COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE LIGHTMAN
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE DYSON
LORD JUSTICE CARNWATH
| Andre Agassi
|- and -
|S Robinson (H M Inspector of Taxes)
(Bar Council and Law Society intervening)
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bruce Carr (instructed by The Solicitor of the Inland Revenue) for the Respondent
Anthony Speaight QC and Ron Chatterjee for the Bar Council
Richard Drabble QC and David Holland for the Law Society
Crown Copyright ©
Lord Justice Dyson: This is the judgment of the court, to which all its members have contributed.
The Solicitors Act 1974 ("the 1974 Act")
"(1) No unqualified person shall-
(a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or
(b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty's revenue. "
"(1) Subject to subsections (2) and (2A), any unqualified person who directly or indirectly—
(a) draws or prepares any instrument of transfer or charge for the purposes of the Land Registration Act 2002, or makes any application or lodges any document for registration under that Act at the registry, or
(b) draws or prepares any other instrument relating to real or personal estate, or any legal proceeding shall, unless he proves that the act was not done for or in the expectation of any fee, gain or reward, be guilty of an offence…"
"(1) No costs in respect of anything done by any unqualified person acting as a solicitor shall be recoverable by him, or by any other person, in any action, suit or matter."
The Courts and Legal Services Act 1990 ("the 1990 Act")
"(1) The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
(2) In this Act that objective is referred to as "the statutory objective".
(3) As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to –
a) whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings;
b) whether he is a member of a professional or other body which –
i) has rules of conduct (however described) governing the conduct of its members;
ii) has an effective mechanism for enforcing the rules of conduct; and
iii) is likely to enforce them;
(d) whether the rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice; and
(4) In this Act that principle is referred to as "the general principle."
"(1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.
(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases—
(i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and
(ii) that body's qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to … that right;
(b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;
(c) where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;
(d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.
(2A) Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has—
(a) a duty to the court to act with independence in the interests of justice; and
(b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;
and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.
(4) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.
(5) In this section—
"authorised body" means—
(a) the Law Society; ….
(aa) the General Council of the Bar;
(ab) the Institute of Legal Executives; and
(b) any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;
"appropriate authorised body", in relation to any person claiming to be entitled to any right to conduct litigation by virtue of sub-section (2) (a), means the authorised body—
(a) granting that right; and
(b) of which that person is a member;
"qualification regulations", in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to, or to exercise, any right to conduct litigation granted by it; and
"rules of conduct", in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it.
(6) Section 20 of the Solicitors Act 1974 (unqualified person not to act as a solicitor), section 22 of that Act (unqualified person not to prepare certain documents etc) and section 25 of that Act (costs where unqualified person acts as a solicitor) shall not apply in relation to any act done in the exercise of a right to conduct litigation."
The first issue: is the appellant a litigant in person?
"… intended to establish a comprehensive modern code to replace the diverse statutory and common law rules which previously governed these matters."
Within that code section 28, as we have seen, governs rights to conduct litigation. If Tenon itself had no right to conduct litigation under that section, the only alternative basis available under the section was that Mr Agassi was a litigant in person, or (in the words of s 28(2) (d)) that -
"…he (was) a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party if this Act had not been passed."
We read that sub-section as designed to preserve the pre-existing rights of litigants in persons, and we would treat it as identical in scope.
"A litigant in person in ordinary parlance is a party to litigation who represents himself by appearing in court himself. If someone other than himself represents him, then notwithstanding that that other person is his agent, that party is not a litigant in person".
That was a case where a company brought a claim and was represented at the trial by one of its directors. It did not instruct solicitors or counsel at any stage of the proceedings.
"…any litigation will have to be conducted on the basis that the litigant is a litigant in person" (para 8)
In all the circumstances we agree with the Bar Council's statement that, unless a member of the Chartered Institute of Taxation is also a solicitor, any litigation must be commenced on the basis that the litigant is a litigant in person.
The second issue: lawful activities
Sections 20, 22 and 25 of the 1974 Act
"So far as I am aware, the claim consultants have not at any stage held themselves out as solicitors, but have at all times acted specifically as "claims consultants" in relation to their representation of the claimant. Section 25 of the Solicitors Act 1974 is linked and, in my view, falls to be construed with the sections which precede it. Those sections are penal in nature and relate to unqualified persons acting as solicitors (section 20), pretending to be solicitors (section 21), drawing or preparing instruments of transfer or charge etc., the drawing of which is limited to solicitors and certain other exempted professions (section 22) and preparing papers for probate, etc.: section 23. By section 24 of the Act of 1974 those penal provisions are applied to bodies corporate. In these circumstances, it seems clear to me that the words "acting as a solicitor" are limited to the doing of acts which only a solicitor may perform and/or the doing of acts by a person pretending or holding himself out to be a solicitor. Such acts are not to be confused with the doing of acts of a kind commonly done by solicitors, but which involve no representation that the actor is acting as such. On that basis it seems plain to me that the claims consultants did not "act as a solicitor" in conducting the arbitration on behalf of the claimant. Accordingly, on the basis of the facts existing in this case, I answer the first preliminary issue in the affirmative."
It will be seen that this definition of "acting as a solicitor" explicitly includes "the doing of acts which only a solicitor may perform".
