BARTON -V- WRIGHT HASSALL: JUDGMENT IN THE SUPREME COURT TODAY: A DETAILED BREAKDOWN OF THE MAJORITY JUDGMENT
It is rare for issues relating to procedure to reach the Supreme Court. The judgment today in Barton -v- Wright Hassall LLP  UKSC 12 concerned the issue of correct service of the claim form. The claimant lost the appeal (albeit by a 3:2 majority). The majority judgment was given by Lord Sumption.
“The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him”
THE ISSUE BEFORE THE APPEAL COURTS
The claimant served solicitors by email. They had not indicated that they would accept service by email. Initially there was an argument that this service was valid. However this argument failed at the first stage and was not pursued on appeal.
“Before the District Judge, Mr Barton’s primary case was that his service complied with the rules, because Berrymans’ correspondence with him before 24 June 2013 amounted to an “indication” that they would accept service by email. Alternatively, he asked for service to be validated under CPR rule 6.15(2). In the further alternative, he asked for the validity of the claim form to be extended under CPR rule 7.6. He failed in all three contentions, and was given leave to appeal on the second one only. Accordingly, all subsequent hearings have been conducted on the footing that service by email was not valid, and that the sole question was whether it should be validated”
The sole issue was whether the court should exercise its discretion under CPR 6.15.
6.15.- Service of the claim form by an alternative method or at an alternative place
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
THE JUDGMENT IN THE SUPREME COURT
The majority judgment notes that issues relating to service of the claim form are not the same as issues arising under CPR 3.9 (see paragraph 8). The first requirement under CPR 6.15 is a “good reason.”
GOOD REASON – A MATTER OF FACTUAL EVALUATION
“What constitutes “good reason” for validating the non-compliant service of a claim form is essentially a matter of factual evaluation, which does not lend itself to over-analysis or copious citation of authority. This court recently considered the question in Abela v Baadarani  1 WLR 2043. That case was very different from the present one. The defendant, who was outside the jurisdiction, had deliberately obstructed service by declining to disclose an address at which service could be effected in accordance with the rules. But the judgment of Lord Clarke of Stone-cum-Ebony JSC, with which the rest of the court agreed, is authority for the following principles of more general application:
(1) The test 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” (para 33).
(2) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served (para 37). This is therefore a “critical factor”. However, “the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)” (para 36).
(3) The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
(4) Endorsing the view of the editors of Civil Procedure (2013), vol i, para 6.15.5, Lord Clarke pointed out that the introduction of a power retrospectively to validate the non-compliant service of a claim form was a response to the decision of the Court of Appeal in Elmes v Hygrade Food Products plc  EWCA Civ 121; (2001) CP Rep 71 that no such power existed under the rules as they then stood. The object was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served.”
The judgment goes on.
“In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a noncompliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.”
APPLYING THESE PRINCIPLES TO THE CURRENT CASE
The claimant was attempting to appeal a discretionary order:
“Mr Barton is appealing against a discretionary order, based on an evaluative judgment of the relevant facts. In the ordinary course, this court would not disturb such an order unless the court making it had erred in principle or reached a conclusion that was plainly wrong. In my opinion both Judge Godsmark and the Court of Appeal identified the critical features of the facts of this case and reached a conclusion which they were entitled to reach. Indeed, save for one minor misdirection, which I have pointed out, I think that the same was true of the District Judge.”
GETTING THE CLAIM FORM TO THE SOLICITORS IS NOT ENOUGH: PROBLEMS WITH SERVICE BY EMAIL
16. The first point to be made is that it cannot be enough that Mr Barton’s mode of service successfully brought the claim form to the attention of Berrymans. As Lord Clarke pointed out in Abela v Baadarani, this is likely to be a necessary condition for an order under CPR rule 6.15, but it is not a sufficient one. Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension. An order under CPR rule 6.15 necessarily has the effect of further extending it. For these reasons it has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process.
17. There are, moreover, particular problems associated with electronic service, especially where it is sought to be effected on a solicitor. A solicitor must have his client’s authority to accept service of originating process. If he has that authority, it will in practice normally cover any mode of service. But a solicitor’s office must be properly set up to receive formal electronic communications such as claim forms. As the Law Society’s Practice Guidance on electronic mail (May 2005) points out, “email presents new problems, because it can arrive unperceived by other members of staff.” The volume of emails and other electronic communications received by Page 11 even a small firm may be very great. They will be of unequal importance. There must be arrangements in place to ensure that the arrival of electronic communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents distributed to appropriate people within the firm, including those standing in for the person primarily responsible for the matter when he is unable to attend to such communications as they arrive.
THE STATUS OF A LITIGANT IN PERSON
18. Turning to the reasons for Mr Barton’s failure to serve in accordance with the rules, I start with Mr Barton’s status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department  1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid  2 P & CR 3. At best, it may affect the issue “at the margin”, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, which is less significant in the case of applications to validate defective service of a claim form. There are, however, good reasons for applying the same policy to applications under CPR rule 6.15(2) simply as a matter of basic fairness. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.
THE RULES ARE ACCESSIBLE
“Mr Barton contends that CPR rule 6.3 and Practice Direction 6A are inaccessible and obscure. I do not accept this. They are accessible on the internet. Part 6 is clearly headed “Service of Documents”. Electronic service under rule 6.3 is expressly required to be in accordance with Practice Direction 6A, which is prominently flagged in the table of contents. Furthermore, when the claim form was Page 12 issued, the Courts Service sent Mr Barton in the usual way on 26 February 2013 a blank certificate of service for him to complete when he had served it. This included the statement: “Rules relating to the service of documents are contained in Part 6 of the Civil Procedure Rules (www.justice.gov.uk) and you should refer to the rules for information.” Since he did not in fact refer to them, their alleged obscurity is perhaps immaterial. But they are not in my view obscure. They do not justify Mr Barton’s assumption that Berrymans would accept service in that way unless they said otherwise. On the contrary, the paragraph 4.1(2)(b) of the Practice Direction clearly states that even where a solicitor’s writing paper includes an email address, service by that means was permissible “only where it is stated that the email address may be used for service.” It is fair to say that others have made the same mistake as Mr Barton, including the authors of A Handbook for Litigants in Person, ed HHJ Edward Bailey (2013), at p 157. But this is not for want of clarity in the rules. As it happens, Mr Barton never saw the Handbook, which was published after his abortive attempt at service. The salient facts in his case are that he was by June 2013 an experienced litigant. He knew, as he accepts, about limitation. He knew that not all solicitors accepted service by email. Yet, apart from looking at the legal notices on Berrymans’ website (which said nothing about email service), he took no steps to check whether Berrymans did so, or to ascertain what the rules regarding service by email were, but simply relied on his own assumption.”
THE DEFENDANT WAS NOT “PLAYING TECHNICAL GAMES”
22. Mr Elgot repeated before us the submission that he made in the Court of Appeal that Berrymans had been “playing technical games”, with his client. However, the sole basis for that submission was that they had taken the point that service was invalid. Since they did nothing before the purported service by email to suggest that they would not take the point, this does nothing to advance his case. After the purported service by email, there is nothing that they could reasonably have been expected to do which could have rectified the position. The claim form expired the next day. Even on the assumption that they realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind. Nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it.