We are looking for the third (and final) time at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). The judge considered the meaning of “conduct of litigation” as defined by the Legal Services Act 2007. He found that the services carried out by the company that acted for the claimant did amount to “conduct of litigation”. He made it clear that such a decision could not be viewed as binding on the company as it had not been represented in the litigation. (Readers may also want to read Nearly Legal’s post on this subject “Eviction companies, conducting litigation, and defective notices” which has a greater emphasis on the landlord and tenant aspects of the case)
THE CASE
The claimant landlord bought possession proceedings against the defendant tenants. He consulted an organisation “Remove a Tenant” to act on his behalf. This firm did not hold itself out to be solicitors. One of the issues the HH Judge Worster had to consider was whether the services breached section 14 of the Legal Services Act 2007. He found that it did.
THE COMPANY’S DESCRIPTION OF ITSELF
The judge described how Remove a Tenant described itself. It is important to point out that it was quite clear that it was not a firm of solicitors.
” Remove a Tenant carries on business providing services to landlords who wish to obtain possession of their property. At the top of its letterhead, underneath its trading name, are the words “Opening your doors for you” [H3]
Remove a Tenant are not solicitors. At the foot of the invoices it sent the Claimants in this case is this rubric [H16]:
Fentham Group are not Litigators. We offer assistance in the preparation and administration of possession claims from information and documentation supplied by the landlord relative to such claims”
THE JUDGMENT ON THIS ISSUE
36.The Conduct of litigation
The “conduct of litigation” is a reserved legal activity for the purposes of the Legal Services Act 2007, and may only be carried on by an authorised person, or an exempt person. Remove a Tenant are neither. By section 14(1) it is an offence for a person to carry on a reserved legal activity unless entitled to do so. It is a defence for the accused to show that the accused did not know and could not reasonably have been expected to know, that the offence was being committed. On summary conviction the maximum sentence is 12 months imprisonment or a fine or both, and on indictment 2 years or a fine or both.
37. Schedule 2 paragraph 4 (1) of the 2007 Act provides that:
The “conduct of litigation” means –
(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)
38. Neither Mr Singleton nor Mr Walder had been able to find any decided case which considered the interpretation of that paragraph other than the very recent decision of the Court of Appeal in Ellis v Ministry of Justice CA 12 June 2018. That was an appeal from a decision of Mrs Justice May to commit Mr Ellis for contempt of court. The only available report is a Lawtel note of the rCourt of Appeal in Ellis v Ministry of Justice CA 12 June 2018. That was an appeal from a decision of Mrs Justice May to commit Mr Ellis for contempt of court. The only available report is a Lawtel note of the Court of Appeal decision. The original decision is not on BAILII and Lawtel have informed Mr Singleton that theyll await an approved transcript from the Court of Appeal, and that there may be some delay.
39. Paraphrasing the relevant aspects of that short report, Mr Ellis was a former solicitor who had assisted various litigants in person to bring claims which had routinely been struck out as an abuse of process and totally without merit. In 2016, he was made subject to an order restraining him from issuing claims on behalf of others or from assisting others to bring claims in contravention of the 2007 Act. He nevertheless persisted in “assisting a number of individuals to bring abusive claims”. The MOJ made a committal application alleging breaches of the 2016 order. May J found that Mr Ellis had “assisted in and managed cases for other people”. She considered that his actions amounted to the “conduct of litigation” by the “prosecution of proceedings” within paragraph 4(1)(a) and the “performance of any ancillary functions in relation to such proceedings” within paragraph 4(1)(c). On that issue the Court of Appeal held that the judge had been entitled to find that the appellant had acted in breach of the 2016 order by “assisting in and managing cases for other people within the meaning of the Act”.
40. There is limited assistance to be gained from that short report, and any views I express are to be treated with caution given that I do not know what the underlying facts of that case were, nor how May J or the Court of Appeal approached the interpretation of Schedule 2 paragraph 4(1) of the 2007 Act.
41. Mr Walder submits that sub-paragraph 4(1)(c) is to be read with (a) and (b). His point was that on its own, the phrase “any ancillary functions relating to such proceedings” is such a wide term that it would catch all sorts of things which are not understood to be proscribed. He submitted that the words of (c) refer to the performance of ancillary functions to (a) and (b). In other words the performance of ancillary functions in relation to the issuing of proceedings, or their commencement, prosecution and defence.
