Barton v Wright Hassall LLP

This appeal is concerned with an application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. District Judge Wall (“the district judge”), sitting in the Chesterfield County Court on 14 March 2014, decided that there was no good reason for the court to validate service of the claim form under CPR 6.15(2). HHJ Godsmark QC (“the judge”), sitting in the Nottingham County Court on 2 October 2014, dismissed the claimant’s appeal. The claimant further appeals to this court, with the permission of Longmore LJ granted after an oral hearing.

The claimant, Mr Mark Barton, is a litigant in person. The details of his intended claim are not material. It is sufficient to record that he wishes to bring professional negligence proceedings against the defendant and respondent Wright Hassall LLP in respect of their conduct in refusing to continue to act on his behalf in separate professional negligence proceedings which he had commenced against other solicitors.

The central rule under consideration is CPR 6.15, which provides:

For reasons which will become apparent it is also necessary to refer to CPR PD 6A, which regulates service of proceedings by electronic means. It provides:

In Abela v Baadarani [2013] 1 WLR 2043 the claimant sought to bring proceedings against a Lebanese national resident in the Lebanon. Attempts were made to serve the defendant via the consular authorities in the Lebanon in accordance with CPR 6.42, but these proved very difficult, partly due to the uncooperative attitude of the defendant. There was, however, no doubt that the claim form and its accompanying documents (albeit not translated, as they should have been) were delivered to the defendant's Lebanese lawyer. At first instance the judge had granted a declaration that this amounted to good service, but his decision was overturned by this court on appeal. The Supreme Court restored the judge’s decision. At paragraph 23, Lord Clarke JSC, with whom Lords Neuberger, Sumption and Carnwarth JJSC agreed, explained the correct approach to the exercise of the power conferred by CPR 6.15 (2) and the circumstances in which an appellate court could properly interfere with such an exercise by a judge:

Lord Clarke summarised the approach at paragraph 35 in the following way :

The fact that the defendant has become aware of the contents of the claim form is of course not on its own sufficient for an order to be made under CPR 6.15(2). It is a precondition of an application of the sub-rule that there have been “steps already taken to bring the claim form to the attention of the defendant”. However, as Lord Clarke explained it is a critical factor:

Later, Lord Clarke said:

At paragraph 38 of Abela, Lord Clarke also expressly approved a passage from the judgment of Lewison J (as he then was) at an earlier point in that case, concerned with the playing of technical games:

At paragraph 48 Lord Clarke explained that, when considering the claimant’s conduct, events prior to issue of the claim form were not relevant except in exceptional circumstances. He continued:

On the facts of Abela, Lord Clarke said at paragraph 51 that there was “good reason”, in part because of the un-cooperative and obstructive attitude of the defendant:

In Power v Meloy Whittle Robinson [2014] EWCA Civ 898, instead of returning the claim form to the solicitors acting for the claimant for service by them on the opposing solicitors who had agreed to accept service, the court had sent the claim form direct to the defendants. This was an error by the court. A further error by the court was to fail to send a notice to the claimant’s solicitors which included the date on which the claim form was deemed to be served. This prevented the claimant’s solicitors from entering a date into their system for the expiry of the validity of the claim form, to remind them to effect service within time. Nevertheless the documents received by the defendants came to the attention of the defendants’ solicitors promptly, within the limitation period and within the period of validity of the claim form. Once the documents were received, the defendants’ solicitors stated that they were “unclear whether the documents had been formally served” but nevertheless proceeded to act on the assumption that the proceedings were live and being actively pursued. After the limitation period had expired (but still within the validity of the claim form) the defendants’ solicitors wrote pursuing responses to Part 18 requests. It subsequently came to the attention of the claimant’s solicitors that the proceedings had not been validly served under the rules.

The court accepted submissions that it would have been possible for the claimants’ solicitors to have served the proceedings in time, if they had set up a special fail-safe system. The claimant’s solicitors could also be criticised for failing to respond to the defendants’ solicitors’ letter concerning the formality of service. However the correspondence and the discussion had had the effect of lulling the claimants’ solicitors into a false sense of security. Tomlinson LJ, with whom Briggs and Vos LJJ agreed, said this at paragraph 35:

Tomlinson LJ summed the matter up thus:

Mr Elgot, who appeared on behalf of Mr Barton, submitted that this case showed that claimants who had failed to take all reasonable steps to serve the proceedings within time could nevertheless obtain an order under the rule. That submission is correct. All the circumstances of the case must nevertheless be considered, not just the conduct of the claimant.

