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02/04/24

Civil Litigation Proceedings | Ensuring Proper Representation

Civil Litigation Proceedings | Ensuring Proper Representation
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The proper conduct of civil litigation proceedings through the courts requires considerable technical knowledge of court procedure, an understanding of the evidential laws, the ability to properly construct either the Claimant’s case being pursued or the defence of proceedings with which the Defendant is confronted and respect for the litigation process as a whole.

Engaging in civil litigation can be a costly venture fraught with intricate procedures, strict deadlines for producing evidence, and adherence to procedural formalities. Throughout the course of legal action, numerous pitfalls may arise, potentially leading to Cost Penalties awarded against either party, the claim being ‘Struck out’ or a Contempt of Court Order being made.

Given this context, The Legal Services Act 2007 ('the Act') enabled the formation of the Legal Services Board and, among other things, provision for the regulation of individuals engaged in certain legal activities. Notably, litigation was designated as a reserved activity, only to be conducted by those licensed and/or regulated to practice law, or for individuals granted exemption.

An individual, known as a ‘litigant in person’ may still conduct and present their own case.

Stuart Southall comments on the statutory requirements.

Why is Litigation a Reserved Activity?

As stated above, the Act seeks to protect the parties involved in civil litigation by ensuring that those conducting it on their behalf are properly regulated and observe strict Codes of Conduct which include:

  • Mandatory insurance provisions,
  • Access to the Legal Ombudsman,
  • Control by the Solicitors Regulation Authority,
  • Access to the Solicitors Compensation Fund.

Such protection is required to ensure, for example, that in the event of negligent representation, the injured party is not left without any financial recompense.

Authorised Persons

The Act states at section 18:

‘Authorised persons

(1) For the purposes of this Act “authorised person,” in relation to an activity (“the relevant activity”) which is a reserved legal activity, means —

(a) a person who is authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity (other than by virtue of a licence under Part 5), or

(b) a licensable body which, by virtue of such a licence, is authorised to carry on the relevant activity by a licensing authority in relation to the reserved legal activity.’

The Conduct of Litigation

Section 4(1) of Schedule 2 (‘The Reserved Legal Activities’) of the Act states:

‘The ‘’conduct of litigation’’ means -

  1. the issuing of proceedings before any Court in England and Wales.
  2. the commencement, prosecution, and defence of such proceedings, and
  3. the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).’

It is to be noted that:

  • the Court has previously found that commencing proceedings by issuing a Claim Form may count as conducting litigation. This is an activity that many Credit Management Agencies, and even some accountants undertake without proper authority.
  • the Court has a discretionary power, where considered appropriate in the discrete circumstances, to grant authority to a lay person to conduct litigation on behalf of another. The representatives are called ‘McKenzie Friends.’ Any representative should be properly trained and insured and will be subject to an overriding obligation to the Court.

Consequences of Unauthorised Representation

Section 14(1) of the Act creates an offence for a person to conduct a reserved legal activity unless entitled to do so.
Consequences of default include:

  • the innocent party may seek to have the defaulting party’s case struck out resulting in the innocent party succeeding in their action.
  • the Court may make a Wasted Costs Order against the defaulting party, which sum may easily amount to tens/hundreds of thousands of pounds.
  • the Court may find that a person who has carried out the reserved activity, knowing they are not authorised to do so, is in Contempt of Court resulting in:
    • on summary conviction, before a Magistrates’ Court, a maximum sentence of a fine, twelve months imprisonment or both.
    • on indictment, before a Crown Court, a fine, two years imprisonment or both.

Who Can I Contact for Advice & Help?

Engaging in civil litigation requires guidance from skilled professionals with in-depth knowledge and experience in navigating court proceedings at all levels. The team at KANGS Solicitors possesses substantial expertise and welcomes the opportunity to assist you. Feel free to reach out to using the details below:

Tel:        0333 370 4333

Email: info@kangssolicitors.co.uk

We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.

Hamraj Kang

Hamraj Kang
Senior Partner

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Tim Thompson

Tim Thompson
Partner

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