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Contempt and Conduct of Litigation


Baxter v Doble & Anor (2023) EWHC 486 (KB)

This was an application for committal for contempt of court for provision of legal services by a person not entitled to do so, arising out of a possession claim in Devon. It is of considerable significance in view of the many non-solicitor ‘Evictions R Us’ firm that ‘assist’ private landlords with possession claims.

Sarah Doble, and her firm Sarah Doble Associates Ltd, had been engaged by a Mr Persey  in relation to possession proceedings against Mr Baxter, his tenant. Ms Doble was a CILEX member as a paralegal, but not regulated. In the course of proceedings, solicitors for Mr Baxter raised the issue of Ms Doble apparently conducting litigation. That eventually resulted in these proceedings (though the possession claim was successful).

Under the Legal Services Act 2007, it is an offence to carry out a reserved activity without being an authorised person. ‘Conduct of litigation’ is specified as a reserved activity. At paragraph 4, Schedule 2 to the 2007 Act ‘conduct of litigation’ is defined as

“Conduct of litigation
4 (1)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).

There were no disputes on the facts of what Ms Doble/her firm had done. The only issue was whether some or all of those actions amounted to conducting litigation.

The High Court considered the various cases on this issue, which were not particularly helpful on the borderline between conduct/non conduct,

It is also very difficult to identify a clear dividing line between what does and does not amount to the conduct of litigation from a review of the authorities. There are a number of reasons for this. There are three Court of Appeal authorities which are binding upon me, but the first, Agassi, was dealing with different legislative language (with respect to him, I do not agree with Mostyn J’s observation in JK v MK that the definition of the conduct of litigation in the 1990 Act was “nearly identical” to the definition in the 2007 Act); the second, Ellis, was dealing with the clearest possible case of the conduct of litigation; and the third, Ndole, was concerned with a single issue, which was whether the service of proceedings amounts to the conduct of litigation. None is factually similar to the present case. The observations of the judge in the Heron case were obiter and the judge in that case was only required to consider whether there was an arguable case that there had been the conduct of litigation. The facts of Peter Schmidt, about a winding up petition, and JK v MK, about a consensual divorce, were very different from those in the present case. The Khan case was also concerned with a very clear case of the conduct of litigation. The only case which bears a similarity to the present case is Gill v Kassam, but there are also significant differences: in particular, in that case the advisers used the online claims process, which Mrs Doble carefully avoids using.

However, there were four key general principles in approaching such matters:

The first is that the starting-point must be the statutory language itself, and the statutory words must be given their natural and ordinary meaning.

The second is that it must be borne in mind that this is penal legislation, which may result in a conviction for an offence with a maximum sentence of two years (or for committal for contempt with the same maximum penalty: Contempt of Court Act 1981, section 14(1)). In Agassi, at paragraph 56, the Court of Appeal said that, because there are potential penal implications, the very obscurity of the statutory language means that the words should be construed narrowly. However, that was said at a time when the defence that the person accused did not know, and could not reasonably have known, that they were engaged in reserved legal activities did not apply. That defence was introduced by section 14(2) of the 2007 Act. This matters, in my view, because the grounds for a very strict and narrow construction are now less compelling. It is no longer a strict liability offence. Nonetheless, as the Court of Appeal made clear in Ndole, it must still be borne in mind, when interpreting the legislation, that this is penal in nature.

The third key point comes from the Court of Appeal’s judgment in Ndole. This is that substance must prevail over form (judgment, paragraph 67).

The final point is that the question is one of fact and degree in every case (paragraph 68). The Court of Appeal said that an approach permitting individual assessment of the activity undertaken in an individual case is likely to achieve justice.

Applied to the facts of this case, firstly with regard to pleadings, the Defendants had carried out the following:

Particulars of Claim and claim form

Drafted them (though they were checked, amended, and approved by the client);
Prepared the enclosures (though these were checked and approved by the client);
Checked the bundle of documents to be sent to the court, to ensure that the right number of copies were sent;
posted the claim form, particulars of claim, enclosures, and covering letter to the court;
Paid the court fee of £355 by cheque from the Second Respondent’s account, having been put in funds in advance by Mr Persey; and
Ensured that the documents were drafted and filed in a way that complied with the CPR.

