Agassi v HM Inspector of Taxes

A party remains a litigant in person when conducting litigation personally, although an authorised barrister appears through the Licensed Access Scheme. An unauthorised person may provide legal advice and administrative support, but may not issue proceedings, take formal ancillary steps or prepare instruments reserved to authorised litigators.

Under rule 48.6 of the Civil Procedure Rules 1998, fees for assistance which a solicitor would ordinarily provide are neither recoverable legal services nor disbursements. Fees for genuinely specialist expert assistance may qualify as disbursements. Detailed assessment must distinguish that work from general litigation assistance and exclude unlawful work.

A professional tennis player succeeded in an income tax appeal after using tax consultants, rather than solicitors, to conduct the litigation and instruct counsel through the Licensed Access Scheme. The substantive appeal had been allowed by the Court of Appeal, but the question whether the consultants’ fees were recoverable from the Revenue was adjourned.

The High Court had previously upheld the Special Commissioners’ decision that the appellant was assessable to tax. The present judgment concerned only costs. The Bar Council and Law Society intervened because the issues affected the permissible role of non-solicitor professional advisers in civil litigation.

The court considered whether the appellant was a litigant in person, whether any of the consultants’ activities were unlawful, and whether their fees were recoverable as costs or disbursements under rule 48.6 of the Civil Procedure Rules 1998.

1. Disposition. The appellant was a litigant in person, but he could not recover fees for general litigation assistance of a kind normally provided by a solicitor. Some fees might qualify as disbursements if attributable to genuinely specialist expert assistance. The costs assessment was referred to the Senior Costs Judge.

2. A party may conduct litigation as a litigant in person while an authorised barrister exercises rights of audience under the Licensed Access Scheme. The presence of counsel does not make the licensed professional intermediary an authorised litigator or prevent the party from being a litigant in person. The earlier description of a litigant in person as an unrepresented individual did not address this later statutory arrangement.

3. The expression “act as a solicitor” in section 20 of the Solicitors Act 1974 has a restricted meaning because the provision is penal. It covers acts which only a solicitor or other authorised person may perform, and conduct involving pretence or holding out as a solicitor. It does not encompass every activity commonly undertaken by solicitors. Legal advice, consultation with counsel and ordinary administrative support are not reserved merely because solicitors often provide them.

4. The right to conduct litigation under sections 28 and 119 of the Courts and Legal Services Act 1990 comprises issuing proceedings and performing formal, subordinate functions such as entering an appearance. Its uncertain penal boundary must be construed narrowly. It includes formal steps and the preparation of instruments governed by section 22 of the Solicitors Act 1974, but does not include legal advice or ordinary correspondence with an opposing party.

5. A litigant in person’s recoverable costs are governed exclusively by rule 48.6 of the Civil Procedure Rules 1998. “Legal services” under rule 48.6(3)(b) are services provided by, or under the supervision of, a lawyer. Fees paid to an unqualified adviser for work which a legal representative would ordinarily perform are not disbursements under rule 48.6(3)(a)(ii).

6. Specialist tax assistance falling outside the work ordinarily performed by the instructed solicitor might nevertheless be recoverable as expert assistance. The court expressed no concluded view because the individual items had not been examined in argument. No reason had been shown for believing that the listed work was unlawful, but detailed assessment was required to classify each item.

• Court of Appeal (Civil Division): By [2005] EWCA Civ 1507, determined the adjourned costs issues and referred the detailed assessment to the Senior Costs Judge. The court had previously allowed the appellant’s substantive tax appeal on 19 November 2004.
• High Court (Chancery Division): Lightman J had upheld the Special Commissioners’ decision that the appellant was assessable to income tax. No citation is stated.
• Special Commissioners: Decided that the appellant was assessable to income tax under section 556 of the Income and Corporation Taxes Act 1988.