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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Barton v Wright Hassal LLP [2018] UKSC 12 (21 February 2018) URL: https://www.bailii.org/uk/cases/UKSC/2018/12.html Cite as: [2018] WLR 1119, [2018] 3 All ER 487, [2018] WLR(D) 116, [2018] UKSC 12, [2018] 1 WLR 1119 |
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[2018] UKSC 12
On appeals from: [2016] EWCA Civ 177
JUDGMENT
Barton
(Appellant)
v
Wright
Hassall
LLP
(Respondent)
before
Lady Hale, President
Lord Wilson
Lord Sumption
Lord Carnwath
Lord Briggs
JUDGMENT GIVEN ON
21 February 2018
Heard on 22 November 2017
Appellant Howard Elgot Abigail Telford (Instructed by Direct Access) |
|
Respondent Michael Pooles QC Henry Bankes-Jones (Instructed by Berrymans Lace Mawer LLP (Manchester)) |
LORD SUMPTION: (with whom Lord Wilson and Lord Carnwath agree)
1.
The appellant, a litigant in person, purported to serve the claim form
in these proceedings on the defendant’s solicitors by email, without obtaining any
prior indication that they were prepared to accept service by that means. It is
common ground that this was not good service. As a result, the claim form
expired unserved on the following day. The question at issue on this appeal is
whether the Court should exercise its power retrospectively to validate
service. To date, the District Judge, the County Court judge and the Court of
Appeal have declined to do so. If their order stands, the result will be that
Mr
Barton
can proceed with his claim only by a fresh action. The present appeal
has been conducted on the assumption that such an action would be
statute-barred.
The facts
2.
Mr Barton
has been locked in litigation for the past 12 years with two
firms of solicitors who have successively acted for him. In October 2005, he
brought an action in the Coventry County Court against a firm called Bowen
Johnsons, which had acted for him in 1999 in proceedings for ancillary relief
following his divorce. He alleged that they had failed properly to protect his
interests in the drawing of the consent order by which those proceedings were
terminated. The respondent,
Wright
Hassall
LLP, acted for him in the litigation
against Bowen Johnsons until 17 May 2007, when they were taken off the record
on their own application by order of the District Judge, after an acrimonious
dispute about fees. Mr
Barton
had resisted that application, and costs were
awarded against him. His appeal to the County Court judge against the costs
order was dismissed, also with costs, on 14 December 2007. In the meantime,
acting in person, he had settled the proceedings against Bowen Johnsons on
terms which were embodied in a consent order.
3.
There followed two actions between Mr Barton
and
Wright
Hassall.
In the
first,
Wright
Hassall
claimed their costs of acting for him before they came
off the record, and obtained summary judgment. The second was the present
action for professional negligence against the firm, which Mr
Barton,
acting in
person, began by a claim form issued on 25 February 2013. In it, he alleged
that
Wright
Hassall
were in breach of their duties to him in their conduct of
the action against Bowen Johnsons and in coming off the record at the time that
they did. He claimed damages consisting in the difference between the
value
of
the settlement and what he alleged to be the full
value
of his claim, together
with the costs of unsuccessfully resisting
Wright
Hassall’s
application to come
off the record and appealing against the costs order.
4.
In the ordinary course, the claim form would have been served on the defendant
by the Court: CPR rule 6.4(1). But Mr Barton
elected to serve it himself
pursuant to the exception at (b). He had four months in which to do so,
expiring on 25 June 2013: CPR rule 7.5. His first step, after correspondence in
accordance with the Pre-Action Protocol, was to ask for an extension of time to
serve the claim form and particulars of claim, which was refused. On 26 March
2013,
Wright
Hassall
instructed solicitors, Berrymans Lace Mawer. They sent an
email on the same day to Mr
Barton
asking him to address all future
correspondence to them. On 17 April 2013, Berrymans emailed Mr
Barton
to tell
him that they had now been instructed in addition by
Wright
Hassall’s
liability
insurers. They referred to a request which Mr
Barton
had apparently made for
clarification of
Wright
Hassall’s
position on the costs of the earlier
proceedings, which they said had already been made clear by
Wright
Hassall
themselves. The email concluded “I will await service of the Claim Form and
Particulars of Claim.” So far as the material before us shows, that was the
full extent of the communications between Mr
Barton
and Berrymans until 24 June
2013, the last day before the expiry of the claim form. At 10.50 am on that day
Mr
Barton
emailed them as follows:
“Please find attached by means of service upon you.
1. Claim Form and Response Pack
2. Particulars of Claim
3. Duplicated first and last pages of the Particulars of Claim showing the court seal and the signature on the statement of truth.
The Particulars of Claim were filed into Chesterfield County Court this morning.
I would appreciate if you could acknowledge receipt of this email by return.”
