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L7: Representatives
Individuals acting on behalf of a legal person must be authorised to do so
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“It should be noted that although [ITTOIA s.863(1)(b)] imputes anything done by, to or in relation to the partnership to the individual members, and thus looks through the separate corporate identity of the LLP, there is no deeming provision in the opposite direction which imputes the actions of the individual partners to the LLP. I mention this point because the Special Commissioner seems at times in the Decision to have lost sight of it, and to have proceeded on the footing that the LLPs and their members could for all practical purposes be treated as interchangeable.” (Tower MCashback LLP v. HMRC [2008] EWHC 2387 (Ch), §28).
“If this appeal is to be pursued with the appellant as the sole appellant then it must be pursued by the appellant. Acts necessary to pursue the appeal must be taken by the Board of the appellant or someone else with authority properly delegated by the Board.” (MCashback Software 6 LLP v. HMRC [2013] UKFTT 679 (TC), §35).
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Tribunal proceedings: appointed representatives
“(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
(2) If a party appoints a representative, that party (or the representative if the representative is a legal representative) must send or deliver to the Tribunal and to each other party to the proceedings written notice of the representative's name and address.
(3) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.
(4) A person who receives due notice of the appointment of a representative-
(a) must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and
(b) may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.” (FTT Rules r.11(1) – (4)).
Officer of HMRC conducts tribunal proceedings as a party (not a representative)
“In the light of these provisions it is clear that an officer of Revenue and Customs may conduct tribunal proceedings on behalf of the Commissioners. The officer does not do so as a representative, for the purposes of Rule 11. He does so as a party to the proceedings. The respondent to the appeals is HM Revenue and Customs which as section 4 CRCA provides is the Commissioners and the officers of Revenue and Customs together.” (Elder v. HMRC [2014] UKFTT 728 (TC), §31).
Only legal representatives may notify FTT of their own appointment
See r.11(2), above.
Meaning of legal representative
“(7) In this rule "legal representative" means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act, an advocate or solicitor in Scotland, or a barrister or solicitor in Northern Ireland.” (FTT Rules r.11(7)).
“In the hearing bundle were copies of the letterhead of Aquarius Consultants dating from the relevant time. That letterhead made no reference to regulation by any professional authority such as the Bar Council or the Solicitors’ Regulation Authority. It made no claim of legal expertise. Mr Smith made no submissions to the effect that Aquarius Consultants satisfied the definition of “legal representative”. I was not satisfied, on the evidence in front of me, that Aquarius Consultants was, therefore, a “legal representative” as defined.” (The Aquarius Film Company LLP v. HMRC [2016] UKFTT 702 (TC), §6).
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Tribunal requires written authorisation (subject to waiver)
“We informed [the taxpayer’s daughter] that our prima facie reading of her mother’s letter of authorisation was that she could not represent her mother in [the substantive] part of the hearing…She did say she would ring her mother to ask her to give her permission for her daughter to represent her in the appeal. We informed her that the Tribunal’s rules required written authorisation but that she could apply for the rules to be waived…” (Banerjee v. HMRC [2015] UKFTT 85 (TC), §72).
Appointment for proceedings includes appointment for procedurally connected matters
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“I have concluded that the “proceedings” referred to in Rule 11 embrace matters relating to the substantive appeal (including interlocutory matters) as well as any matters procedurally connected with the substantive appeal, even if they fall to be dealt with after the substantive appeal has been concluded.” (Technetix Ltd v. HMRC [2015] UKFTT 369 (TC), §20).
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Acts of representative treated as acts of party even if unauthorised
“It seems to me that, in general, the action or inaction of a party's legal representatives must be treated under the Civil Procedure Rules as the action or inaction of the party himself. So far as the other party is concerned, it matters not what input the party himself has made into what the legal representatives have done or have not done. The other party is affected in the same way; and dealing with a case justly involves dealing with the other party justly. It would not in general be desirable that the time of the court should be taken up in considering separately the conduct of the legal representatives from that which the party himself must be treated as knowing, or encouraging, or permitting.” (Training in Compliance v. Dewse [2001] Cr App Rep 46, §65 per Peter Gibson LJ)
“…we do not accept the Appellants’ submission that, even if Montpelier was acting without instructions then that should persuade the Tribunal that it would be appropriate to reinstate the proceedings.” (Vaultdawn Ltd v. HMRC [2015] UKFTT 383 (TC), §88, citing Training in Compliance).