Reply and Defence to Counterclaim

Drafted it (though it was checked and approved by the client);
Sent it for review by the advocate;
Made arrangements for the pleading to be delivered to the Claimant’s solicitor by hand, using process servers;
Took the decision that service should be by hand rather than by post; and
Ensured that the deadline imposed by the court by an order dated 27 August 2019 was met.

These amounted to conducting litigation. On

the claim form and particulars of claim, in my judgment the reasoning of the Court of Appeal in Ndole applies all the more clearly to the delivery of documents to the court as it does to the delivery of documents to the other party. If sending a pleading to the other side by way of service is the conduct of litigation, then sending a claim form or pleading to the court for issue in order to commence the proceedings must also amount to the conduct of litigation. Once again, the fact that the documents were not signed by the Respondents does not matter, nor that they did not go on the record as Mr Persey’s representatives. Nor did the fact that they did not submit a covering letter on the Second Respondent’s letterhead. The surrounding circumstances of the filing of the claim form and the particulars of claim make clear that this was not merely clerical or mechanical activity: the Respondents advised upon the claim form and particulars of claim, drafted them, ensured that they complied with the CPR, and paid the court fee. Once again, even if the test in Agassi still applied, this would be the conduct of litigation: it was a formal step in the proceedings.

As the Court of Appeal made clear in Ndole, the fact that the Respondents were acting as agents of Mr Persey when filing and serving documents did not mean that they were not themselves conducting litigation.

The Court of Appeal in Ndole considered the entirety of the actions undertaken by the consultants in that case when deciding that the service of documents was the conduct of litigation. Applying the same approach to the current case, I am satisfied, to the criminal standard, that the filing of the claim form and particulars of claim, and the arrangements made for service of the reply and defence by the Respondents, amounted to the conduct of litigation.

In addition to the actions in relation to the pleadings, the Defendants also carried out the following:

the Respondents carried out the following activities on behalf of Mr Persey: they gave legal advice; they drafted notices under section 8 and section 21 of the Housing Act 1988; they corresponded with the Claimant’s solicitor; they drafted the claim form and particulars of claim; they paid the issue fees; an employee of the Second Respondent signed a certificate of service of the notice of issue; they gave instructions to an advocate for several hearings in the matter; they drafted witness statements; they drafted an application notice and draft order for the strike-out application; they drafted the reply and defence to counterclaim; and they drafted the case management summary for the CMC.

Of these, the following were not part of conducting litigation in themselves.

Giving legal advice
Drafting and serving notices under s.8 and s.21 Housing Act 1988
Service of notice of issue (because not a required step in litigation)

But, taken in the round (as they should be), the activities of the Defendant amounted to conducting litigation

In my judgment, the answer is yes. The Respondents did everything for Mr Persey in relation to the proceedings that a solicitor or other authorised person would have done. They gave full-service assistance to Mr Persey, including drafting all of the documents required to comply with formal requirements, giving instructions to counsel, making a payment to court, corresponding with the other side, and ensuring that all procedural steps complied with the CPR. Someone must have conducted this litigation, and it would be wholly artificial to say that Mr Persey did it himself, albeit with support and guidance from the Respondents. This would be to under-state their involvement. They conducted the litigation for him. Put another way, they were “prosecuting” the proceedings for him. The Respondents’ role went far beyond clerical or mechanical assistance. As the Court of Appeal said in Ndole, it is a question of fact and degree whether an advisor or consultant crossed onto the wrong side of the line. On the facts of this case, and again applying the criminal standard, I conclude that the Respondents did cross the line and that their involvement in the proceedings, taken as a whole, amounted to the conduct of litigation.

