A Procedural Wright Hassall

In 1999 Lord Woolf in effect tore up the then rules of civil procedure in England and Wales, as recorded in the White Book, and substituted new ones. His objectives included “simplicity and clarity”.

The changes in civil procedure in England and Wales have continued and indeed are continuing.

Unfortunately Lord Woolf’s aims have proved not to be met. The revised White Book, which was originally quite slim, is now of a greater volume than the one in existence immediately prior to his reforms. There has been a huge plethora of satellite litigation, often on technical points.

With that procedural change and plethora of litigation has gone a substantial increase in the number of litigants in person. This is for a variety of reasons, not least in England and Wales the almost complete abolition of legal aid.

In a recent decision (Barton v. Wright Hassall LLP) [2018 UK SC 12] the Supreme Court did on the 21st February 2018 hold, by a split three two decision, that litigants in person be given no special provision in interpretation or implementation of the civil procedure rules. Of necessity, they also dealt with what might constitute good service.

Although the rule in issue in that case is not exactly replicated in the Hong Kong rules, the decision is of interest and potential importance in Hong Kong.

The judiciary, and others, have expressed concern at the number of litigants in person appearing before them, with the consequent unfamiliarity with rules and lack of following of such, as well as trials being lengthier than might otherwise be. While litigants in person are far from unknown in the higher courts, they are particularly prevalent in the District Court where, apparently, between 40 percent and 50 percent of cases have at least one litigant in person. Given the impending increase in District Court jurisdiction from $1M to $3M, coupled with the very low financial limits to be eligible for legal aid, the number of litigants in person is only likely to increase further.

Background of the case

In 1999 the appellant Mr. Barton was represented by a firm of solicitors Bowen Johnsons in proceedings for ancillary relief following his divorce. In 2005, he brought an action against those solicitors alleging that they had failed to protect his interests in the drawing of the consent order by which the ancillary relief proceedings were terminated. In those proceedings against Bowen Johnsons Mr. Barton was represented by Wright Hassall LLP, until May 2007 when they were allowed to come off the court record following a dispute about fees.

Wright Hassall commenced proceedings claiming their costs against Mr. Barton. He commenced an action, which eventually culminated in the Supreme Court decision, for professional negligence against Wright Hassall. In that action for professional negligence Mr. Barton initially acted in person. He commenced proceedings by a “claim form” (essentially a writ) issued on the 25th February 2013.

Apparently the present rules provide that the claim form be served on the defendant by the court but that the issuing party may elect to do so himself, as was the case with Mr. Barton. He had four months in which to so do, his time expiring on the 25th June 2013.

On the 26th March 2013 Wright Hassell instructed their own solicitors, (BLM) who, on the same day, wrote by email to Mr. Barton asking him to address all future correspondence to them. In a subsequent email on the 27th April 2013 BLM concluded their email by saying “I await service of the claim form and particulars of claim”.

On the 24th June 2013, being the last date before expiry of the period for service, Mr. Barton emailed BLM with, amongst other documents, the claim form and particulars of claim “by way of service”, and asked they acknowledge receipt of that email by return.

BLM did not respond until the 4th July 2013 when they stated they had not confirmed they would accept service by email.

By the court rules to be able to serve by email – as is now permitted in England and Wales – such is effective when the recipient has confirmed in advance that they will accept service by email.

BLM went on to say that the claim form had expired unserved and the claim was statute barred.

The English rules are quite lengthy and not as per the Hong Kong Rules. Before the District Court Judge (seemingly akin to a Master) Mr. Barton contended that he had complied with the rules and asked on three alternatives bases for service to be validated or time thereof extended.

He lost and was given leave to appeal only on the basis that the “service” by him be validated. All subsequent hearings proceeded on the basis that service by email was not valid (in the particular case) and the only question was whether such should be validated.

The limitation of the question posed proved to be fatal to his claim, at all subsequent levels including the Court of Appeal and Supreme Court.

Majority Decision

Lord Sumption delivered the majority judgement. He held that the particular rule (Part 6) which governs service in England and Wales is different in its nature to other rules which confer a power to relieve a litigant from any “sanctions” imposed for failure to comply with the rules, a practice direction or a court order. He observed that part 6 is directed specifically to the rules governing service of a claim form and as such “give rise to special considerations which do not necessarily apply to other formal documents …” and that “the main difference is that the disciplinary factor is less important”.

