The Supreme Court has ruled against a litigant in person (“LiP”) who had called for special dispensation following his failure to meet the requirements for serving his claim form as set out in the Civil Procedure Rules (“CPR”) .
Mr Barton had sought to serve proceedings for professional negligence against a firm of solicitors. Mr Barton purported to serve a copy of the claim form on the solicitors by email on the last day before the claim form expired. The CPR does not allow for service of the claim form by email unless there has been prior agreement from the party to whom it is going to be served on, which Mr Barton had not obtained. As such, the claim form had not been validly served and it subsequently expired unserved on the following day.
Mr Barton sought a court order to affirm that there had been good service of the claim form. It had been argued that, as a LiP, he should have been given some flexibility by the Court in regards to compliance with the rules.
The Supreme Court however, found by a majority of 3-2 that service of the claim form was invalid and that there should be no allowances to Mr Barton purely because he was a litigant in person. Whilst the Courts often have a discretion on the conduct of proceedings, there are fundamental procedural rules which parties to litigation must comply with. The Supreme Court decided that it was not for them to decide when these fundamental rules should, or should not, apply in certain circumstances.
To some, this may appear to be an incredibly harsh decision. Mr Barton had made an attempt to serve his claim form and by receiving a copy ahead of the deadline by email, the Defendant was aware of the claim. Mr Barton’s appeal, however, was unsuccessful because ultimately the crucial step of serving the claim form using a permitted method in the CPR had not been taken. Mr Barton should have checked the requirements for valid service of the claim form. Of course, it did not help Mr Barton’s position that, for whatever reason, he waited until the final day before it expired to serve the claim form. Had he not done so, the error could have been rectified.
Whilst individual litigants in person can find the CPR challenging, this cannot be used as an excuse for not complying with the rules. It is important that we are not left in a position where there is one set of rules for one and another set of rules for another.
The split Court decision also suggests that there is a discord within the judiciary regarding how LiPs should be dealt with. There has also been a suggestion that Mr Barton will take this matter further, potentially to the European Court. Ultimately, however, this will be an issue for Government to resolve.
In the meantime, this case should be a warning to LiPs – the safest approach is to not leave things to the last minute and seek legal advice.
Justices ruled by a majority of 3-2 in Barton v Wright Hassall that unrepresented claimant Mark Barton should have checked whether he could email a claim form and that without such permission his claim was invalid.