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Coronavirus advance fee fraud: the NHS has warned households to be vigilant about fraudsters sending out fake invitations to have the coronavirus vaccination. 

The warning comes amid an increasing number of complaints being made about scammers attempting steal individuals’ personal details or extract payments from them. According to Action Fraud, there have been more than 1,000 reports of email scams claiming to offer vaccines in just 24 hours this week. 

In one case, a 92-year-old woman in London was charged £160 and administered with a fake vaccine, which she was told would be reimbursed to her by the NHS. 

Fraudsters are also sending out scam emails which include a link to register for the vaccine, and asking individuals to provide their bank details to verify their identification or make payment. 

The NHS says that it would never ask for bank details, as the vaccine is free and no registration is required either. 

These scams are, of course, classic examples of advance fee frauds. An advance fee fraud is one of the most common types of confidence tricks, and typically involves promising the victim a significant share or a large sum of money, or in this case a highly sought after vaccination, in return for a small amount of money up front. 

For more information on how our expert fraud solicitors can help you, visit our Advance Fee Fraud Page

If you would like to know how NHS would contact you, follow this link:
Coronavirus Scam

The recent case of R (Kombou) v Wood Green Crown Court is a sobering lesson for anyone facing a criminal prosecution, and who is considering pleading guilty with potential Confiscation proceedings looming.

Case background

The defendant entered guilty pleas at the Magistrates’ Court to breaches of a Local Authority (Enfield Council) planning enforcement notice. The offences related to unauthorised conversion of a house into 8 separate units.

The defendant sought to change his plea when the matter was committed to the Crown Court and the Local Authority pursued Confiscation proceedings. He applied to vacate his guilty plea but the Crown Court refused his application.

The defendant challenged, by way of Judicial Review, the Crown Court’s decision to refuse permission to vacate his guilty plea. The defendant argued that the Local Authority was improperly motivated because of the benefit which they would derive from the Home Office’s Asset Recover Incentivisation Scheme (“ARIS”).

The High Court rejected his challenge, finding that the fact that the Local Authority had considered bringing confiscation proceedings did not mean the decision to prosecute had been motivated by an improper consideration; there was nothing to support the argument that the decision to prosecute was improperly motivated.

There is some background to the case but one of the reasons the defendant pleaded guilty was because he thought it was possible that the case might end without Confiscation proceedings.

Local Authorities are increasingly relying on planning enforcement notices to prosecute and recover any ‘ill gotten gains’. Local Authorities will receive 37.5% of the money recovered – it’s big business, and so one may naturally be critical of the motivations to prosecute here. The Court concluded that there were no improper motivations in this case, however.

How can we help?

If you are facing a Local Authority investigation or prosecution, it’s important to get early advice from an experienced team of lawyers. Early representation can make all the difference.

Unexplained Wealth Orders (“UWO”) are posing an increasing threat to the assets of private individuals. At a moment’s notice, authorities such as the HMRC and CPS can seize assets where they suspect the property is criminal property. The economy has taken a significant knock and all of the signs suggest authorities such as the HMRC are looking to UWO rather than proceed by way of a criminal prosecution.

Put simply, a UWO requires the responding party to explain what interest they have in whatever property is named in the order, how they obtained the property, and how it is held.

Applications for such orders can be made without notice to the High Court by enforcement authorities including the Serious Fraud Office, Her Majesty’s Revenue and Customs, and the National Crime Agency. Applicants must:

1. Specify or describe the property in respect of which the order is sought; and

2. Specify the person who they believe holds the property.

The threshold tests for obtaining an order are relatively low. Before deciding whether to issue a UWO, the court needs to be satisfied of the following:

1. That there is reasonable cause to believe the respondent holds the property;

2. That the value of the property is greater than £50,000;

3. That there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient to enable the respondent to obtain the property;

Thereafter, for most applications, the court will be asked to consider there are reasonable grounds for suspecting that the person affected by the order or a person connected with that person is or has been involved in serious crime (whether in the UK or elsewhere).

