When a solicitor is appointed to act on behalf of a party to litigation, there is a duty to serve notice on all other parties and file notice with the court under rule 42.2 of the Civil Procedure Rules 1998, or rule 26.2 of the Family Procedure Rules 2010 (FPR).
They are then ‘on the record’ and their address is treated as the address for service of documents on their client, pursuant to rule 6.23 of the CPR and rule 6.26 of the FPR.
This can have major cost ramifications for the client. Instead of them being able to seek advice on discrete issues, the solicitor will be receiving, forwarding on, advising on and dealing with all correspondence received.
The rules seek to accommodate ‘unbundled legal services’ by exempting a solicitor appointed solely as an advocate for a hearing from going on record (rule 42.2(1)(b) of the CPR and rule 26.2(1)(b) of the FPR). However, for all other types of piecework the solicitor would have to consider whether they are ‘appointed’ or not. Neither set of rules contains a definition of ‘appointed’. An external facing definition is most likely appropriate. Are you stating to anyone in the outside world that you are acting for that client in respect of any specific litigation that is before the courts? If the answer is yes, you should go on record.
The solicitor’s address remains the address for service for that party, unless and until it is changed in accordance with part 42 of the CPR or part 26 of the FPR. For all practical purposes, the procedure for removing the solicitor from the record is the same under either set of rules.
If the client received public funding which has ceased, the solicitor can simply file a copy of the notice of discharge/termination of the public funding certificate. Otherwise, a solicitor is removed from the court record where one of the following occurs:
(a) a Notice of Change is filed and served giving a new solicitor’s address for service;
(b) a Notice of Acting in Person is filed and served by the party; or
(c) an Order is made declaring the solicitor has ceased to act.
Notices under (a) or (b) are on forms N434 in civil proceedings and FP8 in family proceedings. The client should be provided with the relevant form, advised on the steps required to be taken, given a reasonable deadline to comply and told what will happen if they do not. Until the completed form is filed, the solicitor remains on record, will continue to receive all correspondence for the client and may be unable to charge for forwarding it on.
Clients often fail to return the form, either within any reasonable deadline or at all. This leaves the solicitor having to apply to be removed from the court record on form N244 (civil) or D11 (family) with evidence in support.
The application to be removed from the record is simple. The only basis on which it can be granted is the solicitor is no longer the appropriate address for service because the retainer has been determined. Unless the client challenges the right of the solicitor to terminate the contract, the reason for termination is irrelevant. It is implicit that the client must be served with notice of the intention to terminate, told the reason why and have explained what they can do to avoid or challenge this.
Where there is clear evidence the retainer is determined and the client has raised no objection within a reasonable deadline, the court can make an order removing the solicitor from the record without a hearing, in accordance with the case of Miller v Allied Sainif (UK) Ltd Times 31 October 2000 (ChD). No costs order is needed, as this would normally be recoverable when the client is billed anyway.
If the court is unclear whether the client agrees (usually because the client is sent the notice of termination at the same time that the application is sent to the court) then a hearing will usually be listed.
The biggest problem for the court is often lack of any evidence that the retainer has been determined at all. It sounds obvious, but most solicitors appear to write saying they will apply to the court to be removed from the record without advising the client they are also terminating the retainer. Unless and until the retainer is determined the rules require the solicitor to remain on the record.
A judge will normally require copy documentation showing termination and a statement from the solicitor in support, confirming no objection has been raised. If terminated orally a letter should be sent to the client confirming this which can be produced. If the retainer is terminated by contract, eg death or bankruptcy, then a copy of the contract and supporting document may be required.
Some solicitors refuse to disclose the documents on the basis they are confidential. They may be right, but without sight the court may be unable to allow the application. There are two possible solutions, namely to redact the confidential information or to ask the court to place the application before a judge who then considers recusing themselves from dealing with the case further.
When submitting the application, the covering letter should expressly state the application is not to be served on the other parties to the litigation. It should also ask that any hearing, if needed, is not listed at the same time or immediately before any hearing in the case. Fail to do so and the consequence of any recusal may be a wasted costs order.
Removal of the solicitor without a current address for the client may leave the client in breach of the requirement to provide an effective address for service. However, provision of the client’s current address to the court without express permission will breach client confidentiality. Implied permission, that is ‘if you do not respond I will assume you agree’, is probably insufficient.
Finally, it is possible to apply for the other side’s solicitor to be removed from the record under rule 42.4 of the CPR or rule 26.4 of the FPR to correct the record and allow them to write directly to the other party. The provision is reserved for cases where the other side’s solicitor is no longer acting due to the solicitor’s death, bankruptcy, having ceased to practise or just disappearing.
District Judge Richard Clarke sits in the County and Family Court at Luton