LITIGANTS IN PERSON: Ndole Assets Ltd v Designer M&E Services UK Ltd; [2018] EWCA Civ 2865



Judge: Davis LJ, McCombe LJ and Jackson LJ

Citation: [2018] EWCA Civ 2865

CPR 7.5 – service of proceedings

Summary:

Agents acting for a litigant in person had been in breach of the Legal Services Act 2007 in serving proceedings on the defendants, the conduct of litigation being a reserved legal activity, but this did not, in this case, invalidate service.

Longer Text:

In Ndole Assets Ltd v Designer M&E Services UK Ltd [2017] EWHC 1148 (TCC) Coulson J held that service of the claim form and the particulars of claim was a reserved legal activity under the Legal Services Act 2007 s.12. However, where a litigant was acting in person, service could be effected either by the litigant or by an agent acting on his behalf. This decision does not sit easily with Gregory v Turner [2003] EWCA Civ 183 where the Court of Appeal had to consider whether the grant to an unqualified person of an enduring power of attorney conferred a right to conduct litigation on a litigant in person’s behalf. The Court held that under the Courts and Legal Services Act 1990 s.27(2)(d) and s.28(2)(d) a right of audience and a right to conduct litigation was conferred on a person who was a party to the proceedings and would have had those rights “in his capacity as such a party” if the 1990 Act had not been passed. However, those rights did not extend to an agent of a party to the proceedings; accordingly the unqualified person had no right to conduct litigation on the litigant’s behalf and he did so only by the exercise of the court’s discretion.

On appeal the Court held that the principles set out in Gregory v Turner (above) meant that the Judge’s reasoning could not stand. The formal service of a claim form on a defendant fell within the “conduct of litigation” for the purpose of the 2007 Act. It was therefore a reserved legal activity which could only be performed by a statutorily authorised person or by an exempt person. And CSD (the agents acting for the litigant) were neither. This approach led the Court to consider the apparent problem that the same might be said of process – servers or postal employees. Further what if the litigant in person, if an individual, asked a family member to deliver the claim form or, if a company, asked an employee to do so: was the conclusion compelled that such a family member or employee was to be adjudged to have committed an offence? Such a conclusion was unacceptable.  Substance had to prevail over form. A pragmatic solution was the correct solution, i.e. one that distinguished 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. (The Court suggested that this accorded with the acceptance by the court in Agassi v Robinson (Inspector of Taxes) (Costs) [2005] EWCA Civ 1507 in paragraph 43 of the judgment that the statutory prohibition did not extend to “what might be termed purely clerical or mechanical activities.)

Process-servers and the like were not within the statutory prohibition: they were simply engaged in the “mechanical” activity of actually delivering the claim form. Delivery, for these purposes, was not to be equated with service of a claim form as prescribed by the rules. The service of a claim form by a person who was not an authorised or exempt person for the purposes of the Act did not mean that the service was invalid, so long as they were simply engaged in the “mechanical” activity of actually delivering the claim form.

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