If not – you continue in this work at your peril.
The background
Solicitors are expensive, and landlords looking to evict tenants are usually short of cash – generally because they are evicting tenants for not paying rent.
This is one reason for the popularity of unregulated eviction companies.
But it’s not often realised that acting for a party in court proceedings is a ‘reserved activity’ under the Legal Services Act 2007. Reserved that is for solicitors.
Some of you may be indignantly spluttering, ‘why should solicitors be given a monopoly on this work? Why can’t we choose who we want to represent us?”
The reason is that litigation can be very expensive indeed, and if inexperienced persons are allowed to bring legal cases on behalf of others (who may have no idea what they are doing), this could make their hapless clients liable for significant legal costs. In particular, if the claim is defended.
For example, if a claim for possession based on rent arrears is issued where the tenant has a claim against the landlord for disrepair, the landlord could find themselves involved in a long drawn out and expensive claim which they are unable to stop – without making themselves liable for their opponent’s legal costs.
This is why the law provides that only solicitors, who
- Are regulated by the Solicitors Regulation Authority
- Have to have proper training and do regular CPD, and
- Who have to carry expensive indemnity and other insurance,
are allowed to act on behalf of clients in litigation.
There is also the fact that clients can complain to the Legal Ombudsman, there is a discretionary compensation fund for cases where insurance is an inadequate remedy, and solicitors who breach the rules can be ‘struck off’ (which means that they can no longer practice as a solicitor).
The only people other than solicitors who can bring claims are litigants in person, and people who hold power of attorney for claimants – so long as the power of attorney authorises this.
What about McKenzie Friends?
Many people vaguely assume that McKenzie Friends are non-lawyers who can conduct cases for people. For example, people who can’t afford to instruct a solicitor. However, that is not the case. The Practice Guidance on this states that they can
- provide moral support for litigants;
- take notes;
- help with case papers; and
- quietly give advice on any aspect of the conduct of the case
But they can’t (without leave of the Court)
- act as the litigants’ agent in relation to the proceedings;
- manage litigants’ cases outside court, for example, by signing court documents; or
- address the court, make oral submissions or examine witnesses, or
Stating at para 19
Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
Examples of McKenzie Friends will be friends and relatives of a claimant or defendant (particularly if they are ‘vulnerable’ in some way) or not-for-profit advice organisations such as the CAB.
Although in most cases, charities, community interest companies and Not For Profits are for the moment, exempt under s23 of the Legal Services Act, and so can carry out reserved activities.
Gill v. Kassam – A past case
In 2018 I wrote about the case of Gill v. Kassam, where the court was asked to consider the validity of a claim for eviction where the claimants were represented by an unregulated adviser.
The Judge in that case was highly critical of the adviser but felt that it would be unfair to penalise the claimant, Mr Gill, and so agreed to grant the possession order.
I wrote about this here and discussed in some detail the issues involved.
A new case – Baxter v Doble & Anor [2023]
In 2018 proceedings for possession were brought against a tenant, Mr Baxter, on the basis of serious rent arrears. It is not denied that the claimant was entitled to possession, and indeed a possession order has now been made.
However, an application was then made to commit the claimant’s legal advisers, Sarah Doble and Sarah Doble Associates ltd, on the basis that they had provided legal services to Mr Persey in the proceedings in a way that amounted to ‘the conduct of litigation for the purposes of section 12(2) of the Legal Services Act 2007 (“the 2007 Act”), by persons who are not entitled to do so’.
Ms Doble is a qualified legal executive, but her firm is not authorised by the Solicitors Regulation Authority to carry out legal representation in litigation. In the case, she accepted this but defended on the basis that the service she provided did not constitute ‘conducting litigation’.
So the question the Court had to decide was – was the work that she did merely advisory, or did it cross the line between ‘help’ and actually ‘conducting litigation’?
Did Ms Doble ‘conduct litigation’ or just help and advise?
This is an important issue as there are many firms providing this type of service who, as they do not have the expenses incurred by regulated firms, are usually able to provide help to landlords at a lower cost. Indeed this sort of thing is described in the judgement as ‘a new legal profession’.
Unlike many of the firms doing this type of work, Ms Doble is a legally qualified practitioner (CILEX) and had discussed the work that she did extensively with CILEX regulation who, although they did not specifically authorise it, did not object. She had also been advised by a ‘specialist regulatory solicitor’ that she was working within the law and had, in the past, adapted her procedures on the basis of the advice she had received.
The Judge found her to be a truthful witness and acting in good faith.
So she did have some justification for believing that she was not providing a reserved activity. The Judgement goes into some detail about the work that she did, and anyone doing this work themselves should read the judgement carefully.
The work that she had done for Mr Persey included:
- Drafting the claim forms and other paperwork (although they were signed by the client)
- Posting these to the Court
- Paying the fees
- Signing a certificate of service of issue
- Instructing an advocate for the hearing
- Drafting witness statements
- Drafting further court paperwork
Allegations of illegality
The defendant’s solicitors apparently raised the issue with the Solicitors Regulation Authority, who told her that if they continued corresponding with Ms Doble, this could constitute conspiracy in a criminal offence!
The 2007 act defines ‘the conduct of litigation’ as follows
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).
The Judge’s decision
The Judge, having considered a number of similar cases in the past (including the Gill v. Kassam case), decided that although many individual actions, on their own, would not constitute ‘conduct of litigation they may do so if ‘taken in the round’.
In this case, they held that Ms Doble’s service DID constitute conduct of litigation as she had done practically everything that a regulated solicitor would have done apart from actually going on the record’.
So Ms Doble was guilty of the offence. But did she have a defence?
The answer was yes, she did. She had followed guidance provided by CILEX and had adapted her procedures following legal advice, and so it was reasonable for her to have believed that she was acting in accordance with the law.
A warning to other eviction companies
Following this judgement, all businesses which provide eviction assistance to landlords must now revise their procedures.
If this is you, this means reading the judgement in this case in detail and checking the Judge’s comments against the work that you do. I would also suggest that you take legal advice.
Ms Doble did have justification for believing that she was acting within the law. I am not convinced that many of the other companies carrying out this work have any justification for believing this at all, and so if they carry on, will be putting themselves at risk of criminal proceedings and also of being found in contempt of court.
Particularly after this case which is effectively giving notice to all who do this work, that they are acting illegally.
So you continue in this line of work at your own risk!
What about Landlord Law?
I used to do eviction work for many years, when I ran my solicitors firm TJ Shepperson (and you can read posts about my work in the older part of this site). TJ Shepperson, which was a regulated firm, used to run alongside my online service Landlord Law.
However, since TJ Shepperson closed in 2013, the Landlord Law eviction help consists of articles and FAQ, our online step-by-step guide, various webinars and other recorded training from legal experts and answers to ‘quick questions’ put to me in our members’ forum area. Plus our paid solicitors telephone advice service. None of which constitute ‘conducting litigation’.
You can read about the various services we offer on this page.
If YOU are considering evicting your tenants, the best place to start is our online Which Possession Proceedings Guide.