May 24, 2016

Emails don’t cut the mustard in court – no special rules for litigants in person

This week I have been inundated with information about ways to improve access to justice by reducing the costs of litigation. There are increasing numbers of people representing themselves in court cases, because they can’t afford legal fees, and the court system needs to meet this challenge. The problem litigants in person (people representing themselves) face is that without legal training, it is much easier for them to trip over procedural rules when navigating the court process.

To assist litigants in person there is talk of the judiciary adopting a policy of “rough justice”, by forgiving technical non-compliance with the court rules, so long as the litigant complies with the overriding objective. However, in this case the courts have sent a strong message they are not yet ready to do this.

Email epic failure

The law requires litigants to serve court documents on their opponent - this means they have to be sent or delivered in a particular way. If you email formal court documents the general rule is that it does not count as serving them, even if they have been received by the other person. If you fail to serve them within the strict timescales, you could be barred from pursuing your case on technical grounds.

In the Court of Appeal decision in Barton v Wright Hassall [2016] the court unanimously refused to grant an order that service of documents via email was good service for a litigant in person.

The claimant had sent the claim form and accompanying documents by email. Although the email was received, the defendant solicitor waited until the deadline for service had passed before claiming the documents had not been served, so the claim should fail. The Court of Appeal agreed.

The rules on service are clear. You can only use email if the other side agrees in advance. One might expect the court to show some lenience toward a litigant in person who had been caught in a procedural trap. However, the view expressed by the Circuit Judge on appeal provides no such allowance:

“The issue therefore really is whether ignorance of the rules for a litigant in person is a reason for not complying with the rules. It cannot be so. The rules are there for all. They need to be observed by all and unless and until the Rules Committee makes rules that have application for litigants in person alone they must apply to all.”

This is a brutal lesson for Mr Barton, and now he is unable to bring his claim at all. It also confirms the importance of adhering to the procedural rules and is not only a lesson for court proceedings, but also to property owners or agents serving Notices on a daily basis.

The courts are littered with cases where tenants have tried to break their leases early but did it in the wrong way, so the break was ineffective and the tenant is left stuck paying rent for a lease it does not want. The risk of service not being valid can be far more expensive than the legal fees incurred in instructing a professional to ensure effective service.

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