Mr Barton
received an automatic reply, with a number to
contact if the case was urgent, which he did not use. There was no substantive
reply until 4 July. On that day, Berrymans wrote to Mr
Barton
saying that they
had not confirmed that they would accept service by email. In the absence of
that confirmation, email was not a permitted mode of service. In those
circumstances, they said that they did not propose to acknowledge service or to
take any other step. They added that the claim form had therefore expired
unserved and that the claim was statute-barred. On the same date they wrote in
similar terms to the Court. The stage was set for the present issue.
The rules
5. Part 6 of the Civil Procedure Rules deals with the service of documents. Service of a claim form is governed by section II. CPR rule 6.3 provides for the permitted modes of service of a claim form. These include, at (1)(d), “fax or other means of electronic communication in accordance with Practice Direction 6A”. CPR 6APD contains directions supplementary to CPR 6. CPR 6APD.4 provides as follows:
“4.1
Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means -
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving -
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, email address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) -
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an email address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the email address may be used for service; or
(c) a fax number, email address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4.2
Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).”
6. A claimant who is unable to serve the claim form in accordance with the rules within the four month period allowed by CPR rule 7.5 has two courses open to him. He may apply for an extension of the four month period, under CPR rule 7.6. If he makes the application after the expiry of that period (or any extension of it), then rule 7.6(3) provides that
“… the court may make such an order only if -
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.”
His other course is to apply under CPR rule 6.15 for an order that some step that he has taken or proposes to take is to stand as good service notwithstanding that it would not otherwise comply with the rules. CPR rule 6.15 provides:
6.15.- Service of the claim form by an alternative method or at an alternative place
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may 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.”
7.
Before the District Judge, Mr Barton’s
primary case was that his service
complied with the rules, because Berrymans’ correspondence with him before 24
June 2013 amounted to an “indication” that they would accept service by email.
Alternatively, he asked for service to be
validated
under CPR rule 6.15(2). In
the further alternative, he asked for the
validity
of the claim form to be
extended under CPR rule 7.6. He failed in all three contentions, and was given
leave to appeal on the second one only. Accordingly, all subsequent hearings
have been conducted on the footing that service by email was not
valid,
and
that the sole question was whether it should be
validated.
Exercising the discretion under CPR 6.15(2)
8.
The Civil Procedure Rules contain a number of provisions empowering the
court to waive compliance with procedural conditions or the ordinary consequences
of non-compliance. The most significant is to be found in CPR 3.9, which
confers a power to relieve a litigant from any “sanctions” imposed for failure
to comply with a rule, practice direction or court order. These powers are
conferred in wholly general terms, although there is a substantial body of case
law on the manner in which they should be exercised: see, in particular, Denton
v
TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926 (CA), esp at para 40 (Lord Dyson MR and
Vos
LJ), Global Torch Ltd
v
Apex Global Management Ltd (No 2) [2014] 1 WLR 4495 (SC(E)). The short
point to be made about them is that there is a disciplinary factor in the
decision whether to impose or relieve from sanctions for non-compliance with
rules or orders of the court, which has become increasingly significant in
recent years with the growing pressure of business in the courts. CPR rule 6.15
is rather different. It is directed specifically to the rules governing service
of a claim form. They give rise to special considerations which do not
necessarily apply to other formal documents or to other rules or orders of the
court. The main difference is that the disciplinary factor is less important.
The rules governing service of a claim form do not impose duties, in the sense
in which, say, the rules governing the time for the service of evidence, impose
a duty. They are simply conditions on which the court will take cognisance of
the matter at all. Although the court may dispense with service altogether or
make interlocutory orders before it has happened if necessary, as a general
rule service of originating process is the act by which the defendant is
subjected to the court’s jurisdiction.
9.
What constitutes “good reason” for validating
the non-compliant service
of a claim form is essentially a matter of factual evaluation, which does not
lend itself to over-analysis or copious citation of authority. This court
recently considered the question in Abela
v
Baadarani [2013] 1 WLR 2043.
That case was
very
different from the present one. The defendant, who was
outside the jurisdiction, had deliberately obstructed service by declining to
disclose an address at which service could be effected in accordance with the
rules. But the judgment of Lord Clarke of Stone-cum-Ebony JSC, with which the
rest of the court agreed, is authority for the following principles of more
general application:
(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” (para 33).
(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 (para 37). 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)” (para 36).
(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.
(4) Endorsing the view
of the editors of Civil Procedure (2013),
vol
i, para 6.15.5, Lord
Clarke pointed out that the introduction of a power retrospectively to
validate
the non-compliant service of a claim form was a response to the decision of the
Court of Appeal in Elmes
v
Hygrade Food Products plc [2001] EWCA Civ 121;
(2001) CP Rep 71 that no such power existed under the rules as they then stood.
The object was to open up the possibility that in appropriate cases a claimant may
be enabled to escape the consequences for limitation when a claim form expires
without having been
validly
served.
