Beware - some things only a solicitor can do

The claims consultant in this case collected compliments galore from the court on her know-how: she is top-quality when it comes to providing legal services in her conduct of litigation. The snag comes, as it did here, when the person “doing her stuff” is not entitled to do so. She found herself at the thick end of an application to commit her to prison! It is contempt of court. This recent case is Baxter vs Doble [2023] in the High Court. I will tell you more in a moment.

A few years ago a very competent construction claims consultant got into choppy water in a similar way. His client had a good claim for payment arising out of an adjudication some time previously. It was an M&E subcontract award for a lump of money.

The consultant served a claim form in the High Court and filed particulars of claim. Solicitors on the receiving end shouted “foul”. The papers were in apple-pie order, but the pushback said that the documents were invalid and ineffective because they were served by a barrister, or rather, an unregistered barrister. In which case, said the complainant to the court, the flaw was the status of the person serving the court forms.

Being an unregistered barrister meant that he was “only” a consultant, or ordinary everyday bloke, and as such not permitted by the Legal Services Act 2007 to “carry out a reserved legal activity”.

The consultant can assist with the paperwork but not engage the court. It amounts to conducting litigation, and it is an offence to carry out a reserved legal activity

The legal claims consultant in the recent case had worked for a solicitor and had achieved fellowship of the Council of Legal Executives. Her day-to-day work was disputes between landlords and tenants. The house along the street may well be rented. Disputes about defects, about rent arrears, about ending the tenancy are as common as interim and final accounts in building works. This homeowner and occupier territory does not have our slick Adjudication/Construction Act, so they have to throw themselves onto the court. The good lady assisting her solicitor boss knew her stuff inside out. Then, one day, she decided to strike out on her own. She formed a consultancy offering much more attractive rates and costs for the same work. It was called Sarah Doble Associates Ltd.

Things went well. A new client engaged the consultant to obtain possession of a residential dwelling. Eventually it required a court order on the basis of rent arrears. So papers were lodged at court. There was no real defence available to the tenant, and he admitted £14,206 rent was owed.

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Ah, but here comes the gotcha. The tenant laid a response with the court contending that Sarah Doble and her firm were “conducting litigation” on behalf of the landlord. As such, it is fair comment to accuse the consultant of carrying out a “reserved legal activity” – so says the Legal Services Act 2007. Worse still is that to so act is contempt of court and, oh dear, a prison sentence or fine or both are on the cards.

Let’s recognise how easily this can happen in the construction disputes business. Many a claims consultant is the representative in our 28-day adjudication system. Doing so does not collide with the Legal Services Act. Many a quantity surveyor makes a real good fist of doing that, but then an amber light flashes when it comes to putting pressure on the party obliged to pay up what the adjudicator has awarded.

Familiar territory nowadays is to pop into the court and issue or serve court papers to enforce the award. The mistake is to do it yourself, Ms Consultant. Instead, you must tell your client that this is solicitor territory.

The consultant can assist with the paperwork but not engage the court. It amounts to conducting litigation, and it is an offence to carry out a reserved legal activity. It is the sort of apparently ordinary step that a very experienced consultant, like Ms Doble, would take as a matter of routine. She was out of order because she was not one of the solicitor’s staff – not any more. She crossed the line when flying solo.

Finding that line is not straightforward. Cases have moved this way and that. Likely it is fair to categorise giving legal advice as not conducting litigation; similarly any activities prior to the issue of proceedings and which do not involve any contact with the court. If that is correct, then mere drafting particulars of claim is OK for our claims consultant.

Arguable, though, is that conducting litigation is sending copies of a claim form and particulars of claim for sealing and issue to court. Seemingly, sending that paperwork to the opponent party is not, if not yet issued by the court. This is all very subtle. For me the line is drawn at a consultant only and simply performing an administrative function or a mechanical activity. Beyond that needs the hand of a solicitor. And it goes without saying that a consultant cannot be the advocate in court unless the judge gives permission.

These rules apply to litigation; none of it goes to representing a party in arbitration, adjudication or ADR generally. As to Ms Doble, she had a genuine get-out: she did not know that her work involving the court or formal court papers was an offence under the Legal Services Act 2007. The act itself forgives the consultant on that basis.

Get yourself a friendly solicitor, and be on the safe side of that line.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple