Craig Baxter v Sarah Doble
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 486 (KB) |
| Docket Number | Case No: QB-2019-004632 |
| Court | King's Bench Division |
[2023] EWHC 486 (KB)
Mr Justice Cavanagh
Case No: QB-2019-004632
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Metcalfe (instructed Irvine Yates Solicitors) for the Claimant
Henry Blaxland KC (instructed by Julian Jefferson Solicitors) for the Respondents
Hearing dates: 17 and 18 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 8 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment follows a hearing of the Applicant's application to commit the Respondents for contempt of court. It is common ground that the First Respondent is the sole shareholder, director, and guiding hand of the Second Respondent and that they stand or fall together. To avoid confusion, I will call the Applicant “the Claimant” in this judgment, as he was the Claimant in the underlying proceedings.
The application for committal arises out of a claim against the Claimant in the County Court at Exeter by Mr James Persey, in which Mr Persey sought possession of a residential property, 1 Knights Cottage, Plymtree, Cullopton, Devon, EX15 2JU and judgment in respect of alleged arrears of rent. The Claimant had previously entered into an assured shorthold tenancy agreement with Mr Persey in relation to the property. The proceedings were issued in November 2018. They were contested by the Claimant. However, on 4 March 2020, when the matter was listed for a final hearing before HHJ Gore QC, the Claimant abandoned his defence (though not his counter-claim), and judgment was entered against him. By that stage, rent arrears of £14,206.04 had accrued.
The ground put forward for the application for committal for contempt of court is that the Respondents provided legal services to Mr Persey in the proceedings in a way that amounted to the conduct of litigation for the purposes of section 12(2) of the Legal Services Act 2007 (“the 2007 Act”), by persons who are not entitled to do so. The Claimant contends that the Respondents conducted the litigation on behalf of Mr Persey from 12 March 2019 to 31 October 2019. Section 14(1) of the 2007 Act provides that it is an offence for a person to carry out a reserved legal activity, which includes the conduct of litigation (as defined in Schedule 2 to the Act), unless that person is entitled to carry on the relevant activity. It is, however, a defence for the accused to show that they did not know, and could not reasonably have been expected to know, that the offence was being committed (s 14(2)). Section 14(4) provides that a person who is guilty of an offence under subsection (1) by reason, inter alia, of an act done in the purported exercise of a right to conduct litigation, is also guilty of contempt of court and may be punished accordingly.
The Respondents accept that they are not entitled to conduct litigation, but deny that the steps that they took to assist Mr Persey amounted to the conduct of litigation. The First Respondent, Mrs Doble, is a graduate member of the Chartered Institute of Legal Executives (“CILEX” – this status is now referred to as “CILEX Member-Advance Paralegal”). After some years working as a paralegal for a firm of solicitors, she set up her own business advising and assisting landlords who are having difficulties with tenants. She says that she takes care to ensure that the business does not cross the line into conducting reserved legal activities, including conducting litigation, and that she did not do so on this occasion. In the alternative, she says that, if she did conduct litigation, as defined, on behalf of Mr Persey, she did not know that what she was doing amounted to conducting litigation, and she could not reasonably have been expected to know this.
The Claim Form in the contempt proceedings is dated 19 December 2019. It was issued as an application by Part 8 Claim Form under CPR 81.14. On 30 October 2020, Wall J granted permission to the Claimant for the committal application to proceed to a final hearing, and gave directions for the hearing of the application. Permission to proceed was required pursuant to CPR 81.3(5)(a).
The issues raised by these proceedings are potentially of general public importance. There are a number of other businesses which follow a similar operating model to that followed by the Respondents. Some of these assist landlords, and some operate in other spheres, such as taxation. Mr Metcalfe describe those who are unauthorised to carry out reserved legal activities but who run a business giving assistance to litigants in the courts as “a new legal profession.” On 28 April 2022, Cotter J ordered that the Law Society, the Legal Ombudsman, and CILEX Regulation Limited (“CILEX Regulation”), an Approved Regulator for the purposes of the 2007 Act, and the regulatory arm of CILEX, be given an opportunity to make representations to the Court. Each of them did so, and I have read and considered the representations. At least in part due to this opportunity being offered to interested parties, there was some delay in the listing of the final hearing.
Notwithstanding that the issues in this case are of wider importance, the only issue that I have to decide, in relation to reserved legal activities, is whether the Respondents were conducting litigation on behalf of Mr Persey between 12 March 2019 and 31 October 2019. Though there was some evidence about the Respondents' activities more generally, and the Claimant's counsel, Mr Metcalfe, made some submissions about them, it is important not to lose sight of the need to focus upon the specific acts which are the subject of the committal application.
It was agreed between the parties that, at this stage, I should confine myself to deciding whether the Respondents were in contempt of court. If I answer that question in the affirmative, then there will be a further hearing at which submissions can be made about the appropriate penalty. In this judgment, therefore, I will deal with the relevant matters in the following order:
(1) Findings of fact;
(2) The relevant statutory provisions;
(3) The relevant case-law;
(4) The submissions from the Law Society, the Legal Ombudsman, and CILEX Regulation;
(5) Did the Respondents conduct litigation on behalf of Mr Persey from 12 March 2019 to 31 October 2019?;
(6) If so, does the section 14(2) defence apply, on the basis that the Respondents (in practice Mrs Doble) did not know, and could not reasonably have been expected to know, that they were acting in contempt of court and were committing an offence contrary to section 14(1) of the 2007 Act?; and
(7) Conclusion.
The Claimant has been represented before me by Mr Daniel Metcalfe of counsel, and the Respondents by Mr Henry Blaxland KC. I am grateful to both counsel for their submissions.
(1) Findings of fact
At the outset, it is appropriate to say something about the burden and standard of proof and the extent to which there has been any disagreement on the facts.
In relation to showing that, subject to the statutory defence, the Respondents have committed an offence contrary to section 14(1) of the 2007 Act, the burden of proof rests with the Claimant, and the facts must be proved to the criminal standard (see HM Attorney-General v Yaxley-Lennon [2019] EWHC 1791 (QB), at paragraph 3). In other words, I must be satisfied so that I am sure of findings of fact that tend to show, or may show, that the offence was committed. Were it not for the statutory defence, the offence would be one of strict liability or quasi strict liability. It would be necessary only for the complainant to prove that the defendant/respondent did the acts complained of. It is not necessary for me to consider whether it would be a defence for the defendant/respondent to have done the acts without deliberately or recklessly setting out to do so, because Mrs Doble accepts that the Respondents in this case deliberately undertook the activities which are the subject of the committal application. There is, however, the statutory defence. So far as establishing the statutory defence is concerned, it was common ground between the parties (and I agree) that the legal and factual burden rests with the Respondents, and that the standard of proof is the civil standard, i.e. balance of probabilities.
In fact, however, so far as the nature and extent of the assistance that was provided by the Respondents to Mr Persey in the possession proceedings is concerned, there is no, or virtually no, dispute of fact. To her credit, Mrs Doble, who gave evidence on behalf of the Respondents, was frank and honest, sometimes to a disarming degree. She did not dissemble and answered all of the questions that were put to her willingly and without hesitation. Her answers were consistent with the documentary evidence, and I have no hesitation in accepting her evidence on these matters as being truthful. Mrs Doble agreed with the points put to her by Mr Metcalfe about the assistance she provided to Mr Persey and so the question whether what she did (on behalf of both Respondents) amounted to the conduct of litigation does not depend upon the resolution of disputes of fact; rather, it depends on the question of law as to what the conduct of litigation means in this context. Given the way that the evidence came out on this issue, I have not had to resort to reliance upon the burden and standard of proof to resolve any matters of fact.
It may be that there is not the same level of agreement as regards the factual matters that are relevant to the statutory defence, and I will make my findings in relation to those matters below.
It is also important to make clear at the outset...
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Paralegal Firm Conducts Unlawful Litigation But Avoids Contempt Of Court
...public, but who are not so regulated to conduct litigation as part of their services. In the recent case of Baxter v Doble & another [2023] EWHC 486 (KB), Mrs Doble, a graduate member of the Chartered Institute of Legal Executives (CILEX) had set up a company in 2014, offering, amongst othe......