Do you complete court forms for your landlords? You could be in contempt of court

For as long as I can remember, letting agents have undertaken issuing notices such as Section 21 and Section 8s and then continued to complete the court application form for their landlords.

Personally I have also shied away from the form filling, this is for 2 reasons

• 1    I don’t like form filling with the added headache of 3 lots of papers
• 2-      I knew legally I couldn’t do that work

A recent High Court ruling in Baxter v Doble & Anor highlights the need for caution among agents when choosing to undertake eviction work in the course of their daily property management work.

When we think of legal work, such as litigation, and the roles of solicitors we think of attending court and standing up in front of a judge, we don’t necessarily think that simply completed some forms could be a detrimental act.

So, lets break this down,

What is Litigation

Litigation is the process of an individual or a business taking legal action against one or more parties to resolve a dispute, Litigation is a reserved activity.

Various principles were outlined to help judges decide what does and does not amount to the conduct of litigation.

The court made its decision in accordance with those principles –  it was held that some of the activities carried out were consisted of the conduct of litigation. 

The list of such activities a include all of the following:

• Filing the claim form and particulars of claim.
• 
  
• Serving the reply and defence to counterclaim on the other party.
• 
  
• Payment of the court fee of £355 by cheque from the respondent’s account, having been put in funds in advance by the claimant.
• 
  
• Giving of instructions to an advocate.
• Drafting of witness statements.
• 
  
• Drafting of an application notice.
• 
  
• Drafting of a draft order for a strike-out application.
• 
  
• Drafting of the reply and defence to counterclaim.
• 
  
• Drafting of the case management summary for the CMC.

It has been held in other cases that serving a claim form and particulars of claim do amounted to the conduct of litigation.

Who can litigate

A person who is authorised ( eg: a registered and regulated solicitor)

So, to be clear serving section 8 or section 21 is NOT deemed to be conducting litigation, but if the agent then goes on to help the landlord complete the N5b or any other type of possession claim form including PCoL or completes it on landlords behalf, they will be, Under the Legal Services Act 2007, committing an offence to carry out a reserved activity without being an authorised person.

At paragraph 4, Schedule 2 to the 2007 Act ‘conduct of litigation’ is defined as

“Conduct of litigation

4 (1)The “conduct of litigation” means—

(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

Agents who chose to complete these claim forms leave themselves and their landlord open to having the possession claim struck out and at worse be found in contempt of court which carries a sentence of 2 years in prison.

It is not worth trying to complete these forms and agents are encouraged to form partnerships with local solicitors who will take on this work once the section 8 or section 21 has expired

Baxter v Doble & Anor (2023) https://www.bailii.org/ew/cases/EWHC/KB/2023/486.html