When Is A Solicitor Not A Solicitor?
Whilst law firms and solicitors are entitled to carry out reserved legal activities on behalf of their clients, there are individuals and firms that purport to offer legal services to the public (often for ‘cheaper’ or ‘fixed’ rates and perhaps appearing, at first glance, to be a law firm) who are not entitled to do so. The recent decision of Mr Justice Cavanagh in Baxter v Doble & Anor  EWHC 486 (KB), brought this issue to the fore once again. Ruth Nevitt, Solicitor, considers further.
- The Legal Services Act 2007 states that a ‘reserved legal activity’ may only be carried out by a person who is entitled to do so, being an ‘authorised person’ (including a solicitor or barrister) or an ‘exempt person’ (as defined by Schedule 3).
- A ‘reserved legal activity’ includes the ‘conduct of litigation.’ Per paragraph 4 to Schedule 2, this means the issuing of proceedings, the commencement, prosecution and defence of such proceedings and the performance of ancillary functions in relation to such proceedings.
- Section 14(1) makes it a criminal offence for a person to carry out a reserved legal activity unless that person is entitled to do so.
- Section 14(2) provides a defence if the accused can show that they did not know, and could not reasonably have been expected to know, that an offence was being committed.
Ms Doble was a graduate member of the Chartered Institute of Legal Executives (CILEx) and controlled the business, Sarah Doble Associates Limited. Ms Doble had previously been made subject to disciplinary proceedings by CILEx in relation to conducting reserved legal activities without being entitled. Having made changes to her business model subsequent to this, CILEx considered that she was not conducting litigation.
A landlord client engaged Ms Doble and her business in relation to a possession claim against Mr Baxter. In engaging in this matter, Ms Doble and her business drafted and served section 8 and 21 Housing Act 1988 notices and served the resulting notice of the issue of proceedings. Ms Doble and her business drafted the pleadings, prepared the enclosures, posted the claim for issue, paid the issue fee from the business’ account, and ensured the documents were CPR compliant. When the claim became defended, Ms Doble and her business drafted the reply and defence to counterclaim.
Presumably to avoid any allegation that they were conducting litigation, Ms Doble and her business did not go on the Court record as the landlord’s representatives (nor could they, because there were not), sign any pleadings (instead having their client do so), use the business’ letterhead or file the reply and defence to counterclaim with the Court.
Mr Baxter applied to the Court to commit Ms Doble and her business for contempt on the basis that they were conducting litigation without being entitled to do so.
Mr Justice Cavanagh concluded that the actions of Ms Doble and her business fell within the definition of ‘conduct of litigation’ and so a ‘reserved legal activity.’ Mr Justice Cavanagh stated that the services performed, including the filing of the claim form and the particulars of claim, made clear that they amounted to more than assisting with clerical and mechanical matters. The fact that the documents were not signed by Ms Doble and her business did not matter, nor that they did not go on the record as their client’s representatives. Nor did the fact that they did not submit a covering letter on letterheaded paper.
When considering the potential defence under s.14(2), Mr Justice Cavanagh stated that the standard of proof was the balance of probabilities and the burden of proof rested with Ms Doble. Mr Justice Cavanagh determined that Ms Doble ‘did not believe for a moment’ that she was committing an offence and that she was an ‘entirely truthful witness’ who had earlier adjusted her business model to comply with the 2007 Act; she genuinely believed that she was not conducting litigation.
Mr Justice Cavanagh commented that the law was ‘unclear’ about whether the provision of advice or assistance fell within the definition of conducting litigation, considering that the terminology, ‘prosecution of proceedings’ was vague and uncertain.
Accordingly, the defence being successful, the application to commit Ms Doble and her business for contempt was dismissed.
This case serves as guidance to both members of the legal profession and members of the public that legal services should only be provided by (and sought from) those who are entitled to do so. There are strong public policy reasons for this; those who are authorised will have appropriate education and training, are subject to the supervisory jurisdiction of the Court and their regulator and are insured. Those who are not so entitled cannot offer the same level of service and protection to their clients.