This recent case is of importance to those of us who do direct access work and because of the decision of Agassi have not applied to the BSB for the ticket “to conduct litigation”.

Mrs. Doble was a legal executive and ran a business acting for landlords in possession cases. In the claim, she had, amongst other things, drafted pleadings, corresponded with the tenant’s solicitors, sent documents to the court and provided general advice to her client. These are often the kind of things that barrister instructed under a direct access retainer would do.

The tenant applied to commit Mrs. Doble for contempt of court. The grounds being that she had provided legal services to the landlord in the possession proceedings in a way that amounted to the conduct of litigation for the purposes of section 12(2) of the Legal Services Act 2007 by persons not entitled to do so.

Section 14(1) of the 2007 Act provides that it is an offence for a person to carry out a reserved legal activity which includes the conduct of litigation unless that person is entitled to carry out the relevant activity. It is a defence however for the accused to show that they did not know or could not reasonably have been expected to know that the offence was being committed (section 14(2)).

Mrs. Doble had previously been the subject of disciplinary action by CILEX Regulation and had adapted her business model in a way that satisfied her business regulator. Additionally she had taken the advice of a specialist regulatory lawyer.

Cavanagh J found that several of the activities, taken in isolation, did not amount to the conduct of litigation. The giving of legal advice did not amount to the conduct of litigation nor did the drafting of notices under sections 8 and 21 of the Housing Act. Furthermore, in the light of Ndole, no step taken prior to the issue of proceedings can amount to the conduct of litigation. The statutory language (paragraph 4(1)(a) and (b) of Schedule 2 to the 2007 Act) only applies to events from the issue of proceedings onwards. As this is penal legislation, it is not appropriate to read it any more widely than that.

However, Cavanagh J went on to say that the fact that a party has given legal advice or has taken steps before proceedings are issued is irrelevant to the question whether they are engaged in the conduct of litigation. It may contribute to the bigger picture and may shed light on whether steps taken at a later stage in the proceedings were purely mechanical or clerical.

Crucially, the judge went on to say [para 208 of the judgment]: “In my judgment, the answer is that the court should look at the entirety of the activities undertaken by the Respondents to assist their client and then decide whether, taken in the round, they amount to the conduct of litigation.

209. The authorities show that it is the totality of the activities that have been undertaken that should be focused upon….In Gill v. Kassam, the judge looked at “the package of services” that were provided by the advisors to the client and a similar approach was adopted in Peter Schmidt.”

Cavanagh J went on to say that that marked a departure from the previous legislation (the 1990 Act) as the Court of Appeal in Agassi had said that an activity would only fall within the definition of the conduct of litigation if it was a formal step in the proceedings.

In the light of this decision, the BSB is likely to review its guidance but it is worth bearing in mind this judgment. The alternative is simply to apply to the BSB for permission to conduct litigation. As an interesting aside, the Applicant was asking for a short suspended sentence of imprisonment on Mrs. Doble (which wasn’t granted).

Diarmuid Flood

15^th December 2023