The Risks Of Being A Litigant In Person

The Wilkes Partnership Solicitors, Birmingham, Solihull, Supreme Court

Gavin Evans, Partner in the Commercial Dispute Resolution team here at Wilkes examines how individuals choosing to act for themselves in court, while making initial savings, may be letting themselves in for problems later down the line.

Where a party to Court proceedings decides to represent themselves in those proceedings (rather than appoint a solicitor to act for them), they are known as a “litigant in person”. Although the saving in legal fees may make such an approach superficially attractive, a recent Court of Appeal decision has provided a stark warning to would-be litigants in person that they can expect little sympathy from the Court when it comes to technical matters of procedure.

The case of Barton –v- Wright Hassall

In this case, Mr Barton had brought professional negligence proceedings against a firm of solicitors, Wright Hassall LLP . Mr Barton represented himself in those proceedings as a litigant in person. At the commencement of the proceedings, Mr Barton had served the claim form on the Defendant’s solicitors, Berrymans Lace Mawer (“BLM”) by email. Or so he thought.

Unfortunately for Mr Barton, the rules governing the conduct of civil litigation in England and Wales (the Civil Procedure Rules or “CPR”) require (amongst other things) that in order for service by email to be valid, the receiving party must have indicated in writing that they are willing to accept service by email. They must also have confirmed both the email address in question, and whether they have any restrictions on the format and/or size of any attachments.

Not being familiar with the intricacies of the CPR, Mr Barton had made no efforts to obtain the prior  written consent of BLM to service in this manner. Consequently, when the time for service of the claim form expired the following day, under the technical rules of the CPR the claim form remained unserved and Mr Barton was then out of time to pursue the claim.

Mr Barton asked the Court to find that he had validly served the claim. The Court said he had not. Mr Barton took his case to the Court of Appeal. The answer was the same. Undeterred, Mr Baton appealed again to the Supreme Court (formerly the House of Lords). He claimed that the Court’s refusal to deem his emailing of the claim form as “good service” was a breach of his human rights. Mr Barton also claimed that as a litigant in person, he should be given special dispensation in navigating the CPR. Effectively, he claimed that as a litigant in person he could not be held to the same standards and level of knowledge as would be expected from specialist solicitors.

The Supreme Court rejected Mr Barton’s arguments and refused to treat litigants in person any differently to those who appoint solicitors to act for them. The same rules must apply equally to all parties, regardless of whether or not they have legal representation.

Lord Sumption, in his judgment, stated that it ‘cannot be enough’ to simply assert that Mr Barton’s attempts at service successfully brought the claim form to the attention of BLM. He went on to say that ‘otherwise any unauthorised mode of service would be acceptable’.

He went on to conclude that a lack of legal representation does not justify the application of a lower standard of compliance with the rules of the Court. The Court held that ‘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.

Gavin Evans, Partner in the Commercial Dispute Resolution Team at The Wilkes Partnership LLP, comments that:-

“This decision is a warning to litigants in person that they can expect no sympathy from the Court if they fail to appreciate, understand or correctly apply the provisions of the CPR. In some ways this may seem harsh, and the Court did recognise that for many litigants in person, the costs involved in having legal representation make that impractical. However, the decision is best seen as the Court re-affirming that the rules of Court have to be the same – and be seen to be the same – for both sides. Irrespective of the particular characteristics of a party (such as whether or not they have engaged legal representation), both sides in a case must be held to the same standards of practice and conduct.

The CPR is complex and there is no doubt that parties who do not engage legal representation are at a disadvantage in Court proceedings against those who do have such representation. We would always advise a prospective or actual party to proceedings to engage representation where possible. If that is not realistic, then at the very least we would recommend that they take some limited legal advice on relevant procedural aspects, to avoid finding themselves in a position where a potentially meritorious claim is lost because of what may appear to be a minor error in procedure.”

The Wilkes Partnership LLP can offer advice and assistance in relation to a wide range of disputes, whether prior to or during Court proceedings, or in relation to those that can be resolved through alternative forms of dispute resolution such as negotiation or mediation. For more information please contact Gavin Evans on 0121 710 5950 or by email at gevans@wilkes.co.uk