Many commentators discussing UWO focus on people suspected to have suspicious political connections or “politically exposed persons” (PEP). It is important to stress, UWO have an impact well beyond PEP and can affect any individual.

If the individual does not provide satisfactory evidence of how their assets were acquired, these assets can be held as ‘recoverable property’ for the purposes of a civil recovery order under the Proceeds of Crime Act.

The order may also be accompanied by an interim freezing order, as an unexplained wealth order alone will only lead to investigation, rather than the assets being frozen or seized. This is typically imposed to prevent any assets being disposed of before the unexplained wealth order process is complete. However, this could lead to a number of innocent people fighting to retain their assets on the basis of an assumption of fraud.

In National Crime Agency v Baker and ors [2020] EWHC 822 (Admin), the High Court discharged three unexplained wealth orders brought against two high profile Kazakhstan individuals relating to three London properties worth over £80m. In this case, following a detailed examination of the evidence, the court found the source of ownership of the properties were no longer unexplained. In this case, all properties were subject to freezing orders whilst the unexplained wealth order process was being carried out.

Whilst it is a complex task for agencies to prove how individuals obtained their wealth and identify ownership of assets, especially overseas, it seems that unexplained wealth orders are being used as an alternative to impair the individual in question, as it would be onerous to arrest and charge the individual with a criminal offence based on investigative purposes.

Further, this type of order places the burden on the individual, rather than the enforcement agency to evidence the source of the wealth. The threshold for an obtaining an order is relatively low as the civil standard of proof applies, making it easy for agencies to pursue anyone they believe worth investigating. The authorities only have to be satisfied that the evidence is strong enough on the balance of probabilities that there has been a serious criminal act.

In Baker, the Court emphasised the relatively limited purpose of UWOs as an investigative tool as once property and asset ownership has been explained, the purpose of the order falls away. The nature of an unexplained order seems draconian and unnecessary, especially as it places such as unfair burden on the individual. It seems these orders are being used as an alternative for bringing criminal charges, making it wholly unfair on the individual. The individual in question must prove the burden themselves and undergo an investigation, whilst their assets are likely to be frozen and tried without a jury. This seems wholly unfair and a cause for change regarding the nature of unexplained wealth orders, due to their detrimental effect on those who could be innocent individuals.

Being investigated can be extremely daunting and as the threshold for investigation is low, it is crucial that you obtain the right legal guidance as early as possible. Eldwick Law have a team of lawyers who are experts in this area of law and can assist you with your case, no matter how big or small.

COVID-19 has changed the scope of business contracts in a variety of ways including the performance of contractual obligations. It is important for businesses to recognise their legal standing and the contractual issues they may be facing in light of coronavirus, so that they are not exposed to a claim for damages.

Whether a party can suspend or terminate a contract due to the current climate will depend on a number of factors and the specific circumstances of the contractual terms in question.

Force Majeure

Unforeseen circumstance clauses contained within contracts are often expressly referred to in force majeure clauses in contracts. A force majeure clause will typically allow parties to renegotiate, extend, suspend and/or terminate the performance of the contract when an unforeseen or unexpected event has occurred. Force majeure is not a doctrine of English common law, meaning it is not implied in a contract. Therefore, parties wishing to rely on this clause must expressly insert a force majeure clause into a contract to rely upon it. Parties will often insert a force majeure clause to allocate risk between them when negotiating the drafting of a contract. Unexpected global events, such as the Coronavirus pandemic has the obvious ability to significantly disrupt the performance of a contract and is an example of where some force majeure clauses would be scrutinised quite carefully for who ultimately bears the loss.

Is COVID-19 a force majeure event?

Force majeure clauses must be specific, as the consequences of an unexpected event will be determined by the interpretation of the clause by the courts. The clauses will be examined in great detail to determine whether they can be taken to cover the intervening event and to ascertain whether the event is materially relevant to the performance of the contractual obligations in question. Whether a force majeure clause has been triggered in a contract will depend entirely on the exact wording that the parties have used, this often includes a non-exhaustive list of events. For example the presence of words such as: “pandemic”, “epidemic”, “outbreak”, “government action”, or “crisis” will be crucial in parties being able to argue that their force majeure clauses apply to the current circumstances.

