Little latitude to be shown to litigants in person

The Supreme Court has held that a Litigant in Person (LIP) is generally not entitled to greater indulgence than an opponent represented by solicitors when it comes to observance of rules and practice directions.

The appellant in the case of Barton v Wright Hassall LLP [2018] UKSC 12, Mr Barton, sought to bring negligence proceedings against Wright Hassell and had emailed his claim form to the solicitors acting for them, without checking whether they accepted service by email. The claim form and particulars of claim were received by the relevant solicitor and her colleague, but they did not reply substantively until the time period for service of the claim form had expired. At that point they wrote to the defendant referring to CPR 6 and the supporting practice direction, pointing out that email was not an acceptable method of service and that the claim was now statute barred by virtue of CPR 7.5.

A district judge at first instance and the Court of Appeal held that the rules applied irrespective of Mr Barton’s LIP status and that he was not entitled to any special treatment, and on 21 February 2018 the Supreme Court upheld that decision, with Lord Sumption giving the leading judgment. The Supreme Court held that the fact that a litigant was acting in person was not in itself a reason to disapply procedural rules or orders or directions, or an excuse for non-compliance with them. It was found that a lack of representation will often justify making allowances in other aspects of litigation, such as case management decisions and in conducting hearings, but will not justify applying a lower standard of compliance with rules or orders of the court. The Supreme Court determined that the balance between both sides would be disturbed if an unrepresented litigant was entitled to “greater indulgence” than a represented opponent in complying with the rules and, “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.” The exception was that a special indulgence to a LIP might be justified where a rule was hard to find, difficult to understand, or it was ambiguous.

However, the appeal was only narrowly rejected by a majority rule of three to two and the dissenting judgments from Lord Briggs and Lady Hale could still pave the way for further challenge. Indeed, it is understood that Mr Barton’s representative counsel are actively considering an application to the European Court of Human Rights  the basis that Mr Barton’s lost claim was effectively caused by ‘excessive formalism’, in breach of rights protected by Article 6.

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Afqar Dean

Costs Lawyer & Director of Legal Costs

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