10.
This is not a complete statement of the principles on which the power
under CPR rule 6.15(2) will be exercised. The facts are too varied
to permit
such a thing, and attempts to codify this jurisdiction are liable to ossify it
in a way that is probably undesirable. But so far as they go, I see no reason
to modify the
view
that this court took on any of these points in Abela
v
Baadarani. Nor have we been invited by the parties to do so. In the
generality of cases, the main relevant factors are likely to be (i) whether the
claimant has taken reasonable steps to effect service in accordance with the
rules and (ii) whether the defendant or his solicitor was aware of the contents
of the claim form at the time when it expired, and, I would add, (iii) what if
any prejudice the defendant would suffer by the retrospective
validation
of a
non-compliant service of the claim form, bearing in mind what he knew about its
contents. None of these factors can be regarded as decisive in themselves. The
weight to be attached to them will
vary
with all the circumstances.
Mr Barton’s
case
11.
Mr Barton’s
case on CPR 6.15(2) was argued with considerable skill by Mr
Elgot, who also appeared for him in the Court of Appeal. It rested essentially
on three points. The first was that the premise of the power to
validate
a
service under CPR rule 6.15(2) was that service had purportedly been effected
by some non-compliant means. That was, so to speak, a given. It followed that
the dominant consideration when deciding to exercise that power was whether the
mode of service chosen had been effective to achieve the main purpose of
service, namely to bring the contents of the claim form to the defendant’s
attention. Mr Elgot’s second point was that, so far as it mattered what the
reasons were for Mr
Barton’s
failure to serve in accordance with the rules, he
was entitled to assume that Berrymans would accept service by email. This was
because (i) although he was aware that some solicitors did not accept service
of documents by email, he did not know about CPR rule 6.3 or, presumably,
Practice Direction 6A, which were relatively inaccessible to a litigant in
person such as him; and (ii) he was entitled to assume that Berrymans were
prepared to accept service of documents by email, because they had corresponded
with him by email without saying that they were not prepared to do so. Third,
he submitted that their failure to accept service of his claim form by email and
their failure to respond before the expiry of the limitation period to his
attempt to serve them, amounted to “playing technical games”, from which they
should not be allowed to derive any advantage.
12.
The District Judge directed himself that there was a two stage test. The
first stage was whether CPR rule 6.15(2) was engaged at all, which depended on
whether there was “good reason” to make the order. The second was whether, if
there was “good reason”, the court should exercise its discretion to do so.
This was in accord with the literal language of the rule. But the parties were,
I think, right to accept that it was unsatisfactory. If there is “good reason”
to make the order, it would be irrational for a court to decline to make it as
a matter of discretion. There is in reality only one stage to the inquiry,
namely whether there is “good reason” to make the order. However, this error
did not vitiate
the District Judge’s reasoning, because he concluded that there
was no “good reason” to make the order, and on that footing Mr
Barton
had to
fail whether there be one stage or two. He reached that conclusion on the
simple ground that the only reason why Mr
Barton
did not comply with the rules
for service was that he did not know what those rules were, and that was not a
good reason to make the order. The District Judge was not referred to Abela
v
Baadarani, but it is difficult to point to any respect in which his
reasoning would have been different if he had directed himself in accordance
with it.
13.
His Honour Judge Godsmark QC approached the matter on the basis that,
the District Judge not having been referred to the relevant authorities,
including Abela v
Baadarani, he should deal with it afresh. He regarded
the whole issue as turning, in the circumstances of Mr
Barton’s
case, on the
question posed at para 48 of Lord Clarke’s judgment in Abela, namely
whether there was any reason why the claim form could not be served within the
period of its
validity.
He rejected Mr
Barton’s
application on the ground that
there was a number of ways in which service could have been properly effected,
and his only reason for not adopting one of them was his ignorance of the
rules. He rejected the suggestion that Mr
Barton
had been in some way “lulled
into a false sense of the position” by the fact that Berrymans had been
corresponding with him by email, and declined to accept that Mr
Barton
was
entitled to greater indulgence because he had been unrepresented. His
conclusion was that “CPR 6.15 is not there to protect litigants in person or
those who do not know the rules. It is there to protect those who for some
reason have been unable to effect service satisfactorily within the rules.”
14.
In the Court of Appeal, the main thrust of the argument, at least as they
understood it, was that Judge Godsmark had concentrated too much on the reasons
why the claim form had not been served in accordance with the rule, and not
enough on the fact that Berrymans were aware of the claim and had received the
claim form. A claimant could, it was submitted, succeed in an application under
CPR rule 6.15(2) even if he had not taken all reasonable steps to serve the
claim form in accordance with the rules. The only reasoned judgment was that of
Floyd LJ, with whom Black LJ and Moylan J agreed. He dealt with the issue less
summarily than Judge Godsmark, but reached substantially the same conclusion.