"24. Section 28 of the Courts and Legal Services Act 1990 makes provision for those who have the "right to conduct litigation". Such a right can only be granted by "the appropriate authorised body". The Law Society is such a body. The Institute of Chartered Accountants is not. Thus accountants have no right to "conduct litigation" The right to conduct litigation is defined by section 119 of the Act. It means the right "(a) to issue proceedings before any court; and (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)".
25. Section 20 of the Solicitors Act 1974 makes it an indictable criminal offence for an unqualified person to "act as a solicitor". It is plain, in the light of this, that the "conduct of litigation" which is reserved to a solicitor or other authorised person by section 28 of the 1990 Act must be given a restricted ambit. It cannot embrace all the activities that are ancillary to litigation and which are sometimes carried on by a solicitor and sometimes by a person who has no right to conduct litigation."
"Thomas Cooper have at all times had the conduct of the litigation on behalf of the claimants. Grant Thornton have done nothing for which they required authority under section 28 of the 1990 Act or which offended against section 20 of the 1974 Act. Their services have been ancillary to the conduct of the litigation by Thomas Cooper. Of what have those services consisted?"
"a. Delivering to a court office a claim form, appeal notice, application or the like, provided it has been signed by the party himself.
b. Typing or printing out an appeal notice, statement of case or other formal court document, which has been drafted by a barrister.
c. Service of a claim form or other documents.
d. Taking a statement from a prospective witness.
e. Correspondence with the opposing party.
f. Preparing a bundle of documents for use in a court hearing.
g. Drafting instructions to a barrister.
h. Sitting behind a barrister during a hearing to provide administrative assistance."
"In my opinion, the giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of the law, and hence of the notion of acting or practising as a solicitor which is itself central to s.90. If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise. It is thus something required to be undertaken only by the legally qualified, and not by those not properly qualified. Nor, if the protection of the public is to be adequate, can that protection be left to depend (as does the Sanderson test) upon whether the unqualified one declares that he has no legal training; otherwise, it would be enough to prohibit a false claim to the relevant qualification, which is the provision found in s. 92 of the L.P.P.A [Legal Profession Practice Act]. But s. 90 goes beyond s. 92 and, in my view, by prohibiting any unqualified person "acting or practising as a solicitor" s.90 should be taken to encompass the giving of legal advice, at least in circumstances where there is a course of conduct involving the giving of that advice for reward."
"What I do decide is that if a person does a thing usually done by a solicitor and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with actions usually taken by a solicitor – I think he then acts as a solicitor".
"… unless it can be said that the act was done in such circumstances as to lead to the reasonable inference that that person was a solicitor. In contrast, I have said that there is no need for such an inference when the conduct in question involves something which the law requires to be done exclusively by a duly qualified solicitor." (emphasis added)
Although Phillips J had previously cited Potter J's test with apparent approval, the emphasised words based on the "Sanderson test" seem to us wider in scope.
"In this context, "instrument" means any formal document. It would therefore be an offence for an unqualified person for or in expectation of a fee or reward, to settle a writ, statement of claim or defence or any other document of a similar character on behalf of another person."
"A barrister or a solicitor, solicitor's employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who has been instructed to act for a party in relation to a claim."
The right to conduct litigation: the 1990 Act
Lawful activities: a summary
The third issue: are Tenon's fees recoverable as costs under the general costs provisions or CPR 48.6?
"Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in –
(a) the civil division of the Court of Appeal;
(b) the High Court, and
(c) any county court
shall be in the discretion of the court".
"48.6(3) The litigant in person shall be allowed –
(a) costs for the same categories of --
(i) work; and
which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person's behalf;
(b) the payments reasonably made by him for legal services relating to the conduct of the proceedings; and
(c) the costs of obtaining expert assistance in assessing the costs claim."
"a litigant in person other than a solicitor was not entitled to claim costs in respect of the time which he had expended in preparing his case, but only his out of pocket expenses".
Section 1(1) of the 1975 Act provides:
"Where, in any proceedings to which this subsection applies, any costs of a litigant in person are ordered to be paid by any other party to the proceedings or in any other way, there may, subject to rules of court, be allowed on the taxation or other determination of those costs sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates."
"Litigant in person" is not defined.
"14. Looking at the wording of the rule, sub-paragraph (a) deals with the litigant in person's own time and disbursements which he has made which would have been recoverable if made on his behalf by a legal representative. This is not apt to cover fees paid or due to Mr Whiteland to assist with the litigation, since no such disbursement would be made by a legal representative. Sub-paragraph (b) relates to "legal services", which are not defined by the rules. The notes in the White Book suggest that this sub-paragraph was intended to cover partial legal services; in other words some legal advice or assistance short of full representation. But I think the sub-paragraph is referring to services which are "legal"; that is to say, services provided by or under the supervision of a lawyer. On the face of it, Mr Whiteland was not providing such services. Therefore the judge had no jurisdiction to award the respondent any part of Mr Whiteland's fees."
"What is done by the London agent is part of the work done by the country solicitor for the client. The country solicitor does or may do part of the work personally. He does or may do part of his work through clerks whom he employs in the country. Or, if necessary--and the necessity occurred in this case—he may do part of his work through a London agent. But as between the country solicitor and the client, the whole of the work is done by the country solicitor. It follows, therefore, that the items which make up the London agent's bill are not mere disbursements, but are items taxable in the strictest sense as between the client and the country solicitor, just as much as items in respect of work done by the country solicitor personally, or by the clerk whom he employs in the country."