The Supreme Court recently heard the appeal of Mark Barton v Wright Hassall LLP. It concerns the appeal of a then litigant-in-person (“LiP”) whose claim was struck out by the Chesterfield County Court for improper service. Mr Barton had purported to serve his Claim Form, issued just within limitation, by email the day before the deadline for service. The Defendant’s solicitors had not expressly stated that they accepted service by email. Mr Barton argued that he had still taken steps to bring the Claim Form to the attention of the solicitors and as such, the Court ought to validate the service under CPR 6.15(2). This was denied by the County Court. Mr Barton could not re-issue as he was by this stage outside of the limitation period and statute barred. The matter was appealed to the Circuit Judge in Nottingham and has now reached the Supreme Court.
The significance of this case is in its potential to clarify the conflicting duties of lawyers towards their clients, and those owed to the Court through assisting a LiP. There is an awkward tension between these duties when dealing with civil procedure. The case law on its face is clear that the CPR apply equally to all, regardless of whether a party is represented or not. The Court of Appeal in Barton  EWCA Civ 177 has suggested that there is no duty upon solicitors representing a party to inform a LIP of their procedural defects, however ‘technical game-playing’ is not to be endorsed (see paragraph 49 of the Court of Appeal judgment in Barton).
This affords a level of discretion to the Court that is uneasily uncertain for lawyers – what amounts to technical game-playing? In the title example the Court of Appeal considered that even if the email had been seen when it was sent, the solicitors could not be criticised as they had so little time to deal with it and they had not encouraged the LiP to believe he had effected good service (see also Higgins v ERC Accountants and Business Advisors  EWHC 2190 (Ch) supporting the assertion that there is no duty upon lawyers to raise service errors in any event).
Nevertheless, there is a wealth of persuasive sources indicating that professionals ought to provide procedural guidance to LiPs in the interests of fairness. Notably the guidance issued jointly by the Bar Council, Law Society and CILEx in 2015 suggests it is good practice to bring approaching failures to comply with procedure to the attention of a LiP. In the post-Denton era there is a developing tendency at the County Court level in relief hearings to allow LiPs a first mistake followed up by an Unless Order.
Against this background one can see how a different District Judge may have considered that the Defendant’s solicitors actions in the title case amounted to technical game-playing. The receiver of the email would have known his Firm did not accept service by email, would have seen at quick glance how important the email was, and could have easily sent in response a brief email to say that such service was not accepted (or brought the email to the attention of someone with authority to do so).
Such uncertainty in this discretion leaves lawyers in an unenviable position. If action is taken, the representative runs the risk of a professional negligence claim and a complaint to the relevant regulatory body, particularly from a client who cannot understand why the lawyer he is paying is taking steps against having a claim struck out. If action is not taken, there is a risk of heightened costs arising out of subsequent relief hearings (with potential for adverse costs orders if these are opposed) and criticism from the Court.
The legal profession needs a definitive answer on its duties towards LiPs as far as procedural guidance is concerned. It is submitted that any guidance to LiPs should be Court led. This avoids the awkward tension between duties to clients and duties to the Court. The Civil Sub-committee of the Committee of the Council of Circuit Judges did in 2013 produce a Handbook to assist LiPs. Despite this, lawyers still find themselves in difficulty balancing their competing duties. Interestingly the Handbook does note that a litigant must agree to service by email. It could perhaps be updated and LiPs referred to it as a matter of course. In any event, clarification in the forthcoming Supreme Court judgment is to be welcomed.
Part 2 of this article was published following release of a Supreme Court judgement and is available to read here