Kerry Underwood

GUIDANCE ON LEGAL SERVICES ACT 2007 AND “CONDUCTING LITIGATION”

with 2 comments


In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In Kassam v Gill and another (unreported), 13 August 2018, (County Court at Birmingham)

the County Court  considered the procedure for completing a statement of truth in an online claim form, providing guidance on what amounts to compliance with CPR requirements for statements of truth, under CPR 22 and CPR 5.3.

The judgment also provides helpful analysis of what constitutes “conduct of litigation” for the purposes of the Legal Services Act 2007.

The claimants instructed a firm to assist them with a possession claim.

The firm were not solicitors and were not authorised or exempt under the Legal Services Act.

A representative of the firm helped the claimants complete an online claim form.

The first claimant had ticked the box, or clicked the icon, on the online form to signify agreement to the statement of truth, on behalf of himself and the second claimant.

However, in the County Court’s view, this was not sufficient to satisfy the rules.

CPR 5.3 and PD 55B.9.1 envisaged that the signature was applied personally.

The County Court considered that a representative applied the signature when he entered the claimants’ names on the online form.

He acknowledged that there was no provision for entering the claimants’ names in the section of the form providing for verification of its contents by the statement of truth.

The claimants’ names and signatures were automatically inserted into the statement of truth once the box was ticked or the icon clicked.

The judge noted that this was “not a happy fit” with the requirements of the rules.

However, while the claimants’ actions did not comply with the letter of the rules, in the context of the online process, they met the purpose of the provisions.

Therefore, it was not appropriate to strike out the claim form. No doubt the court was influenced by the fact that the defendant, the claimants’ tenant, clearly owed a lot of rent.

The County Court’s analysis of what constitutes “conduct of litigation” for the purpose of Schedule 2, paragraph 4(1) of the Legal Services Act is also worth noting.

On the facts ,the court considered that the firm was closely involved in the issue and prosecution of the claim, including providing advice, drafting proceedings, preparing witness statements and bundles.

This was more than assisting with clerical or mechanical matters and, along with the fact that a representative had entered the firm’s address as the correspondence address on the claim form, breached the provisions of the Legal Services Act.

However, although the firm had committed an offence, this had no direct effect on the validity of the claimants’ cause of action and it was not just or proportionate to strike out the claimants’ claim as a result.

 

The court said:

“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 [McKenzie friend] 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.”

 

“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 the litigant at heart amounts to conducting litigation, than when that “assistance” is being provided by a commercial organization for a fee. … 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”.”

 

Comment

Parliament, the courts, and society generally, need to grapple with this issue.

Quite simply – are we to have a free market where unqualified, untrained and undisciplined people can practice law, or are we to insist that only qualified, regulated, disciplined and insured lawyers can conduct litigation?

There is no halfway house.  

 

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Written by kerryunderwood

September 19, 2018 at 10:20 am

Posted in Uncategorized

2 Responses

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  1. This is yet again an unjustifiable circumvention of regulation, the breach of which amounts to a criminal offence. I read with interest Civil Lit Brief synopsis of similar cases and was dismayed to think that such a fundamental breach of the rules sanctioned by criminal penalties still allowed the case to continue unabated. The way here is to dismiss the claim and make the other non authorised person pay costs and damages.

    I have had a similar argument in court and it fell on deaf ears the other side having agreed with an order for settlement. That made no difference ruled the DJ the orders stands -ridiculous.

    Richard Gray

    September 19, 2018 at 1:04 pm

  2. Richard

    I agree.

    Kerry

    kerryunderwood

    September 19, 2018 at 3:57 pm


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