42. That is not a literal reading of the paragraph. The term “such proceedings” in (b) refers back to the words “… proceedings before any court in England and Wales” in (a); and so (on normal principles) the use of the term “such proceedings” in (c) should mean the same thing. But there is force in Mr Walder’s submissions. Two points were identified in the course of submissions. Firstly the draftsman provides an example of the sort of ancillary function (c) is referring to – the entering an appearance. That appears to refer to the process by which a party acknowledges service, and by doing so may accept the jurisdiction of the court. The current rules provide that an acknowledgement of service must be signed by the defendant or the defendant’s legal representative; CPR Part 10.5(1)(a). In other words, this is an act which only a party or their solicitor would be authorised to undertake, and which may be characterised as a step in the action.
43. Secondly, the practice of the courts has been to allow those who are not authorised for the purposes of the Act to provide assistance to litigants in the preparation of their cases. That practice is reflected by the terms of the Practice Guidance (McKenzie Friends) [2010] 1 WLR 1881. Paragraph 19 deals with the approach of the courts to the grant of a right of audience or a right to conduct litigation to a lay person, including an MF, and the reasons for that approach. Courts should be slow to grant an application from a litigant for a right of audience or a right to conduct litigation to any lay person, including an MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
44. Paragraph 27 deals with remuneration. In doing so it identifies the sort of work which an MF might be expected to undertake, presumably without breaching the terms of the 2007 Act. Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable assistance in court or out of court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering documents to opposing parties or the court, or the provision of legal advice in connection with court proceedings. Such fees cannot be recovered from the opposing party.
45. The third point in favour of (what would be) the narrower interpretation of this paragraph, is that this is a statutory provision which provides for a criminal offence, and the court would normally construe the meaning of such a provision narrowly.
46. The emphasis of the statutory definition at (a) and (b) is on the activity involved in the issue (or commencement) of proceedings, their prosecution and defence, rather than in the provision of assistance to a litigant in preparing or presenting their case. I read the words of (c) to refer to functions ancillary to the activities in (a) and (b).
47. In the course of his helpful submissions, Mr Walder explored the hypothetical case of helping his grandmother bring proceedings. He did so to emphasise his point that the nature of the individual acts which he would undertake in order to assist her would not be very different from the work Remove a Tenant did for the Claimants, and no one would be troubled by his involvement. I take his point; but there is another important point here. The courts are generally less concerned with the question of whether the assistance a litigant is offered on an ad hoc basis by a trusted relative who is involved because he has the interests of litigant at heart amounts to conducting litigation, than when that “assistance” is being provided by a commercial organisation for a fee. It may well be that the well-intentioned grandson will cross the line from time to time without the court being at all troubled. The policy which underlies the need for those conducting litigation to be trained, insured and subject to discipline is unlikely to be undermined by that sort of “assistance”.
48. I accept the point that it is the nature of the “assistance” which Remove a Tenant undertake which is the focus of the statutory test, but that assistance is to be seen as a whole and in context. The context here is that Remove a Tenant are in business to provide these services for a fee, aware of the restrictions on the work it can undertake, and of the fine line between assistance and conducting litigation. They provide a package of services, which in the particular circumstances of this case, included functions which were ancillary to the issuing of these proceedings and their prosecution. It was more than assisting with clerical or mechanical matters; Remove a Tenant were closely involved in the issue and prosecution of this claim. Its role included providing advice, drafting the proceedings, paying the issue fee, preparing a witness statement and certificates ofservice, preparing a hearing bundle and serving it on the Defendant and the Court, making arrangements (through properly qualified solicitors) for an advocate to represent the Claimants, paying for that service, and corresponding with the other party (albeit briefly).
49. Within that package is the drafting and issue of the claim form. I can accept that the online PCOL form involves some box ticking, but it also involves some drafting and the identification of how to put the claim. It is not particularly complicated, but the point is that the drafting was done by Mr Turner. More importantly perhaps for the purposes of the statutory definition of the conduct of litigation, Mr Turner has filled in the form in such a way that (on my reading of the rules) he has entered the Claimants name(s) on the form, thereby applying their signature to it. He has also entered Remove a Tenant’s address in circumstances where that has then appeared on the Claim form as the “Claimant or Claimant’s solicitor’s address to which documents or payments should be sent …”.
50. The evidence of Mr Gill is that he ticked the statement of truth icon, and Mr Turner’s evidence is that he entered his address only as a correspondence address. That mitigates the position, but I have concluded that the package of work taken together, and this aspect in particular, crossed the line, and breached the provisions of the 2007 Act. If I am wrong about that, it came perilously close.
51. That is a conclusion I reach on the evidence before me. At the start of the hearing Mr Walder raised the question of whether it was appropriate to proceed to consider whether Remove a Tenant had conducted this litigation without them being added as a party. It was not suggested that I adjourn, and despite having some informal notice of the hearing, no application was made by Remove a Tenant to be joined. I make it plain that Remove a Tenant is not bound by this decision or the findings I make above, for the simple reason that it is not a party to this litigation and has not been heard on the issue by the court .
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