He pointed out that the judge had accepted that the claim form had been
successfully drawn to Berrymans’ attention, but had proceeded in accordance
with Lord Clarke’s analysis in Abela v
Baadarani on the footing that that
was not enough. The essential point was that although the question whether the
claim form could have been served in accordance with the rules was not the
totality of the legal test, it was the decisive consideration on the particular
facts of Mr
Barton’s
case. Floyd LJ accepted that a claimant who had failed to
take all reasonable steps to serve in accordance with the rules might
nevertheless succeed in obtaining an order under CPR rule 6.15(2). But he
agreed with the judge that in circumstances where the claimant had done nothing
at all other than attempt service in breach of the rules, and that through
ignorance of what they were, there was no “good reason” to make the order. This
ignorance was not excused by the fact that Mr
Barton
was unrepresented. He was
no more impressed than the circuit judge had been by the argument that Berrymans
had lulled Mr
Barton
into a false position.
The present appeal
15.
Mr Barton
is appealing against a discretionary order, based on an
evaluative judgment of the relevant facts. In the ordinary course, this court
would not disturb such an order unless the court making it had erred in
principle or reached a conclusion that was plainly wrong. In my opinion both
Judge Godsmark and the Court of Appeal identified the critical features of the
facts of this case and reached a conclusion which they were entitled to reach.
Indeed, save for one minor misdirection, which I have pointed out, I think that
the same was true of the District Judge.
16.
The first point to be made is that it cannot be enough that Mr Barton’s
mode of service successfully brought the claim form to the attention of
Berrymans. As Lord Clarke pointed out in Abela
v
Baadarani, this is
likely to be a necessary condition for an order under CPR rule 6.15, but it is
not a sufficient one. Although the purpose of service is to bring the contents
of the claim form to the attention of the defendant, the manner in which this
is done is also important. Rules of court must identify some formal step which
can be treated as making him aware of it. This is because a bright line rule is
necessary in order to determine the exact point from which time runs for the
taking of further steps or the entry of judgment in default of them. Service of
the claim form within its period of
validity
may have significant implications
for the operation of any relevant limitation period, as they do in this case.
Time stops running for limitation purposes when the claim form is issued. The
period of
validity
of the claim form is therefore equivalent to an extension of
the limitation period before the proceedings can effectively begin. It is
important that there should be a finite limit on that extension. An order under
CPR rule 6.15 necessarily has the effect of further extending it. For these
reasons it has never been enough that the defendant should be aware of the
contents of an originating document such as a claim form. Otherwise any
unauthorised mode of service would be acceptable, notwithstanding that it
fulfilled none of the other purposes of serving originating process.
17.
There are, moreover, particular problems associated with electronic
service, especially where it is sought to be effected on a solicitor. A
solicitor must have his client’s authority to accept service of originating
process. If he has that authority, it will in practice normally cover any mode
of service. But a solicitor’s office must be properly set up to receive formal
electronic communications such as claim forms. As the Law Society’s Practice
Guidance on electronic mail (May 2005) points out, “email presents new
problems, because it can arrive unperceived by other members of staff.” The
volume
of emails and other electronic communications received by even a small
firm may be
very
great. They will be of unequal importance. There must be
arrangements in place to ensure that the arrival of electronic communications
is monitored, that communications constituting formal steps in current
litigation are identified, and their contents distributed to appropriate people
within the firm, including those standing in for the person primarily responsible
for the matter when he is unable to attend to such communications as they
arrive.
18.
Turning to the reasons for Mr Barton’s
failure to serve in accordance
with the rules, I start with Mr
Barton’s
status as a litigant in person. 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, [2014] EWCA Civ 1652. 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. It is fair to say that in applications for relief
from sanctions, this is mainly because of what I have called the disciplinary
factor, which is less significant in the case of applications to
validate
defective service of a claim form. There are, however, good reasons for
applying the same policy to applications under CPR rule 6.15(2) simply as a
matter of basic fairness. 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.
19.
Mr Barton
contends that CPR rule 6.3 and Practice Direction 6A are
inaccessible and obscure. I do not accept this. They are accessible on the
internet. Part 6 is clearly headed “Service of Documents”. Electronic service
under rule 6.3 is expressly required to be in accordance with Practice
Direction 6A, which is prominently flagged in the table of contents.
