Litigants in person and service of claim forms – the Supreme Court to the rescue

The rules about serving claim forms are specific and strictly upheld. In the past few months, the courts have refused to exercise their power to validate defective service under CPR 6.15 in two cases, Higgins v ERC Accountants & Business Advisers Ltd and Caretech Community Services Ltd v Oakden. The judges in these cases relied upon the Court of Appeal’s decision last year in Barton v Wright Hassall refusing relief to Mark Barton, a litigant in person who had served the claim form by email without consent, with the consequence that his claim was time-barred.

On the face of it, you would be forgiven for concluding that the courts are maintaining the traditional hard line concerning limitation periods. There are good reasons for this - litigants need certainty so that they and the courts are not burdened by satellite litigation concerning the validity of service and the existence of a limitation defence.

All may not be quite as clear as these three decisions would suggest. The Supreme Court has given Mark Barton permission to appeal and the hearing is set for 22 November 2017. His arguments concerning his right to a fair trial under Article 6 of the European Convention on Human Rights and the scope of the court’s jurisdiction under CPR 6.15 clearly have some weight or the Supreme Court would not be hearing the appeal. This is particularly so given that the Supreme Court considered CPR 6.15 only four years ago in Abela v Baadarani.

We can expect the Supreme Court to give clear guidance about the use of CPR 6.15. We can also hope that the court will squarely address the position of litigants in person. A solicitor acting for a defendant in the situation illustrated by Barton v Wright Hassall is in an awkward and invidious position. If they help the litigant in person, they may be in breach of their duty to their client to preserve a limitation defence. If they don’t, they may end up having their conduct scrutinised, and possibly criticised, by the court.

When can you serve a claim form by email?

This confusing rule lies at the heart of the decision in Barton. A claim form can only be served by email where the defendant or their solicitor has consented to this in writing. Practice Direction 6A.4.1(2) states that a statement to this effect on the solicitor’s writing paper is sufficient. By contrast, a claim form can be served by fax where the recipient’s writing paper merely includes a fax number.

What happened in Barton v Wright Hassall?

Mark Barton served the claim form by email on the defendant’s solicitors on the penultimate day of the four month period for service under CPR 7.5. He had had contact with the solicitors during the four months: they had refused to extend time for service and then nudged him a month later by an email saying “I will await service of claim form and particulars”.

His email serving the claim form received an out of office reply from one solicitor and no response from another. Had they replied before 12 midnight on the next day saying that they did not accept service by email, he would have been able to dispatch the claim form by completing one of the “relevant steps” under CPR 7.5. They replied to him ten days later, pointing out that service had been defective.

Decision of the Court of Appeal

The Court of Appeal upheld the decision below refusing to validate service under CPR 6.15. The court said that a litigant in person’s ignorance of the rules was no excuse and rejected the suggestion that the defendant’s solicitors had engaged in technical game-playing. The solicitors would have had to take their clients’ instructions before alerting the claimant to the defect in service, thereby exposing their clients to an action which would otherwise be statute-barred.

The recent decisions

Barton has been followed in two recent cases, Higgins v ERC Accountants & Business Advisers Ltd and Caretech Community Services Ltd v Oakden. Neither concerns litigants in person nor unauthorised service by email but they both look in detail at the court’s discretion under CPR 6.15.

In Higgins the claim form had been given to the defendant for information several months before. The claimant’s solicitors then forgot that it had not been served when they served the Particulars of Claim two days before expiry of an agreed extension to the period for service. The defendant pointed out the failure to serve the claim form in time 11 days later.

Following the approach taken in Barton, the judge rejected the argument that the defendants' solicitors were under some form of obligation to remind the claimant’s solicitors to serve the claim form. He noted that the defendant's solicitors would be failing in their duty to their clients if they failed to take all steps legitimately available to them to enhance their client's chances of succeeding in a limitation defence. Relief was also refused by the Court of Appeal in a similar scenario in Bethell Construction Limited v Deloitte and Touche.

In Caretech, the claimant asked the court to treat provision of the claim form to the third defendant’s solicitors by way of information as valid service upon CPR 6.15. The judge was clear that it was not appropriate to permit documents expressly delivered on the basis that they were not being served to be validated as properly served after the event. The claimant should be held to its word. It is also of interest, although the decision did not turn on this, that the method and form of service were defective in any event because the third defendant’s solicitors were not authorised to accept service and the claim form delivered by post was a photocopy and not an original.

Comment

When it hears the appeal in Barton, the Supreme Court will review the court’s discretion under CPR 6.15 to validate defective service. It is likely that it will adopt a strict approach to the requirement for a “good reason”, recently illustrated in the cases of Higgins and Caretec. It would be surprising if the Supreme Court were to criticise the refusal of relief in those cases.

The position may be rather different when it comes to claimants acting in person. The Supreme Court has not previously considered the position of the increasing number of litigants in person. The lead authority at the moment is the Court of Appeal’s decision in Tinkler v Elliott where it was said that the fact that a litigant in person did not really understand or appreciate the procedural courses open to them did not entitle them to extra indulgence. Barton may prove to be not merely a case about the technical service rules under the CPR but one that sets the tone for the new era of litigation now conducted in many cases by the parties themselves.