In the recent case of Mark Barton -v- Wright Hassall LLP [2018] the Supreme Court ruled by a majority of 3-2 that a Claimant acting without legal representation should have checked whether he could serve a Claim Form by email and, not having done so, his claim was invalid.

Mr Barton had engaged the Defendant firm of solicitors to pursue his former solicitors for professional negligence. He then issued a professional negligence claim against Wright Hassall whose insurers appointed solicitors to act on their behalf.

Mr Barton elected to serve the Claim Form himself (rather than having the Court do so) and therefore he had 4 months from the date of issue to take this step.

Part 6.3 of the Civil Procedure Rules 1998 sets out the permitted modes of service of a Claim Form which includes “fax or other means of electronic communication in accordance with Practice Direction 6A”. In turn the Practice Direction provides that the relevant party/solicitor being served must have previously indicated in writing to the party serving that: –

1. It was willing to accept service by fax or other electronic means; and

2. The fax number, e-mail address or other electronic identification to which it must be sent.

The Rules provide that the following are taken as sufficient written indications for the purpose of the Practice Direction: –

(a) A fax number set out on the writing paper of the solicitor acting for the party to be served;

(b) An e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or

(c) A fax number, e-mail address or electronic identification is set out in a statement of case or in response to a claim filed with the Court.

Mr Barton received an e-mail from the solicitors confirming they were instructed and he therefore purported to effect service of the Claim Form without first checking whether they were prepared to accept service by that means. The Claim Form was therefore not validly served and by the time Mr Barton was informed of this, he was out of time to bring a fresh claim.

In asking the Court to exercise its discretion to validate service which did not comply with the Rules, Mr Barton argued that: –

(i) His steps were effective to achieve the main purpose of service, namely bringing the Claim Form to the Defendant’s attention.

(ii) He did not know about the Rules which he argued were relatively inaccessible to a litigant in person such as him, and so he was entitled to assume the solicitors were prepared to accept service by e-mail as

they had corresponded by that method previously without saying they were not prepared to do so. 

(iii) The solicitors’ failure to respond until after the expiry of the limitation period amounted to playing technical and tactical games from which they should not be allowed to derive any advantage.

In its Judgment, the Court recognised that acting in person may not always be through choice, especially in the current climate where access to legal aid and conditional fee agreements are restricted. That would often justify making allowances in case management directions and in conducting hearings but it would not usually justify applying a lower standard of compliance with Rules or Orders of the Court in favour of litigants in person. The Rules were said to be easily accessible on the internet and Mr Barton took no steps to check that the solicitors would accept service by e-mail.

The dissenting Judges made clear that being a litigant in person did not constitute a free-standing good reason why botched service should be validated, but felt that Mr Barton had achieved the purpose of the Rules and fell on the right side of their discretion as: –

• It was an innocent mistake, rather than a deliberate breach of the Rules.

• His reasoning that he could serve by e-mail when solicitors had communicated in that manner was understandable, albeit wrong.

• The relevant requirements were tucked away in a Practice Direction and were not entirely obvious.

• The solicitors’ e-mail address was on its headed paper.

• As Mr Barton was acting in person, he would have no recourse to insurers or any alternative remedy to his claim.

Whilst the case was decided by the narrowest of majorities, the Judgment effectively rules out special treatment being given to unrepresented parties to litigation in these circumstances and so litigants in person must ensure compliance with the Rules or the consequences could be significant.

The Dispute Resolution department at nexus acts on behalf of Claimants and Defendants and provides approachable, clear and cost effect advice. For more information, please contact Debbie Whiteley on or at dfw@nexussolicitors.co.uk.