The Supreme Court ruled on 21 February 2018 that a litigant in person cannot have special treatment in litigating the matter via the civil procedure rules.
Rules cannot be broken
By a majority to 3:2 in Mark Barton v Wright Hassall LLP the unrepresented claimant Mark Barton should have checked whether he could email claim form and without such permission the claim was invalid. The judgment rules out special treatment for Barton on the basis that he was not a solicitor and so the rules as they stand would apply equally to all. Barton had argued that because he was not a solicitor he should be given more leniency and should not be expected to research the court rules.
What is good service?
The case hinged upon the issue of service. He sought a court order under CPR 6.15 that his service of the claim form via email was good service. According to the rules, email can only be used if both parties agree or with the court’s permission.
Rights under ECHR
He also asked the Supreme Court to rule whether the Court of Appeal’s reasoning breached his rights under the ECHR. He also wished to consider whether the costs awarded against him were disproportionate for work undertaken.
Lord Sumption found that the mode of service which brought the claim to the attention of Berrymans LLP was not good service. He stated “Otherwise any other unauthorised mode of service would be acceptable notwithstanding that it fulfilled none of the other purposes of serving originating process”
Allowances for Litigants in Person
Being without legal representation could justify making allowances in case management decisions and hearings but would not justify applying a lower standard of compliance with the rules or orders of the court.
Reasonable to expect all to follow the Rules
He added ‘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…. 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.’
The rules themselves are available to all online via a simple Google search and not beyond the understanding of most individuals although they are complex.
Those representing Mr. Barton are considering making an application to the European Court of Human Rights on article 6 grounds. Namely that an “excessive formalisation” has caused the loss of Barton’s claim.
Should the rules re service be amended?
Lord Briggs and Lady Hale dissented from the judgment, and Lord Briggs stated that it troubled him that CPR 6.15 had been challenged in the court and divided opinion.
The dissenting judge stated that he hoped that the rule committee will look again at the current rules and in particular, whether provisions of service by email are clear and fair.
Family Law Act implications
The implications for litigants in person in family law act cases should be clear. They cannot have the rules slackened for them. They can seek an understanding from the court and already benefit from the other party having to prepare court bundles if they are represented but they cannot expect special treatment if they breach the rules.