He said that what constitutes “good reason” for validating the non-compliance service the claim form is a matter of factual evaluation not lending itself to over analysis or citation of authority. He then referred to principles derived from the decision of the Supreme Court in Abela v. Baadarani [2013] 1 WLR 2043 where it was held that the most important purpose of service was to ensure that the contents of the documents are brought to the attention of the person to be served, this being the critical factor, although knowledge of the existence of the content of the claim form is not of itself a good reason to make an order validating non-compliant service.

Lord Sumption goes on to say that “in the generality of cases” the main relevant factors are likely to be:

(i) whether the claimant (the plaintiff) has taken reasonable steps to effect service in accordance with the rules; and

(ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; and

(iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-complaint service of the claim form, bearing in mind what he knew about its content.

Lord Sumption specifically held that the fact that Mr. Barton’s mode of service successfully brought the claim form to the attention of BLM is not sufficient, in that the manner in which this is done is also important. He says that rules of court must identify some formal step which can be treated as making the defendant aware of it, in order to determine the exact point from which time runs for the taking of further steps or the entry of judgement in default of them.

He remarks that time stops running for limitation purposes when the claim form is issued and thus the period of the validity of the claim form is equivalent to an extension of the limitation period before the proceedings can effectively begin.

Lord Sumption also records some problems associated with electronic service, which, to date, do not concern Hong Kong. More relevantly Lord Sumption records that, certainly in England and Wales, litigating in person is not always a matter of choice, given the restrictions of the availability of legal aid and (there) conditional fee agreements. As such, litigants in person lack of representation may justify making allowances in making case management decisions and in conducting hearings. “But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court”.

He cites that “the overriding objective” requires the court so far as practicable to enforce compliance with the rules. That of course is not one of the “underlying objectives” within the Hong Kong rules (see Order 1A rule 1).

Lord Sumption says “[t]he rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take”.

Lord Sumption then specifically rejects the contention that the particular rule and practice direction were “inaccessible and obscure” on the basis that they are accessible on the Internet!

Lord Sumption says that BLM “were under no duty to give [Mr. Barton] advice” that his purported service was not valid, or steps he might have been able to take to rectify the position.

Lord Sumption appears to be directly influenced by the fact that the defendant would have been deprived of a limitation defence if service was validated. This is to be compared with the attitude of Lord Briggs.

Decision of Minority

Lord Briggs (for the minority) dissented and would have allowed the appeal. Whilst noting the dictum in the Abela case, as referred to above, Lord Briggs goes on to say that there is a second important purpose, namely to notify the recipient that the claim has not merely been formulated but actually commenced as against the defendant and upon a particular date. In other words the communication the contents of the document be by way of service rather than just for information, as it is service which engages the court’s jurisdiction over the recipient defendant.

Lord Briggs says that where all purposes of the rules about service (by email) had been achieved then in his view such was at least prima facie good reason for validating service.

He says that in his view Mr. Barton attempts to serve the claim form and the particulars of claim by email did fully achieve the purposes underlying the rules about service by email. First, there was a common ground that the defendant, through its solicitors, was fully appraised by the email of the contents of the claim form. Second, the claim form was sent expressly “by means of service upon you”, thus not just by way of information. Third, it had not been suggested that the recipient firm was in any way hampered by not having sufficient monitoring procedures in place etc.

Lord Briggs expressly disagrees with Lord Sumption. He says that he does not regard the fact that validation would deprive the defendant of an accrued limitation defence as a factor against validation. The defendant solicitors were aware of the attempt to serve them before the expiry of the claim form and thus, in his view, the acquisition of the limitation defence would have been “a windfall”.

Lord Briggs does say that “save to the very limited extent to which the [civil procedure rules] now provide otherwise, there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them …”

Lord Briggs says that the good reason for validation, in his view, is not that Mr. Barton was a litigant in person but rather that his attempted service by email achieved all the underlying purposes of the present rules.

Conclusion

Although they came to different conclusions on the facts, the Law Lords all appear to be of the view that no particular allowance should be given to litigants in person as to (none) compliance with “disciplinary” court rules, as distinct from case management or conduct of hearings.

The Court of Final Appeal on its website gives very limited guidance to litigants in person as to how to deal with that court. To what extent the Court of Final Appeal (or lower courts in Hong Kong) might wish to refer to principles expounded as to dealings with litigants in person in UK, where based on procedural rules that do not apply here, might be left for the future, although it should be noted that the Court of Final Appeal has demonstrated, most recently in the decision of HKSAR v. Chan Kam-Shing (FACC 5 / 2016), that it is quite willing to depart from decisions of the UK Supreme Court. 

Jurisdictions: 

Nicholas Millar is a solicitor and civil higher courts advocate.