Is it possible to agree, pretty much, with dissenting judgments? That seems reasonable in the Supreme Court’s ruling in Barton v Wright Hassall, which tested the boundaries of how far the court will cut a litigant in person some slack.
This is not a problem that is going to go away: legal aid and funding restrictions are set to leave many more lay people navigating civil procedure rules than when they were drafted.
Lord Sumption, giving the lead judgment, showed sympathy with the plight of the unrepresented person but effectively decided that rules are rules. It was not unreasonable to expect a litigant in person to familiarise themselves with the rules before making a claim, and if they had not done so then basic fairness dictates that they cannot be bent.
Rules may be arcane but they are clearly headed and easily accessible – just because you decide not to read them it doesn’t make them impossible for those that do. Not only that, but the litigant in this case, Barton, waited until the final moment to serve his claim, and Sumption said there was no reason why he should be absolved from his errors at Wright Hassall’s expense. It's worth noting in passing that civil justice rules have been changed in recent months to ensure that unwitting parties are better protected from county court judgments.
But to lawyers reading this, I ask you to run this judgment past a non-lawyer. Tell them a claim was served by email, albeit without permission, and ask if that should constitute valid service. Chances are they’ll ask not whether this service was valid, but why all claims aren’t served in this way.
It cannot be beyond the realms of technology for firms involved in litigation to have a dedicated inbox for service and to advertise the fact.
In his judgment, Sumption quoted a practice guidance on email, which noted the difficulties in correspondence arriving ‘unperceived by other members of staff’. The guidance was from 2005.
Sumption is right that goalposts cannot be moved if you want to ensure fairness. But the dissenting judges who ask for another look at the rules are surely correct as well. You can’t give LiPs special favours, but equally we’ve got to do what we can to make life easier for them.