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Tribunal communication with representatives
Tribunal to communicate with representative
​“I will say, however, that I regard the point as debatable. Rule 11(4) of the Tribunal Rules is in mandatory terms: it requires “a person” who receives due notice of a representative’s appointment to send documents to that representative. It is not absolutely clear whether the Tribunal is a “person” who is required to comply with this rule and there are other parts of the Tribunal Rules that make it absolutely clear when rules that the Tribunal must itself follow are set out (see for example Rule 13). However, it would be odd indeed if Rule 11(4) was envisaging that parties had to communicate with representatives whereas the Tribunal was entitled to communicate only with the parties themselves and I doubt that such a practice would contribute to the efficient conduct of litigation. Therefore, I consider it likely that Rule 11(4) does apply to the Tribunal…” (The Aquarius Film Company LLP v. HMRC [2016] UKFTT 702 (TC), §24).
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“We do not accept [the taxpayer’s] submission (see [49] above) that the Tribunal failed to notify the withdrawal pursuant to Rule 17(2), because Rule 11(4) did not apply to the Tribunal. On the contrary, we consider that the purpose of Rule 11(4)(a) is to require (not merely permit) everyone involved in the proceedings – parties, representatives, witnesses, and the Tribunal – to communicate with a party’s duly appointed Rule 11 representative rather than the represented party.” (Vaultdawn Ltd v. HMRC [2015] UKFTT 383 (TC), §81).
No obligation to send correspondence to representative not duly appointed
“It follows from the Tribunal Rules that while a legal representative may notify the Tribunal of its own appointment, a party appointing a non-legal representative must notify the Tribunal of that appointment. I was not shown any evidence that, at or around the time Aquarius Consultants sent the 2013 Appeals to the Tribunal, Aquarius sent written notification of the appointment of Aquarius Consultants as a non-legal representative. It follows that I have concluded that, by 3 December 2013, Aquarius Consultants had not been validly appointed as Aquarius’s representative under Rule 11 of the Tribunal Rules and, accordingly, there was no question of the Tribunal being obliged to send correspondence to Aquarius Consultants under Rule 11(4).” (The Aquarius Film Company LLP v. HMRC [2016] UKFTT 702 (TC), §22, emphasis original).
Effect of sending document to party but not its representative: probably valid but may be relevant to extending time limits
“If I had to express a conclusion on this issue (which I do not) I would probably have concluded that, even if Aquarius Consultants had been duly appointed as a representative, the letters of 3 December 2013 were still validly served on Aquarius. However, in such a circumstance, the Tribunal would need to take into account the fact that the letters were not sent to Aquarius’s representative in deciding whether to exercise the discretion to extend time referred to below.” (The Aquarius Film Company LLP v. HMRC [2016] UKFTT 702 (TC), §24).
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Tribunal proceedings: accompanying persons
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“(5) At a hearing a party may be accompanied by another person who, with the permission of the Tribunal, may act as a representative or otherwise assist in presenting the party's case at the hearing.
(6) Paragraphs (2) to (4) do not apply to a person (other than an appointed representative) who accompanies a party in accordance with paragraph (5).” (FTT Rules, r.11(5), (6)).
Reserved legal activities
“(2) A person is entitled to carry on an activity (“the relevant activity”) which is a reserved legal activity where—
(a)the person is an authorised person in relation to the relevant activity, or
(b)the person is an exempt person in relation to that activity.” (Legal Services Act 2007, s.13(2)).
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"(1)It is an offence for a person to carry on an activity (“the relevant activity”) which is a reserved legal activity unless that person is entitled to carry on the relevant activity.
(2) In proceedings for an offence under subsection (1), 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.
[…]
(4) A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.” (Legal Services Act 2007, s.14(1), (2), (4)).
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Both employer and employee must be authorised
“(2)References to a person carrying on an activity which is a reserved legal activity include a person (“E”) who—
(a)is an employee of a person (“P”), and
(b)carries on the activity in E's capacity as such an employee.” (LSA 2007, s.15(2)).
Except that the employer does not need to be authorised if providing relevant services to the public is not part of its business
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“(4) P does not carry on an activity (“the relevant activity”) which is a reserved legal activity by virtue of E carrying it on in E's capacity as an employee of P, unless the provision of relevant services to the public or a section of the public (with or without a view to profit) is part of P's business.
(5)Relevant services are services which consist of or include the carrying on of the relevant activity by employees of P in their capacity as employees of P.” (LSA 2007 s.15(4) – (5)).
Meaning of reserved legal activity
“(1) In this Act “reserved legal activity” means—
(a) the exercise of a right of audience;
(b) the conduct of litigation;
(c) reserved instrument activities;
(d) probate activities;
(e) notarial activities;
(f) the administration of oaths.” (Legal Services Act 2007, s.12(1))
Meaning of conduct of litigation: general
“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).” (Legal Services Act 2007, Schedule 2, paragraph 4).