It is the duty of the party seeking to rely on the clause to prove that the force majeure event has significantly prevented or delayed them from performing their contractual duties. Classic Maritime Inc v Limbungan Makmur [2019] EWCA Civ 1102 suggests that the party looking to rely on a force majeure clause must have been willing and ready to perform the contract, even if the exceptional event had not occurred. The unexpected event must be the cause of the failure to perform the contract, rather than an excuse if the underlying problem is something else. Therefore, to give a current example, it isn’t enough that COVID-19 was around at the same time as the breach of contract, it has to be the cause of the breach.

The English courts have previously not looked particularly favourably on reliance of force majeure clauses. However, the current climate makes it more likely than ever that parties will try to rely on force majeure clauses; due to the vast economic impact the pandemic is having on society and in turn, the impact it will have on the ability to perform contractual obligations. The Courts will not offer general guidance for this particular area of law, rather they will consider the cases on their individual merits.

What if the contract does not include a force majeure clause?

If force majeure is not a clause defined within a contract, parties may try to rely on specified time periods, which could warrant automatic termination. Parties will often scour their contracts for any clauses which provide flexibility, such as an option for the parties to terminate or renegotiate the contract, or any redress clauses. These clauses would need to be specifically drafted within the contract for them to take effect.

Further, if a force majeure clause cannot be invoked, parties may seek to rely on the frustration of a contract to bring the contract to an end. A contract can be frustrated when something occurs after the formation of a contract, rendering it impossible to fulfil. Similar to force majeure, the burden of proof for frustration is on the person seeking to assert it. COVID-19 may possibly be a factor that parties can rely on when considering if their commercial contract has been frustrated, however this will heavily depend on the circumstances and wording of the individual contract and will often require parties taking detailed specialist advice.

The realities of a global pandemic may require parties to be forced to re-negotiate aspects of a contract if the situation changes, since each contract is analysed on its own merits; however this would need to involve constructive communication between all parties involved and potentially the involvement of specialist providers of mediation services. It is important to understand the different legal and practical implications of that COVID-19 might have on current or future commercial contracts.

Our commercial contract lawyers are experts in this field and can provide practical and specialist advice during this difficult time.

Should you have any queries with regard to this article, please do not hesitate to contact us via email: mail@eldwicklaw.com, or telephone: +44(0)203 972 8469.

On 13 March 2020 the High Court decided that Gate Ventures PLC, a company specialising in media and entertainment investment previously chaired by Lord Grade, will enter into administration. The company’s management faced accusations of mismanagement and misapplication of monies which resulted in the company falling into serious financial difficulties. Eldwick Law represented a number of Chinese individuals with small shareholdings in their fight to uncover the truth.

Gate Ventures was founded in 2015 by the legendary British songwriter and composer Geoff Morrow whose compositions were performed by stars including Barry Mannilow and Elvis Presley. The company invested in start-ups, films and had backed stage-shows such as 42^nd Street and Sunset Boulevard. Gate Ventures initially saw a surge in its share price of 55% when it debuted on the AIM market and was once backed by several prominent investment organisations.

However, the company’s fortunes were much changed by March 2020. It was alleged that Gate Ventures’ management had fallen into farce under the chairmanship of Jonny Hon, a prominent businessman based in Hong Kong. The court heard of how Mr Hon spent thousands of pounds of company money on lavish meals with foreign dignitaries, including President Obama’s press-secretary and Prince Albert of Monaco, as well as private tours of exclusive fashion houses. The court heard how Sarah Ferguson the Duchess of York, a one-time member of Gate Ventures’ board of directors, had rendered invoices of £200,000 for branding and marketing for her company ‘Ginger and Moss’ and had received £90,000 in loans from Gate Ventures which had yet to be repaid.

