“Four years after I gave up practising legal aid was abolished for most private law family matters. As a result, now more than a third of all family court cases feature unrepresented litigants on both sides. Huge numbers of litigants are having to find their way through the minefield of law and rules without any legal assistance.”
I don’t usually quote myself, but I can’t think of a more appropriate way to begin this post than by quoting the above extract from the post I wrote here last November, to which this post is a follow-up.
That post was about the case Barton v Wright Hassall LLP, in which the Supreme Court has now given judgment. The case raises important issues for all those struggling litigants in person.
To briefly recap, the case concerned a negligence claim by Mr Barton, a litigant in person, against his former solicitors. Unfortunately for him, he served his claim form on the solicitors who were acting for his former solicitors by email, apparently unaware that under the rules service by email is only allowed if the party who is to be served has previously indicated in writing that they are willing to accept service by email. The solicitors had not so indicated, and thus the claim was not properly served. Accordingly, the claim was subsequently ruled invalid.
Mr Barton challenged this, but a district judge ruled that he was not entitled to ‘special rules or indulgences’ simply because he was a litigant in person, and in March 2016 the Court of Appeal upheld that decision. Mr Barton took the case to the Supreme Court, and the Supreme Court has now also ruled against him, by a majority of 3 to 2.
Giving the leading judgment for the majority, Lord Sumption said:
“…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.”
In fact, Lord Briggs, who would have allowed the appeal, agreed with this. He said:
“…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.”
Lord Sumption explained this as follows:
“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 … 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.”
As a generalisation, this must surely be right. We obviously can’t have a system that favours one party, to the possible disadvantage of the other.
Turning to specifics, though, there is an argument that there was no disadvantage here – the purpose of service is to bring the contents of the claim form to the respondent’s attention, and the respondent’s solicitors were just “playing technical games” by refusing to accept service by email, as was argued on behalf of Mr Barton. Lord Briggs and Lady Hale agreed that Barton had “achieved all that which the rules as to service by email are designed to achieve.” There is clearly some merit in this argument. However, whether or not they were playing technical games is a separate matter to the issue of whether a litigant in person should be given special indulgence.
And the case provides another lesson for litigants in person: they cannot expect the solicitors on the other side to help them if they fail to comply with the rules. As Lord Sumption said:
“Even on the assumption that they [i.e. the solicitors] 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.”
Litigants in person are on their own.
The best that litigants in person can hope for from all of this is for the rules to be simplified, so that the possibility of falling into error is reduced. Both Lord Sumption and Lord Briggs urged the rules committee to look again at the rules relating to service.
I understand that Mr Barton may seek to take his case to the European Court of Human Rights, presumably arguing that his article 6 right to a fair trial had been breached. However, Lord Sumption clearly indicated that in his view there had been no such breach.
You can read the full judgment of the Supreme Court here.