Baxter v Doble [2023] EWHC 486

Mr Baxter sought to commit Mrs Doble and her company for contempt, alleging they unlawfully conducted litigation for his landlord in possession proceedings without being authorised under the Legal Services Act 2007. The court found conduct of litigation occurred but the statutory defence applied.

Facts

The Applicant, Mr Baxter, was the defendant in possession proceedings brought by his landlord, Mr Persey, in the County Court at Exeter. Mr Persey instructed the Respondents, Mrs Sarah Doble and Sarah Doble Associates Ltd, to assist him in recovering possession of a residential property and arrears of rent. Mrs Doble was a Graduate Member of CILEX but was not authorised to conduct reserved legal activities. She operated a business advising and assisting landlords, charging lower fees than solicitors.

Between 12 March 2019 and 31 October 2019, the Respondents provided extensive assistance to Mr Persey, including drafting section 8 and section 21 notices, drafting the claim form and particulars of claim, posting documents to court, paying the court fee by cheque from the company’s account, corresponding with the Claimant’s solicitor, instructing an advocate through LPC Law under a referral agreement, drafting witness statements, drafting an application notice and draft order, drafting the reply and defence to counterclaim, arranging for service by process servers, and drafting the case management summary.

Mrs Doble had previously been disciplined by CILEX Regulation in 2017–2018 for conducting litigation and had modified her business practices on regulatory and legal advice, including avoiding use of her company letterhead for court correspondence and ensuring clients signed court documents. She had also issued a ‘Law Update’ document to clients in January 2019 following the Court of Appeal’s decision in Ndole.

Issues

The court had to decide two principal questions:

1. Whether the Respondents conducted litigation on behalf of Mr Persey from 12 March 2019 to 31 October 2019, within the meaning of section 12(2) of and paragraph 4 of Schedule 2 to the Legal Services Act 2007.
2. If so, whether the statutory defence under section 14(2) of the 2007 Act applied, namely that the Respondents did not know, and could not reasonably have been expected to know, that the offence was being committed.

Arguments

Claimant’s submissions

Mr Metcalfe argued that the totality of the Respondents’ activities amounted to the conduct of litigation. He described unauthorised businesses assisting litigants as ‘a new legal profession’. He relied on Ndole, Gill v Kassam, Ellis, and Peter Schmidt to argue that service of documents, filing of claim forms, and the wider package of services constituted the prosecution of proceedings.

Respondents’ submissions

Mr Blaxland KC contended that Mrs Doble had remained on the correct side of the line. She did not sign court documents, did not go on the record, generally did not use her company letterhead for court correspondence, and acted through the client who signed all pleadings. Alternatively, if she had crossed the line, the section 14(2) defence applied because she genuinely and reasonably believed her conduct was lawful, having adjusted her business model following regulatory intervention and legal advice.

Interventions

The Law Society submitted that whether conduct amounts to the conduct of litigation is a question of fact and degree, looking at substance over form, and that the totality of actions must be examined. CILEX Regulation declined to intervene but confirmed the history of its disciplinary action against Mrs Doble. The Legal Ombudsman confirmed it had no jurisdiction over complaints against unauthorised providers.

Judgment

Mr Justice Cavanagh held that the Respondents had conducted litigation within the meaning of the 2007 Act, but that the statutory defence under section 14(2) applied, so the committal application was dismissed.

Meaning of ‘conduct of litigation’

The Judge conducted a detailed review of the statutory provisions and case law, including Agassi, Ndole, Ellis, Gill v Kassam, Heron Bros, Peter Schmidt, JK v MK, and Khan. He held that the definition in paragraph 4 of Schedule 2 to the 2007 Act is wider than the predecessor definition in the 1990 Act because it includes ‘the commencement, prosecution and defence of such proceedings’. Earlier authorities such as Agassi therefore do not provide authoritative guidance on the current ambit.