Lord Grade, another director and presiding chairman of Gate Ventures at the time proceedings came to court, presented the defence on behalf of the company’s management following the withdrawal of their lawyers for non-payment of legal fees. Lord Grade admitted that spending limits were not in place during the chairmanship of Mr Hon but asserted that he had presided over the emplacement of strict financial controls and that the company was close to being revived through a series of high-profile investments. However, the company’s defence ran into real difficulties when Lord Grade was unable to offer any answer to claims made by the Applicant’s lawyers that Gate Ventures inexplicably spent £1 million to buy shares in a dormant company with no assets, whose directors included members of the board of Gate Ventures, and had made a series of loans to other board members without the requisite shareholder approvals.

The court heard how Gate Ventures had posted losses of £19.5 million despite investments of approximately £24.5 million, some of which had come from an array of smaller investments made by individual Chinese consumers who had secured ‘Intervenor’ status and were represented by Eldwick Law. The company’s dire financial situation was compounded by the fact it owed £2.5 million to Chinese businessman and shareholder Zheng Youngxiong, who had launched the principal action after the company had proven itself unlikely to be able to repay him by the looming contractually-agreed deadline. Lawyers for the Applicant and the Intervenor expressed their disbelief that a company of once such significant assets could be reduced to being unable to pay its own accountants and lawyers, to which Lord Grade and his team of informal advisors had no substantive explanation.

No doubt Lord Grade had hoped to be able to replicate the defence mounted by the company earlier in the year, where the court had denied Mr Youngxiong’s application to place Gate Ventures into administration on the strength of the all-star cast of board members that included Lord Grade (former Director of Programmes at the BBC) and the Duchess of York among others. The judge highlighted on that occasion that he was willing to give the board a chance to enact a rescue plan they had presented to the court, but placed the company under an obligation to produce fortnightly financial reports to monitor its progress. But with neither the mandated reports or any of the envisioned investment having materialised by the hearing in March and with a number of high-profile resignations from the board, including the Duchess of York, and the withdrawal of the company’s lawyers – the situation looked bleak for Lord Grade and his team.

Attempts by Lord Grade to adjourn proceedings to seek alternative advice or to raise additional funds from creditors, who were said to be ‘waiting in the wings’, were robustly opposed by the applicants and ultimately refused by the court. Further attempts to place Gate Ventures into Members’ Voluntary Liquidation, a technical process whereby a company is liquidated and any remaining equity distributed to its creditors and shareholders, was similarly opposed and rejected. It was concluded that the company was in such dire financial straits that it was unlikely to survive the 21-day process without being wound up by its creditors and there was no guarantee of the process being approved by Gate Ventures’ shareholders in any event.

Ultimately the court held that Gate Ventures should be placed into administration to protect the interest of major creditors such as Mr Youngxiong and those of the smaller individual Chinese investors – many of whom had been induced into investing by dazzling roadshows and the extravagant social-media profile of Mr Jonny Hon. It is hoped that, by being placed in administration, Gate Ventures has a chance of returning to the profitable past it once knew and of producing the kinds of returns expected by its shareholders and creditors.

 

The unprecedented outbreak of COVID-19 has changed the way litigation proceedings operate in a number of ways. The recent changes include the closure of the Supreme Court, hearings being conducted remotely via video link, increased electronic pre-trial preparation, and many more procedural matters being dealt with on paper. Courts will be transferring to remote hearings where possible, which will give rise to significant change in working practices for everyone involved.

Changes to the Civil Court system

On 23 March 2020, the UK government issued instructions for everyone to stay at home, save for very limited purposes, as supported by the Coronavirus Act 2020 and related regulations. The Coronavirus Act makes a specific provision implying that the civil court should continue with remote hearings, with the aid of technology which has been supported by guidance subsequently produced by the senior judiciary.

The new legislation will inevitably require a number of adjustments to be made to the civil courts as we know them, which will require co-operation and planning from the courts and the parties involved. Such planning will need to accommodate litigants and witnesses and ensure adequate video and audio quality so that all parties can be heard clearly and documents can be displayed visibly and quickly. While use of technology had already started to be applied and trialled across various courts in England & Wales, the current regime represents the most widespread use of technology in trials so far. Judges will have broad discretion as to how to proceed with cases and will make decisions on whether remote trials will be suitable on a case-by-case basis.

