Litigant in person’s procedural wrangling divides the Supreme Court – decision on service by email.

In the recent judgement Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court has considered the power under CPR 6.15(2) to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

The relevant facts can be stated briefly. The claimant, a litigant in person, brought proceedings against a law firm previously instructed by him alleging negligence. The claim form was issued and the claimant indicated an intention to serve it himself (rather than letting the court serve it for him).

The claim form was purportedly served by email 2 days before the 4 month “expiry” time limit.  After the claim form had expired the Defendant’s solicitors notified the claimant that, as they hadn’t agreed to accept service by email, their purported service was not valid and that the claim form had expired. As limitation had also passed the claimant’s claim was time barred.

It was common ground that the initial service was not valid but the claimant applied to the court for an order that the steps he had taken amounted to good service. The first instance court and the court of appeal both refused the order sought. The Supreme Court,, by a majority of 3 to 2, agreed.

Noting that the relevant rules were not particularly “inaccessible or obscure” (notwithstanding the evidence that a published text had made a similar mistake to the claimant) the Court indicated that the fact that the applicant was unrepresented at the relevant time was not in itself a reason not to enforce the rules of court against him.

The Court reiterated the following principles from previous authorities on the issue:

1. The test is whether “ in all the circumstances there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service”

2. Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is therefore a “critical factor”. However, “the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)”.

3. The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.

Taking the above into account the Court did not consider there was “good reason”. The Claimant was a fairly experienced litigant (having sue both this and another firm previously and gone a number of “rounds” with each). There was no reason for the Claimant to assume the Defendant’s solicitors would accept service electronically and the Defendant, in relying on the expiry of the claim form, was not playing “technical games”.

On balance the Supreme Court’s decision was probably right, “rules are rules”. But given the near universal use of email and electronic communications (including by the court) and the sophisticated systems firms have in place for handling email traffic it does appear that a change in the rules to permit service by email generally (albeit subject to limitations and technical restrictions) is long overdue. Let’s hope the Rules Committee carefully considers Lord Briggs’ suggestion that this part of the CPR be subject to careful further consideration.