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Contact: michael.firth@taxbar.com
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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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Conducting litigation: consider whole pattern of actions taken in the round
"[208] In my judgment, the answer is that the court should look at the entirety of the activities undertaken by the Respondents to assist their client and then decide whether, taken in the round, they amount to the conduct of litigation. To do otherwise would be to lose sight of the context in which things are being done, and would lead to the risk of a misleading impression being gained. It would also run the risk of form being prioritised over substance.
[209] The authorities show that it is the totality of the activities that have been undertaken that should be focused upon. In Ndole, in the context of consideration of whether service of documents amounted to the conduct of litigation, the Court of Appeal expressly took account of the whole course of events, including correspondence that had passed from the consultants to the defendant in the proceedings (judgment, paragraph 71). Similarly, in Gill v Kassam, the judge looked at the "package of services" that were provided by the advisors to the client (paragraphs 47 and 48). A similar approach was adopted in Peter Schmidt.
[210] It is true that this marks a difference from the position under the 1990 Act. Under that Act, as the Court of Appeal said in Agassi, an activity would only fall within the definition of the conduct of litigation if it was a formal step in the proceedings. However, in my view this no longer applies, because the additional wording introduced in the 2007, which includes the prosecution and defence of proceedings, is not apt to cover formal steps in the proceedings and nothing else. The words used in the 2007 Act, referring to "prosecuting" and "defending" the proceedings, are not words that Parliament would have used if it had intended only to refer to narrow or technical steps." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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- Caution re pre-2007 case law
"[114] The Agassi judgment was handed down on 2 December 2005. The 2007 Act was given Royal Assent on 30 October 2007. As I have said, the definition of "conduct of litigation" in Schedule 2(4) to the Act is wider than the definition of "right to conduct litigation" in the 1990 Act, because it has been extended to cover "the commencement, prosecution and defence of …. proceedings" in any court in England and Wales. I have suggested above that the Parliamentary motive behind the addition of this wording into the 2007 Act was to import language from the original version of section 20 of the 1974 Act. Whether this is right or wrong, it is clear, in my judgment, that the wording of the definition of the conduct of litigation in the 2007 Act is, at least potentially, broader than the wording in the 1990 Act..." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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Delegation permissible where all the person does is perform a basic administrative task (look at substance)
"[66] How, then, does one get over the apparent problem that the same might be said (and as the judge seems to have thought) of process - servers or postal employees? And what if the litigant in person, if an individual, asks a family member to deliver the claim form or, if a company, asks an employee to do so: is the conclusion compelled that such a family member or employee is to be adjudged to have committed an offence? Such a conclusion is, as is agreed all round, unacceptable.
[67] In my view this is where substance has to prevail over form. I acknowledge that it is not always appropriate to talk in terms of degrees of agency. But it all depends. In my view the pragmatic solution here, which is the one proffered by Mr Darling, is the correct solution. That distinguishes between those who merely perform an administrative or mechanical function in connection with service of documents and those who undertake, or who have assumed, legal responsibility with regard to service as prescribed by the rules. This in fact, I consider, accords with the acceptance by the court in Agassi in paragraph 43 of the judgment that the statutory prohibition does not extend to "what might be termed purely clerical or mechanical activities." Thus the solution is to be found not so much in focusing on the issue of agency or sub-agency but in focusing on the actual role of, and the actual activity undertaken by, the person in question. That is why process-servers and the like are not within the statutory prohibition: they are simply engaged in the "mechanical" activity of actually delivering the claim form. Delivery, for these purposes, is not to be equated with service of a claim form as prescribed by the rules.
[68] The question thus becomes one of fact and degree in each case. Ms Sinclair submitted that would lead to uncertainty. But as to that I strongly suspect that issues of the present kind with regard to service of a claim form are likely to be rare; and in the more general context of the right to conduct litigation, an approach permitting individual assessment of the activity undertaken in an individual case is, by reason of its very adaptability to the circumstances of the particular case, much more likely to achieve justice than a rigid application of an agency-based approach.
...
[71] In my judgment, the course of events, as illustrated by the correspondence, shows that CSD were acting in a way that went significantly beyond performing simply an administrative function or a mechanical activity and shows that they were taking the responsibility for service of the claim form under the rules." (Ndole Assets Limited v. Designer M&E Services UK Limited [2018] EWCA Civ 2865)
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Examples 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).
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"[203] 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. This was said in Agassi, at paragraph 56, and, in my view, it still holds good." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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- Correspondence with opposing party (even during litigation) 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).
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“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).
