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Bayton-Williams v Bayton-Williams  EWHC 2179 (Ch)
Summary: In a recent High Court decision, Master Clark allowed evidence from a defendant litigant in person which he had filed late with the court and not served. Whilst holding that there was no good reason for the breach, the judge considered that there were steps the claimant’s solicitors could have taken, and that they were wrong to mislead the defendant when stating the legal consequences for not filing or serving evidence on time. The case serves up some interesting practical points for legal representatives who deal with litigants in person and puts fairness towards such litigants at the very heart of any actions.
The proceedings involved the estate of a mother to two brothers. The defendant brother (a litigant in person) had lived in the mother’s property rent free for a number of years. The claimant brother (represented by solicitors) sought removal of the defendant as administrator of the estate and rent for the period of occupation. The claimant instructed an expert to provide a report as to the value of the occupation.
At a hearing in August 2018, Master Clark granted the claimant permission to rely on the expert report and also granted the defendant permission to file and serve evidence and to ask questions of the expert (the “Order”). The defendant then:
referred the expert to an estate agent who was familiar with the property. However, the expert took no action, instead stating that it was not his role to consider any further evidence from the defendant after his report had been written and that he was not instructed as a joint expert; and
filed a witness statement with the court (49 minutes late) but failed to serve it. Unaware that the defendant had filed evidence, the claimant’s solicitors wrote to the defendant and said that “the deadline has now passed and you may not make any further submissions”. The defendant took the reply at face value.
When considering judgment on the value of the defendant’s occupation, Master Clark became aware of the above issues and was forced to decide upon them.
The claimant’s main argument was that the defendant’s witness evidence should not be admitted because there was a general rule that evidence may not be relied upon unless it has been served on time (CPR rules 8.5, 8.6 and 32.10). If a party wished to disapply this sanction, then he must apply for relief from sanctions. The defendant had made no application and even if such an application was made, it should not succeed because there was no good reason for what was a serious and significant breach which has caused substantial disruption and additional costs. Further, it was not the claimant’s role to search the court file for evidence which they were unaware of.
Master Clark permitted the defendant’s witness evidence:
1. This was not a case in which there was an express sanction consequent upon a breach of the Order and so CPR 3.9 did not apply. Notwithstanding this, she accepted that she had a discretion to refuse to admit the defendant’s evidence and that permitting him to rely on it was equivalent to acceding an out of time application to extend the time for service (to which the principles applicable to relief from sanctions apply).
2. Turning to those principles, she accepted that they usually apply equally to a litigant in person as to a represented party and that the failure to serve witness evidence was a serious and significant breach, for which there was no good reason.
3. But turning to “all the circumstances of the case”, there were relevant factors which justified her admitting the witness evidence:
3.1.1 although the defendant did not serve his evidence, by filing it he made it available to the claimant who could readily have obtained a copy from the court file.
3.1.2 since neither the order on its face, nor any rule or practice direction provides for a sanction for failure to serve the evidence in time, it was not unreasonable for the defendant to be unaware of the “implied sanction” for such failure, or the need to apply for an extension of time in order to be able to rely on the evidence.
3.1.3 the claimant’s solicitors, did not state the legal position fully. They asserted an absolute bar to the defendant adducing the evidence, whereas the true position is that the defendant could have sought, and would have obtained, a short extension to serve his evidence. They misled the defendant by omission.
4. As to the expert’s evidence, she held that the expert did not understand and adhere to the requirement of his role:
4.1 CPR 35.3 provides that it is the overriding duty of experts to help the court. The expert had drawn an unjustified distinction between documents provided to him by the claimant’s solicitors and information provided by the defendant.
4.2 An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information. The expert should have taken the new information from the defendant into account, but he did not do so.
Fairness is the key theme to this judgment and the judge approached the case with this in mind commenting that it was her role to “ensure that the parties are on an equal footing, whilst ensuring compliance with rules, practice directions and orders: CPR 1.1”. Some will hold the view that the court has been too lenient on the unrepresented defendant and that the decision conflicts with the strict treatment of a litigant in person by the Supreme Court in Barton. However, arguably this case can be distinguished from Barton. In that case the litigant in person could have familiarised himself with the rules, whereas in this case, the rule was “implied” and it was a step too far to hold that he should have been familiar with it. It is also notable that the claimant’s solicitors had misled him as to the correct legal position.
Several interesting practical points ensue and legal representatives should take note:
Where it appears that a party (litigant in person or not) has failed to adhere to a court deadline – before taking any action - check the court file. The claimant’s representatives were criticised in this case because they made no attempt to undertake what the court considered to be a simple and easy task.
Represented parties must be careful when stating a legal position to litigants in person to ensure that it is accurate and not misleading. This is why it is generally good practice to refrain from ‘giving legal advice’ to litigants in person and instead refer them to free or paid legal advice services.
Experts should carefully consider their duties and keep these under review.
Finally, CPR 39 was amended with effect from 6 April 2019 to require parties to disclose /copy in all other parties on any communications with the court on a matter of substance or procedure. Failure to comply may lead to sanctions being imposed. Whilst this amendment was brought in predominantly to ensure fairness to litigants in person, it would have been interesting to see whether the court’s approach would have been any different had the amendment been in place at the relevant time. Would the court have imposed sanctions on the defendant for failure to copy in the claimant’s solicitors when filing the evidence? Had the claimant’s solicitors been copied in on the filing of the witness evidence, they might not have gone on to mislead the position because they would have been aware that evidence had been filed. What we can draw from this is that it is sensible to ensure that all correspondence with the court is copied to all other parties (save where the communication is “routine, uncontentious and administrative”  or it is otherwise appropriate not to do so).
We anticipate that this will not be the end to cases clarifying the appropriate treatment of litigants in person.
 As held in Barton v Wright Hassall LLP  UKSC 12.
 Paragraph 10 of the judgment
 By way of a reminder, the Supreme Court in Barton held that emailing the claim form in the absence of an agreement from a defendant to accept service by that method was not valid service, nor would it be subsequently validated by the court. It was made clear that litigants in person are not a special category. For further information, see our previous briefing https://www.eversheds-sutherland.com/global/en/what/articles/index.page?ArticleID=en/Litigation_Support/barton-v-wright
 CPR 39.8(2)
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.