Blackfriars Ltd [2020] EWHC 845 (Ch)

The fact that a case may comprise significant sums, a lengthy trial time and multiple witnesses will not necessarily prevent the court deciding to hold the trial remotely. In One Blackfriars Ltd [2020] EWHC 845 (Ch), during a pre-trial review, the High Court rejected an application to adjourn the five-week hearing until June 2021. This trial is set to involve four live witnesses of fact and 13 expert witnesses. Placing importance on the overriding objective, John Kimbell QC rejected the submission that there was a real risk of unfairness in conducting a remote trial for this claim. It was held that the challenges and upsides of proceeding with a remote trial would apply to both sides equally. In this case, the court placed importance on the fact that there were no allegations of dishonesty or fraud and that the proceedings contained a large number of contemporaneous documents, where most of the relevant matters were likely to be set out.

The trial judge acknowledged the health and safety risks posed by conducting the trial in-person and pointed out that it was not “a case in which it can be said that it is essential to have the witness, the cross-examiner and the judge and the other participants in the same physical space”. It is clear that the court are trying to strike a balance between protecting the health and safety of those involved in litigation and ensuring the course of justice will ensue, with a demonstrable focus on avoiding undue delay.

Is it a just approach?

It has been acknowledged by the courts that they do not have the technological capabilities to offer a full remote service, and have indicated that HMCTS are working urgently to expand the technology available. In the meantime, courts will conduct hearings via Skype, telephone and other available video facilities. One of the issues with this is that many participants may not have the technological knowledge for hearings to progress smoothly, which could cause delays, especially in the early months. Parties are encouraged to be cooperative, especially in cases involving litigants in person, to try and ensure some fairness during the process and the courts have indicated that they would take a more relaxed approach than usual to compliance with certain aspects of the Civil Procedure Rules. For example, if court proceedings were not received due to self-isolation restrictions or office closures a request for relief from sanctions for late service would be expected to be looked upon sympathetically. It is important for the courts and both parties to be flexible in this regard and prioritise cooperation between the parties to ensure justice is not obstructed for the sake of a tactical advantage over one party.

Some would undoubtedly think, such as the parties involved in the Blackfriars Ltd [2020] matter, that it would be more practical to postpone hearings until normality is resumed. Whilst this may seem sensible for some cases, the majority of cases are financially sensitive and adjournments may cause hardship for those involved. This may be particularly distressing whilst we are in a time of financial turmoil due to the current circumstances and not something that one party should be allowed to take advantage of.

Could this change the future of the courts?

The rules in the civil courts are flexible enough to allow the processes to be adapted quickly to ensure that proceedings fall in line with new coronavirus legislation. Some have seen the step towards a new ‘virtual’ court as a blueprint for the future of modern justice, for certain proceedings that can be easily managed without the need of physical attendance by the parties. Virtual hearings are far less costly for both parties and may be more time efficient, for example if both parties have to undergo preparation beforehand to ensure that all of those involved have in their possession the correct documents. While it remains unlikely that procedures will remain so drastically changed once the pandemic subsides, this will at least offer the most widespread trial of digital services the English court system has ever seen and will undoubtedly offer a great many lessons to learn in the making of future reforms.  

Cases are financially sensitive and adjournments may cause financial difficulty for those involved. This may be particularly distressing whilst we are in a time of financial hardship due to the current circumstances and not something that one party should be allowed to take advantage of.

Could this change the future of the courts?

