A circuit judge in the County Court in Kassam v Gillhas held that ‘Remove a Tenant’ conducted litigation in breach of the Legal Services Act 2007.
Appeal Grounds
This was the tenant’s appeal against a possession order on Ground 8. The order also gave a money judgement for rent arrears of £13,386.49 and costs of £325.
The appeal raised 2 issues:
- Whether the possession order should be struck out as an abuse of process;
- Whether the notice seeking possession under Ground 8 was invalid.
In this post we intend to deal with issue 1. Issue 2 will be dealt with in a further post.
Background
Mr and Mrs Gill let their property to Ms Kassam on an assured shorthold basis. The deposit was paid but Kassam failed to keep up with the rent payments. The Gills attempted to deal with the matter themselves and had served a Section 21 which was invalid. It was for this reason that they then sort the assistance of ‘Remove a Tenant’ (RaT)
RaT provides services to landlords who wish to obtain possession of their properties. However, they are not solicitors and indeed make clear on their invoices and other paperwork that they are not “litigators” or solicitors. The services offered by RaT include serving a notice seeking possession through preparing the case for possession and arranging advocate representation.
RaT served a Section 8 notice on the Gills’ instruction. The Section 8 was signed by RaT and their address and telephone number was also given as the landlord’s agent. On receipt of the notice Kassam contacted RaT and attempted to negotiate a settlement however, on instruction, RaT continued with the possession proceedings.
RaT drafted the online Claim Form and Particulars of Claim and requested that the Gills attended their offices to finalise the forms. The Statement of Truth on the forms was automatically completed by the online system when RaT filled in the Claimants names at the beginning of the forms. Evidence before the court confirmed that the forms were not ‘signed’ by the Gills. In fact, Mr Gill only ticked a box on the online system to verify the Statement of Truth. However, for the purposes of complying with the rules of completing these forms simply ticking the box did not qualify as signing the form. ‘The notion of a signature is that it is applied personally….This “signature” was applied by Mr Turner (Employee of RaT) when he entered the Claimant’s names on the online form.’
The consequences of failing to comply with the court rules when completing these forms is that:
(1) If a party fails to verify his statement of case by a statement of truth –
(a) the statement of case shall remain effective unless struck out; but
(b) the party may not rely on the statement of case as evidence of any of the matters set out in it.
(2) The court may strike out a statement of case which is not verified by a statement of truth.
However, in this instance the court elected not to strike out the case because Mr Gill knew what was in the form and clicked the box for the statement of truth. The completion of the forms may not have complied with the letter of the rules however a signed witness statement verifying the particulars of claim had been provided and that was sufficient.
RaT then proceeded to pay the court fee, instruct an advocate for the hearing, prepare witness statements verifying the claim, prepare hearing bundles and arranging for their service and finally completing and serving the Certificates of Service.
The Conduct of Litigation
The ‘conduct of litigation’ is a reserved legal activity for the purposes of the Legal Services Act 2007 and may only be carried out by an authorised person, or an exempt person. RaT are neither. It is an offence to carry out a reserved legal activity and on summary conviction the maximum sentence is 12 months imprisonment or a fine or both, and on indictment 2 years or a fine or both.
The court looked at some case law for assistance and Practice Guidance relating to unqualified legal advisors which for the purposes of this post is quite helpful:
Courts should be slow to grant an application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a McKenzie Friend. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
RaT are in the business of providing these landlord services for a fee and are aware of the restrictions on the work they can undertake. They provide a package of services which is more than assisting with clerical or mechanical matters. RaT drafted and issued the Claim Form in such a way that Mr Turner entered the Claimants names on the form, thereby applying their signature to it. Mr Turner also entered RaT’s address where the Claimant’s or Claimant’s solicitor’s address should be completed. It is the whole package of services and RaT’s address on the forms which crossed the line and breached the provisions of the Legal Services Act 2007.
Should the claim be struck out as an abuse of process?
Mr and Mrs Gill have a perfectly good claim in law for possession. However, what has happened is that by issuing and prosecuting the claim the court has found that RaT has broken the law. This should not have any direct effect on the validity of the Gills’ claim. Whilst the court has the power to strike out a claim it is considered draconian and should only be exercised in exceptional cases. This case was not exceptional, and the court found that it would neither be just nor proportionate to deprive the Gills of their judgement. The court further held that RaT’s involvement is a matter for the criminal law and not this court and that their involvement should not prevent the Gills proceeding with their claim.
Comment
This case demonstrates why an insured and regulated practitioner should be considered for cases such as these. In our experience people often underestimate how complicated possession proceedings can become. Complications lead to delays and expenses which can be painful for those landlords who have not received rent for many months. This case is a serious warning to unregulated “eviction specialists” that they need to change their ways. It should also be of concern to letting agents who complete claim forms for landlords. Such activity is unlawful and should not be carried out.