In Kaki v National Private Air Transport Co[2015] EWCA Civ 731, Aikens LJ (with whom Sharp and Bean LJJ agreed) added this:

In R (Hysaj) v Secretary of State for the Home Department, [2015] 1 WLR 2472; [2014] EWCA Civ 1633, Moore-Bick LJ (with whom Tomlinson and King LJ J agreed) was considering, in the context of relief from sanctions under the CPR, whether the fact that a party was unrepresented was relevant to whether there was a good reason for granting that relief:

In similar vein, in Nata Lee Ltd v Abid and another [2014] EWCA Civ 1652, a case concerned with the admission of late evidence, Briggs LJ with whom Underhill and Moore-Bick LJ agreed, said:

I would summarise the effect of these authorities in the following way:

In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so: (Abela [35]).

A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served: (Abela [36]). That is the whole purpose of service: (Abela [37], [38]).

However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”: (Abela [36]).

In deciding whether there is a “good reason”, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry: (Abela [48], Kaki [33]).

The conduct of the claimant and of the defendant is relevant: (Kaki [33]). It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method: (Power [39]).

The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins: (Hysaj [44]-[45]; Nata Lee [53]).

If one party or the other is playing technical games, this will count against him: (Abela [38]).

An appellate court will only interfere with the judge’s evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did: (Abela [23]).

On 25 February 2013, the claimant hand-delivered the claim form to Chesterfield County Court accompanied by a letter in which he acknowledged that he needed to serve both the claim form and particulars of claim. The court duly stamped and issued the claim form on that day. In accordance with the rules, the validity of the claim form would expire at midnight on 25 June 2013: see CPR 7.5(1). It seems that some correspondence with the defendant or its insurers (which we have not seen) ensued.

On March 26, 2013 Miss Bebbington, an associate solicitor in the firm Berrymans Lace Mawer (“BLM”), the defendant’s solicitors, sent an email to the claimant informing him that BLM had been instructed by the insurers to act on behalf of the defendant in relation to his claim. It asked that all future correspondence be directed to BLM. The email continued by recording that it was Miss Bebbington’s understanding that Mr Barton was seeking an extension of time for filing particulars of claim - she must have meant the claim form as well or instead - and recorded her understanding that the defendant had already informed the claimant that it was not prepared to agree an extension of time, and that, so far as she was aware, that position had not changed.

On 17 April 2013, following some further intervening correspondence, Miss Bebbington sent an email to the claimant which, after dismissing some points made by the claimant, said:

That email had the full postal address of BLM at its foot.

At 10:50 am on Monday, 24 June 2013 the claimant sent an email to Miss Bebbington. The letter stated:

The claimant’s email received an instant automatic reply from Jason Nash of BLM who had been copied in to the claimant’s email to Miss Bebbington, saying that he was out of the office until 25 June 2013, but giving a phone number for urgent queries.

The claimant sent a further email on 24 June at 17:22 attaching a document which he had failed to attach to his particulars of claim. There was no substantive reply to these emails until 4 July 2013, when BLM wrote to the claimant pointing out that, although they had received the claim form and particulars of claim, by email on 24 June 2013, that, pursuant to CPR Part 6 and the associated Practice Direction, email was not a permitted method of service unless the party being served has previously indicated in writing that it is willing to accept service by email. As they had not done so, the claimant had not served the proceedings. The letter also pointed out that pursuant to CPR Part 7.5 the claimant was now out of time to serve the claim form, and asserting that the claim was statute barred.

On 15 July 2013 the claimant issued an application which included, amongst other things, an order “to deem that service of the claim form and particulars of claim via email on 24 June 2013 was good service”. The application was accompanied by a document dated 15 July 2013, to which Mr Barton added a statement of truth. In paragraph 7 of that document the claimant states that he was aware that some solicitors did not accept service of documents by email. However, because the defendant’s website contained no reference to not allowing service by email, he concluded that they did accept service of documents in this way. In paragraph 12 of the same document he argues that if the defendant had a problem with service by email, there was an opportunity to say so in time, allowing personal service to take place on the following day, 25 June 2013.

