Under section 14(1) of the Legal Services Act 2007 (the Act), it is an offence to carry out a reserved legal activity, including the conduct of litigation, unless a person is authorised to do so.
Solicitors and law firms are usually authorised to do so, but there are a number of individuals and firms that offer legal services to members of the public, but who are not so regulated to conduct litigation as part of their services.
In the recent case of Baxter v Doble & another [2023] EWHC 486 (KB), Mrs Doble, a graduate member of the Chartered Institute of Legal Executives (CILEX) had set up a company in 2014, offering, amongst other things, landlord and tenant services to clients.
Mrs Doble (and her firm) acted for a Mr Persey in a possession claim between 2018 and 2020, against Mr Baxter. Mr Baxter abandoned his defence of the possession claim, but applied to the court to commit Mrs Doble to prison for contempt, as he claimed she had provided legal services to Mr Persey that amounted to the conduct of litigation, in breach of the Act. Indeed, Mr Baxter’s solicitors in the possession claims had also highlighted their own concerns about Mrs Doble conducting litigation to the court.
The judge considered the work that Mrs Doble and her firm had carried out on Mr Persey’s behalf, to see if it amounted to the conduct of litigation. The work included:
- Drafting of the Claim Form and Particulars (although these were checked, approved and signed by Mr Persey)
- Preparing enclosures to the above
- Checking bundles of documents sent to the court
- Posting the Claim Form, particulars of claim and covering letter to the court
- Paying the court fee from her company’s account, having been put in funds by Mr Persey
- Ensuring the documents that were filed complied with the Civil Procedure Rules
- Drafting a reply and defence to counterclaim (though it was checked and approved by the client)
- Sending it to counsel for review
- Making arrangements for pleadings to be served by hand, by process servers
- Ensuring court deadlines were met
At no time did Mrs Doble’s firm go on the court record as acting for Mr Persey, nor did they sign any of the pleadings. They also did not use the company’s letterhead to send out any correspondence.
Taking into account all the circumstances of the case, the wording of the Act and previous case law, the court determined that Mrs Doble and her company had conducted litigation on behalf of Mr Persey that was a reserved legal activity, for which she was not authorised. Even though they were not on the court record as acting for Mr Persey, the firm provided ‘full-service assistance’ to Mr Persey and the court felt it would be artificial to say that Mr Persey had conducted it by himself, as it would understate the nature of Mrs Doble and her firm’s involvement.
However, Mrs Doble and her company were found not to be in contempt of court, as the court accepted her defence that she did not know that she was committing an offence (Section 14(2) of the Act).
Mrs Doble and her company had previously been investigated by CILEX Regulation and had adapted the business practices to ensure that letters were not sent out on company letterhead and that the new business model did not amount to the conduct of litigation. The judge held Mrs Doble to be an ‘entirely truthful witness’ who thought, that after having made the changes to her business, that she had ensured neither she nor her business were conducting litigation.
The case provides useful guidance to legal practitioners and members of the public as to the type of activities that the courts and authorities will look at to see if someone is conducting litigation on behalf of a client, when not authorised to do so.
At the end of his judgment, the judge noted that although Mr Baxter’s counsel had invited the court to impose a short suspended prison sentence on Mrs Doble (if they had been successful in their application to commit for contempt), he would have been extremely reluctant to do so, bearing in mind Mrs Doble’s honesty and professionality throughout these proceedings and the earlier possession claim.
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