Barton (Appellant) v Wright Hassall LLP (Respondent) [2017] UKSC 12
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Barton (Appellant) v Wright Hassall LLP (Respondent) [2017] UKSC 12 concerned an appeal against the refusal to validate retrospectively a claim form which Mr Barton, acting as a litigant in person, had attempted to serve by email on the respondent’s solicitors on the last day before its expiry, without any prior indication that they would accept electronic service. The Supreme Court, by a majority of three to two, dismissed the appeal.
Mr Barton had issued a claim form on 25 February 2013 in a professional negligence action against Wright Hassall LLP, solicitors who had previously represented him in litigation against another firm. He elected to serve the claim form himself rather than leaving it to the court. The firm instructed Berrymans Lace Mawer as solicitors. Although Berrymans corresponded with Mr Barton by email between March and April 2013 and stated in April that they would await service, they did not expressly confirm that they would accept service by email. On 24 June 2013, the day before the claim form’s expiry, Mr Barton emailed the claim form and particulars of claim to Berrymans at 10.50 am, asking for acknowledgment of receipt. He received only an automatic reply. On 4 July, Berrymans wrote stating that they had not agreed to accept service by email, that the purported service was invalid, and that the claim form had therefore expired unserved, leaving any fresh claim statute-barred.
It was common ground that the attempted service did not comply with CPR 6.3(1)(d) read with CPR 6APD.4, which requires the party to be served or his solicitor previously to have indicated in writing a willingness to accept service by electronic means. Mr Barton applied under CPR 6.15(2) for an order retrospectively validating the service. The District Judge refused, holding that Mr Barton’s ignorance of the rules was not a good reason to make the order. HHJ Godsmark QC dismissed the appeal, finding that the central question was whether there was a good reason why service had not been effected in accordance with the rules and that ignorance of those rules did not constitute such a reason. The Court of Appeal (Floyd LJ, with whom Black LJ and Moylan J agreed) upheld that decision. Floyd LJ accepted that the claim form had successfully come to Berrymans’ attention but held that in circumstances where the claimant had done nothing other than attempt service in breach of the rules through ignorance of what they were, there was no good reason to validate.
Mr Barton advanced three main arguments on appeal. First, he contended that because CPR 6.15(2) contemplates that service has purportedly been effected by non-compliant means, the dominant consideration should be whether the mode chosen had achieved the main purpose of bringing the claim form to the defendant’s attention. Second, he argued that he was entitled to assume Berrymans would accept service by email because he did not know about the relevant rules, which were relatively inaccessible to a litigant in person, and because Berrymans had corresponded with him by email without saying they would not accept service that way. Third, he submitted that Berrymans’ refusal to accept service and their failure to respond before the limitation period expired amounted to “playing technical games” from which they should derive no advantage. He also raised for the first time an argument under article 6 of the European Convention on Human Rights.
Lord Sumption, with whom Lord Wilson and Lord Carnwath agreed, held that the appeal should be dismissed. He began by noting that while the court’s powers to relieve from sanctions have a disciplinary element, CPR 6.15 is different because the rules governing service of a claim form are simply conditions on which the court will take cognisance of the matter at all. Referring to Abela v Baadarani [2013] 1 WLR 2043, he identified four principles: the test is whether in all the circumstances there is good reason to validate; the most important purpose of service is to bring the contents of the document to the attention of the person to be served, which is a critical factor, but the mere fact that the defendant learned of the claim form cannot without more constitute good reason; the question is whether there is good reason for the court to validate the mode used, not whether the claimant had good reason to choose it; and the power was introduced to enable claimants in appropriate cases to escape limitation consequences when a claim form expires without valid service. Lord Sumption emphasised that the main relevant factors are likely to be whether the claimant took reasonable steps to effect service in accordance with the rules, whether the defendant was aware of the claim form’s contents when it expired, and what prejudice the defendant would suffer from retrospective validation.