Before the district judge the claimant was pursuing three lines of argument. Firstly, he argued that he had complied with the requirements for service set out in CPR Part 6.3. Secondly, if he had not so complied, he argued that the court should validate his attempted service pursuant to CPR Part 6.15. Thirdly if neither of the first two arguments succeeded, the claimant sought an extension of time pursuant to CPR Part 7.6. The claimant was represented by direct access counsel at the hearing. For reasons which appear from what follows, we are only concerned now with the second of these arguments.

At paragraph 23 of his judgment, the district judge pointed out that there were no special rules or indulgences granted to litigants in person. There was no obligation on BLM to inform the claimant as to methods of service prior to actual service. Moreover BLM were under no obligation to notify the claimant of their challenge to service prior to the expiry of the validity of the claim form. The very late service (on the last day of the 4 month period allowed for service) realistically left BLM with little time to respond. It had been the claimant’s choice to serve on the very last day of the period. It would have been possible for the claimant to check the rules given that they were readily available on the internet.

In relation to CPR 6.15, having referred to the discretion under CPR 6.15, the district judge said this at paragraph 29:

Applying that twofold approach, at paragraph 31 the district judge held that there was no good reason:

The district judge also held that he would have declined to exercise his discretion in the circumstances of the case, but did not give separate reasons for so holding. He rejected all the claimant’s other arguments as well.

The claimant was given permission to appeal from the decision of the district judge, but limited to the question of whether service by alternative means should have been permitted under CPR 6.15. Neither side had referred in their skeleton arguments to the decision of the Supreme Court in Abela (handed down on 26 June 2013, before the decision of the district judge) or the decision of this court in Power (handed down more recently on 2 July 2014). It was left to the judge to uncover these authorities and hand them to the parties at the beginning of the hearing.

In the light of those authorities the judge said this:

Since those were not the questions asked of himself by the district judge, the judge proceeded to consider the matter afresh. He summarised paragraphs 33 to 38 of the decision of the Supreme Court in Abela in terms which were not criticised by Mr Elgot. He then referred to paragraph 35 of the decision of this court in Power. At paragraph 14 he said:

The judge expressed his conclusion in paragraph 16 of his judgment as follows:

It is common ground on this appeal that the decision of the district judge proceeded on the erroneous footing that there was a two stage test, first deciding whether the rule was engaged and then exercising a discretion. I need say no more about the decision, save to admire its clarity, and to express regret that he was not referred to the decision of the Supreme Court in Abela. The main target of the submissions of Mr Elgot was therefore the decision of the judge.

Mr Elgot submitted that the judge, despite directing himself by reference to the relevant authorities, fell into error by focusing too closely on the reasons why the claim form was not served in time. He submitted that the judge should have started by asking himself whether there was good reason to validate service. He did not dispute that it was relevant to consider the reasons why the claim form was not served in time. However there were other factors which the judge had failed to take into account.

One such factor was that the defendant’s solicitors had not responded promptly to the claimant’s email of 24 June 2013. He submitted that it could be inferred that BLM had deliberately waited until the expiry of the limitation period before alerting the claimant to the defect in service. There had been no evidence filed from BLM in response to the application. He submitted that, particularly given the fact that the claimant was a litigant in person, BLM should have responded to the claimant’s email in time for the claimant to effect personal service before the deadline on 25 June. Their failure to do so was the sort of technical game- playing which the courts had deprecated in Abela and Power.

As to the conduct of the claimant in failing to serve the claim form within the period of its validity, Mr Elgot submitted that the claimant had engaged with the defendant in accordance with the relevant protocol, and was not to be compared with a claimant who served a claim form “out of the blue” without doing so. He submitted that the defendant and its solicitors could not have been in any doubt about the claimant’s intention to pursue the proceedings. They had everything they needed, albeit in electronic rather than physical form.

Mr Elgot maintained that the judge had been wrong to characterise the case as one in which the claimant relied solely on the fact that he was a litigant in person. On the contrary, he would be making substantially the same submission if Mr Barton had been represented by a solicitor.

Mr Bankes-Jones, who appeared for the respondent, submitted that the short answer to the appeal was that the claimant had failed to show that there was a good reason for validating service. The judge had not fallen into any error which would justify this court in interfering with his evaluation of that question. He had taken all the relevant factors into account.

Mr Bankes-Jones submitted that there was no basis for inferring that the defendant or its solicitors were playing technical games. The claimant’s email of 24 June was too close to the expiry of the validity of the claim form for any such an inference to be drawn.