The only difference in this case from that which a solicitor or other authorised person would have done is that the Respondents did not formally go on the record or use their own notepaper for covering letters when dealing with the court (though they did use their own letterhead when corresponding with the Claimant’s solicitor). In my judgment, it would be wrong, and wholly contrary to the statutory purpose as expressed in section 1 of the 2007 Act, for these matters to take activities outside the meaning and scope of the conduct of litigation. This would be to prioritise form over substance. It would mean that the question whether someone was conducting litigation would depend on an arid technicality. Indeed, to treat this as the only thing that matters would be to provide an incentive for those who were not authorised persons to conceal their involvement from the court, which cannot be right.

After discussing the Practice Guidance on McKenzie Friends – Practice Guidance (McKenzie Friends) (2010) 1 WLR 1881 – the court adds:

The Practice Guidance, at paragraph (19) reminds us of the policy reasons behind the restrictions on conduct of litigation in the 2007 Act. It is significant, in my view, that the Practice Guidance says that McKenzie Friends, not being authorised or exempt persons, must not “manage litigants’ cases outside court”. That is exactly what the Respondents were doing.

Even if I am wrong in my conclusion that the Respondents’ actions should be looked at in the round and, as such, amount to the prosecution of proceedings and so to the conduct of litigation, I consider that some of the actions taken by the Respondents, looked at in isolation, consisted of the conduct of litigation, in addition to the filing of the claim form and particulars of claim, accompanied by the payment of the court fee, and the service of the reply and defence to counterclaim. Specifically, I think that the giving of instructions to an advocate; drafting of witness statements; the drafting of the application notice and draft order for the strike-out application; the drafting of the reply and defence to counterclaim; and the drafting of the case management summary for the CMC each formed part of the prosecution of the claim. The drafting of the claim form and the particulars of claim was done, ex hypothesi, before the proceedings were commenced, and so did not amount to the conduct of proceedings in themselves, but they are relevant in that they enhance the impression that the total package of services provided by the Respondents, taken as a whole, amounted to the conduct of litigation.

Despite this, the Court declined to make a finding of contempt. The law had been sufficiently unclear as to what amounted to conducting litigation at the relevant time that the statutory defence under section 14(2) Legal Services Act 2007 applied – Ms Doble could not be reasonably expected to know she was conducting litigation.


For many ‘Evictions R Us’ set ups, this full service assistance is their selling point (see for example here and here ), and that particularly includes drafting pleadings and instructing an ‘advocate’ (not a practising barrister) via LPC or similar. (Indeed, Ms Doble’s firm had a general referral agreement with LPC).  But these are now to be clearly understood as conducting litigation.

Further, serving documents (even if not on the company letterhead), filing documents in compliance with court orders (again, even if not on company letterhead), making payments to court, and correspondence with the other side are all likely to be conducting litigation if forming part of an overall conduct.

In fact, apart from giving advice and service of a section 21 or section 8 notice, it is hard to see what more such a ‘paralegal law firm’ could do in relation to proceedings without running a grave risk of conducting proceedings and committing an offence.

The law may have been previously unclear, but now it is far less so. ‘We didn’t know what we were doing’ is unlikely to fly as a defence in the future.

Any solicitors whose other side appears to be one of these setups should a) refuse to have anything to do with them if they are corresponding ‘on behalf of their client’, and b) consider a contempt application. There may also be grounds to challenge pleadings, of course.


Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. John Jay

    Perhaps, if there was not such a massive volume of possession claims and a paucity of Able solicitors to deal with them, then we wouldn’t be having this rather silly argument about who can and who cant do what. Clearly the complete absence of social housing which drives this evictions are us industry perhaps needs mentioning. Personally I think because I am one that landlords need all the help that they can get rather than all this faffing around to do with who should do what surely it’s all about results is it not?

    • Giles Peaker

      No, John, it is about the law.

      (Also, these set-ups are unregulated and uninsured, so if things go wrong, which they often do – in this case, a defence to counterclaim was struck out – the client has no recourse.)

