Summary
Building on the Court of Appeal decision of Hysaj, R (On the Application Of) v Secretary of State for the Home Department [2014] EWCA Civ 1633, the decision of the Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12 provides further authority that, unless the Rule or Practice Direction in question is particularly inaccessible or obscure, litigants in person will not be held to a lower standard or be excused the consequences of their procedural failings.
The facts of Barton v Wright Hassall
The Appellant, a litigant in person, attempted to serve a claim form on the Defendant’s solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means. Accordingly, and with reference to CPR Rule 6.3 and Practice Direction 6A (4.1), it was (by the time this matter reached the Supreme Court) common ground that this did not constitute good service.
As a result, the claim form expired unserved on the following day and the Appellant’s claim could therefore only proceed by means of a fresh action. The appeal was conducted on the assumption that such an action would be statute-barred.
The issue of general significance
The narrow question at issue in Barton v Wright Hassall was whether the Court should exercise its power retrospectively to validate service. After all, Mr Barton was not legally represented, had served the claim form by email and the Respondent was aware that purported service had taken place.
The broader question was whether, especially in the current climate, litigants in person should be afforded greater leniency than those who are legally represented.
The decision of the Supreme Court on 21st February 2018
On the narrow issue, the decision of the Supreme Court (by a majority of 3 to 2) was to dismiss this appeal. Lord Sumption opined that:
the [Civil Procedure] Rules apply to litigants in person in the same way as those represented by lawyers. It is reasonable to expect a litigant in person, who is about to take a significant step in the Court’s procedure, to find out what the rules are and to take steps to comply with them.
Further it was held by Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) that:
In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid [2015] 2 P & CR 3. At best, it may affect the issue ‘at the margin’, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor
…
The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.” (Paragraph 18 – emphasis added).
This broader principle was accepted in the dissenting judgment of Lord Briggs (with whom Lady Hale agreed):
Save to the very limited extent to which the CPR now provides otherwise, there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them (Paragraph 42 emphasis added).
In R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472 the Court of Appeal held that where there had been non-compliance with Rules or Practice Directions, there was no justification for a more lenient approach, even where a case raised questions of public law or involved litigants in person or parties who could not afford legal representation. Represented and unrepresented parties would thus be held to the same standard by the court.
Implications
This judgment confirms that represented parties will be able to rely on the procedural failings of unrepresented parties in the same way as when dealing with represented parties, which may lead to claims being dismissed where there has been non-compliance with the rules. Unrepresented parties must carefully consider and ensure compliance with the Rules and Practice Directions of the CPR.
David Hewitt is a pupil in Chambers, supervised by Roxanne Frantzis