Barton v Wright Hassall LLP
| Jurisdiction | England & Wales |
| Judge | Lord Sumption,Lord Wilson,Lord Carnwath,Lord Briggs,Lady Hale |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] UKSC 12 |
| Date | 21 February 2018 |
| Court | Supreme Court |
[2018] UKSC 12
Lady Hale, President
Lord Wilson
Lord Sumption
Lord Carnwath
Lord Briggs
Appellant
Howard Elgot
Abigail Telford
(Instructed by Direct Access)
Respondent
Michael Pooles QC
Henry Bankes-Jones
(Instructed by Berrymans Lace Mawer LLP (Manchester))
Heard on 22 November 2017
(with whom Lord Wilson and Lord Carnwath agree)
The appellant, a litigant in person, purported to serve the claim form in these proceedings on the defendant's solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means. It is common ground that this was not good service. As a result, the claim form expired unserved on the following day. The question at issue on this appeal is whether the Court should exercise its power retrospectively to validate service. To date, the District Judge, the County Court judge and the Court of Appeal have declined to do so. If their order stands, the result will be that Mr Barton can proceed with his claim only by a fresh action. The present appeal has been conducted on the assumption that such an action would be statute-barred.
Mr Barton has been locked in litigation for the past 12 years with two firms of solicitors who have successively acted for him. In October 2005, he brought an action in the Coventry County Court against a firm called Bowen Johnsons, which had acted for him in 1999 in proceedings for ancillary relief following his divorce. He alleged that they had failed properly to protect his interests in the drawing of the consent order by which those proceedings were terminated. The respondent, Wright Hassall LLP, acted for him in the litigation against Bowen Johnsons until 17 May 2007, when they were taken off the record on their own application by order of the District Judge, after an acrimonious dispute about fees. Mr Barton had resisted that application, and costs were awarded against him. His appeal to the County Court judge against the costs order was dismissed, also with costs, on 14 December 2007. In the meantime, acting in person, he had settled the proceedings against Bowen Johnsons on terms which were embodied in a consent order.
There followed two actions between Mr Barton and Wright Hassall. In the first, Wright Hassall claimed their costs of acting for him before they came off the record, and obtained summary judgment. The second was the present action for professional negligence against the firm, which Mr Barton, acting in person, began by a claim form issued on 25 February 2013. In it, he alleged that Wright Hassall were in breach of their duties to him in their conduct of the action against Bowen Johnsons and in coming off the record at the time that they did. He claimed damages consisting in the difference between the value of the settlement and what he alleged to be the full value of his claim, together with the costs of unsuccessfully resisting Wright Hassall's application to come off the record and appealing against the costs order.
In the ordinary course, the claim form would have been served on the defendant by the Court: CPR rule 6.4(1). But Mr Barton elected to serve it himself pursuant to the exception at (b). He had four months in which to do so, expiring on 25 June 2013: CPR rule 7.5. His first step, after correspondence in accordance with the Pre-Action Protocol, was to ask for an extension of time to serve the claim form and particulars of claim, which was refused. On 26 March 2013, Wright Hassall instructed solicitors, Berrymans Lace Mawer. They sent an email on the same day to Mr Barton asking him to address all future correspondence to them. On 17 April 2013, Berrymans emailed Mr Barton to tell him that they had now been instructed in addition by Wright Hassall's liability insurers. They referred to a request which Mr Barton had apparently made for clarification of Wright Hassall's position on the costs of the earlier proceedings, which they said had already been made clear by Wright Hassall themselves. The email concluded “I will await service of the Claim Form and Particulars of Claim.” So far as the material before us shows, that was the full extent of the communications between Mr Barton and Berrymans until 24 June 2013, the last day before the expiry of the claim form. At 10.50 am on that day Mr Barton emailed them as follows:
“Please find attached by means of service upon you.
1. Claim Form and Response Pack
2. Particulars of Claim
3. Duplicated first and last pages of the Particulars of Claim showing the court seal and the signature on the statement of truth.
The Particulars of Claim were filed into Chesterfield County Court this morning.
I would appreciate if you could acknowledge receipt of this email by return.”
Mr Barton received an automatic reply, with a number to contact if the case was urgent, which he did not use. There was no substantive reply until 4 July. On that day, Berrymans wrote to Mr Barton saying that they had not confirmed that they would accept service by email. In the absence of that confirmation, email was not a permitted mode of service. In those circumstances, they said that they did not propose to acknowledge service or to take any other step. They added that the claim form had therefore expired unserved and that the claim was statute-barred. On the same date they wrote in similar terms to the Court. The stage was set for the present issue.
Part 6 of the Civil Procedure Rules deals with the service of documents. Service of a claim form is governed by section II. CPR rule 6.3 provides for the permitted modes of service of a claim form. These include, at (1)(d), “fax or other means of electronic communication in accordance with Practice Direction 6A”. CPR 6APD contains directions supplementary to CPR 6. CPR 6APD.4 provides as follows:
“ 4.1
Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means —
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving —
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, email address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) —
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an email address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the email address may be used for service; or
(c) a fax number, email address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4.2
Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).”
A claimant who is unable to serve the claim form in accordance with the rules within the four month period allowed by CPR rule 7.5 has two courses open to him. He may apply for an extension of the four month period, under CPR rule 7.6. If he makes the application after the expiry of that period (or any extension of it), then rule 7.6(3) provides that
“… the court may make such an order only if —
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.”
His other course is to apply under CPR rule 6.15 for an order that some step that he has taken or proposes to take is to stand as good service notwithstanding that it would not otherwise comply with the rules. CPR rule 6.15 provides:
6.15.—Service of the claim form by an alternative method or at an alternative place
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
Before the District Judge, Mr Barton's primary case was that his service complied with the rules, because Berrymans' correspondence with him before 24 June 2013 amounted to an “indication” that they would accept service by email. Alternatively, he asked for service to be validated under CPR rule 6.15(2). In the further alternative, he asked for the validity of the claim form to be extended under CPR rule 7.6. He failed in all three contentions, and was given leave to appeal on the second one only. Accordingly, all subsequent hearings have been conducted on the footing that service by email was not valid, and that the sole question was whether it should be validated.
The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general...
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