The first, and perhaps only, question is whether the claimant is right to suggest that the judge fell into any error of the kind which this court could correct.

It is fair to say that in paragraph 10 of his judgment the judge appears to pose the question “why was it that the claim form could not have been served?” as a threshold question, before asking himself whether there was a good reason to make the order sought. Had he left the matter there, there would in my judgment have been much force in Mr Elgot’s submission that the judge had failed to have regard to all the various factors which were relevant, and focused too much attention on the paucity of reasons for non-service. But the judge did not leave it there. He pointed out next, correctly, that the critical consideration in deciding whether there was a good reason to validate service was whether or not the claim form and its contents had come to the attention of the proposed recipient. He went on to refer to paragraphs 33-38 of Abela, pointing out, again correctly, that this critical consideration was not itself enough. He reminded himself in particular of the fact that the purpose of service of proceedings was to bring the proceedings to the attention of the defendant, and that in considering the conduct of the claimant the relevant focus was on why the claim form could or could not be served within the period of its validity.

Thus, when the judge said that the whole focus of the appeal boiled down to whether there was any reason why Mr Barton was not able to serve the claim form, he already had in mind that the critical question of whether the claim form had come to the attention of the defendant was to be decided in the claimant’s favour. What he was looking for was whether there was anything in the other circumstances which could be advanced on the claimant’s behalf to allow the conclusion that there was a good reason to validate service. He concluded that there was nothing in the way the claimant had conducted himself that could be weighed in his favour. There was no reason why he could not have served within the generous time limit allowed for doing so. That conclusion was one which was open to the judge: indeed it is difficult to see how he could have reached any other conclusion.

It follows that Mr Elgot’s reliance on the proposition derived from Power, that the court may in principle grant relief under CPR 6.15(2) notwithstanding the fact that all reasonable steps have not been taken to effect service, in this case gets him nowhere. The claimant had simply not taken advantage at all of the generous time period allowed for service, when no obstacles stood in his way.

The judge also considered whether the claimant should be excused from complying with the rules because of his status as a litigant in person, and concluded that he should not be. There was ample material on which he could so conclude in this case: the very clear terms of the rules about electronic service, the fact that the claimant was aware that some solicitors did not accept service by email, and the fact that the claimant did nothing to check directly with BLM about whether he could serve by email. There was no evidence that Mr Barton had even looked at the rules. The 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.

The judge did not specifically consider whether there was anything in the defendant’s conduct in relation to service which could be criticised although, as a point much stressed on behalf of Mr Barton, he cannot have failed to have been aware of it. The cases do show that technical game-playing by a defendant will count against him. I am wholly unable to accept, however, that any criticism can be levelled at the conduct of the defendant or its solicitors in this case. The claimant was clearly told by BLM on 26 March that no extension would be granted for service of his proceedings, and on 17 April that service of the claim form and particulars of claim was awaited. He was in possession of the address for service. Mr Elgot did not suggest that when BLM received the email of 24 June 2013 they were under a professional duty to inform the claimant of the defect in service. Given the absence of any evidence from BLM, I am prepared to assume in the claimant’s favour that BLM did appreciate fairly quickly that the service was irregular, and that they are likely to have appreciated the existence of the impending deadline. Even on that basis, however, they would need to take their clients’ instructions before expressly alerting the claimant to the defect in service, thereby exposing their clients to an action which would otherwise be statute barred. Their conduct did nothing to encourage Mr Barton to believe that he had effected good service. On the contrary, they are to be commended for reminding the claimant of the obligation to serve the claim form. Factual comparisons with other cases are generally unhelpful, but the case is quite unlike Power, on which Mr Elgot placed so much reliance, where the defendants had positively lulled the claimant’s solicitors into a false sense of security about whether the proceedings had been served, or Abela itself where the defendant’s conduct in instructing his lawyers not to give his address was conspicuously un-cooperative. To characterise anything done by the defendant or BLM as technical game-playing would, in my judgment, be most unfair to them.

I therefore do not consider that the judge was wrong not to place weight on the conduct of the defendant and BLM. I am unable in those circumstances to identify any respect in which he has erred in principle or was wrong in reaching the conclusion that there was no good reason to validate service.

It follows that, if my Lord and my Lady agree, the appeal will be dismissed.

I agree.

I also agree.