Lord Sumption rejected the argument that it was enough that Mr Barton’s mode of service had brought the claim form to Berrymans’ attention. Although that was necessary, it was not sufficient. The manner of service was important because a bright line rule was necessary to determine the point from which time runs for further steps or default judgment, and because service within the period of validity could have significant implications for limitation. There were particular problems with electronic service on solicitors, who must have authority to accept service and whose offices must be properly set up to receive and process formal electronic communications.
Turning to Mr Barton’s status as a litigant in person, Lord Sumption observed that while courts will make allowances in case management and conduct of hearings, this does not usually justify applying a lower standard of compliance with rules. The overriding objective requires enforcement of compliance, and the rules do not distinguish between represented and unrepresented parties. It was now well established in applications for relief from sanctions that being unrepresented was not in itself a reason not to enforce rules. The same policy should apply to applications under CPR 6.15(2) as a matter of basic fairness, because any advantage to one side imposed a corresponding disadvantage on the other. Unless the rules were particularly inaccessible or obscure, it was reasonable to expect a litigant in person to familiarise himself with the rules.
Lord Sumption rejected the contention that CPR 6.3 and Practice Direction 6A were inaccessible or obscure. They were accessible on the internet, clearly headed and signposted, and the court had sent Mr Barton a blank certificate of service referring him to Part 6. The rule was clear that even where a solicitor’s writing paper included an email address, service by that means was permissible only where it was stated that the address could be used for service. Mr Barton was by June 2013 an experienced litigant who knew about limitation and knew that not all solicitors accepted service by email, yet he took no steps to check whether Berrymans did or to ascertain what the rules were. The email correspondence did not amount to an indication for the purposes of the Practice Direction, and if it did not, Mr Barton could not reasonably assume that Berrymans would accept service in that way.
Lord Sumption accepted that a claimant need not demonstrate that there was no way he could have effected service according to the rules within the validity period; it was enough that he had taken such steps as were reasonable in the circumstances. However, in this case there was no problem about service. All Mr Barton did was employ a mode he should have appreciated was not in accordance with the rules. If he had made no attempt to serve at all, an application under CPR 7.6(3) to extend the claim form’s life would have failed because he could not have said he had taken all reasonable steps but been unable to comply. The result should be no different when he made no attempt to serve by any permitted method. The submission that Berrymans had been “playing technical games” was based solely on their taking the point that service was invalid. After the purported service they could not reasonably have been expected to do anything to rectify the position, as the claim form expired the next day, and they were under no duty to advise Mr Barton to re-serve or begin a fresh claim. Mr Barton had issued the claim form at the very end of the limitation period, opted not to have it served by the court, and made no attempt to serve until the very end of its validity. A person who courted disaster in that way could have only a very limited claim on the court’s indulgence, and the prejudice to Wright Hassall, who would be deprived of an accrued limitation defence, was palpable. Lord Sumption briefly rejected the article 6 argument, noting that the rules were sufficiently accessible and clear and served a legitimate purpose, and that it was the Limitation Act, not the rules, that produced the result. He also rejected a faintly pressed allegation of bias in the Court of Appeal’s judgment. Lord Sumption agreed with observations by Lord Briggs that it would be desirable for the Rules Committee to review these issues, but in the meantime he would dismiss the appeal.
Lord Briggs, with whom Lady Hale agreed, dissented. He accepted that the court’s task was to decide whether there was good reason to validate service, not whether there was good reason for failing to comply with the rules, although the court would generally wish to be appraised of the reasons for non-compliance. While the most important purpose of service was to ensure that the contents of the claim form were brought to the defendant’s attention, there was a second important purpose: to notify the recipient that the claim had been commenced and on what day, because service engages jurisdiction and important time consequences flow from the date of service. There was a third particular purpose behind the specific provisions regulating email service, namely to ensure that recipients had the opportunity to put in place administrative arrangements for this then-new mode of service. Where not merely the first but all three purposes had been achieved, that was capable of being, at least prima facie, a good reason for validating service, provided there were not adverse factors pointing against validation sufficient to outweigh that achievement. A non-exhaustive list of adverse factors might include deliberate failure to comply by someone cognisant of the rules, failure due to negligence by a trained professional, or failure due to sheer neglect until the last moment.
