Barton v Wright Hassall LLP

Under rule 6.15(2) of the Civil Procedure Rules 1998, the court must decide whether all the circumstances provide a good reason to validate steps which brought a claim form to the defendant’s attention but did not constitute valid service. Actual receipt is critical but insufficient by itself. Particular attention should be paid to why valid service was not effected, the parties’ conduct and any technical game-playing.

A claimant need not prove that every reasonable step was taken. However, being a litigant in person does not itself excuse non-compliance and ordinarily has relevance only at the margins. An appellate court may interfere with the first-instance evaluation only for an error of principle or a wrong conclusion.

The claimant, acting in person, wished to pursue a professional negligence claim against his former solicitors. On the day before the claim form’s validity expired, he emailed the claim form and particulars of claim to the defendant’s solicitors. They had not indicated that they would accept service by email, as required by the applicable practice direction.

A district judge refused to validate the attempted service retrospectively under rule 6.15(2) of the Civil Procedure Rules 1998. HHJ Godsmark QC dismissed the claimant’s first appeal after reconsidering the application in light of the governing authorities. The claimant appealed to the Court of Appeal, contending that the judge had focused excessively on why valid service had not occurred and had insufficiently considered the defendant’s knowledge and conduct.

1. The appeal was dismissed. The judge had neither erred in principle nor been wrong in finding no good reason to validate the attempted service under rule 6.15(2) of the Civil Procedure Rules 1998. Floyd LJ gave the judgment, with which Moylan J and Black LJ agreed.

2. The governing inquiry was whether, considering all the circumstances, there was a good reason for the order. Receipt of the claim form and knowledge of its contents were critical because communication to the defendant is the principal purpose of service. Receipt alone was nevertheless insufficient. The court had inevitably to focus on why valid service had not occurred during the claim form’s period of validity, while also considering the conduct of both parties and any technical game-playing: Abela v Baadarani [2013] 1 WLR 2043 applied.

3. The claimant was not required to demonstrate that he had taken every reasonable step to effect proper service. That proposition, derived from Power v Meloy Whittle Robinson [2014] EWCA Civ 898, did not assist him. No obstacle had prevented service by an authorised method during the generous four-month period. Unlike the claimant’s solicitors in Power, he had not been lulled into believing that valid service had occurred.

4. The claimant’s status as a litigant in person did not provide a good reason for non-compliance. The electronic-service requirements were clear. He knew that some solicitors did not accept service by email, did not consult the rules and did not ask whether the defendant’s solicitors would accept email service. Some allowance might be appropriate at the margins where a rule was difficult to find or ambiguous to a non-lawyer, but those circumstances were absent.

5. The defendant’s solicitors had not engaged in technical game-playing. They had stated that no extension would be granted, had awaited service and had provided a postal address. Even assuming that they promptly recognised the irregularity and impending deadline, they were entitled to obtain instructions before alerting the claimant to a defect whose correction would expose their client to an otherwise statute-barred action. Their conduct neither encouraged a belief that service was valid nor contributed to the failure.

6. The appellate court could intervene in the judge’s evaluative judgment only if he had erred in principle or was wrong in his conclusion. Neither condition was satisfied.

1. Court of Appeal (Civil Division): The claimant’s further appeal was dismissed by [2016] EWCA Civ 177. The court upheld the conclusion that there was no good reason retrospectively to validate service.

2. Nottingham County Court: HHJ Godsmark QC dismissed the claimant’s first appeal on 2 October 2014 after reconsidering the rule 6.15 issue in light of the governing authorities.

3. Chesterfield County Court: District Judge Wall refused the claimant’s application on 14 March 2014. The district judge held that there was no good reason to validate the attempted service.