by John Stuart Colyer
A provocative title, anyway! Every day of the week surveyors are serving notices under the Landlord and Tenant Act 1954, Part II (and other statutes) on behalf of their clients. Such notices may or may not lead to proceedings being initiated in the High Court or the county court. When acting for tenants who need to apply to the court for a new lease within the time-limits provided by section 29(3) of the Landlord and Tenant Act 1954, some surveyors have been going further than merely serving the notice(s), and have themselves been issuing proceedings in the county court, or (if acting for landlords) have themselves been filing an answer and applying for an order for the payment of an “interim rent” under section 24A. Usually these steps are taken merely to protect the client’s position, and in the confidence that provided time-limits are not missed the parties will eventually come to agreement; but they are still steps in proceedings, as opposed to steps in preparation for proceedings.
The purpose of this short article is to highlight the uncertainties and dangers of this practice and to caution surveyors that without amendment of the relevant statutory provisions and rules of court it is imprudent for any such steps to be taken by a surveyor: any step which initiates or carries on court proceedings should be taken by a solicitor. So surveyors are advised always to ensure that a solicitor is promptly instructed, well in time to issue the appropriate pleading.
In the High Court these problems do not arise — the court will not accept process other than from the “lay client” or a solicitor. But in the county courts (where the vast majority of such applications are made) the position is so obscure as to require a detailed investigation of the County Court Rules and the relevant statutes.
One starts with the rule dealing with the commencement of proceedings, County Court Rules Order 6, rule 8(CCR O6 r8), which requires the particulars of claim be signed by the plaintiff if he sues in person or by his solicitor if a solicitor acts for him. In that context, because a corporation cannot act other than through an agent (having no human persona) it can act by an agent in order to initiate proceedings. See the observations of Swinfen Eady LJ in Charles P Kinnell & Co Ltd v Harding, Wace & Co [8] 1 KB 405. But in that instance the agent is merely acting as the human hand of its principal, and signs as that principal — not as “Bloggs, Chartered Surveyors”.
Even if a pleading filed by “Bloggs” in Bloggs’ own name is valid (as to which there must be doubt, so that by filing it “Bloggs” creates a risk for its client that the pleading will be struck out and by then a time-limit may have run), there is another problem, which is that “Bloggs” cannot charge a penny piece for anything that they do in the way of “acting on behalf of any other party in proceedings in a county court”, by reason of section 143(1) of the County Courts Act 1984, which provides that:
… no person other than a solicitor shall be entitled to have or recover any fee or reward for…acting on behalf of any other party in proceedings in a county court.
So, even if it be a valid step in the proceedings for a person other than a solicitor or the plaintiff or defendant to file a pleading, that person (even if he be a firm of surveyors) must do it without charging; neither may he seek to be rewarded directly by a specific fee, nor indirectly, by including the time and effort involved in his general fee. To be unpaid is a fate which certainly this writer would not wish upon any surveyor!
The County Court Rules contain parallel provisions applying where one is acting for a landlord. CCR O 43 r2(1) is the rule which requires that an answer be filed. CCR O 9 r18 provides that “(1) Where the respondent to an originating application is required by any of these rules to file an answer, the following paragraphs shall apply …”. It follows from that provision that rule 18 does apply (since the previously mentioned rule requires that an answer be filed). CCR O 9 r19 then specifies that:
Every … answer to which rule 18 relates shall be signed —
(a) by the defendant if he is acting in person;
(b) by the defendant’s solicitor in his own name or in the name of his firm, if the defendant is acting by a solicitor,
and shall state the defendant’s address for service
So we get a mirror image of the rules already referred to in respect of particulars of claim — that is to say, equivalent or comparable rules apply both to the plaintiff and to the defendant (or “respondent” if it be a claim for a new lease under the Landlord and Tenant Act 1954).
It seems implicit in O 6 r8 and O 43 r2(1) that the draftsman thought that only the lay client or its solicitor on its behalf could take steps in litigation, especially the step of filing a pleading: but the rules are not specific, and the Kinnell case does show that a corporation at least can act by “agents” — at least where the agent does not purport to act as an independent professional.
The position is therefore unclear (or “arguable” as lawyers like to say); but even if agents can launch proceedings, certain it is that they cannot conduct them, since they do not have any right of audience in the court and cannot address the court (see County Courts Act 1984, section 60). It is true that section 60(1)(g) permits “any other person allowed by leave of the court to appear instead of any party” to address the court; but the practice of the court is not to permit professional advisers to appear, although the informal assistance of a friend of a party is allowed, and such a friend may sometimes be permitted to cross-examine witnesses or address the court. This is of little comfort to would-be litigators who are not solicitors, because the prohibition on charging in section 143 will still apply. Also, it is important to observe the provisions of section 20 of the Solicitors Act 1974 whereby:
(1) No unqualified person shall —
(a) act as a solicitor, or as such sue out any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil … jurisdiction; …
Section 20(2) makes it an offence to contravene that prohibition.
It can be argued that to file an originating application which contains an application for a new lease is to “prosecute”, and to file an answer which applies for an interim rent (which is of the nature of a counterclaim, as has repeatedly been held by the Court of Appeal) is both to “prosecute” and to “defend” proceedings. The view of the writer is that no offence would be committed where the document was specifically signed “[Bloggs], Chartered Surveyors”, since they could hardly be said to be acting “as such” [ie as solicitors] for the purposes of section 20(1)(a); but a contrary view is certainly arguable. And if anyone who holds himself out as doing the work of a solicitor — very notably by instituting proceedings — is to be considered to be acting “as such” then, of course, there would be an infringement of that statutory prohibition, so that an offence would be committed.
The clear intention of the County Courts Act (and of the Solicitors Acts) therefore seems to be that only admitted solicitors may take steps and may come on the record as solicitors and agents for parties.
So — however unsatisfactory and unclear as the provisions of the County Courts Act 1984 may be — it is manifestly undesirable that any surveyor should purport to file any pleading in the county court. The pleading may not be valid (in which case the client is likely to be prejudiced); and unless the surveyor is going to take the step gratuitously, he runs head on to the prohibition against charging for his work (see section 143).
Now it is not my purpose to canvass the desirability or otherwise of the existing provisions. I merely draw attention to the dangers, as things stand, of surveyors or other non-lawyer professionals “taking steps” in proceedings. It may seem strange that a surveyor can conduct arbitration proceedings to determine a rent on a rent review but not conduct the strikingly similar proceedings in the court to determine the rent to be paid under a new lease being ordered under Part II of the 1954 Act. Perhaps the rules (and especially section 143!) need amending, and it may be that in post-Green Paper England amendments will be made. If you think amendment is needed, now is certainly just the time to urge that upon the Lord Chancellor’s department, which has already indicated that it proposes to amend section 20 of the Solicitors Act 1974: see para 4.1 of the July 1989 White Paper Legal Services: A Framework for the Future, where the proposal is made that section 20 be amended “to enable anyone to practise who has the appropriate level of expertise for the needs of the work concerned”. But do not beat the gun until the situation has been sorted out! For the time being, take only steps in preparation for proceedings and charge only for steps in preparation for proceedings; do not purport to take any step in proceedings on behalf of a client, or charge for doing so!
