In the well-publicised case of Barton v Wright Hassall LLP  UKSC 12, Lord Sumption, with whom Lord Wilson and Lord Carnwarth agreed (Lady Hale and Lord Briggs dissenting), stated:
“The 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, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. 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.”
This was interpreted by many to mean that there was effectively a level playing field between litigants in person and represented parties, however a recent Court of Appeal decision suggests that the issue in question may be slightly more nuanced than initially assumed.
In J v K and another (Equality and Human Rights Commission intervening)  EWCA Civ 5 the Appellant had brought proceedings against the Respondent in the Employment Tribunal, such claim having been struck out on the 16th March 2016. Following the Respondent’s application for costs, a judgment and written reasons was sent to the parties on the 19th August 2016 ordering the Appellant to pay the Respondent’s costs in the sum of £20,000.
The Appellant wished to appeal and pursuant to the Employment Appeal Tribunal Rules of Procedure 1993 the deadline for doing so was 4pm 42 days after the reasons were sent, which in this case meant the deadline was 4pm on the 30th September 2016. Five minutes before that deadline, at 3.55pm, the Appellant sent his notice of appeal and related documents to the EAT via email, however due to the size of the attachment the email failed. He then re-sent the documents by way of smaller emails, and they were received by the EAT at around 5pm, thus after the deadline.
The Appellant was therefore notified that he had to apply for an extension, which he did. The application was refused on the papers by the Registrar. The Appellant subsequently appealed and following an oral hearing HHJ Hand QC dismissed the appeal.
Thereafter the Appellant appealed to the Court of Appeal where the issue at hand, was whether the Appellant should be expected to know about the limit of the EAT’s email server. The issue of the server’s limit is addressed in an HMCTS guide on its website entitled ‘I want to appeal to the Employment Appeal Tribunal (T440),’ which states:
“If you use email, the size of any one email, including attachments, should not exceed 10MB. If you attach scanned documents you should check that they do not exceed that size. If they do, you may need to rescan them at lower quality and/or send them in more than one email.”
In addition to being able to review T440 online, parties to an ET decision are routinely sent a covering letter referring them to booklet T426 entitled ‘The Judgment,’ which in turn refers parties to T440. However in this case HHJ Hand QC had made the finding that the Appellant had never received a hard copy of the Judgment and therefore had not received the covering letter referring to the booklets referred to above.
Thus Lord Justice Underhill, with whom Lord Justice Baker and Sir Patrick Elias agreed, stated:
“I am inclined to think that the correct analysis is that the Appellant has provided a satisfactory explanation for missing the deadline, namely his (on the particular facts, reasonable) ignorance of the 10mb limit. But even if the view were taken that he ought to have found T440 for himself, despite not being directed to it, any failing in that regard seems to me to have been venial; and in circumstances where the cause of the problem was the EAT’s own system, and where service was correctly effected within an hour of the deadline, I believe that this is one of those exceptional cases where an extension was required as a matter of justice.”
Moreover Lord Justice Underhill went on to give further guidance as to how the EAT, as opposed to the litigant in person, could improve the situation in future as follows:
“I am bound to say, finally, that if, as the present case and the others to which I have referred suggest, it is common for the EAT server to be unable to cope with quite standard documentation that is not satisfactory. The best thing would obviously be for its capacity to be increased. But unless and until that is done consideration should be given to drawing attention to the problems rather more emphatically than is done at present. In particular:
(a) It might be better if the covering letter accompanying the judgment referred directly to T440 rather than leaving it to be found via T426, and made it clear that it ought to be read.
(b) T440 itself might point out (if this is indeed the case) that the 10mb limit is very easily exceeded if scanned documents are included. As Langstaff P says in Farmer, the problem is not really “highlighted” in the current draft.”
Thus whilst it was hoped that Barton had confirmed that a litigant in person would not be granted the benefit of the doubt, or given any latitude when it comes to complying with court orders it rules, unfortunately it may not be as simple as that. It would therefore appear that one cannot simply assume that the platitude ‘the rules are the rules and they apply to everyone’ applies in each case. It remains important to consider each matter on a fact-specific, case-by-case basis.