Furthermore, when the claim form was issued, the Courts Service sent Mr
Barton
in the usual way on 26 February 2013 a blank certificate of service for him to
complete when he had served it. This included the statement: “Rules relating to
the service of documents are contained in Part 6 of the Civil Procedure Rules
(www.justice.gov.uk) and you should refer to the rules for information.” Since
he did not in fact refer to them, their alleged obscurity is perhaps
immaterial. But they are not in my
view
obscure. They do not justify Mr
Barton’s
assumption that Berrymans would accept service in that way unless they
said otherwise. On the contrary, the paragraph 4.1(2)(b) of the Practice
Direction clearly states that even where a solicitor’s writing paper includes
an email address, service by that means was permissible “only where it is
stated that the email address may be used for service.” It is fair to say that
others have made the same mistake as Mr
Barton,
including the authors of A
Handbook for Litigants in Person, ed HHJ Edward Bailey (2013), at p 157.
But this is not for want of clarity in the rules. As it happens, Mr
Barton
never saw the Handbook, which was published after his abortive attempt
at service. The salient facts in his case are that he was by June 2013 an
experienced litigant. He knew, as he accepts, about limitation. He knew that
not all solicitors accepted service by email. Yet, apart from looking at the
legal notices on Berrymans’ website (which said nothing about email service),
he took no steps to check whether Berrymans did so, or to ascertain what the
rules regarding service by email were, but simply relied on his own assumption.
20.
Nor would I accept that that assumption was in itself reasonable.
Berrymans had initially contacted Mr Barton
by email and they engaged in brief
and desultory email correspondence with him between the initial contact and the
attempted service of the claim form. In rejecting Mr
Barton’s
case that he had
complied with the Practice Direction, the District Judge held his email
correspondence with Berrymans did not amount to an “indication” that he could
serve the claim form upon them in that way. I think that that was right. But in
any event the point is not before us because of the limited basis on which Mr
Barton
received leave to appeal from the District Judge. If the correspondence
did not amount to an indication for the purpose of the CPR 6APD.4 that Berrymans
would accept service of the claim form by email, I find it difficult to see how
Mr
Barton
could be entitled to assume they would.
21.
Like the Court of Appeal, I would readily accept Mr Elgot’s submission
that the claimant need not necessarily demonstrate that there was no way in
which he could have effected service according to the rules within the period
of validity
of the claim form. The Court of Appeal rejected this suggestion in Power
v
Meloy Whittle Robinson [2014] EWCA Civ 898. That, however, was a case in
which the problem was that the court itself had failed to effect proper service
because of an administrative error. The submission that the Court of Appeal
rejected was that this did not justify relief under CPR rule 6.15 because it
had been open to the claimant’s solicitor to effect personal service. However,
I agree with the general point that it is not necessarily a condition of
success in an application for retrospective
validation
that the claimant should
have left no stone unturned. It is enough that he has taken such steps as are
reasonable in the circumstances to serve the claim form within its period of
validity.
But in the present case there was no problem about service. The
problem was that Mr
Barton
made no attempt to serve in accordance with the
rules. All that he did was employ a mode of service which he should have
appreciated was not in accordance with the rules. I note in passing that if Mr
Barton
had made no attempt whatever to serve the claim form, but simply allowed
it to expire, an application to extend its life under CPR rule 7.6(3) would
have failed because it could not have been said that he had “taken all
reasonable steps to comply with rule 7.5 but has been unable to do so.” It is
not easy to see why the result should be any different when he made no attempt
to serve it by any method permitted by the rules.
22. Mr Elgot repeated before us the submission that he made in the Court of Appeal that Berrymans had been “playing technical games”, with his client. However, the sole basis for that submission was that they had taken the point that service was invalid. Since they did nothing before the purported service by email to suggest that they would not take the point, this does nothing to advance his case. After the purported service by email, there is nothing that they could reasonably have been expected to do which could have rectified the position. The claim form expired the next day. Even on the assumption that they realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind. Nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it.
23.
Naturally, none of this would have mattered if Mr Barton
had allowed
himself time to rectify any mishap. But having issued the claim form at the
very
end of the limitation period and opted not to have it served by the Court,
he then made no attempt to serve it himself until the
very
end of its period of
validity.
A person who courts disaster in this way can have only a
very
limited
claim on the court’s indulgence in an application under CPR rule 6.15(2). By
comparison, the prejudice to
Wright
Hassall
is palpable. They will
retrospectively be deprived of an accrued limitation defence if service is
validated.
If Mr
Barton
had been more diligent, or Berrymans had been in any
way responsible for his difficulty, this might not have counted for much. As it
is, there is no reason why Mr
Barton
should be absolved from his errors at
Wright
Hassall’s
expense.
Article 6 of the European Convention on Human Rights
24.
It is submitted that the result arrived at by the courts below is
incompatible with Mr Barton’s
right to a fair trial under article 6 of the
Convention. This point does not appear to have been taken below. I deal with it
for completeness, and briefly since in my
view
it is without merit. The rules
governing the period of
validity
of a claim form and the mode of service are sufficiently
accessible and clear, and serve a legitimate purpose in the procedure of the
Court. Moreover, it is not the rules that have deprived Mr
Barton
of the
ability to press his claim. It is the Limitation Act which has produced that
result. A reasonable limitation period does not contravene article 6 even where
(as in England and Wales) it operates procedurally. Perhaps because of these
difficulties, the argument seems to have mutated into an allegation of bias,
said to be implicit in the manner in which Mr
Barton’s
arguments were addressed
in the judgment of the Court of Appeal. The point was only faintly pressed, and
in my opinion does not even have sufficient coherence to warrant reasoned
refutation.
