Litigation: Regulators should have co-operated more on guidance
Some of the information provided to lawyers over the years about the conduct of litigation was not clear enough, the Legal Services Board (LSB) has concluded.
But it has yet to point fingers or announce any action as a result.
The interim findings [1] of a review begun after last September’s Mazur ruling showed also that the different regulators and representative bodies in the profession did not work together on the issue, “which may have contributed to differences in how guidance was interpreted and applied”.
Further, regulators held “differing levels of information about the extent to which authorised and exempt persons within their regulated communities were in fact regularly engaged in the conduct of litigation”.
Last October, the LSB said it would undertake the review [2] to examine how regulators and representative bodies ensured that information on conducting litigation was accurate and reliable.
Both CILEX and CILEx Regulation have been accused of giving incorrect advice in the past but the interim report published today does not point the finger at specific organisations.
The oversight regulator stressed that it has not yet made any final findings of fact, determinations of compliance, or assessments of the legality of past or current actions.
Rather, the aim of the report was to help regulators identify any regulatory gaps. “This is critical to avoid inconsistency of approach across different parts of the sector,” it said.
The full review will be informed by the outcome of next month’s Court of Appeal hearing in Mazur as well as further analysis of the material received from all of the legal regulators and linked representative bodies (like the Law Society and Bar Council).
The interim report is couched in decidedly neutral language. At times, it found, what lawyers were told about the conduct of litigation “varied in clarity and level of detail”.
Guidance adopted differing approaches, “ranging from listing actions that could be considered to be conducting litigation or citing specific examples from case law, to referring to the [Legal Services] Act for a definition of the conduct of litigation
“There were instances where references to supervision were included alongside descriptions of reserved legal activities, which may have been interpreted differently across the profession.”
The LSB said the guidance was “not always articulated with sufficient precision in relation to the distinction between those reserved legal activities that can be conducted by unauthorised persons under the supervision of an authorised person and those that cannot, including the conduct of litigation”.
The review also identified points when “greater cross-regulator engagement” on draft guidance may have led to a more consistent approach across the sector.
Responses to direct queries from lawyers “evolved over time” too, which risked “inconsistent outcomes”.
As to next steps, the LSB said that as well as ensuring advice and guidance on the conduct of litigation was now clear and consistent, the initial findings “suggest that regulators need to better understand the extent to which authorised and exempt persons within their regulated communities engage in reserved legal activities in order to regulate them effectively”.
CILEX chief executive Jennifer Coupland commented: “The LSB report underscores the relevance of Mazur across the entire legal profession. We look forward to presenting our argument that Mazur was wrongly decided in the Court of Appeal next month.”