The rules in the civil courts are flexible enough to allow the processes to be adapted quickly to ensure that proceedings fall in line with new coronavirus legislation. With many arguing that traditional courts are far behind in terms of their upkeep of the modern world, the step towards a new ‘virtual’ court may be the future for certain proceedings that can be easily managed without the need of physical presence. Once these hearings are being progressed without a hitch, it may become more sustainable to work this way going forward. Virtual hearings are far less costly for both parties and may be more time efficient, for example if both parties have to undergo preparation beforehand to ensure that all of those involved have in their possession the correct documents. Of course, it is unlikely that procedures will change so drastically once normality returns, however it may be the change the legislature needs as a step in the right direction towards a more modern court system.  

Eldwick Law have a team of expert solicitors who are able to assist you with any litigation during these unprecedented times.

COVID-19 advice and guidance

The new Money Laundering and Terrorist Finance Amendments Regulations 2019 (“The Regulations”) comes into effect from 10 January 2020 and will directly impact the art sector.

It’s a surprising move on the part of the UK Government but, many would argue, overdue given the art sector has been long regarded as an ideal playground for money laundering activities.

WHO DOES THIS AFFECT?

Essentially, most people or organisations that deal in art – including, but not limited to:

• Art dealers;
• Auction houses;
• Galleries;
• Any firm or sole trader.

SO, WHAT’S NEW?

The European Union’s Fifth Money Laundering Directive (“5AMLD”) has now been implement in the form The Regulations and targets, amongst other sectors, “art market participants”.

So, from 10 January 2020, the UK art market will be designated as a “regulated” market for compliance purposes.

WHAT DOES THIS MEAN?

In short, there will be a major overhaul in practices within the art market.

Art market “participants”, which include owners and senior members, will now need to undertake proper checks on customers and take a “risk-based approach” to compliance. Previously, this only extended to those identified as “high value dealers”, but it now applies across the board.

Art market participants who are establishing a business relationship or involved in a transaction (or linked series of transactions) worth €10,000 or more must now complete a process of “Client Due Diligence” (“CDD”) before business dealings or handling monies. These are similar checks that are carried out by banks, law firms etc, and includes the obtaining of documents such as photographic ID and proof of address.

Of note is that the €10,000 threshold is not limited to payment type – it applies to any payments in cash, cheque, bank transfer or any other payment methods.

Importantly, there is also a registration requirement: art participants will now need to register with HM Revenue & Customs (“HMRC”), the UK’s Supervising Authority, within one year.

Further requirements include the need to appoint a Money Laundering Compliance Officer (“MLRO”) to supervise compliance, report suspicious activities, review staff compliance training and so forth.

There is therefore a requirement to commit significant financial resources and time to ensuring compliance, and with the threat of potentially severe consequences for failures to comply  not least to one’s reputation.

NON-COMPLIANCE

Failure to comply can lead to fines or a prosecution against institutions, their directors and senior management – and so it is essential for any person or business to take immediate steps to ensure they do not fall foul!

FURTHER GUIDANCE

There is currently little in the way of industry guidance available, but The British Art Market Federation (“BAMF”) will be issuing guidance shortly – so watch this space.

HOW CAN WE HELP?

Establishing a compliance system to meet the obligations imposed by The Regulations may be daunting, so any affected person or entity is best advised to seek expert advice sooner rather than later – as with anything else, prevention is better than a cure.

If you would like to discuss the implementation of an effective compliance programme or have been made subject of a regulatory/criminal investigation, we offer expert advice, assistance and representation.

Should you have any queries with regard to this article, please do not hesitate to contact us via email: mail@eldwicklaw.com, or telephone: +44(0)203 972 8469.

Abbas Nawrozzadeh is a Senior Solicitor specialising in Regulatory Law and White-Collar Crime at Eldwick Law.

Our Commercial Litigation solicitors comment on this ever changing and important area of litigation law: application for relief from sanctions.

The 2013 Jackson reforms brought changes to the Civil Procedure Rules (CPR) relating to, inter alia, applications for relief from sanctions; in essence, the courts were less tolerant of breaches of the Rules and unjustified delays. The court’s approach was then updated to allow Judges to have further discretion in applications for relief. However, despite the reforms, the court’s approach to Litigants in Person remains stringent. With the reduction in Legal Aid and Conditional Fee Agreements, there is an increase in the number of individuals acting without legal assistance. Whilst the court is required to treat both represented and unrepresented parties on a level playing field, should the court be more flexible with Litigants in Person?

