In Brief: February 2018

The Supreme Court considers the treatment of litigants in person in civil proceedings

Barton v Wright Hassall LLP [2018] UKSC 12

Brief Background

This case related to a professional negligence claim issued by the claimant against his former solicitors. The claimant, a litigant in person, attempted to serve the claim form on the defendant’s solicitors, by email, the day prior to the expiry of the statutory limitation period. The defendant’s solicitors had not agreed to accept service by email.

The claimant argued that the claim form was validly served, relying on previous email dealings with the defendant’s solicitors. Alternatively, the claimant sought to have service of the claim form validated, pursuant to r.6.15 of the Civil Procedure Rules (CPR).

The court of first instance rejected the claimant’s arguments, as did the circuit judge on appeal. The claimant then referred the matter to the Court of Appeal, which also dismissed the claimant’s arguments. The Claimant then appealed his case to the Supreme Court.

The Supreme Court considered whether the Court of Appeal had erred in upholding the finding of the court of first instance, that there was no “good reason” to validate service of the Claim Form. The Supreme Court also considered whether there had been a breach of the Claimant’s rights under Articles 6 and 13 of the European Convention on Human Rights (ECHR). The Supreme Court handed down judgment on 21 February 2018.

The Decision

The Supreme Court upheld the decision of the Court of Appeal by a majority of three to two.
In arriving at its decision the court noted that the claimant was familiar with the conduct of litigation, and held that the relevant rules relating to the service of Claim Forms (CPR r.6.3 and Practice Direction 6A) were clear and accessible. The court also dismissed the Claimant’s arguments that he had been reasonable in his assumption that the defendant’s solicitors would accept service by email (their not having stated otherwise). Accordingly the court dismissed the claimant’s argument that there were good reasons for validating service of the claim form.

The court also dismissed the claimant’s argument that the decision of the lower courts had contravened his ECHR rights. The court noted that it was the effect of the Limitation Act 1980 (and not the lower courts’ refusal to validate service of the claim form) that had prevented the claimant from advancing his claim.

Dissenting, Lady Hale and Lord Briggs held that they would have allowed the appeal, finding (1) that the defendant was “fully appraised” of the claim form, which was (2) expressly sent “by means of service”, and (3) that the defendant was in no way “hampered” by the fact that the claim form had been served by email.


In this eagerly awaited judgment the Supreme Court sought to provide guidance on what “indulgences”, if any, should be afforded to litigants in person in respect of compliance with court rules and practice directions.

Summing up, Lord Sumption observed:-

“The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent… 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”

It is noteworthy that, dissenting, Lord Briggs also observed that:-

“…there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them”.

Lord Briggs noted that the Civil Procedure Rules are “designed by lawyers for use by lawyers”, which he accepted could create an “impediment to access to justice”. Rather than affording litigants in person greater latitude than represented parties, Lord Briggs preferred the making of “very different rules”.

This case, decided on the slimmest of majorities, provides insight into the challenges faced by the courts whose task it is to strike a fair balance in an imperfect system. Certainly the creation of a two tier system is not the answer. With public cutbacks continuing to deprive many of access to legal representation however, questions remain over the extent to which that has already happened.

Paul Fuller
Solicitor Advocate

Paul Fuller is a Solicitor Advocate at Hadfield Bull & Bull.

Please contact 0208 301 0808 or email to discuss any commercial or civil matters with Paul.


"Hadfield Bull and Bull Solicitors is a trading name of Hadfield & Co, Bull and Bull and Neves Scott (“the Firms”). The Firms are each Authorised and Regulated by the Solicitors Regulation Authority (SRA Numbers. 79862; 497412, 68466 and 284970; and 561341 respectively). A list of the partners of the Firms is available on request. Any unauthorised use, disclosure, distribution or copying of the information contained on this site is not permitted. Please note that the Firms will not accept service of documents by email.