“The importance of restricting the right to conduct litigation to those granted such rights by an authorised body is that those who exercise such rights owe an overriding duty to the court to act with independence in the interests of justice (s 28(2A), together with a duty to comply with rules of conduct of that body which have been approved for the purposes of s 28. This is why the CPR make so many special provisions that embrace the rights and duties of the litigant's legal representative, if appointed, and do not give similar rights and duties to a representative of the litigant who is not a legal representative.” (Agassi v. Robinson [2005] EWCA Civ 1507, §84).
Ancillary functions to be construed narrowly: only formal steps
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"The word 'ancillary' indicates that it is not all functions in relation to proceedings that are comprised in the 'right to conduct litigation'. The usual meaning of 'ancillary' is 'subordinate'. A clue to what was intended lies in the words in brackets '(such as entering appearances to actions)'. These words show that it must been intended that the ancillary functions would be formal steps required in the conduct of litigation. These would include drawing or preparing instruments within the meaning of section 22 of the 1974 Act and other formal steps. It is not necessary for the purposes of this case to decide the precise parameters of the definition of 'the right to conduct litigation'. It is unfortunate that this important definition is so unclear. But because there are potential penal implications, its very obscurity means that the words should be construed narrowly.” (Andre Agassi v. Robinsons [2005] EWCA Civ 1507, §56).
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Example re conducting litigation
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Legal advice in connection with court proceedings is not conducting litigation
“Suffice it to say that we do not see how the giving of legal advice in connection with court proceedings can come within the definition.” (Andre Agassi v. Robinsons [2005] EWCA Civ 1507, §56).
Correspondence with opposing party is not conducting litigation
“In our view, even if, as the law society submits, correspondence with the opposing party is in a general sense 'an integral part of the conduct of litigation', that does not make it an 'ancillary function' for the purposes of section 28 [of the Solicitors Act 1974].” (Andre Agassi v. Robinsons [2005] EWCA Civ 1507, §56).
“The problem with that was that it had not caught up with the decision of the Court of Appeal in Agassi v Robinson, which was decided in 2005 and which made it clear that the conduct of correspondence with an opposite party was not to be regarded as something which a self-employed barrister should not do, because it was not to be regarded as the conduct of litigation. When one thinks of it, it seems somewhat absurd that to send a copy of a statement of case, which is to be lodged or indeed which has been lodged with the Court, to the other side is to be regarded as conduct of litigation and so forbidden to the barrister dealing with direct access.” (O’Connor v. BSB, 17 August 2012, §33 – disciplinary appeal).
Activities prior to the issue of proceedings are not an conducting litigation
“In the light of these observations I see no reason to construe the definition of the conduct of litigation as extending to any activities that take place prior to the issue of proceedings and which do not involve any contact with the court. For example, advising on the merits of starting proceedings or drafting Particulars of Claim.” (Heron Bros Ltd v. Central Bedfordshire Council (No.2) [2015] EWHC 1009 (TCC), §26).
Clerical steps: not conducting litigation
“It is common ground that [s.20 of the Solicitors Act 1974] does not extend to what might be termed purely clerical or mechanical activities such as photocopying documents, preparing bundles, delivering documents to opposing parties and the court and so on.” (Andre Agassi v. Robinsons [2005] EWCA Civ 1507, §43 – s.20 concerned “acting as a solicitor” which referred to things only a solicitor could do, which included conduct of litigation).
Signing a statement of truth: not conducting litigation
“It is equally clear to us that it is wrong to say that the signing of a statement of truth on behalf of a client is to be regarded as conduct of litigation in the way in which that has to be construed, having regard to the approach to public access.” (O’Connor v. BSB, 17 August 2012, §25 – disciplinary appeal).
Sending claim form to court is conduct of litigation
“It is to my mind reasonably clear that Quigg Golden's letter to the court of 31 October 2014 enclosing three copies of the claim form and Particulars of Claim for sealing and issue was an act involving the conduct of litigation.” (Heron Bros Ltd v. Central Bedfordshire Council (No.2) [2015] EWHC 1009 (TCC), §27 – but note Agassi v. Robinsons [2005] EWCA Civ 1507 where it was submitted that this was not conduct of litigation and the Court of Appeal did not disagree).
“There is all the difference between the courtesy to the other side of notifying them of what is coming in correspondence and the act of filing with the Court, which is undoubtedly part of the conduct of litigation and which the self-employed barrister still may not do.” (O’Connor v. BSB, 17 August 2012, §25 – disciplinary appeal).
