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Litigants in Person: Do They Have the Upper Hand?

We often hear from commercial clients that when they are involved in a case where their opponent is a litigant in person that the Court almost bends over backwards to help the litigant in person, and sometimes they feel that they are at a disadvantage.

Whilst it is usually the case that the Court will take time to explain procedure to a litigant tin person, the case of Barton -v- Wright Hassall LLP [2018] UKSC 12 illustrates that the Court do not apply special rules for litigants in person.

In this day and age the majority of us use email on a daily basis. Electronic communication is prevalent in the legal profession but the Civil Procedure Rules (‘CPR’) are strict when it comes to the service of issued claims and documents.

Practice Direction 6A of the CPR sets out the criteria which must be followed by a party seeking to serve their claim or any documents by email. In particular, the practice direction sets out that prior to seeking to serve by email, the party to be served must have confirmed in writing that they are willing to accept service by electronic means and provided the email address to which the documents should be sent.

Interestingly the inclusion of a fax number on letterhead is classed as sufficient ‘consent’ to receive service by fax, but in relation to service by email the rules are different – an email address on a letterhead is not sufficient, unless it strictly states that the email address may be used for service.

Once the serving party has established that the party to be served will accept service by email they must also make enquiries as to whether the receiving party has any server limitation which would impact on the electronic service. Only at this point can the party then proceed and serve the documents and claim that the service was valid.

In practice, lawyers take careful steps when dealing with service as we understand the pitfalls. For a litigant in person it is conceivable that they would simply believe that sending a claim form or document by email would constitute good service.

Not in the case of Barton -v- Wright Hassall LLP where the Supreme Court dismissed the Claimant’s appeal. He had served the claim form by email without express authorisation as required by Practice Direction 6A on the penultimate day of the four month period allowed for service. There are no special rules for litigants in person – the rules on service are clear and Mr Barton had therefore not done all he reasonably could to serve in accordance with the rules.

As a consequence, Mr Barton had failed to serve his claim in time and his claim was dismissed. This case illustrates the lack of tolerance shown in relation to service, but also that the Court will not apply a different set of rules in cases where one or more of the parties is acting as a litigant in person, and highlights the importance of understanding the rules if for example as a business you are involved in a claim with a value of say £9000 that finds itself allocated to the small claims Court.

If you need any help and advice in relation to Commercial Disputes or Employment Law, please do not hesitate to contact me or the team on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Richard Newstead
Latest posts by Richard Newstead (see all)
Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation. Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.

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