A claimant can only serve a claim by email with the agreement of the defendant, with no special allowance for litigants in person.
Summary
Barton (B) was a litigant in person - a person with no legal representation.
B served a claim form on the defendant Wright Hassall LLP (W) by email, without first obtaining their confirmation that they were prepared to accept service by email. It is common ground that this was not good service. As a result, the claim form expired unserved on the following day.
The question for the Supreme Court was whether, in such cases, the courts should exercise their powers and validate service retrospectively.
Background
B initially made an application under the Civil Procedure Rules - CPR 6.15(2) to validate service to W. They argued that they had taken the appropriate steps to bring the claim to W's attention by serving the claim form by email on the last day of service and, therefore, this should count as good service.
The Court of Appeal dismissed B’s appeal. W had not confirmed that they were prepared to accept service by email, so that was not a permitted method of service. Additionally, there was no reason why B did not serve the claim form by a permitted method within the given generous time limit.
B appealed to the Supreme Court.
The court's decision
Appeal dismissed. The Supreme Court confirmed the Court of Appeal’s decision that B's service of the claim form via email was not a permitted method of service in this case.
Usually, service by email is only acceptable where the recipient has indicated in writing that they are willing to accept service by email (CPR 6.3(d), PD 4A4.1). However, that did not happen in this case. W had not accepted this method of service.
The factors a court should consider when deciding what constitutes good reason for validating non-compliant service of a claim form are essentially a matter of factual evaluation, including:
whether the claimant took reasonable steps to serve in accordance with CPR
whether the defendant knew of the contents of the claim form when it expired
what, if any, prejudice the defendant would suffer from validation of the non-compliant service
The court also made it clear that it is reasonable to expect a litigant in person to familiarise themselves with the CPR, and that the rules are sufficiently accessible and clear, not inaccessible and obscure.
Comments
The Supreme Court’s decision reinforces that just because someone is a litigant in person does not mean that they should be given allowances to disregard the CPR.
Whether a person is represented or not, barrister and solicitors do not expect to treat their opponent differently by the court when going through the litigation process.
However, there would still be an expectation for legal practitioners to assist litigants in person to deal with cases ‘justly and at proportionate cost’, and so it is important to follow the spirit of the CPR overriding objective.