Vos: Leading high-powered bench
Master of the Rolls Lord Justice Vos, Chancellor of the High Court Lord Justice Birss and Lady Justice Andrews will today hear the Mazur appeal.
Starting this afternoon and continuing for the whole of Wednesday and Thursday, the court will hear from CILEX, which is bringing the appeal, and six interveners – including Julia Mazur and Jerome Stuart, the original defendants.
The others are the Solicitors Regulation Authority (SRA), Law Society, Legal Services Board, Association of Personal Injury Lawyers (APIL) and Law Centres Network.
As explained in December by Iain Miller, the Kingsley Napley partner and Cordery on Legal Services general editor acting pro bono for CILEX, its core submission [1] is that Mr Justice Sheldon’s ruling was based on the fact that, while there were exceptions in the Legal Services Act 2007 that meant non-authorised staff could conduct reserved instrument activities and reserved probate under supervision, there was not a similar provision in relation to the reserved activity of conducting litigation.
However, this failed to appreciate that an exception has existed through custom and practice “for decades, if not centuries”, and the 2007 Act was not intended to change that.
All of the pre-2007 case law the lawyers have found so far “suggest that the court is perfectly happy for the litigation to be conducted under supervision”, said Mr Miller.
CILEX also argues that where a non-authorised person undertakes work for the purpose of conducting litigation under the supervision of a person who is authorised, the former is not a person carrying on the conduct of litigation.
It says Sheldon J failed to recognise that the work of a properly supervised employee is to be treated as the work of the supervisor.
If Parliament had intended to proscribe who could conduct litigation, it would be an offence for an unauthorised person to conduct litigation, CILEX says. But instead it made it an offence for an unauthorised person “to carry on” the conduct of litigation – this indicates that who takes responsibility is what matters.
We reported last month [2] that APIL’s submission sides with CILEX’s, saying that Sheldon J’s interpretation of the Act was inconsistent with the settled practice of solicitors conducting litigation through non-solicitor employees and that there was no indication that the Act was intended to change that.
Indeed, the intended legislative effect of the Act was to enlarge the categories of professionals who could conduct litigation, not to restrict them.
The Law Centres Network’s concern is that the ruling did not clearly address the unique position of law centres, which are so-called special bodies under the Act, meaning they can provide reserved legal activities without being regulated.
It highlights the difficulty of discerning the dividing line between actions amounting to the conduct of litigation and those amounting only to support or assistance.
Julie Bishop, the network’s chief executive, said: “We need a definition of ‘conduct’ that is proportionate, workable, and grounded in the public interest.”
The SRA, Law Society and Legal Services Board will be arguing to uphold Sheldon J’s ruling.
Law Society vice-president Brett Dixon said: “The Law Society will reaffirm the position we originally had in the High Court case, and with which the judge agreed.
“Litigation is a reserved legal activity under the Legal Services Act 2007 that may only be carried out by authorised persons, even within regulated entities.
“However, non-authorised staff can provide extensive assistance to an authorised person who is conducting litigation.
“Tasks can be delegated so long as the authorised person maintains overall responsibility for each matter, the work is actively supervised in line with wider regulatory obligations, and the key decisions and formal steps in the proceedings are referred to the authorised person, who exercises their professional judgement.”
The SRA’s stated position is that people who are not themselves authorised to conduct litigation can only support authorised individuals to conduct litigation.
Ms Mazur – who is believed to be an unregistered (non-practising) barrister – and Mr Stuart also argue to uphold Sheldon J’s ruling.
They contend that, under CILEX’s interpretation, any firm with at least one qualified solicitor would be able to employ any number of non-authorised individuals to conduct litigation, which would circumvent the authorisation requirement and defeat the purpose of the Act.
CILEX chief executive Jennifer Coupland said: “Since the judgment in Mazur was handed down last year, CILEX has had serious concerns about its impact on the legal sector.
“The consequences for many of our members have been profound but the shock waves go far beyond CILEX, affecting the operation of law firms, local government and law centres.
“Further, given CILEX members are more likely to come from groups traditionally underrepresented in the legal profession, the judgment threatens diversity in the law as well as restricting competition and access to justice…
“We are hoping for a swift decision that provides certainty and clarity for both our members and the wider profession and would like to thank our legal team, who are acting in pro bono in this important case.”