Unqualified staff at a law firm are not allowed to conduct litigation

Coupon-mad

I remember paying it over to her plus a top up. Loads of us put money in. That Circuit judge was the most clueless I have ever seen! Have stayed in touch and some of us Sussex ladies met her for lunch since.

Anyway here he is, wrong again.

It looks like we can thank him for this one!

A_Geordie

h2g2 said:

I have some questions about the practical implications of this:

1. Does this mean that a claim form without a person's name attached to it can be struck out? (E.g. if the claim form is signed by "Acme Parking Litigation Ltd") Does it make a difference if the company is Acme Parking Litigation Ltd (a hypothetical legal firm, regulated by the SRA) or Tickets For You Ltd (a hypothetical PPC)?

2. Same question, but a witness statement instead?

3. If the claim form is signed by a person, does that person have to be regulated by the SRA? What about a director of Tickets For You Ltd? What about a member of "Tickets For You Ltd Litigation Team" or something?

Answers in the same order:

1. If I am understanding you correctly, Practice Direction 22 explains who may sign a statement of truth. Statements of truth need to be signed by an individual either an employee of the company in a 'manager' position as defined in PD22 or a legal representative. Paragraph 3.9 is clear that the legal rep should sign in their name and not the law firm. Legal representatives are defined in CPR 2.3.

A non-compliant claim form could be struck out and if it has not been signed in the proper way, it may be deemed an invalid service of the claim form. Striking out a claim form on this basis would need to be carefully balanced because it depends on the reason why it was signed in this way e.g. if it's a law firm specialising in litigation then they should know better whereas a LIP who is aiming to comply but simply made an error is unlikely to warrant a strike out. You'd be better off pointing out the error and asking them to amend the claim form and re-serve it, and if they don't, the grounds for strike out may be more favourable. 

2. Witness statements are signed by individuals. If the witness statement was signed by a company name it will be invalid and grounds to be struck out or the evidence contained within it not relied on. 

3. The first sentence of this question can create confusion. A regulated person has an entirely separate definition to an authorised person. Reserved legal activities refer to an authorised persons only, not regulated - this is a point the LSA/SRA made in the judgment. That aside, the answer is no if you're an employee of the company in a  manager's position - see #1 around the definition of a manager, which would include a director of a company. PD22 para. 3.10(3) suggests an employee of a solicitor's firm falls within scope of a legal rep, so a paralegal could I guess sign the statement of truth - would that amount to conducting litigation under the LSA? Maybe, in light of this decision, but there is the case of O’Connor v Bar Standards Board [2012] All ER (D) 108 that says otherwise. Due to this decision I would nonetheless suggest caution and get the authorised person to sign the claim form to avoid any question that it would be the paralegal and not the solicitor who is conducting the litigation.

doubledotcom

My limited understanding is that, per Mazur, if a defendant shows that a non-authorised person has taken a step amounting to the conduct of litigation (e.g. signing the SoT for particulars on behalf of the client), the court will usually allow the defect to be cured (e.g. re-signed by an authorised person) and the claim will continue. The practical consequence is typically costs and/or judicial criticism, rather than strike-out. So, for example, for a DCB Legal claim signed by Sarah Ensall (if she is not authorised), the court is likely to require re-verification and consider costs, but not to strike out purely on that basis.

Coupon-mad

I doubt the courts will want to have to do this (either strike outs or allowing DCB Legal to re-serve when they haven't made an application and paid the fee to do so) piecemeal over 100,000 times a year.

I think the MoJ needs to look at this case.

A_Geordie

If it helps, I've curated a list of activities that does or does not fall within the reserved activity of conducting litigation.
Activities not conducting litigation

1. Signing a statement of truth: O’Connor v Bar Standards Board [2012] All ER (D) 108 but could be displaced by this decision if challenged in the future.

2. Any activities that occurred prior to the issue or commencement of proceedings and do not involve contacting the court: Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC)

3. Sending copies of the particulars of claim or other similar documents the same day that they are also sent to the court: Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC)

4. Giving legal advice on the merits of the case: JK v MK [2020] EWFC 2

5. Drafting claim forms or applications to the court: JK v MK [2020] EWFC 2

Activities conducting litigation

1. Sending copies of the claim form and particulars of claim to be issued: Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC)

2. Serving the claim form on the other side or to third parties: Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865

3. Serving documents to the other side or third parties, filing documents with the court, giving assistance to people at court hearings and giving your address as an address for service: Ellis v Ministry of Justice [2018] EWCA Civ 2686
Other points to note: 
1. When assessing whether a person is conducting litigation, the court should look at the entirety of the activities undertaken by the individual to assist their client and then decide whether, taken in the round, they amount to the conduct of litigation: Baxter v Doble [2023] EWHC 486
2. When considering conduct of litigation, you have to look at the substance over form. For examples, i an individual is merely involved in the mechanical activity of delivering a document (like a process server) , it should not be equated to serving a claim form: Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865
3. An unauthorised person conducting litigation does not automatically invalidate service of the claim form: Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865

Johnersh

@doubledotcom the opportunity to remedy a defect will (in my view) be offered in most cases. However, if C chooses to issue a claim form a month prior to limitation then it is later discovered the claim form is defective for want of properly verified PoC it is at least arguable that:

1. The claim form is defective 
2. Limitation has now expired
3. If the claim form was never properly executed then the claim was not issued in time

In most cases the cheapest course for C would be to reissue a claim form than to apply to amend.

It also follows that the rent-an-advocates at Elms Legal, LPC etc need to be careful. It's not only quality - their level of qualifications vary enormously. As I understood it, the self-employed advocates with no professional 'ticket' frequently sought to rely upon supervision arguments (eg Gladstones supervise me and I'm a solicitor agent). This judgment helpfully clarifies that those arguments won't wash.

I note that even the regulatory bodies have struggled to interpret the law properly, so what hope a litigant in person up to this point?

ChirpyChicken

@Johnersh
There are a lot of Unqualified solicitors agents so what's the impact on them

Umkomaas

Is there an ambulance chasing opportunity for those cases where unqualified personnel have 'conducted litigation' (in whatever form) where findings have gone against the Defendant?  Might a law firm seize such an opportunity ... dog-eat-dog?

Le_Kirk

I see the term "authorised" being used; is an authorised person suddenly "qualified" just because their employer states so?

kryten3000

Jackson Yamba has posted this on their LinkedIn page:

https://lnkd.in/p/eyj9Wwjf