Rules are rules - but is it time for the civil procedure rules to allow service by email?
Harry Day, a noted World War II escapee, once remarked: “Rules are for the obedience of fools and the guidance of wise men.” The Supreme Court’s decision in Barton (Appellant) v Wright Hassall LLP (Respondent)  UKSC 12 suggests it may be more foolish to disobey the rules when litigating.
Mark Barton was a litigant in person. He sought to bring professional negligence proceedings against his former solicitors. Mr Barton issued a claim form on 25 February 2013.
His former solicitors appointed another firm, Berrymans Lace Mawer (BLM), to deal with the anticipated action from Mr Barton. On 17 April 2013 BLM emailed Mr Barton. The email concluded, “I will await service of the claim form and Particulars of Claim.”
In accordance with rule 7.5 of the civil procedure rules (CPR) a claim form is valid for four months from the date it is issued. On 24 June 2013 (the last day before the claim form expired) Mr Barton emailed BLM to state: “Please find attached by means of service upon you. 1. claim form and response pack…”
Mr Barton received an automated response with a number to contact if the matter was urgent. He did not use that number. BLM later wrote to Mr Barton noting they had not given prior agreement that they would accept service by email. In the absence of such agreement, the attempted service by email was invalid. The claim form had expired. Any new claim brought by Mr Barton would be time barred.
Mr Barton made an application to the court on two grounds. He sought either i) an order under CPR 6.15 that an otherwise non-compliant step be treated as good service; or ii) an extension of time for service in accordance with CPR 7.6. Mr Barton’s application failed. The Court of Appeal upheld the original order. Mr Barton accordingly appealed to the Supreme Court.
The Supreme Court’s issued a split 3-2 decision in favour of the Respondent. Lord Sumpton delivered the leading judgment. The judgment looked at the test for allowing service by alternate means, in accordance with rule 6.15, applied by the District Judge.
The test was two pronged. Firstly, whether there was "good reason" to make the order. Secondly, whether the court should exercise its discretion to do. It was noted that this test effectively had one stage. For if there was "good reason" to do so then it would be irrational for a court to decline to make an order using its discretion.
Lord Sumpton referred to a previous Supreme Court decision (Abela v Baadarani  UKSC 44) in which an application under CPR 6.15 had been allowed. The facts were different insofar as the defendant had deliberately obstructed service in Abela. In Abela a key point for assessing whether there was "good reason", was that the claimant had attempted to bring the claim attention to the attention of the defendant.
Lord Sumpton noted that this criteria was likely to be necessary if an application in accordance with CPR 6.15 was successful. It was not by itself sufficient. Rules of court must identify a formal step, with a “bright line rule” necessary to determine the exact point from which time runs. So the fact the parties were in email correspondence did not mean service provisions could be disregarded.
Lord Sumpton noted the court’s rules are not “inaccessible and obscure” as was contended by Mr Barton. The rules are readily available online. CPR 6 is clearly headed on the website as “Service of Documents”.
It was also noted that Mr Barton was an experienced litigator, aware of issues such as limitation, but “the problem was that Mr Barton made no attempt to serve in accordance with the rules.” The court noted that it was Mr Barton who had waited until the end of the notice period. Lord Sumpton observed “a person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(2).”
Lord Briggs delivered the dissenting judgment with Lady Hale in agreement. Lord Briggs noted three points in reaching this decision. They were:
- The defendant was appraised of the contents of the claim form;
- The email attempting to serve the claim form stated it was “by means of service upon you” and there could be no doubt as to intention; and
- When compared with postal service, the defendant had not been in any meaningful way hampered by receiving the claim form by email.
Lord Briggs did criticise Mr Barton for a number of reasons. It was noted Mr Barton had not bothered to check the rules and that the rules were not difficult to understand. However he balanced this against a few factors. Mr Barton had made an innocent mistake, rather than deliberately breaching the rules.
Mr Barton’s rationale that solicitors with authority to accept service and who had communicated with him by email were impliedly content to be served by email, was understandable, even though wrong. The prejudice suffered by Mr Barton was significant in that he lost his claim. In comparison the acquisition of a limitation defence, was a “windfall” for the defendant.
This decision is a reminder to all litigants and practitioners as to the risks of disregarding rules. However it is a split decision which highlights the possible need for reform. It is the second time CPR 6.15 (following Abela) has been considered by the Supreme Court in the last five years. The dissenting judgment noted it was troubling the application of the rule had divided the court.
Solicitors have obligations to assist a litigant in person in the preparation of his/her case. That is on the basis their knowledge of the law and procedure is likely to be unsophisticated. However, Mr Barton was classed as an “experienced litigator”, albeit a litigant in person. This assessment appears to be based on Mr Barton’s understanding of statutory and procedural timings. Yet, Mr Barton was unfamiliar with the rules regarding service provisions. This begs the question, just how much of an “experienced litigator” was he in practice?
The court’s decision suggests litigant in person indulgences do not extend to (1) “experienced litigants in person” and/or (2) litigants who realise the timing of service provisions but not the method of service mechanics.
So the court’s assessment appears to turn on the degree of experience of the litigant. That will be a largely subjective assessment. The consequence is that there may be often unpredictable results in cases going forward, especially involving litigants in person.
The dissenting judgment contained an open invitation to the Civil Procedure Rules Committee to consider whether the provisions about service by email still satisfy current requirements. Lord Sumpton’s leading judgment observed potential problems about allowing service by email. The Law Society’s Practice Guidance from 2005 on electronic mail was referred to. The judgment stated there are practical problems monitoring the arrival of electronic communications when an individual is out the office.
In contrast, the dissenting judgment noted that courts now accept e-filing of documents. It was questioned whether there remained a useful purpose to constraining service upon solicitors by email. Although it was acknowledged any alteration is a matter for the Rule Committee.
Practitioners in Scotland may note the point on service by email with interest. The Court of Session in Edinburgh brought in an e-motion (equivalent of an application) procedure in recent years. Firms declare a generic email address for transacting motion business. The list is published on the Scottish Court Service website.
This system effectively negates the risk that the intended recipient may be out the office and the email ignored. It should be noted that this is used for motion procedure during claims, rather than to commence an action. However it may be that Civil Procedure Rule Committee look to such an example in considering whether service by email is workable.