The Supreme Court has dismissed the appeal of a Claimant who failed to validly serve his claim form on the Defendant's solicitors.
By a majority of three to two, it was held that emailing the claim form in the absence of an agreement from a defendant to accept service by that method was not valid service, nor would it be subsequently validated by the Court.
Lord Sumption made clear that litigants in person are not a special category and should not be treated as such in relation to the application of the CPR. Furthermore, it was not stated that the CPR requires a fundamental rewrite in order to make them easier to navigate for those without legal representation.
The Claimant, a litigant in person, lodged an appeal against his former legal representatives in a claim for professional negligence. His former representatives instructed solicitors to defend the claim. The Claimant elected to serve the claim form himself.
On the day prior to the end of the limitation period, and without confirmation that service by email would be accepted, the Claimant emailed the claim form to the solicitors. No response was received until approximately 2 weeks later, when the solicitors stated service by email was not accepted. Therefore, in the absence of valid service, the claim was now time barred.
The Claimant argued that the service was valid, referring to the previous course of dealings by email with the solicitors. In the alternative, he sought an extension of the validity of the claim form, or, pursuant to CPR 6.15, an order that the service by email be validated.
The District Judge rejected these arguments, but allowed the Claimant to appeal the issue of whether the purported service by email should be validated. The Circuit Judge agreed with the first instance decision and found there was no good reason to validate the service.
Lord Sumption, giving the lead judgment, agreed with the decisions of the lower courts, and dismissed the appeal. He stated that it is not unreasonable to expect litigants in person to familiarise themselves with the appropriate rules. Mr Barton had assumed that service by email was acceptable. The solicitors had not, contrary to the submissions of the Claimant, attempted to use the Claimant's standing as a litigant in person against him.
Mr Barton had elected to serve the claim form close to limitation. He was an experienced litigant, familiar with limitation, and also aware that certain solicitors did not accept service by email. Lord Sumption, therefore found he deserved little indulgence from the Court, and had failed to present sufficient evidence that an order validating service be granted. Lord Wilson and Lord Carnwath agreed.
The Claimant's further submission that the previous decisions were incompatible with Mr Barton's right to a fair trial under Article 6 of the European Convention on Human Rights was also swiftly dismissed. Notwithstanding that the rules on service were deemed to be "sufficiently accessible and clear", it was the operation of the Limitation Act which resulted in the dismissal of the claim, and the Act does not contravene Article 6.
Lady Hale and Lord Briggs, dissenting, would have granted the appeal.
They reasoned that Mr Barton's email fulfilled that which that which the rules regarding service by email are designed to achieve. The email had brought the contents of the claim form to the attention of the solicitors, whilst also notifying them that the claim had been commenced.
As such, they considered that this would provide good reason for ordering the validation unless there were specific circumstances which would swing the balance against validation.
However, Lord Briggs did state that being a litigant in person does not provide "a free-standing reason why his botched attempt at service should be validated."
What can we learn?