Solicitor LLP acting for itself is not a litigant in person.

Halborg v EMW Law LLP [2017] EWCA Civ 793

This case concerned a costs appeal arising out of a claim for unpaid agency fees by EMW Law LLP against a solicitor in sole practice, Scott Halborg.

Master Campbell had summarily assessed EMW’s costs in November 2014 at £17,600 and an appeal was dismissed in May 2015 by His Honour Judge Purle QC, sitting as High Court Judge of the Chancery Division.

The appeal concerned the interpretation given to CPR 46.5(6)(a) and (b) and it was Mr Halborg’s case that an LLP acting for itself was a litigant in person by virtue of:

  • CPR46.5(6)(a) being “a company or other corporation which is acting without a legal representative” or;
  • CPR46.5(6)(b)(v) being “a person who, for the purpose of the 2007 [Legal Services] Act, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act)” and;
  • is not excluded as a litigant in person by the exemption contained within parenthesis at the beginning of CPR46.5(6)(b), i.e. “any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner)”.

The Court of Appeal found that the common law principle, established in The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872, wherein a solicitor who acts for himself can recover his profit costs, continued to hold good.

It was also found that the wording in parenthesis within CPR46.5(6)(b) should, in keeping with the decision in Malkinson v Trim [2002] EWCA Civ 1273, be given a purposive interpretation so as to include solicitors in sole practice, LLPs and members of LLPs and that “there is no discernible reason why the Chorley principle, and the rationale underlying it, should be applicable to a traditional partnership but inapplicable to an LLP”.

The Court of Appeal held that an LLP, which acted for itself in the legal proceedings, is not a litigant in person for the purposes of CPR 46.5(6)(a), that CPR 46.5(6)(b) was confined to individuals and, more particularly, CPR 46.5(6)(b)(v) was not intended to include companies or other corporations but was intended to include other individuals who fall within the 2007 Act e.g. Legal Executives, Legal Costs Draftsmen, Patent Attorneys and Trade Mark Attorneys.

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