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Supreme Court's decision on non-compliance by litigant in person shows the way towards new court processes capable of applying after whiplash/SCT reform

All eyes were on the Supreme Court this morning to see how its decision in the case of a self-represented litigant who had made a mistake in serving his claim form would impact on the handling of future litigated claims brought by other litigants in person (LiPs).

The issue has been brought into sharp focus by the government's plans to reform the handling of whiplash and other low value injury claims which are likely to result in increased numbers of them being handled by claimants themselves without legal representation.

Summary

In summary, for the reasons set out in the conclusions below, we see no barriers to the procedural aspects of the reforms being taken forward, but can identify the prospect of different approaches towards non-compliance being taken in the future between two separate court systems in operation once the Online Solutions Court is established.

Claims over £25,000 would continue to be dealt with within the current court system which relies on the Civil Procedure Rules where a tougher approach to non-compliance can continue to be expected. While smaller claims in the future would fall within the Online Court where LiPs would be common, and where new more flexible rules of court can be drafted before it becomes operational.

The decision

The judgment of the Supreme Court in  Barton v Wright Hassall LLP was a split one, going in favour of the defendant on a 3-2 majority.

Lord Sumption was one of the three justices in the majority and he gave the judgment on their behalf. He is due to retire from the court later this year.

The minority judgment was given by Lord Briggs, the most recent appointee to the court, and who is also the architect of the proposed new Online Solutions Court which is due to operate in 2019 or 2020. Lady Hale, the President of the court agreed with Lord Briggs. Their joint influential voice, though making up the minority, will need to be reckoned with going forward, even though it did not in fact win the day.

The self-representing Mr Barton had left it to the last day to serve his claim form on the solicitors representing Wright Hassall. He had then attempted to serve it on them by email. This is only permitted by the Civil Procedure Rules as they currently stand if the opposing party agrees to accept service by email, Mr Barton had not asked them to, and they had not agreed to.

The solicitors duly received Mr Barton's email with the attached claim form but claimed this was not good service, which effectively left the claim in a position from which it could not go forward because the claim form had expired and the claim was now stature-barred on grounds of expiry of limitation.

It was an agreed position between the parties that valid service had not taken place, so Mr Barton was seeking the court's agreement under CPR rule 6.15 to regard the email as constituting valid service even though it was outside the rules themselves, because there was "good reason" to do that, which is the relevant test.

The Supreme Court majority decided that there was in fact no good reason to treat the email sending the claim form as good service. Clear and precise rules on service of proceedings were needed, they were available in the CPR, which were accessible online and were not obscure.

The minority view was that there was in fact good reason to do so as the email with attachment was received so the defendant knew the contents of the claim form; it had specifically been sent "by means of service" so that they knew what was intended, and that it could not be suggested that the defendants' solicitors were hampered by not having email monitoring processes in place or that its email systems were inadequate to receive all of the papers as the transmission had been successfully sent and received.

Self-representing claimants – the majority view

The main point of interest was what the Supreme Court would make of the position of litigants acting for themselves, and whether a softer test should be applied to them when it came to compliance with the rules.

Lord Sumption accepted that litigating in person was not always a matter of choice, and that some people may have little option but to do so where legal aid or CFAs were not available. We would add to that by saying that one of the additional ways this situation could arise would be after the incoming whiplash and SCT reforms, depending on how new processes are established.

Lord Sumption drew a key distinction as to when being a self-represented claimant would make a difference in terms of complying with the rules, and when it would not.

In the first situation would be when dealing with case management issues (such as the question of how much time would be needed to take a specific step including serving evidence), or in conducting court hearings (when a litigant in person might need assistance from the judge in putting their case forward), when the fact that a party was representing themselves would be taken into account.

In the second situation was compliance with rules and court orders. If an unrepresented litigant were to be given special favours there, then that would impact negatively on the position of the opponent and so disturb the framework which balanced the interests of both sides.  

Unless, said Lord Sumption, the rules were "particularly inaccessible or obscure", which was not the case here, then it was reasonable to expect a litigant in person to make themselves familiar with them and to comply with them.

In short, the fact that Mr Barton was acting for himself made no difference to the decision of the majority.  

 Self-representing claimants – the minority view

On the other hand, the fact that Mr Barton was acting for himself was of some greater significance to Lord Briggs, though even then not the key to his reasoning which was based on, as stated above, the existence of a good reason to treat service as valid.

