“We act for Ndole Assets Limited…”
‘claimant’; ‘defendant’; ‘solicitor’; and ‘litigation friend’
“(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).”
“43. As was stated in Factortame, section 20 must be given a “restricted ambit” because of its penal nature. What does this mean? Where is the line to be drawn? Does the prohibition go any further than what is expressly prohibited? It is common ground that it does not extend to what might be termed purely clerical or mechanical activities such as photocopying documents, preparing bundles, delivering documents to opposing parties and the court and so on. Mr Speaight submits that none of the following activities, if conducted by an unqualified person, would be in breach of sections 20 or 22: ‘(a) Delivering to a court office a claim form, appeal notice, application or the like, provided it has been signed by the party himself. (b) Typing or printing out an appeal notice, statement of case or other formal court document, which has been drafted by a barrister. (c) Service of a claim form or other documents. (d) Taking a statement from a prospective witness. (e) Correspondence with the opposing party. (f) Preparing a bundle of documents for use in a court hearing. (g) Drafting instructions to a barrister. (h) Sitting behind a barrister during a hearing to provide administrative assistance.’ 44. He described these as “administrative support”
“53. Depending on the context, the word ‘proceedings’ may have a very wide ambit (see Callery v Gray (No1)[2001] EWCA Civ. 1117 at [54];[2001] 1 WLR 2112 ; and, for an extreme example, see Crosbie v Munroe[2003] EWCA Civ. 350 at [34]). In the present context the word undoubtedly includes ancillary applications and appeals in the course of litigation. Only a litigant in person or an authorised litigator may issue proceedings. But what is the scope of the right “to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)”? The background material to the 1990 Act that we have been shown sheds no light on the meaning of these words. Mr Drabble and Mr Carr rely on the statutory objective and the general principle stated in section 17 in support of the submission that the words should not be given a narrow meaning. They submit that there are powerful policy reasons why litigation which is not being conducted by litigants in person should be conducted by authorised litigators. The scheme introduced by the 1990 Act was intended to make provision for new and better ways of conducting litigation and a wider choice of persons providing them “while maintaining the proper and efficient administration of justice”
“In this case Quigg Golden, having eventually received the issued claim form from the court, served it on the Defendant. I am prepared to assume that that constituted an act that it was not authorised to do and which was therefore unlawful. However, it is not the service of the issued claim form that was regularised by my judgment…”
“There was a genuine commercial rationale for Sheldon’s indebtedness to Ellme being assigned by Ellme to Ndole. Both Ellme and Ndole were entities wholly beneficially owned by me and it was in the interests of both companies and in my interests to have a business structure in which Ndole was Sheldon’s creditor rather than Ellme. Following its assignment of Sheldon’s debt to Ndole, Ellme ceased trading and subsequently ceased to exist.”
“My Lords, I am afraid that, with respect, I cannot agree with the learned Master of the Rolls [1980] Q.B. 629, 657 when he said in the instant case that “The old saying that you cannot assign a ‘bare right to litigate’ is gone.”
“20. The shareholders in CAASL owned a company which had an existing business and had acquired what it considered to be a significant business opportunity. It considered that it had been wrongfully deprived of the possibility of making the most of that opportunity and launched these proceedings. At some stage, whether or not reluctantly is not altogether clear, the shareholders decided to sell the business as a going concern while retaining the benefit of the lawsuit. We are told that they had little choice, as the relocation of Bahamasair had taken much of the working capital needed to pursue the development. The price which they achieved for the business without the lawsuit was much lower than the value which, rightly or wrongly, they then put on the business with the benefit of the lawsuit. The transfer of the business made it quite clear that, while the transferee would do nothing to hinder the assignee from pursuing the claim, it wanted no part in the claim itself. The mechanism the shareholders chose to do this was to form another company to retain the claim. We do not know exactly why they chose to do it as a company rather than as individuals. Mr John Wilson, who has presented the case for Aerostar with skill, economy and charm, suggested that it may simply have been for convenience. They did, of course, retain the benefit of limited liability but the system is quite capable of protecting defendants from being pursued by worthless companies through the mechanism of requiring security for costs. 21. This was not wanton and officious intermeddling in another person’s litigation for no good reason. It was simply the original owners retaining part of what they owned while disposing of the rest. There is nothing contrary to public policy in allowing Aerostar to pursue the claim against these defendants and no good reason why these defendants should be permitted to escape any liability that they may have. This is not, of course, to say that a shareholder will always have a genuine and substantial commercial interest in taking an assignment of the company's claims. To take an extreme example, for a minority shareholder to buy a substantial claim for a nominal sum in the hope of making a substantial profit may well be contrary to public policy. But that is not this case. Aerostar owned all the shares in CAASL and taken as a whole the transaction was a perfectly sensible business arrangement.”
“56. As to Mr Vineall’s submission that Mr Wilson’s assignment and the Claim is or is on the brink of trafficking in litigation, I disagree. That phrase, as used in Trendtex, was attributed to a cause of action which was expected to be traded commercially between unconnected third parties as a commodity or, in the language the financial services industry, a product. In this case, the assignors are all connected with JEB; they all have a direct or indirect (through family) interest in rights equivalent or similar to the Rights; and, there is no evidence to suggest that JEB has attempted or will attempt to trade in the Rights or the Claim by further assignment. The conduct under attack in this case is a far cry from trafficking in litigation.”