  2. Johnnjay

    Yeah, you know, as well as what I do that landlords and tenants do not comply with the law on an industrial scale and especially in London, maybe the law needs changing then, I have used paralegals in possession claims a few times and never had one problem. I have friends and colleagues who would testified to the same. Anyway let’s not go there but surely you take my point about capacity two hundred or so or thousands evictions a year, I don’t think they’re enough solicitors to be able to take all that on! Rather than arguing against the law. Perhaps we need to look at solutions one of those solutions would be to allow paralegals perhaps to have authority to do this then we wouldn’t have this palaver. Sorry just on a final note solicitors themselves I have seen have messed things up significantly regarding possession claims I’ve seen it. You need to ask yourself why do landlords go to Eviction’s r us companies and work out the solution moving forward from that assessment

    • Giles Peaker

      I don’t think there is a shortage of solicitors willing and reasonably able to take these matters on. Certainly that is not what is driving the use of these set-ups. That driver is penny pinching.

      And of course if a solicitor does mess it up, they have professional indemnity insurance. Unlike these paralegal set-ups.

  3. N/A

    I don’t see how they are conducting litigation, given that the lay client remains responsible personally for the pleadings, and of course for the contents of their witness statement. It doesn’t much matter, it seems to me, who authors it. Mostyn J was right in his ruling re the automated divorce website.

    Conducting litigation, especially given the criminal penalties attached to doing so without proper authorisation, should be construed very narrowly imo. What’s next? Could I argue that a party who is found to have “controlled” litigation for the purposes of s.51 SCA 1981, with the concomitant costs consequences, is now open to being prosecuted for conducting litigation too? I’m dealing with a case like this at the moment, wherein C1 forcefully encouraged C2 and C3 to commence litigation, I thought we had done away with barratry as a criminal act in the 1960s?

    This is regulatory creep and it is frightening, not to mention tone deaf. As we all know, the realpolitik of residential possession proceedings is usually that the landlord won’t see a penny of their costs (or damages, for that matter) even if they are victorious. When you’re already £10k + in the hole for unpaid rent the last thing you want is to be told that it will now cost double or triple what it used to to secure possession.

    I am a regulated legal professional, so in theory (not that I do much L&T work anymore) I stand to profit from the elimination of the unregulated sector. But, years of experience in the County Court teaches me that they are an absolutely vital part of the legal ecosystem; and, given that the ideology underlying every reform in the civil law is to produce costs savings, it is remarkable to me that a judge is ruling in such a way as to vastly increase costs in one of the most common types of civil litigation. Someone else on here refers to 200,000 evictions a year, I can’t vouch for those statistics but it doesn’t seem unrealistic when one looks at a possession list. Landlords and their insurers will have to factor these added costs in, it will cost society more.

    Anyway, the judge accepts that the drafting of a claim form & poc is not the conduct of litigation- so these firms can, it seems, continue to do that as well as to serve the s.8 notice. At that point, presumably, their best course is to then refer the client on to one of the well known solicitors’ agencies to obtain representation for the hearing- all that is missing is the witness statement (though this could be prepared in advance of litigation commencing for a simple possession claim).

    What they can, it seems, no longer do is correspond with the Court or direct the instruction of agents. As for paying the court fee, I think that was always on dodgy ground, and is not vital to their business model at any rate- it’s just a way of making proceedings even more convenient for the client.

    This ruling, if not successfully appealed, will just serve to push up the cost of possession proceedings a whole lot, to the detriment of both sides in many cases. It won’t result in landlords saying, “Ah well, my tenant isn’t paying me their rent, I’d better just leave them there indefinitely as it now costs £4,000 instead of £1,500 to go to Court”, it won’t reduce the number of cases coming to Court, it will just put a few firms out of business (maybe), it’ll mean more clueless LIP landlords who can’t instruct anyone for a sensible price and who decide to go it alone; take one look at the state of the Family Court to see what happens when you have too many cases with LIPs on both sides.

    • Giles Peaker

      The client is always responsible for pleadings, witness statements etc, even if they have a solicitor acting. It also doesn’t make sense to refer the the ‘lat client’ here. That only makes sense for barristers who have a professional client – the solicitor – and lay client – the party. In this situation there is no barrister and no professional client, so not a ‘lay client’, just a client.