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"[42] The Court of Appeal made it clear in Agassi v Robinson that corresponding during the course of litigation does not fall within the definition of ‘the conduct of litigation’, and the same approach was taken to the sending of documents otherwise than by way of service in O’Connor v BSB (and, indeed, in Heron Bros32). You may engage in correspondence without needing to be authorised to conduct litigation. However, you should be aware that in light of Baxter v Doble (referred to in paragraphs 32 and 33 above), engaging in correspondence which does not in itself amount to a formal step in the proceedings might contribute to an overall picture that you are conducting your client’s litigation.
[43] In order for you to be able to accept instructions to conduct correspondence with other parties, however, you will need to ensure that (a) you have the necessary systems, experience and resources to be able to manage such correspondence, (b) you are insured for any loss suffered by your client as a result of your conduct of that correspondence, and (c) it is in the best interests of your client for you to accept such instructions. " (Bar Council Guidance)
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Must not be a letter serving a formal document
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"[44] If you are not authorised to conduct litigation, then you will need to be careful to ensure that letters written on behalf of a client do not amount to a formal step in the proceedings. An example that is likely to cross the line is a letter under cover of which a formal document (e.g. a statement of case) is served on another party to litigation." (Bar Council Guidance)
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- Activities prior to the issue of proceedings are not conducting litigation (but may contribute to bigger picture)
"[204] ​The drafting of the notices under sections 8 and 21 of the Housing Act 1988 do 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, perhaps most, cases, the service of a section 8 and 21 notice will not lead to litigation. The matter will be resolved without the need to issue proceedings." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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“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).
But may contribute to bigger picture
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"[207] In my judgment, however, this does not mean that the fact that a respondent has given legal advice or has taken steps before proceedings are issued, such as drafting the claim form and particulars of claim, is irrelevant to the question whether they are engaged in the conduct of litigation. It may contribute to the bigger picture and may, in particular, shed light on whether steps that were taken at a later stage in the proceedings were purely mechanical or clerical." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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- Drafting claim form: not conducting litigation
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"[27] It is clear from this passage that the giving of legal advice per se by someone who is not a qualified lawyer is not prohibited under Paragraph 4. What if the advice extended to drafting a claim form such as a petition, or an application for degree nisi or the statement in support? It would be surprising if this were forbidden. Imagine if you were getting divorced and you have to fill in Form E. Imagine that your brother was divorced two years earlier. Plainly your brother is not committing an offence if he gives you the benefit of his view of the law. And surely, he would not be in breach of Paragraph 4 and thus committing an offence if he helped you to fill in your Form E which you, acting in person, intended to file with the court. It is common for litigants faced with filling in Form E to approach their accountant for assistance. Plainly, the accountant would not be in breach of Paragraph 4 if she filled in the numeric parts of a travelling draft of the Form." (JK v. MK [2020] EWFC 2, Mostyn J)
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- 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).
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- 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).
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- Sending claim form to court is conduct of litigation
"[30] In my judgment nothing that is done by amicable transgresses Paragraph 4. However, I consider that the covering letter sending the documents to the court needs to be changed so that it is not on amicable's notepaper. I cannot see that taking the fee on amicable's account is objectionable." (JK v. MK [2020] EWFC 2, Mostyn J)
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“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/reply/documents is conduct of litigation (unless purely mechanical role)
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"[192]...The similarity between the actions of the consultants in Ndole, and the actions of the Respondents in relation to the reply and defence to counterclaim are clear. In both cases, a pleading was delivered to the other party to the proceedings (or their solicitor) in circumstances in which this was a requirement of the court process. In Ndole, as in the present case, the pleading was signed by the client, and did not name the consultant/advisor, but this does not prevent it from amounting to the conduct of litigation. The Court of Appeal in Ndole, applying the Hanjin Shipping case, defined "service" for these purposes as taking place when "the party serving the document delivers it into the possession or control of the recipient, or take steps to cause it to be so delivered" and as consisting of "steps required by rules of court to bring documents used in court proceedings to a person's attention.
[193] It is a requirement of the Civil Procedure Rules that a reply and defence to counterclaim is served on the other party: CPR 15.8(a)(ii). The Respondents took steps to deliver the reply and defence to counterclaim into the possession of the Claimant's solicitor, Ms Irvine-Yates, by instructing process servers to serve it upon her in Rochdale. Therefore, they "served" the pleading on her. In light of Ndole, this amounted to the "prosecution" of the proceedings for the purposes of paragraph 4(1)(b) of Schedule 2 to the 2007 Act and/or is at the very least a step ancillary to the prosecution of the proceedings for the purposes of paragraph 4(1)(c). It also amounted, in my view, to the "defence" of proceedings (the counterclaim) for the purposes of paragraph 4(1)(b)." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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"[42] Briefly considering the breaches found by the judge: two of them, as I have said, involved Mr Ellis seeking to serve documents on the Government Legal Department. The judge was plainly entitled to decide that those actions constituted both the prosecution of proceedings and the performance of an ancillary function. In my view, the opposite contention is unarguable." (Ellis v. Ministry of Justice [2018] EWCA Civ 2686, Moylan LJ)
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“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).