Serving issued claim form is conduct of litigation
“In this case Quigg Golden, having eventually received the issued claim form from the court, served it on the Defendant. I am prepared to assume that that constituted an act that it was not authorised to do and which was therefore unlawful.” (Heron Bros Ltd v. Central Bedfordshire Council (No.2) [2015] EWHC 1009 (TCC), §29).
Sending a copy of unissued claim form is not conduct of litigation
“For these reasons I do not consider that it is reasonably arguable that in sending a copy of the unissued claim form to the Defendant Quigg Golden acted in a manner that was unlawful.” (Heron Bros Ltd v. Central Bedfordshire Council (No.2) [2015] EWHC 1009 (TCC), §32).
LSA does not apply in Scotland
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"[41] In the response to the Application in TC/2022/02199, HMRC pointed out that LSA did not apply in Scotland whereupon, having previously requested that the appeals be heard in Scotland, the appellant sought to have both appeals transferred to London. By Directions dated 20 October 2022, Judge Cannan directed that the Applications and the appeal be heard together in Edinburgh." (Asset House Piccadilly Limited v. HMRC [2023] UKFTT 279 (TC), Judge Scott)
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No restrictions on conducting litigation before the Tribunals​
"[61] [HMRC] argues that the Rules contained no restriction. Although I am not bound by their decision, Judge Beare and Ms Shillaker in Porter v HMRC [2018] UKFTT 264 (TC) (“Porter”) also found that there were no restrictions. I adopt but do not repeat their reasoning here.
[62] I agree with Mr Simpson for the following reasons:-
(a) The enabling legislation in section 22(1) could not be more simply or widely expressed and that is reinforced by paragraph 1 of Schedule 5 which ensures that it is not in any way constrained.
(b) I do not find the argument that because paragraph 9 refers to rights of audience but does not include conduct of litigation, thereby meaning that Parliament did not envisage conduct of litigation being the subject matter of rules, to be a sound argument.
(c) It is trite law that the Tribunal has no Judicial Review function and therefore Rule 11 and the enabling legislation in TCEA are subject to the normal rules of statutory interpretation.
(d) The Rules govern the commencement, conduct and disposal of proceedings. The purpose of Rules of Procedure was explained by Lord Woolf CJ in R v Sekhon [2003] 1 WLR 1655 at paragraph 21 as being “… to provide a convenient and just machinery enabling the court to exercise its jurisdiction.” Rule 11 must be read in the context of all of the Rules and, in particular, Rules 2 and 5.
(e) The premise of Rule 11 is that a representative can do anything that a party can do. Mr Simpson is correct in stating that that includes lodging a Notice of Appeal (Rule 21(1)), serving a Statement of Case (Rule 25(1)) and serving other documents in the course of proceedings (for example, Rules 26(2), 27(2) and 35(4)) and all of those Rules existed prior to 1 January 2010. Those are all steps in the conduct of litigation and Rule 11 gives representatives, whether legally qualified or not, the power to take all those steps in a litigation. These Rules taken with Rules 2 and 5 implement section 22(4) TCEA.
(f) The CLSA covered both rights of audience and conduct of litigation, as does the LSA. The TCEA and the Rules were in force before section 13 to, and Schedule 2 of, the LSA came into force.
(g) I find that the conduct of litigation is encompassed by the Rules which was Parliaments express intention and it is most certainly not excluded. Rule 11 is not restricted to a right of audience. It encompasses both.
(h) I do not accept that the requirement in Rule 11(2) is a restriction on the conduct of litigation. It is in the same vein as the “administrative” requirements included in other rules. It is simply part of the “machinery” in the words of Lord Woolf and in any event that requirement can be waived by the Tribunal."
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"[41] In the response to the Application in TC/2022/02199, HMRC pointed out that LSA did not apply in Scotland whereupon, having previously requested that the appeals be heard in Scotland, the appellant sought to have both appeals transferred to London. By Directions dated 20 October 2022, Judge Cannan directed that the Applications and the appeal be heard together in Edinburgh." (Asset House Piccadilly Limited v. HMRC [2023] UKFTT 279 (TC), Judge Scott)
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Licensed access
Still a litigant in person
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“In our judgment, the observations made by this court in Jonathan Alexander do not support the proposition that a person is not a litigant in person if he or she is represented by counsel through the agency of the Licensed Access Scheme…In our view, where a member of the Chartered Institute of Taxation instructs a barrister under the Licensed Access Scheme, the presence of the barrister does not prevent the party on whose behalf the barrister has been instructed from being a litigant in person.” (Andre Agassi v. Robinsons [2005] EWCA Civ 1507, §§25…26).
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