      You might need to review the judgment again. Drafting a claim form and POC is considered to be a indicator of ‘conducting litigation’ when actions considered as a whole. See paras 194 and 207. As is giving instructions to an ‘advocate’ via a solicitors agency, see para 211.

      The point of the judgment is not whether this or that activity by itself amounts to conduct of litigation, though there is an element of that, but rather actions as a whole. See para 211 to 213. Para 213 is also the answer to your point on cheap alternatives to regulated, authorised persons.

      Your question on ‘controlling’ litigation is, with respect, by the by. As you say, there may well be costs consequences to that, but it is not conducting litigation.

  4. Kath

    Surely this is a wake up call for charities, they often have unregulated people helping people. If 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).

    These are all things a person can do on their own behalf, but they are not conducting litigation.

    It is hard NOT to use statutory language, consider a charity advising a tenant on how to block a section 21 notice where prerequisites had not been carried out, one has to quote statutory language, although what is statutory language, the legislation, CPR, case law, one has to use such language to get the other side to take issues seriously and back down.

    Surely the issue is none of the above, but rather that any firm or person who might be mistaken as a regulated legal entity or professional has to give a declarations that they are not legal professionals or a regulated firm. Of course we now have Solicitors who are not regulated, they don’t always declare that they have opted of of the SRA.

    • Giles Peaker

      Giving legal advice is not part of conducting litigation.

      Any solicitor who has ‘opted out’ of SRA regulation is not an authorised person and can’t conduct litigation.

    • Tim

      Out of curiosity, how does one end up in the situation of being a solicitor who is not subject to SRA regulation? I would have thought it was more or less mandatory?

  5. Ben Reeve Lewis

    And where does this leave people in the following positions
    Not eligible for legal aid?
    Eligible for legal aid but cant source a lawyer? (more than half the UK)
    Cant represent themselves because they dont speak English?
    Have poor spoken English?
    Dont understand the legal processes involved?
    Lack confidence or capacity to stand up to our adversarial system?

    Such people rely on advice agencies and charities who, according to this decision can do no more than advise them to get a lawyer, who they usually cant source for the very reasons set out above.

    Withdrawing access to justice for tenants even further than simply a legal aid barrier

      • Ben Reeve Lewis

        Well that’s something. Thanks Giles

      • Tim

        Something interesting indeed; thanks, Giles.

        Although it then raises the question in my mind which has always lingered there as to the interplay between different types of remuneration schemes/arrangements.

        I mean, firstly, I’m guessing although less and less strongly the more I write, that such exempt categories of folks carrying out reserved activities such as conducting litigation would not be able to have any fees they had been paid reimbursed by a costs order against the other side as they are not regulated solicitors/barristers. But I wonder more and more if that’s correct.

        But then there are all sorts of peripheral arrangements. For instance I heard of a solicitor once billing legal aid for her work in negotiating and reaching a settlement with my friend’s landlord for his breaches, while then also taking a percentage commission off the settlement amount. While nobody had a problem with it in fact, in principle my mind wanders to wonder if this is not a sort of “double jeopardy” in principle.

        But there are other interesting permutations of this that I’ve wondered about as well. Say for example a solicitor agrees to do a civil claim for 20% of the final amount (so let’s say no legal aid involved, just a standard CFA).

        What happens if the claimant prevails in the claim? Are they entitled to seek a costs order to compensate them for the 20% “lost” (for lack of a better term) to legal fees?

        Now suppose for a second scenario, instead of a CFA, the claimant is legally aided. (And here also prevails.) Are they entitled to seek a costs order? If one was granted it seems only reasonable that this would then have to go back to compensate LAA. Is this how it works? In the converse outcome, where the claimant fails and receives a costs order against it in favour of the defendant, is it not so that LAA would settle the costs order on the claimant’s behalf?

        I think there was at least a third permutation I had floating around my head for some time as well, but alas it has slipped out for the moment being.

