Craig Baxter v Sarah Doble & Anor

The conduct of litigation under paragraph 4 of Schedule 2 to the Legal Services Act 2007 is determined by substance rather than form. The court must consider the statutory language, the penal nature of the provision, and the totality of the activities undertaken. The question is one of fact and degree.

Legal advice and genuinely mechanical assistance may fall outside the reserved activity. However, an unauthorised business may conduct litigation where it provides a full-service package, including drafting pleadings, ensuring procedural compliance, instructing advocates, arranging service and managing the proceedings. The section 14(2) defence may succeed where the person neither knew, nor could reasonably have been expected to know, that the activity was unlawful, particularly where the statutory language and authorities provide inadequate guidance.

The Claimant applied to commit Sarah Doble and Sarah Doble Associates Ltd for contempt of court. The application arose from possession proceedings brought against him by James Persey in the County Court at Exeter.

The Respondents, who were not authorised to conduct litigation, had advised Mr Persey, drafted pleadings and witness statements, arranged filing and service, paid court fees, instructed advocates and dealt with procedural matters. The Claimant alleged that this amounted to the unauthorised conduct of litigation contrary to sections 12, 14 and Schedule 2 to the Legal Services Act 2007.

The central issues were whether the Respondents had conducted litigation and, if so, whether the statutory defence under section 14(2) was established.

1. Conduct of litigation. The Claimant proved to the criminal standard that the Respondents had conducted litigation. The statutory language must be given its natural and ordinary meaning. The penal character of the legislation remains relevant, although the section 14(2) defence means that the offence is no longer one of strict liability. Substance must prevail over form, and the question is one of fact and degree.
2. The court must consider the Respondents’ activities in the round. The Respondents had drafted pleadings, ensured compliance with the Civil Procedure Rules, paid the issue fee, arranged service, instructed advocates, drafted witness statements and procedural documents, corresponded with the other side and managed procedural deadlines. This went beyond clerical or mechanical assistance and amounted to prosecuting proceedings for the client.
3. Several activities, taken alone, would not necessarily amount to conducting litigation. Legal advice, including advice about procedure, was not itself sufficient. Drafting section 8 and section 21 notices under the Housing Act 1988 occurred before proceedings and was not itself reserved legal activity. The service of the notice of issue was unlikely, standing alone, to qualify.
4. The Respondents’ failure to go on the record, their use of the client’s signature and their avoidance of company letterhead did not alter the substance of their role. The filing of the claim form and particulars of claim, and arranging service of the reply and defence to counterclaim, were themselves conduct of litigation. The agency of a litigant in person did not provide an exemption.
5. Section 14(2) defence. The Respondents established on the balance of probabilities that Mrs Doble did not know, and could not reasonably have been expected to know, that she was conducting litigation unlawfully. The statutory wording and authorities were unclear and fact-specific. She had taken advice, adapted her business after regulatory proceedings, and genuinely believed that her revised model complied with the law.
6. The application for committal was therefore dismissed. The judge added that, even had contempt been established, imprisonment would have been viewed with considerable reluctance given Mrs Doble’s honesty, professionalism and attempt to comply with the law.