Have you been served?
February 26, 2018
By Commercial and Real Estate Disputes Partner, Geraint Pinches
When starting court proceedings against someone, it is important to ensure that the proceedings have been validly served on your opponent. If they haven’t, then there is a risk that your claim will never get past first base.
In a judgement handed down by the Supreme Court this week, the Court was asked to decide an appeal by a litigant in person against an earlier decision of the High Court that the appellant hadn’t validly served his court claim, and was now out of time to do so.
In Barton -v- Wright Hassall LLP (a great name for a law firm!), Mr Barton wished to bring a claim against his former solicitors for professional negligence in connection with various legal matters in respect of which they had previously represented him. In pursuing his claim against his former solicitors, Mr Barton acted for himself (i.e. as a litigant in person).
There is normally a set time limit between getting your claim stamped (known as “issued”) by the court and sending it (known as “service”) to the receiving party. In this case, Mr Barton drafted his own court proceedings and purported to serve them on Wright Hassall by email.
Notwithstanding that Wright Hassall knew of the existence of the proceedings, it contended that service had not been validly effected because the Rules relating to service of court documents on one’s opponent prohibit service by email unless the receiving party agrees to accept service by that method. In this case, and in common with many law firms, Wright Hassall had not confirmed that it accepted service of court documents by email.
Although it was a close run thing, the Supreme Court found three to two in favour of Wright Hassall and dismissed Mr Barton’s appeal on the basis that his claim had not been validly served on Wright Hassall. Mr Barton is thus now prevented from pursuing his claim against Wright Hassall and has run out of time to bring a fresh claim.
This was a simple procedural error made by Mr Barton and, as a layperson, he might not reasonably be expected to know or understand the nuances of the quite complex rules of service of court proceedings, despite them being published on the internet for all to see. It was an easy mistake to make, and one which any member of the public without legal training could make (and indeed that a few people with legal training have made!). But it was nonetheless a mistake which Wright Hassall could successfully use to have Mr Barton’s claim thrown out of court before it even really got off the ground. Unfair? Perhaps. Unlawful? No.
As a lawyer, I am the first to admit that we are expensive. We do not always get a good press because we are viewed by certain members of the public as an unwanted and sometimes unnecessary evil. But we are there for a reason, namely to give you the best possible advice, to fight your corner and, above all, to make sure that everything is done properly and in accordance with the rules.
The Supreme Court’s ruling is a reminder that the court rules apply to everyone – both legally represented and unrepresented litigants – and that courts will not just ignore the rules because you choose not to instruct a lawyer to represent your interests.
This was a very costly, albeit completely innocent, mistake for Mr Barton. The moral of the story? It is sometimes better to swallow hard and pay a lawyer to deal with your matter, than to try to tough it out on your own. If it’s of any comfort, many lawyers are becoming increasingly more flexible in the way that they charge for their work.
If you have any further questions with regards to this article, please contact Geraint Pinches who will provide more guidance where necessary.