Disposal
25. I agree with the observations of Lord Briggs in his final paragraph that it is desirable that the Rules Committee should look at the issues dealt with on this appeal, if only because litigants in person are more likely to read the rules than the judgments of this court. In the meantime, however, I would dismiss this appeal.
LORD BRIGGS: (dissenting) (with whom Lady Hale agrees)
26. I would have allowed this appeal.
The Applicable Principles
27.
The court’s task on the hearing of an application to validate
service
under CPR rule 6.15 is to decide whether there is “good reason” to do so. The
question only arises where (i) there has been an attempt at service which (ii)
was not in accordance with the rules as to service. The question is not
expressed to be, and is not, “was there good reason for failing to comply with
the rules as to service” although, as part of its review of all relevant
circumstances, the court will generally wish to be appraised of the full
reasons, good and bad, why the rules were not complied with.
28. While I would not wish in any way to depart from Lord Clarke’s dictum in the Abela case that the most important purpose of service is to ensure that the contents of the claim form (or other originating document) are brought to the attention of the person to be served, there is a second important general purpose. That is to notify the recipient that the claim has not merely been formulated but actually commenced as against the relevant defendant, and upon a particular day. In other words it is important that the communication of the contents of the document is by way of service, rather than, for example, just for information. This is because service is that which engages the court’s jurisdiction over the recipient, and because important time consequences flow from the date of service, such as the stopping of the running of limitation periods and the starting of the running of time for the recipient’s response, failing which the claimant may in appropriate cases obtain default judgment.
29. There is (or at least was when promulgated), as Lord Sumption observes, a third particular purpose behind the specific provisions in Part 6APD regulating service by email, namely to ensure that recipients or their solicitors have the opportunity to put in place administrative arrangements for monitoring and dealing with what was then a new mode of service before being exposed to its consequences. Para 4.1(2)(b) permits service by email on the recipient’s solicitors once they advertise their readiness on their headed paper. Para 4.2 requires a prior inquiry of the intended recipient whether there are any relevant technical constraints. Now that issue and filing is required to be carried out online, by legally represented parties in the Business and Property Courts in London, as the first stage in eventually extending this as the mandatory method for all civil proceedings, it may be questioned for how long these constraints upon service upon solicitors by email will continue to serve a useful purpose, but any relaxation of them is of course a matter for the Civil Procedure Rule Committee.
30.
In a case where not merely the first, but all those three purposes of
the rules about service by email have been achieved, that is in my judgment
capable of being, at least prima facie, a good reason for validating
service under rule 6.15. By prima facie I mean a sufficiently good
reason provided that there are not, on a full review of the circumstances,
adverse factors pointing against
validation
sufficient to outweigh the full
achievement of those purposes. A non-exhaustive list of such adverse factors
might include a deliberate failure to comply by someone cognisant of the
relevant rules, failure due to negligence (in particular by a trained
professional who is expected to know the rules), or failure due to sheer
neglect of the requirement for due service until the
very
last moment.
31.
That the presence of one or more of these adverse factors may frequently
outweigh the full achievement of the purposes behind the rules as to service so
as to lead the court to refuse validation
is necessitated by the following
matters. First, compliance with the rules is now part of the Overriding
Objective, although I agree with Lord Sumption that the maintenance of good
discipline may be of less importance in this context than in the context of
relief from sanctions. Secondly, service of a claim form (or other originating
process) is an important stage in civil procedure, with potentially serious
consequences, as summarised above. Thirdly, if the identification of good
reason were limited to the question whether all the underlying purposes of
service had been achieved, claimants could choose to ignore the rules so long
as they achieved those purposes by another route of their own devising. That
would be a step on the road to procedural anarchy.
32.
I consider that both the judge and the Court of Appeal treated it as an
essential aspect of an application for validation
that there needed to be
identified some additional “good reason” for
validation
beyond the complete
achievement of the three underlying purposes of the rules as to service by
email. In substance this led, and will always lead, to a search for a good
reason for not having served in time in accordance with the rules. Sometimes
that search will bear fruit, for example where the intended recipient is shown
to be playing games, as in the Abela case. Sometimes there will be real
and protracted difficulty in identifying an intended recipient’s last known
residence or place of business. Sometimes service through diplomatic channels
proves impossible to achieve in time. But it would be wrong in my judgment to
confine the power to
validate
to such cases, where all the underlying purposes
of service have been achieved. There are bound to be cases where the purposes
have been fully achieved but there are no other good reasons for
validation,
where the failure to comply with the rules, though not excusable by a good
reason for failure, is nonetheless only a minor or technical breach, or one
readily understandable either because the relevant rule is obscure, or less
accessible to a litigant in person than to an experienced and skilled lawyer.
