Ndole Assets Ltd v Designer M&E Services UK Ltd

Formal service of a claim form is part of the conduct of litigation and is therefore a reserved legal activity. A litigant in person’s personal entitlement to conduct litigation cannot be delegated to an unauthorised agent.

A person who merely delivers documents performs an administrative or mechanical task. By contrast, a person who assumes legal responsibility for service under the procedural rules conducts litigation. The distinction is one of fact and degree.

Service performed by an unauthorised person is unlawful, but it is not automatically a nullity. The service remains valid unless the court sets it aside. The statutory scheme, the available sanctions and the justice of the case determine whether that discretionary remedy is appropriate.

The claimant company brought a contractual claim as assignee of a building contractor. It had no solicitors on the record and was treated as a litigant in person. CSD Legal Ltd, an unauthorised construction claims consultancy, corresponded with the defendant, arranged delivery of the claim form and particulars, and filed the certificate of service.

Coulson J refused the defendant’s application to set aside service and strike out the proceedings. He held that service was part of the conduct of litigation, but reasoned that a litigant in person could delegate that task to an agent.

The defendant appealed. The central questions were whether formal service constituted a reserved legal activity under the Legal Services Act 2007, whether CSD had performed that activity, and whether unauthorised performance rendered service invalid.

1. Appeal dismissed unanimously. Formal service of a claim form falls within the conduct of litigation under Schedule 2 paragraph 4 of the Legal Services Act 2007. It is an aspect of prosecuting proceedings and, in any event, a formal ancillary function. Proceedings cannot progress until the claim form has been properly served, and service is the essential means of notifying the defendant of the court process: per Davis LJ, McCombe and Jackson LJJ agreeing.

2. A litigant in person’s statutory entitlement to conduct litigation is personal and cannot be delegated to an unauthorised agent. The contrary approach would circumvent the statutory controls governing reserved legal activities. Gregory v Turner [2003] 1 WLR 1149 was applied. Coulson J’s agency-based reasoning could not stand, although his ultimate decision was correct.

3. The statutory prohibition does not extend to purely clerical or mechanical activity. The correct distinction is between a person who merely delivers documents and a person who undertakes legal responsibility for service under the procedural rules. Process servers, couriers and postal employees ordinarily perform only the former task. Whether a person has assumed responsibility for formal service is a question of fact and degree.

4. CSD went significantly beyond mechanical delivery. Its correspondence, its assertion that it acted for the claimant, its arrangement of service under the rules and its completion of the certificate of service demonstrated that it had assumed responsibility for formal service. CSD therefore conducted litigation without being authorised or exempt under the Legal Services Act 2007.

5. Unauthorised conduct did not make service a nullity. The consequences of statutory breach must be derived from the statutory scheme, which did not provide that acts performed in breach of the prohibition were automatically invalid. Criminal and contempt sanctions were available against the person responsible for the unlawful activity. Service therefore remained valid unless set aside by the court.

6. There was no proper basis to set service aside. The claimant and CSD acted in good faith, the documents reached the defendant and its solicitors, and invalidation could confer an adventitious limitation advantage arising from a technical breach. The same result would have followed had the matter been treated as an application for relief from sanctions.

1. Court of Appeal (Civil Division): The appeal was dismissed. The High Court’s refusal to set aside service or strike out the claim was upheld, although the Court of Appeal rejected its reasoning that a litigant in person could delegate conduct of litigation to an unauthorised agent.

2. High Court, Technology and Construction Court: Coulson J held that service of a claim form was part of the conduct of litigation but concluded that the corporate litigant in person could delegate service to CSD. He refused to set service aside or strike out the proceedings.