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Does not matter whether served with accompanying letter on adviser's letterhead
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"[195] The only difference between Ndole and the present case is that in Ndole the service of the documents were accompanied by a covering letter which was on the consultants' letterhead. I do not consider that this feature can make the difference between whether the action amounted to the conduct of litigation or not. The Court of Appeal in Ndole did not say that it did. If it were to be so, this would be to promote form over substance, the very thing that the Court of Appeal said in Ndole should not be done." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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Unless only a mechanical function
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"[194] The Court of Appeal in Ndole drew a distinction between the assumption of legal responsibility with regard to the service of documents, as required by the rules, which amounts to the conduct of litigation, and the performance of an administrative or mechanical function in connection with the service of documents, which does not. In my view, the actions taken by the Respondents plainly were of the former type. The process servers performed an administrative or mechanical function. If the reply and defence to counterclaim had been served by post, the postal workers would have done the same. But the Respondents were not performing an administrative or mechanical function. They were advising and assisting Mr Persey in the litigation. They were ensuring that the rules of court were complied with (which was why process servers were used – to ensure that the document was served in time). They had drafted the pleadings. To use the words of the Court of Appeal in Ndole at paragraph 67, they were not "simply engaged in the "mechanical" activity of actually delivering the [pleading]"." (Baxter v. Doble [2023] EWHC 486 (KB), Cavanagh J)
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- Filing documents at court: conducting litigation
"[43] One of the breaches involved Mr Ellis seeking to file documents at court. Again, in my view, the judge was plainly right to decide that this activity constituted both the prosecution of proceedings and the performance of an ancillary function." (Ellis v. Ministry of Justice [2018] EWCA Civ 2686, Moylan LJ)
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"[38]...If, therefore, you are not authorised to conduct litigation, you should not serve formal court documents such as defences and disclosure statements on the opposing party." (BSB Guidance)
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- Barristers filing skeleton arguments and similar is not conducting litigation, query whether filing bundles is
"[37] Filing skeleton arguments, chronologies, and other documents of the sort conventionally prepared by barristers (particularly in connection with hearings) does not involve the conduct of litigation – see ‘Service of documents’ below...
...
[39] The BSB Guidance makes it clear that the prohibition does not apply to documents which are ancillary to role of an advocate: e.g. skeleton arguments, case summaries, position statements, chronologies and lists of issues. Given that these documents may be served on an opponent, they may also be lodged with the court. The same would apply to a list or bundle of authorities.
[40] The Bar Council considers that filing document bundles for hearings, including trial bundles, does not amount to conducting litigation, but this point has yet to be determined definitively." (Bar Council Guidance)
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- 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).
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- Taking evidence is not conduct of litigation
"[49] The collection of evidence for a case is not ‘the conduct of litigation’. Accordingly, subject to what is said about this in the BSB’s ‘Investigating and Collecting Evidence and Taking Witness Statements Guidance’ 34 , you may investigate or collect evidence, and may take statements from potential witnesses." (Bar Council Guidance)
- Instructing an expert is not conducting litigation (but filing report would be)
"[50] The BSB Guidance says that instructing an expert does not amount to ‘the conduct of litigation’35. The BSB does however consider that filing an expert report with the court and/or serving it on another party will amount to the conduct of litigation. Even those who are authorised to conduct litigation might in any event prefer the contractual relationship and liability for fees to be directly between the expert and the lay client for practical and commercial reasons." (Bar Council Guidance)
- Providing assistance to other people at court hearings: conducting litigation
"[44] Two of the breaches involved Mr Ellis giving assistance to other people at court hearings as referred to earlier in this judgment. Again, I consider that the judge was right to decide that those activities involved the prosecution of proceedings and/or the performance of an ancillary function. I have reached the same conclusion in relation to Mr Ellis giving his address as an address for service." (Ellis v. Ministry of Justice [2018] EWCA Civ 2686, Moylan LJ)
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- Full assistance packages (advising, drafting, paying fees, preparing witness statements etc.) are conducting litigation
"[14] The evidence before me establishes that Insolvency & Law Limited:
filed the Petition; was noted as the "legal representative" of the Named Petitioner on "C-e file"; pursuant to Rule 7.5 of the Insolvency Rules 2016 ("the Rules") described itself as the agent for the "petitioner in person" with Mr Murray's contact details being provided; signed (by Mr Murray) the certificate of compliance which must be filed, authenticated and dated by the petitioner or by the petitioner's solicitor ( Rule 7.12 ); served and filed witness statements; accepted service of witness statements; took statements from prospective witnesses (by inference, at least); and conducted correspondence within the proceedings including the 4 May 2017 email requesting an undertaking in respect of section 127 of the Insolvency Act 1986 .
