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David Whiting, Director - Head of Dispute Resolution
David Whiting
Director, Head of Dispute Resolution
01295 204105
dwhiting@se-law.co.uk

Warning for all litigants in person

by David Whiting | Mar 20, 2018 |

Introduction

The Supreme Court has rejected an appeal by a litigant in person (LIP) for special treatment in applying the rules of Court as to service of proceedings. This leaves the LIP having to commence proceedings again, but on the facts of this case the proceedings have been time barred and the LIP left without redress.

A litigant in person is defined as someone who has the right to address the courts in England and Wales but is not represented by a lawyer or solicitor.

In 2005, Mr Barton had brought a claim of professional negligence against a law firm that had previously acted for him. Wright Hassall LLP acted on behalf of Mr Barton for this claim but later decided to stand down as his solicitor due to a dispute about fees. Mr Barton then decided to bring a breach of duty claim against Wright Hassall LLP and chose to defend his claim as an LiP.

The Facts

Mr Barton, a LIP decided against the usual course of a claim form being served upon the Defendant by the Court, opting to serve it himself.

He then sought to serve the proceedings by email, allowed by the Civil Procedure Rules, subject to certain conditions, one of which is to obtain a prior indication that his opponent was prepared to accept service by electronic means.

It was common ground that this was not good service, albeit Mr Barton could have either applied for an extension of time for service of the proceedings, which had become too late; or in accordance with CPR Rule 6.15, convince the Court that there was a “good reason” to authorise service by a method or a place otherwise permitted. This point has been considered by Lord Clarke in the case of Abela v. Baadarani [2013] 1 WLR 2043.

However, the majority of the Supreme Court found that Mr Barton should have confirmed with the Defendant that he could serve by email. As he did not, then service was invalid and accordingly the next day the limitation period expired. Lord Sumption said that this was the decisive consideration.

Lord Sumption said he appreciated that, “litigating in person is not always a matter of choice with the unavailability of legal aid and conditional fee agreements being restricted, some litigants have little choice but to represent themselves”. He went on to say that 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 the Rules or Orders of the Court.

His justification was that, “There are, however, good reasons for applying the same policy to applications under the [Court Rules] 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 litigants in person imposes a corresponding disadvantage on the other side, which may be significant …”

The judgment

However, the dissenting judgments may be beams of light to illuminate a path for potential changes to the treatment of LIPs. Also, the Court was unanimous that time willing the Rules Committee may look again at the provision for service. The case is a timely reminder that a balance between funding litigation and seeking to save costs may result in the unfortunate circumstances of a claim being struck out or a represented party gaining benefit from a LIP with no full appreciation of the Rules of Court.

Get in touch

Here at Spratt Endicott we consider creative funding arrangements and may share the risk of costs in appropriate circumstances. For any information about the issues raised in this article, or for any questions relating to Dispute Resolution, please contact David Whiting, Director and Head of Dispute Resolution at Spratt Endicott Solicitors on 01295 204105 or email dwhiting@se-law.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

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