Howard Elgot and Abigail Telford of Parklane Plowden Chambers acted for the Appellant, Mark Barton, in a much anticipated legal decision concerning whether ‘special rules’ should be afforded to litigants in person when it comes to service.
By a majority of 3-2, the Supreme Court has found against the Appellant in a case where he was seeking a retrospective validation of an unauthorised form of service under CPR 6.15. At the time the Appellant “served” the claim he was unrepresented. His claim form was sent by email “by way of service” following email correspondence with the Respondent’s solicitor, but without the necessary specific written permission for email service having been given by that solicitor.
Expressing the reasoning of the majority, Lord Sumption stated that it was not sufficient that the underlying purposes of the rule were satisfied. Rather, a ‘bright line’ literal approach was preferred, with Lord Briggs (with whom Lady Hale agreed) adopting the contrary view in a powerful dissenting judgment.
Following this judgment, it is clear that those seeking to serve a claim form should take particular care to comply with the rules as to service. A genuine mistake by a claimant with no prejudice to a defendant will rarely be sufficient to allow the exercise of the CPR 6.15 dispensing provision.
This case also affirms that no special status is to be afforded to litigants in person other than at the margins and that although allowances are often made once proceedings are started, no such allowances are to be routinely afforded in relation to service. Therefore, the fact that a litigant is a litigant in person, will not be treated as an independent justification for a lack of knowledge or an understanding of the rules relating to service. The Court held that unless rules and directions are particularly obscure or otherwise difficult to understand, litigants are expected to familiarise themselves with them and understand them.
Lord Sumption considered that the rules in relation to service by email are not sufficiently obscure or difficult to understand, notwithstanding his acknowledgment that the authors of “A Handbook for Litigants in Person” (2013) – comprising several circuit judges with an interest in civil procedure– had made the same mistake as the Appellant in their definitive book.
Finally, the Court rejected the Appellant’s argument that a decision in favour of the Respondent would be a breach of Article 6 of the European Convention on Human Rights on the basis that “excessive formalism” had caused the loss of Mr Barton’s claim. Lord Sumption concluded that “a reasonable limitation period does not contravene Article 6 even where it operates procedurally”. An appeal to the European Court of Human Rights is under consideration.
This is the second time that CPR 6.15 has been considered by the Supreme Court in recent years. As such all five members of the court concluded that this rule should be reconsidered by the Rules Committee. It is therefore possible, that once the rule has been reviewed, service via email will become acceptable.
Quote from Howard Elgot, barrister at Parklane Plowden Chambers
“The narrow majority by which our client’s case was lost reflects the difficulty judges have in deciding when to apply the dispensing provision for invalid service and what ‘special’ treatment, if any, should be afforded to litigants in person. We are actively considering an application to the European Court of Human Rights on Article 6 grounds, namely that an “excessive formalism” has caused the loss if Mr Barton’s claim.”
About Parklane Plowden
Parklane Plowden is an award-winning Civil Barrister’s Chambers based in Leeds and Newcastle. Routinely referred by legal commentators as the “Powerhouse of the North”, Chambers has an unrivalled reputation as being home to a “stellar roster of silks and talented juniors, many of whom are leaders in their respective fields.” [Chambers & Partners]
Issues addressed by the Supreme Court
(i) the Court of Appeal erred in upholding the judgment of the courts below that there was no good reason to validate service under 6.15 of the Civil Procedure Rules;
(ii) the Court of Appeal’s reasoning breached the appellant’s Article 6 and Article 13 rights under the European Convention on Human Rights; and
(iii) the costs awarded by the Court of Appeal to the respondent were disproportionate to the work undertaken.
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