Are you being served?

ARE YOU BEING SERVED?

Sophie Firth examines Barton v Wright Hassall LLP [2016] EWCA Civ 177, in which the Court of Appeal ruled that mistakenly invalid service via email effected by a litigant in person should not be deemed good service.

Parklane Plowden’s Howard Elgot appeared on behalf of the Appellant.

THE ISSUE

Was there “good reason” to retrospectively validate service via email which had been effected by a litigant in person in the mistaken belief that it was valid?

THE LAW

Under CPR 6.15, the Court can deem invalid service as good service by an alternative method if there is “good reason” to do so.

Paragraph 4.1 of PD 6A provides that for email service to be valid, the receiving party must have indicated in writing that they accept service by such a method and provided an email address.

In their judgment the Court of Appeal helpfully summarised the case law on CPR 6.15:

(i)            In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so: (Abela v Baadarani [2013] 1 WLR 2043 [35]).

(ii)           A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served: (Abela [36]).  That is the whole purpose of service: (Abela [37], [38]). 

(iii)          However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”: (Abela [36]).

(iv)         In deciding whether there is a “good reason”, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry: (Abela [48], Kaki v National Private Air Transport Co [2015] EWCA Civ 731 [33]). 

(v)          The conduct of the claimant and of the defendant is relevant: (Kaki [33]).  It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method: (Power v Meloy Whittle Robinson [2014] EWCA Civ 898 [39]).

(vi)         The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins: (R (Hysaj) v Secretary of State for the Home Department, [2015] 1 WLR 2472 [44]-[45]; Nata Lee Ltd v Abid and another [2014] EWCA Civ 1652 [53]).

(vii)        If one party or the other is playing technical games, this will count against him: (Abela [38]).

(viii)       An appellate court will only interfere with the judge’s evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did: (Abela [23]).

DECISION IN THE APPEAL

The appeal was dismissed. The Court of Appeal held that there was nothing to support the conclusion that there was a good reason to validate service:

• The Appellant had chosen to serve the Claim Form and Particulars of Claim on the last day of the “generous” 4-month validity period of the claim form, when no obstacles to serving sooner stood in his way.

• The Appellant should not be excused from complying with the rules on service simply because of his status as a litigant in person. The rules on electronic service are neither difficult to find nor ambiguous to a non-lawyer, and the Appellant knew that some solicitors did not accept service by email. This was true notwithstanding that the Respondent’s solicitors had informed the Appellant by email that they would “await service of the Claim Form and Particulars of Claim” – the email had the solicitor’s postal address at the foot.

• The Respondent’s solicitors were not playing technical games by failing to inform the Appellant that the service by email was irregular, despite the fact it is likely that they received the email and appreciated the impending deadline.

   

  THE WIDER IMPLICATIONS OF THE DECISION

  The lack of leniency afforded to litigants in person in this case is unlikely to be confined to the rules on service. The statement that such rules are unambiguous and easy for the layman to find is, in my view, ironically a statement made from the perspective lawyers with a knowledge of the rules. Such rules are not easy to find for a litigant who does not know what they are looking for.

  Understandably, in view of the increased numbers of litigants in person in the civil courts, this decision appears to be a policy decision intended to prevent the validation of the argument that the rules do not apply to litigants in person.

  SOPHIE FIRTH

• PUPIL BARRISTER