Since my previous article discussing the case of Barton v Wright Hassall, the Supreme Court has dismissed C’s appeal on a 3:2 majority. Lord Sumption delivered the majority Judgment, with which Lord Wilson and Lord Carnwath agreed. Lord Briggs delivered the dissenting Judgment, with which Lady Hale agreed.

Case and Judgment Summary
C was a litigant-in-person (“LiP”) who purported to serve a Claim Form by email upon D’s solicitors who had not expressly stated they accepted service by email. They therefore refused to accept service. The Claim Form was sent the day before the deadline for service and the claim became time-barred. C had attempted to have his service validated by the Courts under CPR 6.15(2).

His argument had three bases:
1. He had fulfilled the purpose of the rule in the CPR in bringing the Claim Form to D’s attention;
2. As a LiP he ought to be forgiven for assuming the method was acceptable – he had corresponded with D’s solicitors by email previously and was unaware of the relevant rule which was contained in the inaccessible CPR;
3. That D’s solicitors were playing technical games from which they should not derive advantage.
The majority held that there was more to the purpose of the rule than bringing the Claim Form to D’s attention, such as the need to control extensions to limitation periods by the back door and the fact that some parties were ill equipped to deal with service by email. Being a LiP does not in and of itself amount to a good reason for failing to follow the rules on service of the Claim Form. D’s solicitors were under no obligation to advise C of his service defect, and would not have reasonably had time anyway.
The minority agreed that there were wider purposes to the rule, but that where these purposes had been fulfilled this prima facie amounted to a good reason to validate service. Other factors when balanced were not sufficient to displace the prima facie good reason for validating service.
My original article raised hope that this Judgment might provide some clarity for lawyers who are expected to serve their clients interests, whilst also serving the Court by providing guidance to LiPs. The conflicting duties create an awkward tension for lawyers where a LiP is in procedural breach. It is not in a client’s interest to advise a LiP, as procedural breaches can lead to litigation advantages. Nevertheless, there is an increasing tendency of first instance judges to punish opposition to first-time relief from sanction applications with costs sanctions.
Lawyers will draw some comfort from the confirmation at [22] that there is no duty to advise a LiP of their Claim Form service defects. Nevertheless at [8] the majority has drawn a distinction between applications for Claim Form service validation, and applications for relief from sanction for other procedural breaches. It identifies a ‘disciplinary factor’ in general relief applications which is more important there than it is in Claim Form service validation applications. This limits the scope to argue that the Supreme Court’s decision is authority for the proposition that there is no duty upon solicitors to advise LiPs of procedural defects at all. The disciplinary factor might be enough for a judge to suggest there are sufficiently different considerations in the two different types of application to justify a distinction in the appropriate approach of an opposing lawyer. Conversely, it does then open arguments that first-instance judges ought to be giving greater prominence to the need to effectively discipline parties for procedural breaches – a consideration which is sometimes lacking in relief applications for first-time breaches.

At [18] the majority has held that a lack of representation will often justify making allowances in case management decisions and conducting hearings, but will not usually justify a lower standard of compliance for LiPs. It is submitted that this should not be relied upon as a suggestion that allowances should be made for LiPs in considering relief application. In the same paragraph the majority outlines a ‘basic policy’ that applies to both general relief applications and applications under CPR 6.15(2). It states that being a LiP is not a factor in and of itself to weigh in the balance when exercising discretion. It is in fact an ‘add-on’ (my terminology) to other directly relevant factors which might provide mitigation. Furthermore the Court has recognised that advantage gained by a LiP through indulgence in non-compliance imposes a corresponding disadvantage to a represented party. This suggests that the comment is a general observation about considering the LiP position when setting down, for example, case management timetables.

Early commentary from the legal press has suggested there is some fear that a 3:2 majority indicates an unstable approach to LiPs CPR compliance, and could signal a forthcoming change in approach. It is submitted that those fears are overstated. Both Judgments are crystal clear that the CPR apply equally to LiPs and represented parties. They both agree that LiP status is only relevant insofar as it might support other relevant factors. The minority Judgment was keen to express that its reasoning was not that being a LiP was a freestanding good reason to validate service. The major bone of contention between the Judgments was how the test for Claim Form service validation should be approached, and not the approach to be taken with LiPs. This does not suggest instability in the Supreme Court’s approach to LiPs.

In summary:
• The Judgment has very helpfully clarified the approach to Claim Form service validation applications.
• It has not confirmed that there is no duty upon lawyers to advise LiPs of procedural defects.
• There is helpful commentary which lawyers might rely upon in opposing LiP relief from sanction applications, however such commentary existed before this Judgment (see for example Nata Lee v Abid).
• What lawyers might draw from this Judgment is a need for first-instance judges to give greater prominence to the ‘disciplinary factor’ in relief applications more generally which the Supreme Court has cited as important.

Ben Chapman