Satellite Litigation and Non-cooperation
All too often, a plea for equality is unhelpfully construed as a plea for special consideration. The litigation in, and public discourse around, Barton v Wright Hassall LLP , which was determined by the UK Supreme Court today, is a case in point. When we have time to reflect on the wider implications of Barton, we might conclude that a solution to the pressing question of access to justice for litigants in person lies within the field of lawyers’ professional ethics, and not in “applying to litigants in person a lower standard of compliance with rules or orders of the court” (Barton, para.18).
It is hard to quarrel with the reasoning of the UKSC and lower courts on the narrow legal question of whether Barton was entitled to relief from sanctions. It has long been the position of the courts, when exercising its case management functions, that relief will normally not be granted if to do so would be to deprive the non-defaulting party of a significant advantage. On a narrow view, Barton’s default meant that Wright Hassall was able to exploit a limitation period -which clearly gave them such an advantage. However, if, with our professional ethics’ lenses in place, we step back in time to the crucial period between1050am on 24 June 2013 and 4 July 2013, we may choose to direct some searching questions toward the professional litigant. Given that a genuine, albeit flawed, attempt at service had been made one day before the end of the period permitted for service, why did not Wright Hassall agree to extend the time for service?
The entire discourse around Barton ignores the fact that greater allowance for error in the litigation process is likely to be granted by one professional litigant to another professional litigant. If litigants in person (as represented by Barton) are seeking flexibility over standards of compliance, they do so only to place themselves on an equal footing with professional litigants. Whilst a professional litigant is unlikely to fall into the error of thinking that service by email is compliant with the Civil Procedure Rules, they do make errors all the same – including errors relating to service of claims.
The form of professional courtesy which decrees that one expert litigant should forgive the errors of another is endorsed by the higher courts. To put the point bluntly, the higher courts expect professional litigants to “lower standards” when other professional litigants breach civil procedure rules. To avoid “satellite litigation” of the Barton kind, professional litigants are expected to work co-operatively towards a solution, in spite of a breach of the civil procedure rules.
In a case that was cited with approval by the UKSC in Barton, the Court of Appeal issued a strong warning to professional litigants who depart from accepted standards of professionalism by exploiting procedural errors:
We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage...The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8 (Denton v TH White, at para. 41).
We are left to speculate over what might have happened during that crucial period between 24 June 2013 and 4 July 2013 if Barton had been a member of a profession that is seen to have earned the right to make mistakes.
Barton v Wright Hassall LLP  UKSC 12- Lord Sumption
Denton v TH White  EWCA Civ 906