it himself until the very end of that period did not help his situation. If Mr Barton had been more diligent or Berrymans had been in any way responsible for his difficulty this might have not been such a consideration for the Court, however there is no reason why Mr Barton should be absolved from his errors at the other side’s expense.

Mr Barton subsequently attempted to argue that the result arrived at by the Court was incompatible with Mr Barton’s right to a fair trial. It was dealt with by the Court for completeness and only briefly since it was within their view without merit. The Court stated that the rules governing the period of validity of a claim form and mode of service is sufficiently accessible and clear and serve a legitimate purpose in the procedure of the Court.

What Now?

Whilst it is appreciated that the current climate, to include the lack of available funding and fixed recoverable costs often make it disproportionate to instruct solicitors, this case shows the importance of compliance with the Civil Procedure Rules and that it is worthwhile seeking advice at least in relation to the procedural steps to ensure their claim does not fail on technical grounds.

Do not hesitate to contact the Dispute Resolution team at Paul Robinson Solicitors LLP should you require any assistance in bringing or defending a claim.