4th July, 2017
Buyers of Legal Service Beware!
In the case of Ndole Assets Ltd v Designer M & E Services UK Ltd  EWHC 1148 (TCC) an unregulated business has been criticised for not making clear at the outset of the matter, both to the other party and to the Technology and Construction Court (TCC), that they were not a firm of solicitors.
A common feature in modern legal fields is non solicitor consultants or litigation friends involving themselves and the ‘client’ not being aware they are at risk of unqualified advice.
Ndole was a litigant in person however, CSD dealt with the majority of the work in the proceedings on Ndole’s behalf including:
- Sending draft Particulars of Claim to Designer with a covering letter which began, “We act for Ndole Assets Limited”;
- Writing to the TCC Registry in a letter that stated that CSD, “are assisting the claimant in this matter”;
- Mr Dain of CSD served the Claim Form, Particulars of Claim and appendices on Designer. The covering letter identified the documents as being, “enclosed by way of service on you”;
- Mr Dain completed a Certificate of Service identifying that he had personally served the documents the previous day. Mr Dain signed the Certificate. There were four pre printed alternatives for the person signing the Certificate; ‘claimant’, ‘defendant’, ‘solicitor’, and ‘litigation friend’. Mr Dain struck out them all with the exception of ‘claimant’; and
- CSD wrote to the TCC Registry enclosing the Certificate of Service, the Particulars of Claim and correspondence.
The issue in dispute was whether the actions of CSD, in particular the service of the Claim Form and the Particulars of Claim, amounted to the ‘commencement’ or ‘prosecution’ of the proceedings or if they were an ‘ancillary function’ in relation to the proceedings and were therefore, a reserved legal activity pursuant to Section 12 of the Legal Services Act 2007. If they did amount to a reserved legal activity then Designer claimed that the service would be unlawful as CSD are not entitled to carry out reserved legal activities.
The High Court concluded that the service of the Claim Form and the Particulars of Claim is a reserved legal activity however, in the circumstances of a litigant in person, he can ask an agent to serve a Claim Form and Particulars of Claim on his behalf and that is what had happened in this case. His Honourable Mr Justice Coulson went on to state that even if he had found that the service was unlawful he would he would take some persuading that the proceedings should be struck out given service was effected and the relevant documents were served upon, and received by, Designer in time.
Despite finding in Ndole’s favour Mr Justice Coulson went on to the criticise the conduct of Mr Dain and CSD stating that a number of the letters that he wrote, referred to above, were misleading because it was not made clear that CSD Legal were not a firm of solicitors and were not authorised to carry out reserved legal activity. He went on to state:
“I do find that Mr Dain sailed too close to the wind on a number of occasions. It would have been much better if he had set out CSD Legal’s true position at the outset, both to Designer and to the TCC Registry. I hope that he will heed that advice for the future”.
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