Lord Briggs does make clear his view that the claimant being a litigant in person "comes nowhere near saying that being a litigant in person constitutes a free-standing good reason why his botched attempt at service should be validated". Except to the limited extent that the rules said otherwise, there could not be different attitudes to compliance with rules between legally represented parties on the one hand and LiPs on the other.

In the case of Mr Barton, the fact that he was a LiP, "merely mitigates, at the margin, the gravity of non-compliant conduct".

Where does this leave the position of LiPs?

The Supreme Court has left us in a position where there is no green light to self-representing claimants being expected to be able to get themselves off the hook in cases of non-compliance with rules or orders going forward.

The fact that they are LiPs will be relevant on case management issues and at court hearings as now, but when it comes to compliance with rules and orders, even the minority would have only seen a marginal impact, with the majority noting the adverse effect on the other side if leeway were given to a LiP on this sort of point.

So in general terms, there need be no particular concern that if the number of LiPs increases in the future, those people will be able to easily get round the CPR and court orders where their claims are dealt with under existing court processes. A tight ship will be maintained on compliance.

Online Court and its new rules

Predictably in view of his involvement in the project, Lord Briggs made mention of new rules in his judgment.

If, he said, as many believe, because the CPR have been designed by lawyers for use by lawyers, they present an impediment to justice for LiPs, then the answer is to have "very different new rules" rather than treating LiPs as "immune from their consequences".

Those new rules, he said, were now being planned. This no doubt is a reference to the development of the Online Solutions Court the aim of which is to handle claims up to £25,000 in a modern, streamlined way.

He referred to the use of email to issue and file proceedings having been introduced already by a specialist London court, and saw this as becoming mandatory for all proceedings in the future. We can expect this change to electronic processes to form part of the function of the Online Court, and indeed the Supreme Court have now invited the Civil Procedure Rule Committee who are in charge of the CPR to consider whether the existing rules on service need updating.

While both 2019 and 2020 have been spoken of previously as a potential start date for the new court, the Courts Bill (establishing the Online Court Rule Committee which in turn would be responsible for the rules of the new court) continues like the Civil Liability Bill to be awaited in the queue which has formed behind Brexit-related issues. In the meantime, no doubt initial work is ongoing under the Online Procedure Advisory Group.

The task on those responsible will be to draft new processes including rules of the Online Court which are suitable for the types of case dealt by it, where many claims are likely to be handled by LiPs in view of both the limited quantum and the fixed costs likely to be payable.

Conclusions as to the way forwards for whiplash/SCT reform

We now have a ruling from the Supreme Court that the Civil Procedure Rules and court orders essentially mean the same in terms of the need to comply with them whether addressed to a legally represented party or to a LiP.

While reference can be made to the narrowness of the 3-2 majority, in fact the difference between the justices on this principle was only very limited in that the minority would have seen the claimant's LiP status as mitigating the effects of his error merely "at the margin".

What we seem to have is now a distinction between two types of claim. On the one hand there is the CPR which at present govern civil claims generally, and will continue to do so for over £25,000 claims going forward even after the establishment of the Online Court. The CPR will take a strict approach to compliance issues. On the other there is the potential for the Online Court dealing post 2019/20 with claims up to £25,000 and having its own separate rules taking a softer line on compliance as LiPs can be expected to have a larger role to play in cases in that new court.

This would not be illogical, but would represent the effect of two different judicial processes designed for different types of claim. Parties to litigation would know what to expect from each.

The question to be answered by today's judgment was whether the outcome would be one that would affect existing plans being taken forward by government as part of its whiplash/SCT reforms including within the 5 working groups established to take the project forwards.

It appears that the judgments of the justices are in fact compatible with existing plans and indeed the approach taken by FOIL at last month's Justice Committee hearings at which DWF partner Nigel Teasdale gave evidence as reported here.

In particular, the hope as articulated by FOIL is that a combination of a new portal with universal access and use of the Online Court with its own set of rules suitable for LiPs to be used in disputed claims, coupled with new technology, can provide a proper solution which can be adopted to provide justice post reform of the processes for handling low value injury claims and specifically those for whiplash.

We await further developments including news of the arrival of both the Civil Liability Bill and the Courts Bill.


Regards, 

Simon

Contact

For more information please contact Simon Denyer, Partner on +44 (0)161 604 1551 or email simon.denyer@dwf.law

By Simon Denyer

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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