Perhaps surprisingly, given that one would assume that service of a claim form and particulars of claim is a reserved legal activity under the Legal Services Act 2007 (LSA 2007), the answer to this question appears to be yes.
The court considered this question in the recent case of Ndole Assets Limited v Designer M&E Services UK Limited. In particular, the court considered whether service of the claim form and particulars of claim is a reserved legal activity under section 12 of the LSA 2007, and, if so, whether a litigant in person could delegate service to a person who was not entitled to carry on a reserved legal activity.
Reserved legal activities
As practitioners will know, the LSA 2007 sets out a regulatory framework for the provision of legal services in England and Wales. This includes provisions defining certain legal activities as “reserved legal activities” and specifying the persons who may carry them out.
Section 12 of the LSA 2007 sets out the meaning of “reserved legal activity” and includes “the conduct of litigation”. Schedule 2 to the LSA 2007 defines what constitutes the “conduct of litigation” as follows:
- Issuing of proceedings before any court in England and Wales.
- The commencement, prosecution and defence of such proceedings.
- The performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).
Who did what?
In this case, Ndole wrote to the Technology and Construction Court (TCC) Registry enclosing three signed copies of the claim form and asking the court to issue the claim and return two sealed claim forms to it for service. It was common ground at the hearing that Ndole was a litigant in person. Ndole instructed Mr. Alexander Dain and his company, CSD Legal Limited, to assist it with its case. Mr. Dain was an unregistered barrister and therefore, not permitted to carry out reserved legal activities under the LSA 2007.
The only step in the proceedings that Ndole, as a litigant in person, took itself was the sending of the three signed copies of the claim form to the TCC Registry and asking the court to issue the claim. CSD did everything else in the proceedings on behalf of Ndole. This included serving the claim form, the particulars of claim and the seven appendices, with a covering letter identifying the documents as being “enclosed by way of service on you”. The letter did not confirm that Mr. Dain was not a solicitor. The question for the court was whether service was a reserved legal activity that could not be taken by Mr. Dain.
Service as a reserved legal activity
Coulson J reviewed the relevant case law and took the view that the prosecution of civil proceedings must, at the very least, involve the taking of certain procedural steps between the issue of the claim form and the handing down of judgment, with the service of the claim form and the particulars of claim being the most important. This is because correct service of these documents is a prerequisite for the successful prosecution of an action.
In addition, Coulson J agreed with the view of Dyson LJ in Agassi v S Robinson (HM Inspector of Taxes) that the words “ancillary function in relation to such proceedings” must have been intended to mean that the ancillary functions would be formal steps required in the conduct of litigation. As the service of the claim form/particulars of claim is a formal step required in the conduct of litigation, carrying this out must be a reserved legal activity.
It is clear from the judgment that service of the claim form and the particulars of claim is a reserved legal activity. Therefore, under section 13 of the LSA 2007, only a person authorised to carry on the relevant reserved legal activity by an approved regulator or an exempt person can carry on the activity. A litigant in person is an exempt person for the purposes of exercising rights of audience and the conduct of litigation. On this basis, Ndole could serve the proceedings themselves as a litigant in person or could instruct an authorised person to do it for them. Mr. Dain, as an unregulated barrister, was not an authorised person and therefore, on the basis of the LSA 2007, not able to serve the claim form or particulars of claim on Ndole’s behalf.
Delegating the process
However, it was argued for Ndole that claim forms and particulars of claim are regularly served by process servers, all over the country, every working day of the week. Such process servers are not entitled to carry out reserved legal activities.
Coulson J said that the partial answer to this is that process servers are engaged by the relevant solicitors to carry out this particular task. They have the solicitors’ delegated authority to serve the documents. In those circumstances, since the solicitors on the record are responsible for the carrying out of all reserved legal activities, the solicitors remain responsible for the service of the documents, even if they have subcontracted the task to professional process servers. In that way, there is nothing inconsistent in concluding that the service of proceedings by process servers is a reserved legal activity, for which the solicitors on the record are and remain responsible.
Whilst we would all agree that there is nothing inconsistent in this analysis, Coulson J went further and held that, as solicitors are entitled to do, a litigant in person can delegate this task. Coulson J noted, in particular, that:
“… 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. There would be no basis for such discrimination. Accordingly, whilst a litigant in person can serve a claim form and particulars of claim himself, he could also ask an agent to do it on his behalf.”
Criticism of the analysis
Whilst it may be sensible to concentrate on whether documents have been served correctly rather than on the identity of the person serving them, this analysis has been the subject of criticism, with solicitors worrying that this may allow non-regulated persons to carry out other reserved legal activities on behalf of litigants in person.
It does not appear to have been argued before Coulson J that there is a difference between an authorised person delegating a task for which it is responsible on behalf of the client and an exempt person delegating the task. A solicitor remains responsible for ensuring that all of the relevant rules and regulations are complied with and that remains the case, even if they instruct a process server to carry out the service of the document. Importantly in this scenario, if something does go wrong with the service, the client retains the benefit of the solicitor having to comply with the rules set out by its governing body and has the protection of the solicitors’ professional indemnity insurance. This is not the case where a litigant in person delegates the task to a non-regulated body.
The LSA 2007 is designed to protect clients by ensuring that those conducting litigation are regulated. It is possible that the analysis used in this case could be used to argue that other reserved legal activities can be delegated by a litigant in person, who would bypass the regulations and protections set out in the LSA 2007, thereby leaving litigants in person at risk. As Parliament has set out these protections for those engaged in litigation, any variation to those protections should also be made by Parliament so that the public is clear about the choice it is making in deciding whether to instruct a regulated or non-regulated person to conduct litigation on its behalf.