Factual and Procedural Background
The Defendant applied to strike out the claim, leading to a judgment handed down on 20 March 2015. Prior to the judgment, draft versions and notes concerning costs and consequential matters were exchanged between the parties. Shortly after the judgment was issued, the Defendant submitted further submissions raising a new point related to the court's discretion to cure an irregularity in the service of the claim form. The Defendant argued that the Claimant's consultants, Company A, were not authorised to conduct litigation, which was relevant to the service issue. The Claimant responded to this application in a subsequent note. Both parties were represented by senior counsel during the proceedings.
Legal Issues Presented
- Whether the court should revisit its judgment to reconsider the exercise of discretion to cure the irregularity in the service of the claim form based on the new point raised about Company A's authority to conduct litigation.
- Whether the actions of Company A in issuing and serving the claim form constituted unauthorised conduct of litigation under the Legal Services Act 2007.
- The appropriate exercise of the court’s discretion in relation to the irregular service and the implications of any unlawful conduct alleged.
- The proper order for costs following the judgment and application.
- Whether permission to appeal should be granted on the Defendant's new point.
Arguments of the Parties
Defendant's Arguments
- The Defendant contended that Company A was not authorised to conduct litigation and that its actions in issuing and serving the claim form were unlawful.
- The Defendant argued that the Claimant should not recover costs related to work that only an authorised solicitor could perform.
- It was submitted that allowing the court to cure the irregular service would amount to granting an indulgence for an unlawful act, which should weigh against exercising discretion in favour of the Claimant.
- The Defendant sought to rely on this new point to revisit the court’s earlier judgment before the order was sealed.
- The Defendant also sought permission to appeal on the basis that the court had not addressed an argument based on a precedent case.
Claimant's Arguments
- The Claimant acknowledged that Company A was not authorised to conduct litigation but argued that sending a copy of the claim form to the Defendant was not unlawful.
- The Claimant maintained that the service of the draft claim form constituted valid service under the relevant regulations, albeit irregular.
- Regarding costs, the Claimant sought recovery of counsel’s fees only, abandoning claims for Company A’s fees due to the complexity of the issues.
- The Claimant opposed the Defendant’s application to revisit the judgment and argued that the Defendant had known the relevant facts before the judgment was handed down.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| In Re L and Another [2013] 1 WLR 634 (Supreme Court) |
Authority that a judge may reverse a decision before the order is sealed; the overriding objective to deal with cases justly; discretion to revisit judgment based on particular circumstances. |
The court relied on this precedent to confirm that revisiting a judgment before sealing is permissible but must be exercised judicially and not capriciously. The court held that no new material justified revisiting the judgment in this case. |
| In Re Blenheim Leisure (Restaurants) Ltd, The Times, 9 November 1999 |
Examples of when it may be just to revisit an earlier decision, such as plain mistakes or discovery of new facts. |
The court noted these examples but found they did not apply here as the Defendant was aware of the relevant facts before judgment. |
| Andr Agassi v Robinson [2005] EWCA Civ 1507 |
Definition of "conduct of litigation" under the Solicitors Act 1974, including issuing proceedings and ancillary functions; narrow construction due to penal implications. |
The court used this precedent to interpret the scope of conduct of litigation narrowly, concluding that sending a copy of the unissued claim form was not unlawful conduct of litigation by Company A. |
| Stewart v Engel [2000] 1 WLR 2268 |
Overriding objective to deal with cases justly and consideration of detriment to parties before orders are perfected. |
Referenced in support of the principle that the court’s discretion must consider fairness and finality. |
| Cranfield v Bridgegrove |
Not specified in detail in the judgment, but related to the Defendant’s ground for appeal. |
The court addressed the Defendant’s argument based on this case in the judgment and concluded it did not support the Defendant’s new point. |
Court's Reasoning and Analysis
The court first considered whether it should entertain the Defendant’s application to revisit the judgment. It found that the Defendant had been aware of the relevant facts concerning Company A’s lack of authority before the judgment was handed down, so no new material justified reopening the matter. The court emphasized the importance of finality and proportionate case management, cautioning against allowing post-judgment second thoughts to become routine.
Turning to whether the Defendant’s point was reasonably arguable, the court examined the Legal Services Act 2007 definition of "conduct of litigation" and relevant case law. It concluded that sending a copy of the unissued claim form to the Defendant did not amount to unlawful conduct of litigation by Company A. The court distinguished between issuing proceedings (a reserved legal activity) and preparatory or advisory actions, which Company A was permitted to undertake.
The court rejected the Defendant’s submission that curing the irregular service would condone unlawful conduct, finding no unlawful act had occurred in relation to the service of the draft claim form. The court also noted that the Defendant had an opportunity to raise all relevant points before judgment and that the new point did not justify a further hearing.
Regarding costs, the court reasoned that although the Claimant succeeded on the application, the Claimant would have had to apply to cure the irregularity regardless. The court carefully apportioned costs, awarding the Claimant 50% of the claimed counsel’s fees, less an amount reflecting costs that would have been incurred anyway.
Finally, the court refused permission to appeal on the Defendant’s new point, as it had no real prospect of success, but extended the time for lodging a notice of appeal.
Holding and Implications
The court refused the Defendant’s application to revisit the judgment and rejected the argument that Company A’s actions in sending the unissued claim form were unlawful conduct of litigation.
The court ordered that the Claimant recover 50% of its claimed counsel’s fees, less an amount reflecting unavoidable costs, payable within seven days of the formal judgment.
Permission to appeal was refused on the new ground raised by the Defendant, but the time for lodging an appeal was extended.
No new precedent was established; the decision reinforces the principle that judgments may only be revisited before sealing in exceptional circumstances supported by new material or clear error, and clarifies the narrow construction of "conduct of litigation" under the Legal Services Act 2007.