Lord Briggs considered that both the judge and the Court of Appeal had treated it as essential that there be identified some additional good reason for validation beyond the complete achievement of the three underlying purposes of the rules. This led to a search for a good reason for not having served in accordance with the rules. Where all the underlying purposes had been achieved but there were no other good reasons for validation, yet the failure to comply was only a minor or technical breach or one readily understandable because the rule was obscure or less accessible to a litigant in person, there should not be a vain search for an additional good reason but rather a weighing of all the circumstances to see whether the element of culpability was sufficiently large to displace the prima facie good reason. He did not read Lord Clarke’s dictum in Abela that the mere fact that the defendant learned of the claim form could not without more constitute good reason as requiring a separate good reason in every case beyond fulfilment of the purposes of the rules. Similarly, Lord Clarke’s observation that the relevant focus was on why the claim form could not be served within its validity did not erect the finding of a good reason for failure as an independent obstacle, nor confine validation so as to exclude cases where the claim form could have been validly served in time.
Lord Briggs considered that the judge had erred in principle by treating the central question as whether there was a good reason why service was not effected in accordance with the rules and that ignorance was not a good reason. The Court of Appeal, in exonerating the judge, did not conduct its own independent appraisal. The question should therefore be addressed afresh. Mr Barton’s attempt fully achieved the three purposes: the defendant was fully appraised of the contents, the claim form was sent expressly “by means of service” so the recipient could not have doubted that service rather than mere information was intended, and it had not been suggested that the recipient was hampered by lack of appropriate monitoring procedures or email systems. There was therefore a prima facie good reason unless the circumstances swung the balance against validation.
Lord Briggs identified factors pointing against validation: Mr Barton did not work through the relevant rules to alight upon the key provisions; he elected to serve himself and gave an understandable if not good reason for delaying; he left it very late; he probably knew of the serious consequences of failure; the rules were not in lawyerish language or difficult to understand; and he was by then a reasonably experienced litigant. In respectful disagreement with Lord Sumption, Lord Briggs did not regard the fact that validation would deprive the defendant of an accrued limitation defence as a factor militating against validation, as the defendant’s solicitors were aware of the attempt before expiry and acquisition of the defence would have been a windfall.
In mitigation, Lord Briggs identified that Mr Barton made an innocent mistake; his reasoning that solicitors who communicated by email were impliedly content to be served by email was understandable though wrong; the rules were tucked away in a Practice Direction rather than a rule, which had some mitigating effect; he was in good company as the same mistake was made in the Handbook for litigants in person, which mitigated his offence even though he had not read it; and as an unrepresented litigant he had no recourse to solicitors’ insurers. Lord Briggs emphasised that being a litigant in person did not constitute a free-standing good reason for validation and adhered to what he had said in Nata Lee Ltd v Abid about there being no general dispensation for litigants in person from the need to observe the rules. The good reason was that Mr Barton’s attempted service achieved all the underlying purposes of the rules; his being a litigant in person merely mitigated at the margin the gravity of conduct which would have been more serious if done by a legal representative.
Taking all considerations into account, Lord Briggs would have validated the service. Mr Barton could be criticised for failing to read the relevant rules and making an incorrect assumption, but this did not on balance detract from the good reason constituted by his having achieved all that the rules were designed to achieve. Lord Briggs expressed concern that CPR 6.15 had now been considered twice by the Supreme Court in recent years and on this occasion divided the court, and he hoped the Rule Committee might satisfy itself that the rule and the provisions about service by email still satisfied current requirements with sufficient clarity.
In short, the Supreme Court held by a majority that retrospective validation of service under CPR 6.15(2) was not appropriate where a litigant in person, through ignorance of clear and accessible rules, had attempted service by email without any indication that the recipient solicitors would accept it, left service until the last day before expiry, and took no reasonable steps to serve in accordance with the rules.
Abela v Baadarani [2013] 1 WLR 2043
Elmes v Hygrade Food Products plc [2001] EWCA Civ 121
R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472
Power v Meloy Whittle Robinson [2014] EWCA Civ 898