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Should a litigant in person get special treatment?

Yesterday the Supreme Court considered the flexibility that a litigant in person should be afforded when complying with procedural rules (Barton v Wright Hassall [2018] UKSC 12).

The Court decided that a litigant in person should not be given leeway on the procedural rules for serving documents because these rules were clear, accessible and necessary to facilitate the litigation.


The case involved a litigant in person (Mr Barton) who was seeking to bring a professional negligence claim against his former solicitors at the end of the applicable limitation period.

Mr Barton attempted to serve his claim form and particulars of claim by email, despite the fact that there was no express agreement from the Defendant’s solicitors to permit service in this way.

Mr Barton had until 25 June 2013 to serve his claim form but only sent it by email the day before. In the absence of an agreement, service was defective under the procedural rules and Mr Barton had no time to rectify this mistake.

Mr Barton asked for service to be validated under Civil Procedure Rule 6.15(2) which gives the Court the power to validate defective service of a claim form, if there is “good reason” to do so.

Mr Barton’s arguments

Mr Barton argued that service should be validated because:

  1. Although he might not have strictly followed the procedural rules, his email had achieved the dominant purpose of service - to bring the contents of the claim form to the Defendant’s attention;
  2. He reasonably assumed that the Defendant’s solicitors would accept service by email because (i) although he was aware that some solicitors did not accept service of documents by email, he did not know about CPR 6.3 and Practice Direction 6A (which cover service by email), which were relatively inaccessible to a litigant in person and (ii) he reasonably assumed that the Defendant’s solicitors would accept service of documents by email, because they had previously corresponded with him in this way; and
  3. The Defendant’s solicitors were “playing technical games” and the Defendant should not be able to benefit in this way.

Both the County Court and the Court of Appeal decided that the only reason Mr Barton did not comply with the service rules was because he did not know what those rules were. Neither Court considered that this amounted to a “good reason” to make an order under CPR 6.15.

The Courts did not accept that Mr Barton was entitled to greater level of indulgence because he had been unrepresented. The Court of Appeal commented that “CPR 6.15 is not there to protect litigants in person or those who do not know the rules. It is there to protect those who for some reason have been unable to effect service satisfactorily within the rules.”

Supreme Court Decision

The Supreme Court dismissed Mr Barton’s appeal by a majority of three to two and declined to validate service under CPR 6.15(2).

Lord Sumption warned that “none of this would have mattered if Mr Barton had allowed himself time to rectify any mishap” and that by leaving service until the very end of the limitation period “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)”.

The Supreme Court said that it was not sufficient to simply bring the claim form to the attention of the Defendant’s solicitors and that service methods/procedures were also important because otherwise, a Claimant would be entitled to serve documents by any unauthorised mode of service (e.g. social media), as long as that document is brought to the Defendant’s attention in some way.

Whilst it was generally accepted that a litigant in person’s lack of representation will often justify minor allowances (such as case management decisions or in conducting hearings) this does not mean that a lower standard of compliance with rules or orders of the Court should be applied. The overriding objective (CPR 1.1(2)(f)) requires the Courts, so far as practicable, to enforce compliance with the rules but by granting a litigant in person a greater degree of leniency, this would result in a corresponding degree of unfairness to the other party.

The Supreme Court also disagreed that the service rules in this case were particularly inaccessible or obscure because the relevant CPR and corresponding Practice Direction were freely accessible on the internet and were sufficiently clear. The Court did not consider it reasonable for Mr Barton to have assumed that the prior email correspondence between the parties meant that the Defendant’s solicitors would accept service by email.

Finally, Mr Barton’s argument that the Defendant’s solicitors had been “playing technical games” was also unsuccessful. The timescales involved meant that Mr Barton could not have rectified service within the applicable limitation period and the Defendant’s solicitors were under no duty to advise Mr Barton of his failure to adhere to the procedural rules. The Supreme Court hypothesised that even if the Defendant’s solicitors had noticed the defective service, it was inconceivable in any event that the Defendant would have authorised its solicitors to point out this fault and deprive the Defendant of a valid limitation defence.

Mr Barton’s legal team (as he is now represented) have suggested that he will consider appealing to the European Court of Human Rights on the basis that “excessive formalism” has infringed on Mr Barton's right to a fair trial.


This case confirms that the Court will not allow a litigant in person to benefit from flexibility on clear procedural rules, simply because they are not represented, especially when such flexibility would bring about a result which is unfair to the other party. It also provides a useful example of the type of rule that a litigant in person is expected to adhere to. The decision drives at creating a level playing field between represented and unrepresented litigants.

Whilst the Court considered the procedural rules to be readily accessible to litigants in person, represented parties may wish to consider providing links to the rules and key procedural points so that Mr Barton's "technical games” argument can be avoided.

It is worth noting though that Lord Briggs, in his dissenting judgment, commented that the meaning and effect of CPR 6.15 had divided opinion and expressed his hope that the CPR committee would review the current rules to consider whether provisions for service by email are sufficiently clear, fair and justified in this day and age.

Contributors: Duncan Martin, Jason Gurung

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions

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