Many claims are now brought by litigants in person. To issue proceedings they have to navigate the complexities of the rules on service under the Civil Procedure Rules and the limitation regime. The courts have traditionally interpreted these rules strictly and time limits for issuing claims are inflexible. If a limitation period or other statutory time limit has expired, it can be all but impossible to bring the claim. One question is whether the courts will give a litigant in person any benefit of the doubt if they fail to comply with the rules. A couple of recent cases suggest that they will not.
When are proceedings “brought”?
CPR 7.2 states that proceedings are started when the court issues a claim at the request of the claimant. A claim form is issued on the date entered on the form by the court. PD 7A para 5.1 states: “Proceedings are started when the court issues a claim form at the request of the claimant but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.”
This reflects earlier case law and the decision in Barnes v St Helen’s Metropolitan Borough Council
in which the Court of Appeal concluded that the verb “to start” used in CPR 7.2 and the verb “to bring” used in the Limitation Act do not have the same meaning and there is no need therefore to conclude that proceedings are brought necessarily on the same day that they are started.
Claimants will not be penalised for the faults of court staff but different considerations may apply if delivery is made to the wrong court or outside office hours. If the limitation period expired on a day when the court offices were closed, it will be extended to the next day on which they were open (Pritam Kaur v S. Russell & Sons Ltd
). Where, however, the claimant has delivered the claim form to the court on time but the claim is issued after expiry of the limitation period, they will not have “brought” the claim on time if they have failed to pay the correct court fee (Page v Hewetts Solicitors
, Lewis v Ward Hadaway
and Dixon v Radley House Partnership
Problems in practice
A litigant in person recently came a cropper in Croke v Secretary of State for Communities and Local Government
. Mr Croke wished to make an application under section 288 of the Town and Country Planning Act 1990 to challenge a planning decision. The six week time limit for bringing a challenge ended on 23 March 2016 and there is no power to extend the period. The claim form was filed on 29 March and so the defendant applied to strike out the claim.
The claimant explained how it was that the claim form was issued six days out of time. He had intended to attend the Administrative Court office on 23 March but had missed the train from Haddenham. He was aware that the court office shut at 4.30pm so he emailed the documents to a Mr Miller and asked him to file the claim. Mr Miller arrived at the Royal Courts of Justice at 4.25pm but was refused entry by the security guard at the front of the building who said that the counters were closed.
The next day the claimant arrived at the Administrative Court office at 3.30pm. Due to the volume of people he was not seen until about 5pm when he was informed by a member of staff that he had used the wrong claim form and would need to complete a different form. He was given a copy of the form and asked to be able to complete it then and there. He was told he would have to return the next day and that the claim would be issued on the next working day. The next day was Good Friday and the next day the court office was open was Tuesday 29th March.
Decision in Croke
The claimant argued that although the court office was open and functioning on 23 March it was inaccessible and the court had a discretion to permit the claim to continue in those circumstances. The court rejected this argument. Litigants must anticipate security procedures and the need to obey the directions of security staff. The position would have been just the same if there had been a queue to go through security and by the time Mr Miller got to the security screening it was 4.30pm and he had been turned away. The judge concluded that litigants whose claims are subject to strict time limits must make arrangements to ensure that they attend the court office in good time so that they are not thwarted by unexpected problems.
Service within the jurisdiction
Once the claim is issued, it must be served within four months of being issued using a method provided for in CPR 6. If the claimant fails to comply with the rules on service, CPR 6.15 provides that the court may permit service by an alternative method or an alternative place where there is “good reason” to authorise service by a method or at a place other than the methods expressly permitted under CPR 6.
What can go wrong?
Too many things to mention. Barton v Wright Hassall LLP
illustrates a common problem, namely relying on service by email where this has not been authorised. The claimant litigant in person served the claim form by email on the defendant’s solicitors on the penultimate day of the 4 month period. Although the claimant had been communicating with the defendant’s solicitor by email, he had never asked whether service by email was authorised as required by PD 6A.4.1(2).
The Court of Appeal upheld the decision below refusing to validate the service retrospectively under CPR 6.15. There was no reason for excusing the claimant from complying with the rules because he was a litigant in person. There was ample material on which the judge below could reach this conclusion: the very clear terms of the rules about electronic service, the fact that the claimant was aware that some solicitors did not accept service by email, and the fact that the claimant did nothing to check directly with the defendant’s solicitors about whether he could serve by email.
In a recent speech about the future of the civil courts, Gross LJ noted that funding for the courts was cut by 25 per cent between 2010 and 2015, meaning that staff numbers fell from 22,000 to 17,000, and court buildings fell from 636 to 471. Mr Croke’s experience with the Administrative Court is in part an example of these cuts in action which have coincided with a dramatic rise in the number of litigants in person needing more help from court staff. This is obviously a problem for litigants in person but it is equally a problem for solicitors acting on behalf of claimants. In a determined effort to deter satellite litigation, the courts are taking a robust stance when it comes to failures to meet time limits for bringing proceedings or failures to comply with the rules about service of a claim. Litigants in person will not be treated with leniency, particularly where they leave issue or service to the last moment.