Supreme Court says the rules are the rules

The volume of claims being brought by litigants in person (“LIPs”) has increased over the years with many LIPs coming to realise that they can achieve…

Introduction

The volume of claims being brought by litigants in person (“LIPs”) has increased over the years with many LIPs coming to realise that they can achieve comparable levels of compensation from compensators directly without having to forgo a percentage of their damages to lawyers. Whilst the majority of LIP claims settle at the correct level of compensation without the need to refer to the courts, there are some which for one reason or another are simply not capable of settlement. This leaves LIPs in a position of either instructing a solicitor or struggling to navigate complex legal rules themselves.

The amount of procedural leeway to give to a LIP is an issue that troubles both courts and solicitors. Whilst the Civil Procedure Rules (CPR) are readily available on the internet, they are not always readily understandable. The volume of procedural case law involving lawyers on both sides demonstrates that procedural points often trouble lawyers – what hope does a non-lawyer have when attempting to apply them?

Barton –v- Wright Hassall LLP [2018] UKSC 12

The case of Barton v Wright Hassall LLP [2018] is a useful reminder of the difficulty some LIPS can have in pursuing a claim through the courts without the benefit of legal representation.

The rules on service can be difficult for lawyers and it is on this complex issue that Mr. Barton became unstuck. Mr. Barton, acting as a LIP, brought professional negligence proceedings against Wright Hassall LLP. He attempted to serve the Claim Form and Particulars of Service by email. After the expiry of the time period for serving his proceedings, he received a response from the defendant that email was not an acceptable method of service under the CPR. The consequence of this was that the proceedings were served out of time. Under CPR 6.15, Mr. Barton sought an order that his email service was in fact good service. He was refused at first instance. The Court of Appeal upheld the first instance decision of the district judge that there was no good reason to validate service, with Lord Justice Floyd noting that ‘ [t]he judge was entitled to take the view that this was not a case where any special indulgence needed to be afforded to a litigant in person, as might, for example, be appropriate where the rule in question was difficult to find or ambiguous to a non-lawyer.’

Supreme Court decision

By a majority of 3:2 (with Lady Justice Hale and Lord Justice Briggs dissenting), Lord Sumption gave the majority judgment in which the Supreme Court upheld the decision of the Court of Appeal that service was defective. Both in the majority and minority judgments, reference was made to the fact that the Civil Procedure Rule Committee should look at the issues covered by the appeal (particularly as LIPS are more likely to read the procedural rules than judgments). As Lord Sumption notes, acting as a LIP ‘will not usually justify applying to litigants in person a lower standard of compliance with the rules’. A salutary warning was provided to LIPS, as ‘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.’

Comments

So, why does this decision matter? With the forthcoming civil procedure reforms including an increase in the small claims track limit and the introduction of a fixed tariff of damages for whiplash claims, an online court, and an extension of fixed costs, it is likely that the volume of claims brought by LIPs will increase. We have previously issued an article on this subject.

Whilst it is perhaps inevitable that LIPs will find the legal landscape and the rules which apply confusing, it is only right that they have to follow the same rules as their represented counterparts. To suggest otherwise would be to create an unfair playing field where a LIP is potentially given a procedural advantage over another litigant, just as a result of their choice to pursue a claim themselves and without the benefit of legal representation.  

What this decision demonstrates is a clear need for Government, when considering the proposed personal injury reforms, to address the issue of LIPS. It may well be that there is a need to create a LIP protocol, a more simplified set of pre-action protocols, and perhaps even a LIP-friendly CPR to allow LIPs to understand their responsibilities in bringing or defending a claim more easily. Any activities which make the rules more transparent to a LIP is to be welcomed, and certainly preferable to placing a LIP in a better procedural position than a represented litigant.

Although personal injury claims remain out of the scope of the online court, there is perhaps a need for those drafting the new rules to make sure that the rules are written in plain English, to realise Lord Justice Briggs’ vision of an online court accessible to all without the need to engage a lawyer.

Can we help?

Weightmans has experience of creating LIP claims processes for compensators, designed to reduce the operational impact of dealing directly with LIPs whilst ensuring that LIPs continue to achieve access to the same level of justice as they would have had with the benefit of legal representation.

We will bring you the latest on the reforms as news breaks, however, in the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch.

  • David Johnson (Partner, Political Affairs, 0207 822 7146);
  • Bavita Rai (Partner, Innovation & Client Affairs, 0121 200 3499);
  • Doug Keir (Partner, Scottish Affairs, 0141 375 0869);
  • Kurt Rowe (Associate, Market Affairs, 0207 822 7132);
  • Or email our Market Affairs Group at marketaffairs@weightmans.com.

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