Litigants in Person: Non-compliance, but can a claim proceed?

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We have written previously [1] on the increasing numbers of litigants in person (LiPs) seen in court today (and the latest round of court fee increases [2] may serve to continue this trend). In doing so, we have been pleased to report that a clear line of case law has developed, at the same time, which confirms that LiPs do not have carte blanch to disregard the court rules, nor do LiPs have any special status in relation to procedural matters or relief from sanctions. Whilst rules and guidance exist to ensure the smooth running of cases involving LiPs and that can, on occasion, mean that some forbearance or additional responsibilities are required on the part of represented parties, in the main, the fact that a party is a LiP is not a reason for disapplication of the rules.

Another line of case law to have developed in recent years has been that following the case of Abela v Baadarani [3], which has seen some relaxation of the requirements for a court to order that steps already taken to bring a claim form to a defendant’s attention may amount to good service.

The recent case of Mark Barton v Wright Hassall LLP [4] provides welcome Court of Appeal clarification on both of these issues.

LiP’s non-compliance

Under the Civil Procedure Rules (CPR) service by e-mail is only valid where the recipient has previously confirmed in writing that it is willing to accept service in this way [5]. In this case the claimant LiP, Mr Barton, was required to serve his claim form by midnight on 25 June 2013. In March of that year the defendant’s solicitors sent an e-mail to Mr Barton asking him to send all correspondence to them. In that e-mail the solicitors indicated their awareness that Mr Barton may seek an extension of time for service of the claim form, and confirmed that they would not consent. In April the solicitors e-mailed Mr Barton again, saying that they awaited service. On 24 June, just one day before the deadline, Mr Barton sent the relevant documents to the solicitors by e-mail. On 4 July the solicitors wrote to Mr Barton and informed him that e-mail was not a permitted method of service, he was now out of time and the claim was time-barred.

At no time had the solicitors confirmed in writing that they would accept service by e-mail. It is important to note that engaging in correspondence by e-mail, as the solicitors had done here, is not sufficient and will not allow a claimant to ‘deem’ that acceptance of service by e-mail is accepted. Similarly, whilst some law firm websites may specifically state that service by e-mail is not accepted, the absence of a statement to that effect (which was the case here) does not mean that service by that method is accepted.

Court of Appeal clarification

Mr Barton made an application, under CPR 6.15 (2), to validate service. His application was initially refused by a district judge, who found that there were no special rules or indulgences granted to LiPs: Mr Barton could have ascertained the correct rules which are clear and readily available on the internet; there was no obligation on the solicitors to inform Mr Barton of his error; and in any event Mr Barton’s very late service realistically left the solicitors (who would have had to take instructions from their client) with very little time to respond. However, the district judge did not take account of all relevant authority. Mr Barton therefore appealed to a judge, who took into consideration why Mr Barton could not have served correctly in the relevant period; whether or not the claim had been brought to the attention of the recipient; and, overall, whether there was any good reason to validate service. He concluded that there was not. Mr Barton then appealed to the Court of Appeal, largely in reliance upon his assertion that the solicitors’ waiting until after expiry of the service period was typical of the technical game-playing which had been deprecated in the Abela case. The Court of Appeal found that to characterise the solicitors’ conduct as game-playing would be unfair, and the appeal was dismissed.

Points to note

The Court of Appeal highlighted the following key principles:

  • When considering whether to validate service under CPR 6.15 (2), the court should ask whether there is “good reason”.
  • Whether or not the recipient has received the claim will be critical, but not conclusive – something more is required.
  • Similarly, it will be relevant for the court to ask why service was not effected within time.
  • The conduct of the parties will be relevant, but:
    • it is not essential for a claimant to show that he has taken all steps that he could reasonably have taken; and
    • if a party is playing technical games, that will count against it.
  • The mere fact that a party is a LiP will not, in itself, amount to a good reason for validating service, but it may have some relevance “at the margins”.


[1] See our earlier briefings: Litigants in person: CPR changes; Litigants in person: Essential new guidelines; and When is a vexatious litigant a good thing?
[2] See our recent newsflash.
[3] [2013] UKSC 44
[4] [2016] EWCA Civ 177
[5] CPR 6.3 (d) and PD 6A para 4.1 (1)