Mr Barton, a litigant in person, emailed his claim form to the defendant’s solicitors on the day before it expired, without any prior written indication that they would accept service by email. It was common ground that this was not good service. By a majority, the Supreme Court held that there was no good reason to validate that service retrospectively, so he could continue only by a fresh action which the appeal assumed would be statute-barred.
The claim and the email
Mr Barton, acting in person, issued a claim form on 25 February 2013 against Wright Hassall LLP, solicitors who had previously acted for him. He alleged negligence in their conduct of an earlier claim and in coming off the record, and claimed the difference between a settlement and what he said was the full value of that claim, together with certain costs. He had four months to serve the claim form, expiring on 25 June 2013, and chose to serve it himself. An extension of time was refused.
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The defendant’s solicitors had corresponded with Mr Barton by email and said that they awaited service. He emailed the claim documents the day before the claim form expired. After expiry, the solicitors pointed out that they had never agreed to accept service by email.
The service rules
CPR rule 6.3 allows service by electronic means only in accordance with Practice Direction 6A. Paragraph 4.1 requires a prior written indication of willingness to accept such service and of the address to be used. An email address on a solicitor’s writing paper counts only where it is stated that the address may be used for service. It was common ground that Berrymans had given no such indication and that the email was not good service.
Before the District Judge, Mr Barton also argued that the earlier emails were a sufficient indication and, alternatively, that the claim form’s validity should be extended under CPR rule 7.6. He failed on every point and was given leave to appeal only on whether the court should order, under CPR rule 6.15(2), that the steps already taken were good service. That power is available where there is a good reason to authorise service by a method not otherwise permitted.
The majority
Lord Sumption, with whom Lord Wilson and Lord Carnwath agreed, treated the question as whether, in all the circumstances, there was good reason to validate the service. Applying the approach in Abela v Baadarani, he said that bringing the contents of the claim form to the defendant’s attention is critical, but is not enough by itself. The manner of service matters because a clear rule is needed to fix the point from which time runs. Issuing the claim form stops time for limitation, so its period of validity is equivalent to an extension of the limitation period, and an order under rule 6.15 extends that period further. Electronic service on solicitors also depends on arrangements to identify and distribute formal communications.
Three considerations included the claimant’s steps to comply, the defendant’s knowledge of the claim form, and the prejudice caused by validation. Their weight depended on the facts. The majority saw no basis to disturb the lower courts’ evaluation.
The majority accepted that judges may make allowances for unrepresented parties during hearings and case management. Here the rules governing service were accessible, and a certificate sent to Mr Barton directed him to the relevant part. He had assumed that correspondence by email meant that he could also serve by email.
That assumption was not reasonable. The District Judge had held that the correspondence was not an indication of willingness to accept email service, and that issue was not open on the appeal. A claimant need not show that every possible method of valid service was impossible, but must take reasonable steps. Mr Barton made no attempt to use a permitted method. Berrymans were not playing technical games merely by taking the point: they had not indicated that they would waive it, the claim form expired the next day, and they were under no duty to advise him how to cure the defect. Doing so might have required them to give up a limitation defence, which their client was hardly likely to authorise.
Mr Barton had issued at the very end of the limitation period, declined court service, and attempted service only at the very end of the claim form’s validity. Validation would retrospectively have deprived Wright Hassall of an accrued limitation defence. There was no reason to absolve him of his errors at their expense. An article 6 argument, not taken below, was rejected: the rules were accessible and served a legitimate purpose, and it was the Limitation Act which prevented him from pressing the claim. An associated allegation of bias was regarded as without substance.
The dissent
Lord Briggs, with whom Lady Hale agreed, would have allowed the appeal. He considered that Judge Godsmark had erred by treating a good reason for the failure to comply as the central requirement, so the application should be decided afresh. In his view, service is also meant to show that a claim has actually been commenced, with consequences for jurisdiction and time, and the email provisions allow the recipient to arrange to monitor that method. Where those purposes are fully achieved, that can be a prima facie good reason unless adverse factors outweigh it.
He considered those purposes achieved: Berrymans received the contents, the email was sent expressly by way of service, and no practical difficulty with their email systems was suggested. Mr Barton had not read the relevant provisions, had left service very late, and should have known the seriousness of failing to serve in time, but the mistake was innocent rather than deliberate. Being unrepresented was not itself a good reason for validation, though it mitigated the breach at the margin. Lord Briggs would not have treated loss of a limitation defence as a factor against validation where the solicitors knew of the attempt before expiry. On balance, he would have validated the service.
Verdict: By three votes to two, the Court dismissed Mr Barton’s appeal and refused to validate service. The appeal proceeded on the assumption that a fresh action would be out of time.
