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• Author: Ranjeet Johal

One set of Civil Procedure Rules to rule them all

The Supreme Court, in Barton v Wright Hassall [2018] UKSC 12, confirmed that, as a matter of basic fairness, the Civil Procedure Rules (‘CPR’) apply equally to both represented parties and litigants in person.

The case concerned a claim brought by Mr Barton against his former solicitors for allegedly negligently representing him in ancillary relief proceedings following his divorce. The claimant issued his claim close to the end of the limitation period and elected to serve the claim form himself. Solicitors acting for the defendant, Berrymans, agreed to accept service on behalf of the defendant.

The day before the expiry of the claim form (4 months from the date of issue), the claimant sought to serve Berrymans by email. He had previously made no other efforts to serve the defendant. Berrymans responded a few days later to tell him that they did not accept service by email and that as a result, good service had not taken place and the claim form had therefore expired unserved. Additionally, they told the claimant that his claim was now statute barred.

The claimant applied under CPR r6.15(2), for an order declaring that the steps taken by the claimant to bring the claim form to the attention of the defendant (i.e. by emailing it to the defendant’s solicitors) constituted good service. The issue for the Supreme Court to determine was whether service by email should be validated.

The test for an application under r6.15(2) 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”. A critical factor is therefore whether the claim form was brought to the defendant’s attention, although that was not reason enough (Abela v Baadarani [2013] 1 WLR 2043). The other main factors include: whether the claimant has taken reasonable steps to effect service in accordance with the rules; and whether the defendant was aware of the contents of the claim form.

Lord Sumption, giving the decision of the majority (Lady Hale and Lord Briggs dissenting), held that bringing the claim form to the attention of the defendant in time was a necessary condition but was not enough by itself. The claimant had not checked the rules and had made no attempt to serve in accordance with them – he had simply relied on his own assumption that he could serve by email. The claimant had therefore not done enough to justify an order for validation of service. The CPR did not distinguish between represented and unrepresented parties and this was important to ensure that the interests of both sides were balanced.

It is important that a claimant, whether represented or unrepresented, take all reasonable steps to serve the claim form on the defendant so that an application for validation of service is more likely to succeed if the defendant cannot be served properly.