Arkeyo LLC v Metro Bank PLC

Permission for a company employee to represent a company under CPR rule 39.6 may be required at hearings other than trial, including a case management conference. The discretion is broad, but must promote the overriding objective and must not encourage illegality or conduct contrary to public policy.

Permission should be refused where the proposed representative’s appointment would involve an unauthorised person conducting litigation or exercising rights of audience, both of which are reserved legal activities. The court may nevertheless permit a company member to represent it personally at a case management conference.

Arkeyo LLC applied for permission under CPR rule 39.6 for Francis X Taney Jr, a recently appointed part-time employee and United States attorney, to represent it at a case management conference. The underlying proceedings concerned contractual arrangements for coin-counting machines, alleged copyright infringement, and misuse of confidential information and trade secrets.

Metro Bank opposed the application, arguing that the employment arrangement was a sham and involved an impermissible contingency-fee arrangement. The central issues were whether rule 39.6 applied at the case management conference and whether permitting Mr Taney to act would involve unlawful or policy-sensitive reserved legal activities.

1. Scope of CPR rule 39.6. Although the rule refers to representation at trial, its principle is not confined to trial. Permission is required for an employee to represent a company at other hearings, including a case management conference. This approach was consistent with the Chancery Guide and tentatively supported by Irama Pte Limited v Formark Scaffolding (Holdings) Limited [2024] EWHC 2309 (KB).
2. Applicable discretion. The discretion under rule 39.6(b) is broad. It must be exercised consistently with the overriding objective in rule 1.1, requiring cases to be dealt with justly and at proportionate cost. It must not be exercised in a way that promotes illegality or outcomes contrary to public policy.
3. Mr Taney’s proposed role. The employment letter materially contemplated that Mr Taney would conduct the Metro litigation and act as an advocate. Conducting litigation and exercising rights of audience are reserved legal activities under sections 12(1)(a) and 12(1)(b) of the Legal Services Act 2007. They may be carried out only by persons authorised by an approved regulator, and no relevant exemption applied.
4. Granting permission would create a real risk of infringing those restrictions. It could also expose Mr Taney to the criminal offence created by section 14 of the Legal Services Act 2007. The court therefore refused permission for Mr Taney, notwithstanding Arkeyo’s limited funding and the practical disadvantage that he might have been better able to assist with the litigation.
5. Mr Tustin was in a different position. The court granted him permission to represent Arkeyo for the purposes of the case management conference, including retrospectively insofar as required for the application. Arkeyo’s application concerning Mr Taney was refused, and no firm further directions were given.

Not stated in the judgment.