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.
Civil court claims are governed by the Civil Procedure Rules (‘CPR’). The CPR places obligations on litigating parties in relation to what they have to do and when and how they have to do it. Failure to comply with the CPR can have significant consequences.
Litigation lawyers are obviously well versed with the CPR and are aware of the dangers of non-compliance. Those choosing to represent themselves are of course unlikely to have such knowledge and experience.
On 21 February 2018, a crucial ruling was handed down by the Supreme Court in the case of Barton v Wright Hassall LLP which considered whether such parties – known as ‘Litigants in Person’ – should be granted special dispensation when it comes to the application of the CPR.
Mr Barton (a litigant in person) wished to bring a claim against his previous solicitors, Wright Hassall LLP, for professional negligence.
As with all cases, the claim was started by serving a claim form on the Defendant. The CPR has very strict rules regarding the service of the documents, in particular claim forms. In essence, a claim form must be served in person or by post. It cannot be served by email, unless the party receiving it has said in advance they are happy to accept service by email.
The Defendant’s solicitor, had at no point agreed to accept service of such proceedings via email and as such argued that the proceedings had not been validly served.
Mr Barton, unsuccessfully through the Courts appealed and reiterated that his service complied with the rules. He argued that although he may not have strictly followed the CPR he reasonably assumed that the Defendant’s solicitor would accept service by email because they had corresponded with him that way previously. He argued that he was not aware of the exact requirements in the CPR and believed they were relatively inaccessible to a litigant in person.
The case made its way up through the court system to the Supreme Court.
Supreme Court Ruling
The Supreme Court on 21 February 2018 narrowly rejected (by a majority of 3-2) the appeal which in short rules out the special treatment for litigants in person and that rules must continue to stand equally to all parties.
Lord Sumption on giving the leading judgment for the majority concluded that under the existing rules there was not a sufficiently good reason to justify retrospective validation of Mr Barton’s service of his claim form.
Lord Sumption stated:
“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…. 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 fact that the decision was so narrow (with two out of the five judges dissenting) will no doubt mean that the application of the CPR to litigants in person will be reviewed. Currently however, the result makes clear that if a party elects not to instruct lawyers to represent him in proceedings, his lack of knowledge and experience is unlikely to be a valid excuse for not complying with the CPR.
If you would like to talk to somebody about legal representation in proceedings, or if you have any questions about how to take or defend legal action please contact one of the team at in the Commercial Department at Primas on 01925 430 404.