No room for error: service of the Claim Form by Litigants in Person

Published 14 March 2018

In a decision welcomed by defendant lawyers, the Supreme Court recently confirmed that no allowance will be made for Litigants in Person (LIPs) when it comes to the strict rules regarding service of a Claim Form.

The Facts

Barton v. Wright Hassall LLP [2018] 1 WLR 1119 concerned a dispute between Mr Barton, the Claimant and a LIP, and his previous solicitors, Wright Hassall.

Mr Barton served his Claim Form upon Wright Hassall's solicitors, Berrymans Lace Mawer (BLM), via e-mail on 24 June 2013. However, in breach of the Civil Procedure Rules (CPR) he did not check beforehand whether BLM would accept service by e-mail.  On 4 July 2013 BLM responded indicating that service was invalid, and that the Claim Form had now expired.  By that stage, a 'new' claim was statute-barred by way of limitation.

The issue before the Supreme Court was whether service of Mr Barton's Claim Form should be validated under CPR r 6.15(2), which requires there to be a "good reason" to perfect the non-compliant service of a Claim Form.

The Supreme Court

The Supreme Court concluded there was no good reason to validate the non-compliant service in Mr Barton's case.  When considering whether 'special rules' should be afforded to LIPs, the Court found that although allowances are often made for LIPs once proceedings are started, no such allowances are to be routinely afforded in relation to service. 

Lord Sumption, who delivered the main Judgment of the Court, made the following points:

1. Lack of legal representation will not usually justify a lower standard of compliance with legal rules.
2. Ignorance of the CPR is not usually an excuse for non-compliance "unless the rules and practice directions are particularly inaccessible or obscure." It should be pointed out that Lord Sumption did not accept the CPR were either inaccessible or obscure on the basis that they are readily accessible on the internet.
3. Mr Barton's assumption – that because BLM had corresponded with him previously via e-mail, they would accept service by e-mail – was not reasonable.
4. Even if BLM had realised that the service was invalid in time to warn Mr Barton to re-serve properly or begin a new claim within the limitation period, they were under no duty to give him advice of this kind.
   Moving forward with Barton

The finding that the same rules apply to LIPs as to everyone else is welcomed and Barton will be a useful tool going forward when responding to breaches of the CPR and Court Orders by LIPs.  Until the findings are tested in other cases, however, we will not know how far reaching they are.

It should be noted, however, that the decision does not encroach on the body of case law surrounding CPR, r 3.9, which concerns relief from sanctions. Indeed, Barton specifically relates to the rules regarding service of a Claim Form, rules which Lord Sumption stated "do not impose duties, in the sense in which, say, the rules governing the time for service of evidence, impose a duty."  Therefore whilst Barton clarifies in general terms that the same rules apply to everyone the reality is that it is likely to have a fairly narrow application.

The decision does, however, serve as a salutary reminder to all practitioners to re-familiarise themselves with the CPR, particularly the rules around service by electronic means, as it is clear from Barton that ignorance of the rules will not be indulged. This re-familiarisation is likely to be particularly important after updates to the CPR.