        • Giles Peaker

          If you are paid by legal aid, you cannot also charge a ‘success fee’. You can recover inter partes costs at the full rate from the other side (if awarded/in settlement), but then legal aid has to be repaid.

          If a legally aided party has a costs order made against them, that costs order cannot be enforced without permission of the court. It is not paid by the Legal Aid Agency.

          What you are describing with the ‘20% of final amount’ is a damages based agreement – DBA – hardly ever appropriate for a civil claim. Used in employment tribunals where no inter partes costs recovery. A standard CFA is costs (recovered from other side) and success fee from client’s damages.

      • Luke Oliver

        Unfortunately, it appears that the s.23 LSA2007 exemption does not provide a solution to the problem Ben Reeve Lewis highlights.

        This is because the exemption only extends to the not for profit entity itself, not to its employees. See Baxter at paragraph 154 citing Solicitors’ Regulation Authority v Khan [2021] EWHC 3765 (Ch). See in particular para 32 of Khan copied below:

        ’32. This section makes it clear that there is a separate requirement for the employer body and the employee to be entitled to carry on the reserved legal activity since, if the employee is not so entitled, the body commits an offence despite itself being entitled to carry on the reserved legal activity. That provision would make no sense if there was no requirement for an employee to be authorised. So it is not an answer for JFP, the not for profit body in this case, to say that it is entitled to carry on reserved legal services if it is carrying them on by virtue of Ms Khan carrying them on.’

        • Giles Peaker

          I was looking into this a while ago on a matter, and I think that is right in the light of Khan (which is not a great judgment, to be fair). It would limit the exemption to members of a manging body, partners, directors, or members of a governing body of the NFP – as per s.207(1) Legal Services Act – and not any employees of the NFP. I think the Law Centres Network were looking at this.

    • Tim

      My initial reaction to the post was the same as this, Ben. Obviously while this concerns a dodgy evictions-r-us outlet that acts for landlords, it does ultimately also make justice less accessible for tenants.

      In regards to that, in addition to Giles’s observations below, I believe the situation is that on the one hand, an unqualified individual or other entity who would like to represent a party to a dispute may seek a court’s permission to have rights of audience although it must be borne in mind that this does not equate to and indeed falls fairly short of what is encompassed by “conducting litigation.” On the other hand where this is not seen to have sufficient good reason for being granted, a party may usually be accompanied to court by a McKenzie friend, who can do even less than an advocate who has been granted rights of audience, I gather mostly just whispering into the party’s ear as they proceed through a hearing with suggestions as to how they may conduct it for themselves.

  6. Ben Reeve Lewis

    And what about local authority homelessness prevention officers assisting clients to file a defence to accelerated proceedings where the s21 is invalid? Do they merely tell the applicant that the s21 is invalid and turn their back on them?

    • Giles Peaker

      They could draft the defence, but not file it, or serve it, I think.

  7. A housing advisor

    CILEx members are not regulated by the SRA as far as I am aware. They are regulated by CRL, Have their own disciplinary procedures, abide with much of the same code of ethics et cetera. Of course, they must comply with all statutory laws including the Legal Services Act, so for the judge to find that as a paralegal CILEx member she was not regulated appears to be a case of missing the wood for the trees.

    While I am a member of CILEx, and personally do not conduct litigation, I have the foresight to buy liability insurance and I consider myself to be regulated by CRL. I also freely advise clients that they can check my advice with the CAB or any other competent legal professional to ensure that it is correct.

    • Giles Peaker

      I think the court meant relevantly regulated such as to be an authorised person, as it had noted the role of CILEX Regulation early on in the judgment.

  8. Ben Reeve Lewis

    So this really affects the unregulated claimant services sector more than anyone else which is interesting for us as we sometimes find ourselves up against organisations blurring the edge as it were. I’ve moved from this morning saying “What a disaster of a case” to “Well about time” LOL

  9. Tim Taylor

    Re. 17/03@9:48am:

    Well that clears up a lot. I was clearly given partially wrong information about costs against the legally-aided. Or rather wrong information that seems to have been loosely based on right information.