Four key principles were identified: (i) statutory words must be given their natural and ordinary meaning; (ii) the penal nature of the legislation must be borne in mind, though the existence of the section 14(2) defence means a very strict narrow construction is less compelling; (iii) substance must prevail over form; and (iv) the question is one of fact and degree in each case.

Application to the facts

The Judge held that the filing of the claim form and particulars of claim, accompanied by payment of the court fee, and the arrangements for service of the reply and defence to counterclaim by process server, both amounted to the conduct of litigation, following Ndole. The absence of the company letterhead on covering correspondence was not decisive, as that would promote form over substance.

Looked at in the round, the totality of the Respondents’ activities amounted to the prosecution of proceedings. They did everything a solicitor would have done: drafting documents, giving instructions to counsel, paying court fees, corresponding with the other side, and ensuring CPR compliance. The only distinction from a solicitor’s conduct was the avoidance of going on the record and the avoidance of company letterhead for court correspondence. Individually, drafting of witness statements, instructing the advocate, drafting the application notice, drafting the reply and defence to counterclaim, and drafting the case management summary each formed part of the prosecution of the claim.

The Judge drew support from the Practice Guidance on McKenzie Friends, which states that such assistants must not ‘manage litigants’ cases outside court’, which was precisely what the Respondents had done.

Statutory defence

The Judge was fully satisfied that Mrs Doble did not know she was committing an offence, accepting her as a truthful witness. Further, she could not reasonably have been expected to know. The law was unclear; the statutory wording vague; the authorities fact-specific and not easy to reconcile. Mrs Doble had engaged with CILEX Regulation, adjusted her business model in accordance with regulatory and specialist legal advice, and had acted in good faith in implementing further changes following Ndole. Even after the SRA’s indication communicated by the Claimant’s solicitor in May 2019, she could not reasonably have been expected to know she was conducting litigation.

Implications

The decision provides important guidance on the ambit of ‘the conduct of litigation’ under the Legal Services Act 2007, particularly for businesses providing assistance to litigants outside the regulated professions. The Judge emphasised that the 2007 Act definition is broader than the 1990 Act definition, and that substance prevails over form: avoiding going on the record or using company letterhead cannot, by itself, take comprehensive case management outside the statutory definition.

The judgment confirms that the court should examine the totality of the services provided and that a full-service package of drafting, filing, instructing counsel, corresponding with the other party, and arranging service may amount to the conduct of litigation, even where the client signs documents and is recorded as a litigant in person.

However, the judgment also recognises important limits. The giving of legal advice alone is not the conduct of litigation. Pre-action steps such as drafting section 8 and section 21 notices are not, in themselves, the conduct of litigation. Purely mechanical or clerical activities, such as those performed by process servers or postal workers, fall outside the definition. Informal assistance from friends or relatives to a litigant in person would not amount to prosecuting proceedings.

The decision is significant for providers operating similar business models (including in taxation and landlord and tenant work), for their clients, and for regulators. It illustrates that the dividing line between permissible assistance and unauthorised conduct of litigation is narrow and fact-sensitive. Crucially, the successful deployment of the section 14(2) defence shows that committal will not follow where the provider has genuinely and reasonably acted in good faith in reliance on regulatory engagement and legal advice, and where the law has been unclear. This offers some protection to providers acting conscientiously, but does not authorise their activities; the judgment makes clear that conducting litigation without authorisation remains unlawful regardless of competence or honesty.

Verdict: The court found that the Respondents had conducted litigation on behalf of Mr Persey between 12 March 2019 and 31 October 2019 within the meaning of the Legal Services Act 2007. However, the statutory defence under section 14(2) of the 2007 Act was established on the balance of probabilities, because Mrs Doble did not know, and could not reasonably have been expected to know, that she was committing the offence. Accordingly, the application to commit the Respondents for contempt of court was dismissed.

Source: Baxter v Doble [2023] EWHC 486