[...]
[20] In my judgment and applying that decision of Mr Justice Coulson, it is obvious that the steps taken by Insolvency & Law Limited in respect of the Petition involved the "conduct of litigation" . The only circumstance in which such activities would be "legal activities" not "restricted legal activities" would be if they were unrestricted as at the appointed day (applying paragraph 4(2) of Schedule 2 to the 2007 Act). Mr Thomas has not identified any such activity and it is plain that at least the majority were restricted by the terms of the preceding statutes. An exemption will have to be relied upon." (Re Event Moves Limited [2018] EWHC 260 (Ch) Registrar Jones)
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"[48] I accept the point that it is the nature of the "assistance" which Remove a Tenant undertake which is the focus of the statutory test, but that assistance has to be seen as a whole and in context. The context here is that Remove a Tenant are in business to provide these services for a fee, aware of the restrictions on the work it can undertake, and of the fine line between assistance and conducting litigation. They provide a package of services, which in the particular circumstances of this case, included functions which were ancillary to the issuing of these proceedings and their prosecution. It was more than assisting with clerical and mechanical matters; Remove a Tenant were closely involved in the issue and prosecution of this claim. Its role included providing advice, drafting the proceedings, paying the issue fee, preparing a witness statement and certificates of service, preparing a hearing bundle and serving it on the Defendant and the court, making arrangements (through properly qualified solicitors) for an advocate to represent the Claimants, paying for that service, and corresponding with the other party (albeit briefly).
49. Within that package is the drafting and issue of the claim form. I can accept that the online PCOL [Possession Claims Online] form involves some box ticking, but it also involves some drafting and the identification of how to put the claim. It is not particularly complicated, but the point is that the drafting was done by Mr Turner. More importantly perhaps for the purposes of the statutory definition of the conduct of litigation, Mr Turner has filled in the form in such a way (on my reading of the rules) he has entered the Claimants' name(s) on the form, thereby applying their signature to it. He has also entered Remove a Tenant's address in circumstances where that has then appeared on the Claim Form as "the Claimant or Claimant's solicitor's address to which documents or payments should be sent.
50. The evidence of [the Claimant] is that he ticked the statement of truth icon, and Mr Turner's evidence is that he entered his address only as a correspondence address. That mitigated the position, but I have concluded that the package of work, taken together, and this aspect in particular, crossed the line, and breached the provisions of the 2007 Act. If I am wrong about that, it came perilously close." (Gill v Kassam [2018] PNLR 3)
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Claims issued in breach of prohibition on conducting litigation not a nullity
​In my view, nullity is not to be taken as the statutorily intended consequence. As Ms Sinclair pointed out, there is no reason why so draconian a consequence should be intended to be visited on the client or principal, who ordinarily will have been entirely ignorant of the point. As she also pointed out, there could be grave implications for other reserved legal activities if it were otherwise: for example, probate activities and reserved instrument activities. In argument, we put to Mr Darling the example of a sole solicitor practitioner who, through oversight and pressure of work, omitted to renew his practising certificate in time. Would all proceedings served by him in the ensuing period before the position was rectified thereby become entirely null and of no effect? He acknowledged that might seem an unduly restrictive and harsh approach: whilst not withdrawing his submission.
In my judgment, such a conclusion is not acceptable and is not compelled by the language of the 2007 Act. Moreover, that does not mean that there is no sanction available. On the contrary there are sanctions available in the form, in an appropriate case, of criminal process and sentence and a contempt application. And those sanctions are directed at the right target – that is to say, the person who has actually engaged in the unlawful conduct of litigation." (Ndole Assets Limited v. Designer M&E Services UK Limited [2018] EWCA Civ 2865)
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But see:
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"[35] In reaching a discretionary decision, account will be taken of the strength of Mr Thomas's submissions concerning the importance of the policy behind and purpose of the 2007 Act. It is of great importance that those conducting litigation are regulated. It is in the public interest that professional standards apply, that lowered standards of conduct can be prevented or punished, that professional indemnity insurance is in place and that the system of justice operates in the public interest (see Agassi v Robinson Inspector of Taxes) (No2) (above at [84])).
[36] It is a policy and purpose which must be borne in mind and applied when deciding whether to dismiss the Petition or to grant substitution. Accordingly, absent the interests of Manor Storage Solutions Limited, the Petition would be declared void and be dismissed." (Re Event Moves Limited [2018] EWHC 260 (Ch) Registrar Jones)
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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." (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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