Conducting Litigation? Watch Your Step: Baxter v Doble & Anor

The Issue

Conducting litigation is a reserved legal activity under Legal Services Act 2007 (LSA): doing so without authorisation is, on conviction, both a criminal offence and a contempt of court.

The complication is that the LSA definition of conduct of litigation has three limbs, as set out in sch 2 of LSA:

1. The issuing of proceedings before any court in England and Wales;
2. The commencement, prosecution and defence of such proceedings; and
3. The performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

The first two are tolerably clear, with “court” being defined in s 207(1) of LSA. The third considerably less so: what is meant by “ancillary functions in relation to such proceedings”?

Abridged Past Case Law

Prior to LSA, conduct of litigation was a criminal offence if not authorised by way of Courts and Legal Services Act 1990 (the “1990 Act”). A narrow construal of conduct of litigation within the 1990 Act was taken by the Court of Appeal in Agassi v Robinson [2005] EWCA Civ 1507. However, this was decided before the LSA, the language of which differs from the 1990 Act.

The Court of Appeal, in Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865, confirmed that Agassi did not provide authoritative guidance on the ambit of conduct of litigation for the purposes of LSA.

New Guidance from The High Court

The High Court has now provided such guidance in its judgment in Baxter v Doble & Anor [2023] EWHC 486 (KB). The Law Society, CILEX and the Legal Ombudsman were given an opportunity to make submissions given that the issues underlying the case are of wider importance. As Mr Justice Cavanagh explained at [6]:

“The issues raised by these proceedings are potentially of general public importance. There are a number of other businesses which follow a similar operating model to that followed by the Respondents. Some of these assist landlords, and some operate in other spheres, such as taxation. [Counsel for the Claimant describes] those who are unauthorised to carry out reserved legal activities but who run a business giving assistance to litigants in the courts as ‘a new legal profession.’”

This was a case in which a tenant (Mr Baxter), who was being evicted, developed concerns about the actions of an individual (Ms Doble), and the company of which she was sole owner and director, and whether these actions constituted the conduct of litigation: he sought that both Ms Doble and her company be committed for contempt of court.

Ms Doble was what used to be called a “Graduate Member” of CILEX, the terminology of which has now changed to be “CILEX Member - Advanced Paralegal”. She accepted that neither she, nor her company, was entitled to conduct litigation, but denied that the steps they took to assist Mr Baxter’s landlord amounted to the conduct of litigation, suggesting at times in cross-examination that she undertook a “purely mechanical function”.

Ms Doble drafted claim forms and particulars; posted these documents to the court; paid the issue fees; signed a certificate of service; instructed an advocate for a hearing; drafted witness statements; drafted an application notice and draft order; delivered the reply and defence to counterclaim to Mr Baxter, his wife and his solicitor, and; drafted the Case Summary for the Case Management Conference.

Mr Justice Cavanagh in his judgment considered a wide variety of authorities and concluded as follows, at [223]:

“…the Respondent’s actions should be looked at in the round and, as such, amount to the prosecution of proceedings and so to the conduct of litigation…”

He continues:

“…I consider that some of the actions taken by the Respondents, looked at in isolation, consisted of the conduct of litigation, in addition to the filing of the claim form and particulars of claim, accompanied by the payment of the court fee, and the service of the reply and defence to counterclaim. Specifically, I think that the giving of instructions to an advocate; drafting of witness statements; the drafting of the application notice and draft order for the strike-out application; the drafting of the reply and defence to counterclaim; and the drafting of the case management summary for the CMC each formed part of the prosecution of the claim. The drafting of the claim form and the particulars of claim was done, ex hypothesi, before the proceedings were commenced, and so did not amount to the conduct of proceedings in themselves, but they are relevant in that they enhance the impression that the total package of services provided by the Respondents, taken as a whole, amounted to the conduct of litigation.”

Consequently, it is not just certain individual steps that constitute the conduct of litigation, although they might, but the broad course of conduct, taken as a whole. This is potentially very broad indeed.

Mr Justice Cavanagh found — to a criminal standard since these were committal proceedings — that Ms Doble and her company had conducted litigation. However, he concluded that she did not know, nor could reasonably have been expected to know, that she was conducting litigation, thereby engaging the statutory defence in s 14(2) LSA: broadly, he did so because of lack of clarity in case law — that has now been corrected with his judgment.

Implications

Conducting litigation is to be interpreted more broadly than many had thought: all now know, or ought to know, the law with clarity — the avoidance of committal by Ms Doble may not be available for others who have been so acting.

Barristers who do direct access work may wish to obtain a litigation extension to protect themselves against inadvertently conducting litigation given this broader interpretation.

Many who operate within the residential property sector by way of ‘alternative business models’ may wish to reconsider their conduct: this is a sector in which there are already many perceived abuses of tenants, prompting the upcoming Renters (Reform) Bill, which Joseph Meethan has written about.

Who has been drafting, posting, serving and signing documents and much else in eviction proceedings before the County Court, for example, since LSA became law? Have tenants been subject to ‘rough justice’ by courts allowing individuals who are not authorised to conduct litigation to act like Ms Doble and her company? Have costs been awarded against tenants in such proceedings for services that are unlawful? Perhaps the Renters (Reform) Bill will illume more such practices and this clarification will have sectoral relevance.

For now, make sure you are authorised to conduct litigation: and, perhaps, if you are a landlord or agent, treat your tenants a bit more nicely so they are not motivated to seek such clarifications from the High Court.