In such cases there should not be a
vain
search for an additional good reason
beyond full achievement of the purposes of the rules as to service, but rather
a weighing of all the circumstances leading to defective service, to see
whether the inevitable element of culpability of the claimant is or is not
sufficiently large to displace the prima facie good reason constituted
by the full achievement of those purposes.
33. I acknowledge that, at para 36 in the Abela case, Lord Clarke said:
“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).”
I agree. First, that is not the end of the matter, for the reasons given above. The circumstances in which the failure to serve in accordance with the rules will need to be explained and considered. Secondly, mere knowledge of the existence and content of the claim form does not achieve the second general purpose, namely to bring home to the recipient that he is being served with, rather than just informed about, the claim form, with the important procedural consequences that flow. Thirdly, in the context of service by email, the absence of, or limitations upon, the recipient’s email handling facilities may have proved a real hindrance to a prompt response.
34.
I do not however consider that Lord Clarke was intending to lay down a
requirement that there be identified in every case a separate good reason for
validation
beyond the complete fulfilment of the purposes of the relevant rules
as to service. It was not necessary for him to do so in that case, because
there was an independently good reason, in the form of the game playing by the
intended recipient. But I do not read that as an invariable condition built
into what Lord Clarke was at pains to point out was a single test, based upon a
weighing of all relevant circumstances. He noted, as the editors of the White
Book also acknowledged, that the new power retrospectively to
validate
otherwise deficient service was introduced to remedy a lack of jurisdiction to
deal with mistakes as to service of the type addressed in Elmes
v
Hygrade
Food Products plc [2001] EWCA Civ 121; (2001) CP Rep 71, where the
claimants’ solicitors served the defendant’s insurers (who were by then
handling the case) rather than the defendant, incidentally by fax. It
appears to have been a case where no good reason other than the achievement of
the purposes of service on the case handler was relied upon, and where the
claimant’s solicitors should have known better than to serve upon the insurers.
35.
Similarly I do not read Lord Clarke’s observation, at para 48 of the Abela
case, that “the relevant focus is on the reason why the claim form cannot
or could not be served within the period of its validity”
as erecting the
finding of a good reason for having failed to serve in accordance with the
rules as an independent obstacle to
validation,
still less as confining
validation
so as to exclude cases where the claim form could have been
validly
served in time. Read in context he was merely explaining why, in the necessary
analysis of the reasons for that failure, the focus is on the period after,
rather than before, the issue of the claim form.
The Judge’s Analysis
36. Having embarked, by consent, upon a fresh decision making process, for reasons about the District Judge’s approach which do not matter, HHJ Godsmark decided that the central question for him to decide was whether there was a good reason why service had not been effected in accordance with the rules, and that ignorance of the relevant rule about service by email was not a good reason: see paras 10 and 15 to 16 of his concise and lucid ex tempore judgment.
37. In the Court of Appeal Floyd LJ acknowledged (at para 45) that the judge could be said to have imposed upon himself an illegitimate threshold test, namely whether there was a good reason why service was not achieved in accordance with the rules, but in the end exonerated the judge from any error of principle, having regard to his judgment read as a whole. The Court of Appeal did not therefore conduct its own independent appraisal, being content with a conclusion that the outcome was one which the judge was entitled to reach; (see eg para 48). It is however fair comment that, had it conducted its own appraisal, the Court of Appeal would probably have reached the same conclusion as did the judge.
38.
In my view
the judge did err in principle, for the reasons already
given, so that the question whether service should be
validated
should be
addressed afresh by this court, applying the principles which I have sought to
identify. The starting point is that Mr
Barton’s
attempt to serve both the
claim form and the particulars of claim by email did fully achieve the three
purposes underlying the rules about service by email. As to the first, it is and
always has been common ground that the defendant firm was, through its agent
solicitors, fully appraised by the email of the contents of the claim form. As
to the second, the claim form was sent expressly “by means of service upon
you”. The recipient solicitors could have been in no doubt that Mr
Barton
was
seeking to achieve service, with its important consequences, rather than just
sending the claim form by way of information. As to the third, it has not been
suggested that, by comparison with postal service, the recipient firm was in
any way hampered by not having appropriate monitoring procedures in place, or
that its email systems were insufficient to permit prompt receipt of the whole
of the documentation actually sent, although the particulars of claim were
voluminous.
There was therefore a prima facie good reason to
validate
service, unless the circumstances of Mr
Barton’s
failure to comply with the
rules were such as to swing the balance against
validation.
39.
