Litigants in person (“LIPs”), to give them their somewhat archaic proper title, are as the costs of going to court increase, becoming an ever more regular sight in the courts.
Some pro-bono schemes to assist LIPs at various stages of court process and direct access barristers do take on cases on an “advocacy only” basis, but there is precious little help for LIPs with some of the more administrative elements of running a case, or with navigating the 2 volumes and 3000 plus pages of the CPR contained in the “White Book”.
The Supreme Court has, however, by a slim margin of 3-2, ruled that the fact that a party to litigation is a LIP is not a reason in and of itself to excuse a party for failing to follow the rules.
Mr Barton, bringing the Appeal, had represented himself in a claim against his former solicitors. There had been a long history of prior litigation. Mr Barton, aware that the limitation period for his claim was due to expire, issued his claim form but elected to serve it himself, rather than allow the court to do so. He waited until almost the last minute for the deadline for valid service of the claim form to arrive, and then sent it to the solicitors acting for his opponents by email.
The papers were received, however, the firm in question did not accept service of the documents by email. Accordingly, both the deadline for service of the claim form and the limitation period ran out, leaving Mr Barton unable to bring a new claim.
Mr Barton sought permission of the court to validate service (which is provided for in the CPR) arguing, among other things, that as his opponent’s lawyers had communicated with him by email, he had been led to believe that they would accept service by email. Further, there was no debate that the claim form had, in fact, reached the intended recipient.
Whilst the Supreme Court acknowledged these points, the majority ruled against Mr Barton, primarily on the basis that the CPR was clear on the importance of service of court proceedings, and how that service may be validly achieved.
The Court will only validate defective service after the event in limited circumstances, where there is a good reason to do so. As Mr Barton had simply failed to follow the rules in order to effect proper service, there was no good reason to validate the service by email, and the fact that Mr Barton was unrepresented did not alter the position. As one judge in the lower court had starkly said “[this rule] is not there to protect litigants in person or those who do not know the rules”.
The message from the Supreme Court is clear (although diluted by two dissenting judges, who would have allowed the appeal). The rules are the rules and they apply equally to all, and the bar is not to be lowered for LIPs.
All of this comes at a time where cost pressures on claimants are increasing, with much of the costs being frontloaded in the early stages of litigation. Pursuing a claim to court takes a great deal of time, effort and money, all of which may be in short supply for the average LIP.
It is true that many court practitioners have bemoaned the seemingly extended licence given to LIPs by the courts in the past and it is also true that there do exist some LIPs who take up an inordinate amount of court time pursuing hopeless cases. However, if LIPS are to be required to follow the same rules to the same level of compliance as lawyers and those represented by lawyers, then it may well be the case that, to keep the doors of justice open to all, the rules need to change.
The Civil Procedure Rules Committee is currently engaged in an exercise of reviewing the CPR to see if radical changes are necessary.
If those changes result in simpler, more cost-effective and fairer litigation for all parties, then that will be no bad thing.