The judgment of the High Court in Baxter v Doble & Anor  EWHC 486 (KB) highlights the need for caution among those operating certain business models engaged in providing legal services, to ensure they avoid conducting litigation if not legally entitled to do so (an offence punishable by up to two years in prison and/or a fine).
The case concerned an application to commit the respondent company, and its CILEX-graduate director and sole shareholder, for contempt of court.
The respondents had provided legal services to a landlord seeking a possession order for a residential property, under s.8 and s.21 of the Housing Act 1988. The claim for possession was ultimately successful. The tenant seemingly made the application in the course of the underlying proceedings.
The case is relevant to the public policy issues of maintaining the proper administration of justice, and public access to legal services to the extent that this is a function of the breadth of the class of persons able to carry out “reserved legal activities”. The Law Society, the Legal Ombudsman, and CILEX Regulation Limited, an Approved Regulator for the purposes of the Legal Services Act 2007 ("the Act"), were invited to make representations to the court. Each did so. The judgment also examined the authorities on the meaning of “the conduct of litigation” for the purposes of s.12(1)(b) of the Act, and as defined in Schedule 2 thereof. None of the authorities were on all fours with the present case, and some predated the Act.
Various principles were outlined for determining what does and does not amount to the conduct of litigation:
- The starting-point must be the statutory language itself, and the statutory words must be given their natural and ordinary meaning.
- It must be borne in mind that the legislation prohibiting the conduct of litigation by those not entitled, is penal.
- Substance must prevail over form (to suggest what this means: the focus of the court (but not necessarily the decision in respect of a particular issue) must be on an accurate and complete overview of what is happening, rather than, for example, individual technical details or the legal/technical form of a document).
- The question is one of fact and degree in every case.
- The court should look at the entirety of the activities undertaken and then decide whether, taken in the round, they amount to the conduct of litigation.
- No step taken prior to the issue or commencement of proceedings can amount to the conduct of litigation. This may include, for example, drafting a claim form or particulars of claim. However, such steps may contribute to the bigger picture and shed light on whether steps that were taken at a later stage in the proceedings were purely mechanical or clerical.
The court made its decision in accordance with those principles – which included looking at the entirety of the activities undertaken. However, it was held that some of the activities by the respondents each, when looked at in isolation, consisted of the conduct of litigation. The list of such activities appears to include all of the following:
- Filing the claim form and particulars of claim.
- Serving the reply and defence to counterclaim on the other party.
- Payment of the court fee of £355 by cheque from the respondent’s account, having been put in funds in advance by the claimant.
- Giving of instructions to an advocate.
- Drafting of witness statements.
- Drafting of an application notice.
- Drafting of a draft order for a strike-out application.
- Drafting of the reply and defence to counterclaim.
- Drafting of the case management summary for the CMC.
It has been held in other cases that serving a claim form and particulars of claim amounted to the conduct of litigation.
Breadth of the Definition of “The Conduct of Litigation”
The court held that the definition of “the conduct of litigation” in the Act is wider than that set out in the statute which preceded it, because it now includes the commencement, prosecution and defence of proceedings before a court. “The conduct of litigation” is not restricted to the formal steps required.
However, the giving of legal advice in itself does not amount to the conduct of litigation. This applies even if the legal advice is about the procedures that need to be followed in the proceedings.
Activities which Did Not Determine the Conduct of Litigation
Certain facts did not affect whether the activity in question amounted to the conduct of litigation:
- Whether a letter accompanying documents served on another party bore the company’s letterhead.
- That the respondents did not formally go on record.
It was held that if these factors were determinative of whether the activity amounted to the conduct of litigation, it would provide an incentive for those who were not authorised persons to conceal their involvement from the court.
- Whether the claim was filed by post or online did not affect whether said filing amounted to the conduct of litigation.
- The drafting of the notices under sections 8 and 21 of the Housing Act 1988 did not amount to the conduct of litigation. These are not steps in court proceedings themselves, even though they are necessary precursors to such proceedings. In many and perhaps most cases, the service of a section 8 or section 21 notice will not lead to litigation. The matter will be resolved without the need to issue proceedings.
- The service of a notice of issue was unlikely, on its own, to amount to the conduct of litigation. Though it was a formal document, and one that contained a statement of truth, it was not a document that was required to be served as part of the proceedings, and it was
- not served on the court or on the other party to the proceedings: it was served on any other occupants of the property.
- Process servers / postal workers perform a mechanical or administrative function and are not conducting litigation when they deliver documents to the court or a party.
- The Practice Guidance: McKenzie Friends (Civil and Family Courts) provides guidance whose purpose includes to help McKenzie Friends avoid conducting litigation. They must not “manage litigants' cases outside court” – which is what the respondents were doing.
- None of the court’s findings mean that a friend or relative who gives informal advice to a litigant in person, or even who gives them a hand with drafting, is conducting the litigation. They would not be prosecuting the proceedings on behalf of the litigant.
Held – and Implications for the Future
The court held that the respondents had conducted litigation, but were not guilty of contempt of court. They had a valid defence under s.14(2) of the Act because they did not know, and could not reasonably have been expected to know, that they were acting in contempt of court and were committing an offence contrary to s.14(1) of the Act. This was in part because of the steps they had taken to try to verify they were not conducting litigation (which meant they genuinely believed that they were not), and in part because the statute and case law on the area was unclear.
Following the judgment, the law is now clearer, and it will be difficult in future to successfully rely on the ambiguity of the law as part of a defence.