High Court: service was valid
The High Court has criticised an unregulated legal business run by a unregistered barrister for “sailing too close to the wind” by failing to be clear in correspondence that it was not a solicitors’ firm.
However, Mr Justice Coulson ruled that service of a claim by CSD Legal, run by Alexander Dain, on behalf of a litigant in person was not invalid because it was acting under the litigant’s delegated authority.
In Ndole Assets Ltd v Designer M&E Services UK Ltd [2017] EWHC 1148 (TCC) [1], it was argued that CSD Legal had no entitlement to carry on a reserved legal activity and so could not conduct the proceedings on behalf of the claimant.
The Legal Services Act 2007 defines the conduct of litigation – a reserved activity – as including the commencement, prosecution and defence of any proceedings.
Coulson J ruled that this covered the vital step of service of the claim form and particulars: “If service is not effected, or if it is effected in the wrong way, then the proceedings might be fatally flawed. Correct service is therefore a prerequisite for the successful prosecution of an action.”
It was pointed out that solicitors regularly use process-servers, who have no right to conduct litigation either. The judge ruled that they have the solicitors’ delegated authority to serve the documents.
By extension, he said, “it would be nonsensical to conclude that, whilst a solicitor can delegate the carrying out of this task to a third party, a litigant in person cannot do so”. Therefore, the service here was valid.
Coulson J added: “Even if I had found that service was unlawful, I would have taken some persuading that the consequence of that was that the proceedings should be struck out.
“Service was effected, and there is no dispute that the relevant documents were served upon and received by Designer at the relevant time.
“In those circumstances, whilst the penal nature of the provision in the 2007 Act might have necessitated a variety of sanctions if I had concluded that it was unlawful, I would have been very reluctant to penalise Ndole by striking out their claim, particularly in circumstances where… real limitation issues may arise in respect of any fresh claim.”
But he added that a number of the letters written by Mr Dain, including to the defendant’s solicitors, Clarke Willmott, “were at least potentially misleading, because he did not make it clear that CSD Legal were not a firm of solicitors and were not authorised to carry out reserved legal activity”.
Coulson J added: “Although I consider that he did not act in breach of the 2007 Act, and I conclude that these letters were irrelevant to the service issue in any event, I do find that Mr Dain sailed too close to the wind on a number of occasions.
“It would have been much better if he had set out CSD Legal’s true position at the outset, both to Designer and to the TCC Registry. I hope that he will heed that advice for the future.”