There are aspects of those circumstances which may be said to point both
ways. Against validation
may be said to be the following:
i)
Mr Barton
does not appear to have taken the trouble to work through the
relevant rules sufficiently to alight upon the key provisions about service by
email in 6APD para 4. His fault was not therefore one of misinterpretation.
ii) He elected to effect service himself, rather than leave it to the court. But he gave a reason for this, namely a desire first to complete his lengthy particulars of claim, rather than serve early and then have to seek an extension of time for the pleading. That may not have been a good reason for delaying service of the claim form, but it is at least understandable.
iii)
He left it until a very
late stage to serve, after the expiry of the
limitation period and in the last two days of the
validity
of the claim form,
even though he says he still had time to achieve personal service by driving to
the solicitors’ address if the email was not received.
iv)
He probably knew broadly of the very
serious consequences of failure to
serve
validly
within time.
v)
style='font:7.0pt "Times New Roman"'>
The rules about service by email are not expressed in lawyerish
language, nor are they difficult to understand.
vi)
style='font:7.0pt "Times New Roman"'>
Mr
Barton
was by this time, although unrepresented, a reasonably
experienced litigant, quite capable of criticising his former solicitors for
wasting his money by serving documents personally rather than by post.
40.
In respectful disagreement with Lord Sumption, I do not regard the fact
that validation
would deprive the defendant of an accrued limitation defence as
a factor militating against
validation
(or for that matter in favour of it).
The defendant’s solicitors were aware of Mr
Barton’s
attempt to serve them
before the expiry of the claim form. The acquisition of a limitation defence
would have been, in the words of Simon Brown LJ in the Elmes case (at
para 13), a windfall.
41.
In mitigation of those aspects of Mr Barton’s
conduct are the following
factors (although none of them add up to an independent good reason for
validation):
i)
Mr Barton
made an innocent mistake, rather than committed a deliberate
breach of the rules.
ii) His reasoning, that solicitors with authority to accept service who had communicated with him by email were impliedly content to be served by email, was understandable, even though wrong.
iii)
The “rules” about service by email are tucked away in a Practice
Direction rather than in a rule. It may not be obvious to a lay litigant that
non-compliance with a PD attracts the same dire consequences as breach of a
rule. Although Mr Barton
did not read the PD, this has some mitigating effect
upon the seriousness of the breach.
iv)
He was in extremely good company in thinking that solicitors with
authority to accept service who have an email address on their headed paper are
willing to accept service by email. This is what is (wrongly) stated in terms
in the Handbook for litigants in person to which Lord Sumption refers.
Again this did not actually mislead Mr Barton,
since it had yet to be
published, but it does seem to me to mitigate his offence that the distinguished
judicial editors of that guide should have made the same mistake, even after (I
do not doubt) reading the relevant rules.
v)
style='font:7.0pt "Times New Roman"'>
As an unrepresented litigant, Mr
Barton
has no recourse to solicitors’
insurers of the type which would be available to a represented litigant whose
solicitor made the same mistake as he did.
42.
Although a number of the mitigating factors listed above are in a sense
characteristics of Mr Barton
being a litigant in person, that comes nowhere
near saying that being a litigant in person constitutes a free-standing good
reason why his botched attempt at service should be
validated.
In that respect
I adhere to what I said in Nata Lee Ltd
v
Abid [2015] 2 P & CR 3, [2014] EWCA Civ 1652, at
para 53, to which Lord Sumption refers. 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. If, as many believe, because they have been designed by lawyers
for use by lawyers, the CPR do present an impediment to access to justice for
unrepresented parties, the answer is to make
very
different new rules (as is
now being planned) rather than to treat litigants in person as immune from
their consequences. The good reason in the present case is not that he is a
litigant in person, but rather the fact that Mr
Barton’s
attempted service by
email achieved all the underlying purposes of the relevant rules. His being a
litigant in person, with the particular consequences described above merely
mitigates, at the margin, the gravity of non-compliant conduct which, had it
been done by a legal representative, would have been more serious as an
impediment to
validation.
43.
Taking all the relevant considerations into account, I consider that Mr
Barton’s
attempt at service by email should be
validated. He may fairly be
criticised for having failed to read the relevant part of the rules, and making
an incorrect assumption instead, but this does not on balance detract from the
good reason constituted by his having, albeit in a modestly non-compliant way,
achieved all that which the rules as to service by email are designed to
achieve.
44. It troubles me that the meaning and effect of CPR 6.15 has now been considered by this court, which does not lightly embark upon procedural questions, twice in recent years and that, on this occasion, its meaning has divided the court. While recognising the pressures upon its time during a period of major procedural reform, I hope that the Rule Committee might be able to find time to satisfy itself that this rule, and the provisions in the PD about service by email, still satisfy current requirements, in the context of giving effect to the Overriding Objective, and do so with sufficient clarity.