A stringent approach to application for relief from sanctions

The court interpreted the test in Mitchell v Newsgroup Newspapers [2013] EWCA Civ 1537 and took a ‘no nonsense’ approach towards applications for relief from sanctions. In circumstances where the breach was ‘trivial’, the party seeking relief was usually granted relief provided that an application was made promptly. On the other hand, if the breach could not be characterised as ‘trivial’, then the burden is on the defaulting party to persuade the court to grant relief. Essentially, this case made it clear that if there was a very good reason for the breach or failure to comply, then relief will usually be granted. This sled to an increase in satellite litigation.

A more flexible approach

However, the Court of Appeal in Denton v TH White Ltd [2004] EWCA Civ 906 considered Mitchell to be misunderstood and clarified the points made by adopting a more tempered three stage test for applications. The court also warned of the substantial costs that could be imposed on those parties who were unreasonably trying to take tactical advantage of an opponent’s breach and implemented further factors to consider. In Denton it was ruled that in every case, the court must consider all of the circumstances. The test requires:

1. the court to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order;
2. the court should consider why the default occurred;
3. the court should evaluate all circumstances of the case, so as to enable it to deal justly with the application.

Therefore, if there is a serious or significant breach and there is no good reason for the breach, then an application for relief from sanctions will not automatically fail as it had done in the past. The courts no longer focus on the triviality of the breach, unless it is used to decide whether the breach was serious or significant.

Litigants in person

Despite Denton allowing the court further discretion, it took a strict line approach in Barton Wright Hassall LLP [2018] UKSC 12. The Supreme Court held that Litigants in Person will not receive special consideration if they have failed to comply with the CPR.

This case concerned the service of a professional negligence claim upon the defendant’s former solicitors. The claimant served his claim form by way of email, without checking whether the defendant would accept service in this way. When the claimant informed the defendant that he was effecting service, the firm refused to acknowledge service via email, despite the expiry of the limitation period the following day. The claimant’s application to extend service of the claim form was rejected at first instance and later in two appeals. Lord Sumption commented that whilst the status of a Litigant in Person permits a “lower standard of compliance with rules or orders of the court”, the claimant had still had a duty to follow the provisions of the CPR, and it failed to do so in this case.

The Judge went on to comment that the Rules are available to lay persons online, and are therefore readily accessible to Litigants in Person. However, what makes this quite a contradictory approach is that on the one hand the court advocates the use of the internet for lay people to search for the Rules, yet the Rules themselves still allow firms to deny service via email. Email communication has become the most used communication methods between firms, their clients, and other businesses professionals. If a lay person is encouraged to search for these Rules online, then it should follow that the CPR be updated to allow service by email. The Business and Property courts themselves have introduced ‘legal tech’ such as CE file into their systems to allow for a smoother operation of the court process. In fact, Lord Briggs in his dissent of Barton stated:

“Now that issue and filing is required to be carried out online, by legally represented parties in the Business and Property Courts in London, as the first stage in eventually extending this as the mandatory method for all civil proceedings, it may be questioned for how long these constraints upon service upon solicitors by email will continue to serve a useful purpose, but any relaxation of them is of course a matter for the Civil Procedure Rule Committee.”

The court clearly realises the expansion in technology and law that seems to make the Rules outdated and it appears that those not familiar with what some describe as the outdated legal world may be penalised – those people are inevitably Litigants in Person. In Barton, the claimant had already served via email, and so had the Rules allowed him to do so without permission from the other party, he would have served on time. The outdated Rules almost obstruct the court from adopting a more flexible approach and subsequently the court has almost gone full circle by tolerating less breaches for those litigating themselves. Perhaps it is no longer a question of the court’s discretion, but a necessity to update the CPR to reflect the changes in the way we are communicating with one another.

If you have any questions in relation to this article, then please contact our commercial litigation solicitors.