Barton v Wright Hassal LLP [2018] UKSC 12

Mr Barton, a litigant in person, attempted to serve a professional negligence claim form on the defendant's solicitors by email on the last day of its validity, without checking they would accept email service. The Supreme Court refused to validate service under CPR 6.15(2).

Facts

Mr Barton, acting as a litigant in person, brought a professional negligence claim against his former solicitors, Wright Hassall LLP, issuing a claim form on 25 February 2013 near the end of the limitation period. The claim related to the firm’s conduct of earlier litigation and their application to come off the record. Having elected to serve the claim form himself rather than have the Court do so, he had until 25 June 2013 to effect service.

Wright Hassall’s solicitors, Berrymans Lace Mawer, had corresponded briefly with Mr Barton by email. On 24 June 2013, the penultimate day of validity, Mr Barton emailed the claim form, particulars of claim and response pack to Berrymans stating the documents were sent ‘by means of service upon you’. Berrymans had never indicated they would accept service by email. On 4 July, Berrymans informed Mr Barton that email was not a permitted mode of service, that the claim form had expired unserved, and that any fresh claim would be statute-barred.

Issues

The sole issue before the Supreme Court was whether there was ‘good reason’ under CPR rule 6.15(2) to make an order retrospectively validating Mr Barton’s non-compliant service of the claim form by email.

Arguments

Appellant

Mr Barton argued: (1) since the power under CPR 6.15(2) presupposed non-compliant service, the dominant consideration was whether the chosen mode had achieved the main purpose of service, namely bringing the claim form to the defendant’s attention; (2) he was entitled to assume Berrymans would accept email service because they had corresponded with him by email and he was unaware of CPR 6.3 and Practice Direction 6A, which he contended were inaccessible to a litigant in person; (3) Berrymans had been ‘playing technical games’ by taking the invalidity point.

Respondent

Wright Hassall contended that mere awareness of the contents of the claim form was insufficient, that Mr Barton had failed to take reasonable steps to comply with the rules, that his ignorance of the rules was no excuse, and that retrospective validation would deprive them of an accrued limitation defence.

Judgment

The Supreme Court dismissed the appeal by a majority (Lord Sumption, with Lord Wilson and Lord Carnwath; Lady Hale and Lord Briggs dissenting).

The approach to CPR 6.15(2)

Lord Sumption confirmed that the test, derived from Abela v Baadarani [2013] 1 WLR 2043, is whether ‘in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service’. Whilst bringing the claim form to the defendant’s attention is a critical factor, it is not by itself sufficient. The main relevant factors in the generality of cases are: (i) whether the claimant took reasonable steps to effect service in accordance with the rules; (ii) whether the defendant or their solicitor was aware of the contents of the claim form when it expired; and (iii) what prejudice the defendant would suffer from retrospective validation.

Application to the facts

The Court held that the disciplinary factor, significant in applications for relief from sanctions under CPR 3.9, is less important under CPR 6.15, because service rules are conditions on which the court takes cognisance of a matter rather than duties. Nonetheless, service requires a formal step creating a bright line for limitation and other procedural consequences.

Regarding electronic service, the Court emphasised that solicitors’ offices must be properly equipped to receive formal electronic communications, justifying the prior-indication requirement in PD 6A paragraph 4.1.

On Mr Barton’s status as a litigant in person, the Court held that lack of representation does not generally justify applying a lower standard of compliance. Unless rules are particularly inaccessible or obscure, a litigant in person is expected to familiarise themselves with rules relevant to any step being taken. CPR 6.3 and PD 6A were neither inaccessible nor obscure; indeed, the Courts Service had sent Mr Barton a certificate of service expressly directing him to Part 6.

Mr Barton’s assumption that Berrymans would accept email service was not reasonable. He was an experienced litigant, knew about limitation, knew some solicitors did not accept email service, yet took no steps to check. The ‘playing technical games’ submission was rejected: Berrymans had done nothing to suggest they would not take the point and owed him no duty to warn him to re-serve.

The Court held Mr Barton had ‘courted disaster’ by issuing at the end of the limitation period, opting out of court service, and then leaving service until the last moment. The prejudice to Wright Hassall in losing an accrued limitation defence was palpable and, as Mr Barton was wholly responsible for his own difficulty, there was no reason to absolve him at their expense.

The Article 6 ECHR argument was rejected as without merit: the rules were sufficiently accessible, served a legitimate purpose, and it was the Limitation Act, not the service rules, that barred his claim.

Dissent

Lord Briggs (with Lady Hale) would have allowed the appeal, holding that where the underlying purposes of the service rules had all been achieved, this could constitute a prima facie good reason for validation, subject to countervailing factors. In his view the judge below had erred by treating the search for a good reason for non-compliance as a threshold requirement. Given Mr Barton’s innocent mistake, the achievement of the purposes of service, and the fact that the mistake was one even distinguished judicial editors had made, validation should have been granted.

Implications

The decision reinforces the principles from Abela v Baadarani that, whilst bringing the claim form to the defendant’s attention is a necessary condition for validation under CPR 6.15(2), it is not sufficient. A claimant seeking retrospective validation must typically show reasonable steps to comply with the rules, and the court will weigh any prejudice to the defendant, particularly the loss of an accrued limitation defence.

Significantly, the judgment confirms that litigants in person are generally held to the same standards of rule compliance as represented parties, though their status may influence case management ‘at the margin’. Basic fairness to the opposing party requires an even-handed application of the rules.

The decision has particular practical significance for: (i) claimants contemplating service by electronic means on solicitors, who must first obtain an express written indication of willingness to accept such service under PD 6A paragraph 4.1; (ii) litigants in person, who cannot expect indulgence for ignorance of accessible rules; and (iii) defendants’ solicitors, who are under no duty to warn claimants of defective service before the claim form expires.

Both the majority and dissent invited the Civil Procedure Rule Committee to review CPR 6.15 and the PD provisions on email service, reflecting concern about the clarity of rules that have twice reached the Supreme Court. The decision does not lay down a rigid test, Lord Sumption emphasising that facts are too varied for codification; the exercise remains one of factual evaluation in all the circumstances.

Verdict: Appeal dismissed. The Supreme Court (by a majority of 3-2) refused to validate Mr Barton’s non-compliant service of the claim form by email under CPR rule 6.15(2), upholding the decisions of the District Judge, the County Court judge and the Court of Appeal.

Source: Barton v Wright Hassal LLP [2018] UKSC 12