    As for s23LSA2007-exempt entities, as they are authorised by LSA to act try not regulated by the SRA / bar, can their costs still be sought by way of inter-partes costs orders?

    As for the legal aid + DBA arrangement my friend had told me of (“percentage commission off settlement amount)”, well that makes perfect sense as it was an RRO claim that was being settled, so no inter partes costs would (generally) have been available anyway in FTT, so your comment explains that perfectly as well despite it not being in the employment tribunal per se. I suppose that guessing back at it now, the legal aid component may well not have been claimable off LAA (or perhaps that question is a red herring), if the negotiation and settlement didn’t also involve a possession dispute.

    But then in a venue where inter partes costs are usually recoverable, what is the logic of a “success fee” when the entire fee would appear to be conditional upon success anyway? And then if the success fee is baked into the fee scheme of the agreement, why would this not be recoverable in a costs order application? If the damages are intended to “make the aggrieved whole,” and the solicitor has charged 20% of what was deemed necessary to achieve that as part of the standard CFA, then why would that part of the actual costs not be included in what is recoverable?


    • Giles Peaker

      Exempt entities can of course recover inter partes costs. (Usually there are solicitors who are individually SRA regulated anyway, even if the organisation isn’t (eg, Law Centre).

      There is no legal aid in an RRO application, so I have no idea what your friend was talking about. Legal aid for possession proceedings, sure, but that is a wholly separate thing.

      As for CFAs and success fees, please do your own reading up on them. You don’t understand how they work.

  10. Tim Taylor

    *”authorised by LSA2007 to act [YET] not regulated by the SRA“

  11. john stenhouse

    This judgment is codswallop and full of very obvious contradictions. For example, the judgment accepts (as it is bound to do) that the concept of conduct of litigation must be given a RESTRICTED interpretation bcause it is a criminal offence and carried criminal penalties. But this jdge does exactly the opposite – he deliberately embarks on a judgment that seeks to give an interpretation of conduct of litigation an interpretation that is so wide as to act as a virtual catch all. For example, the judgment says that drafting a Claim Form and Particulars of Claim is NOT conducting litigation, but drafting a Defence and reply and a Witness Statement IS conducting litigation. But this absurd analysis gails to appreciate that under the Civil Procedure Rules, all of those documents fall within the definition of “Satements of Case.” So we now have a judgment that says that drafting some Statements of Case is conducting litigation and drafting other Statemnets of Case is NOT conducting litigation. For example, the judgment states that sending correspondence on behalf of the client IS conducting correspondence but the Court of Appeal in Agassi expressly stated in its Judgment that sending correspondence is NOT conducting correspondence. This Judgment says we have to look at the overall conduct but the Act does not say that and no previous decision on this topic has said that you look at the overal conduct – because looking at all of the elements of the the overall conduct in an individual case completely contradicts the requirement to give a restricted interepretation to “conduct of litigation”. There are so many other holes that can be picked in this ridiculous judgment. I predict a short life span for it.

    • Giles Peaker

      Hi John. I am guessing you are not a relevantly regulated lawyer, but you want to conduct litigation.

      I think the judgment is on the whole, pretty clear. Anything done before the issue of proceedings (and that includes drafting of particulars of claim) is not conducting litigation Ndole. Anything from and including issuing proceedings likely is (so, defence, reply to defence etc. including correspondence with the court and actually issuing the claim).

      If you don’t understand the significance of the point of issue of proceedings, you probably shouldn’t be advising or assisting anybody.

      Agassi didn’t say sending correspondence to the court or the other party wasn’t conducting litigation, at best, it suggested that by itself it may or may not be. It was a matter of degree (which is exactly what this judgment says). But in any event, it predated the 2007 Act definition.

      (And I would absolutely not correspond with some unqualified ‘representative’ for the other party in the course of litigation. If the other party wants to take advice from such a person, that is up to them, but I would not accept them as a representative, as it may be encouraging an illegal act.)


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