Barton v Wright Hassall LLP: No Indulgence if you Court Disaster

The Supreme Court has recently handed down its judgment in the case of Barton v Wright Hassall LLP [2018] UKSC 12 and in doing so has put paid to the argument made by many litigants in person that (contrary to long-established legal principles) ignorance of legal procedure is a defence.

The Background

The case concerned a claim brought by Mr Barton who’d had some rather unhappy experiences with lawyers retained by him for divorce proceedings, so much so that he sued them for professional negligence.  Mr Barton then instructed Wright Hassall LLP to represent him in that case but after a dispute about Wright Hassall’s fees, Mr Barton decided to sue that firm as well.  He was presumably so fed up with his experience of lawyers by that point that he decided to do it himself.

As any civil litigation lawyer can and will tell you, the Civil Procedure Rules (which govern civil litigation) are numerous, at points complex and at others perhaps even a little baffling.  So, whilst the number of people such as Mr Barton representing themselves at court is growing, the risk of making a mistake and misunderstanding the rules is a very real one for lawyers and litigants in person alike.

The Issue

Mr Barton understood that he had to serve his claim form on the law firm representing Wright Hassall but didn’t realise that the firm had declined to accept service by email.  As he had left it until almost the last moment to serve the claim form, by the time he discovered his error the claim was “out of time”.  Mr Barton tried to argue in the county court that he had in fact complied with the rules for service (found in CPR 6), was unsuccessful but was given leave to appeal on the ground that under CPR 6.15 there was a “good reason” why the court should accept that his claim had been properly served. His case partly relied on the fact that he was a litigant in person and his appeal went all the way up to the Supreme Court where, in the event, he lost by a majority 3:2 decision.

The Supreme Court’s Decision

Giving the lead judgment, Lord Sumption made it clear that the Civil Procedure Rules do not distinguish between represented and unrepresented litigants.  Whilst expressing sympathy for the fact that many people simply cannot afford a lawyer, Lord Sumption said that:

“The rules provide a framework within which to balance the interests 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”.

Whilst some allowances might be made for litigants in person, for instance when it comes to advocacy during a trial, that did not mean that they did not have to comply with rules or orders of the court.  What made Mr Barton’s position even more difficult was that he had left it so late before serving his claim.  Lord Sumption expressed his frustration at this by stating that “A person who courts disaster in this way can have only a very limited claim on the court’s indulgence…”

The Supreme Court rejected Mr Barton’s argument that the CPR are inaccessible and obscure to non-lawyers and suggested that if he wasn’t sure whether he could serve the claim form by email he should have checked.

The case is of great importance to litigants in person and also helpful for lawyers faced with a judge wanting to exercise leniency towards an unrepresented opponent.  However, lawyers should take heed of the judgment for the following reason:  if a litigant in person is expected to achieve strict compliance with procedural rules they have little or no knowledge of, woe betide the lawyer seeking the court’s indulgence for a mistake they have made.

General Points about Litigating in Person

Litigants in Person are a reality in our court system and of course it is only right that people have the ability and freedom to put their own case before a judge.  Indeed, some people prefer to represent themselves and feel that enough information is available both online and in books to do it themselves. For many people though, it is simply that they cannot afford legal representation and have no other option.

However, litigation should not be undertaken lightly and before deciding to act in person you should think very carefully about whether you have the time and capability to start what is often a long and difficult process.   If you are unsure, many solicitors offer a fixed fee service or can provide an initial conference in order to give you some general guidance.  Alternatively, under the Direct Access Rules you can come direct to a barrister such as one of the team at Becket Chambers who can advise as well as represent you in court and so lessen the inevitable stress involved with any litigation.