Roy: Purposive reading of Act needed
The “basic principles of agency and delegation” could be used to argue that the Mazur judgment was wrongly decided, a KC and judge has suggested.
Andrew Roy KC accepted that it required a “very purposive” reading of the Legal Services Act 2007 to say an authorised person was lawfully entitled to delegate the performance of litigation provided they retained responsibility for its conduct, but argued there were “powerful arguments” for doing so.
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Giving the keynote address at last week’s Association of Costs Lawyers conference in London, Mr Roy – who practises from 12KBW and sits as a deputy costs judge, but spoke in a personal capacity – said: “The legislation, with great respect to the drafters, is abysmal. It is simultaneously Delphic and Byzantine.”
He went on to explain that there were “any number of very important statutory duties which can be delegated, providing responsibility is retained”, such as duties on employers.
“These provisions [in the Act] impose criminal liability. You could go to jail for two years, therefore they must be construed narrowly,” he said.
Further, a statute was presumed not to alter the common law – here, on agency and delegation – unless it provided so either expressly or “by necessary implication”; and if it did, this must be “to no further degree than is necessary”.
“Statute should, of course, also be construed to avoid absurd or undesirable results”, he went on, saying the Legal Services Act “does point in that direction”.
Mr Roy noted that, among the regulatory objectives in the Act, were protecting the public interest, improving access to justice, protecting the interests of consumers, and promoting competition in legal services. A criminal ban on delegation “arguably goes contrary to those objectives,” he said.
On the other side was the regulatory objective of maintaining professional standards and principles, “but my point is that Mazur focused explicitly on that to the exclusion of the other important parts of the jigsaw”.
A Court of Appeal authority giving “tangential support” for this was the 2018 case of Gempride v Bamrah, in which a solicitor sought to blame misconduct in a detailed assessment on an unauthorised costs draftsman. This case was not referenced in Mazur.
“The Court of Appeal said, ‘No, you’re the solicitor, you’re the qualified person. You just can’t shy away from your responsibilities’,” Mr Roy recounted, adding that the manner in which it did was “instructive”.
The lead judgment was given by Lord Justice Hickinbottom, one of the few former solicitors to sit in the court – which the barrister suggested was no coincidence.
He held that the Legal Services Act scheme for the conduct of litigation was satisfied so long as a solicitor remained responsible for anyone to whom they subcontracted the work. The non-authorised person was only able to conduct litigation because they were acting as the solicitor’s agent.
Saying this came at the same issue as Mazur from “a slightly different angle”, Mr Roy argued that it provided “a much more satisfactory solution to the mischief in question”, namely the risk to the administration of justice of a non-authorised person conducing litigation.
But with no news of an appeal in Mazur, it would need someone to take the point and have it leapfrogged to the Court of Appeal, he said.
The silk also questioned the recent Law Society guidance, which suggested that the conduct of proceedings was limited to a few formal steps.
“I’m not convinced, either as a matter of language or by reference to authority, that that’s correct. If you’re working within a law firm dealing with a case, if you’re not conducting proceedings, what on earth are you doing?”
Mr Roy said the combination of Mazur with the 2018 case of Ndole Assets brought “vast swathes” of work into the definition of conducting litigation.
He questioned too the Law Society’s position when it intervened in Mazur: “It might be said that it was borne of knee-jerk protectionism without proper appreciation of how many solicitors’ business models depend on proper delegation.”
In the meantime, however, he warned advocates appearing before him as a judge not to submit that they knew Mr Roy did not agree with Mazur and so should not follow it. “I have to apply the law as it is… Whilst I might have private sympathy for it, that’s not how it works, I’m afraid.”
At the same, his view was that, in most cases, the unauthorised conduct of litigation would not render the costs irrecoverable, as indeed Mr Justice Sheldon in Mazur held, notwithstanding the recent ruling of Regional Costs Judge Lumb.
Also at the conference, David Heath, who was a Liberal Democrat MP when the Legal Services Act was going through Parliament, said it was “always assumed” that the provisions on the reserved legal activities were “simply passporting rights but also responsibilities that were already there into the new enactment”.
It has been argued by others that the Act failed to codify what was long-established custom of allowing non-authorised people to conduct litigation under supervision.
Mr Heath, who chairs the Costs Lawyer Standards Board – the regulator of costs lawyers, who have the right to conduct litigation – added: “I put it directly to the SRA [Solicitors Regulation Authority] the other day that, given that a lot of costs lawyers work in SRA-regulated firms, it would be helpful for them to remind [solicitors] that if they were to employ cost draftsman rather than a qualified costs lawyer, they bear sole responsibility for understanding what that person is doing on their behalf, which I know a lot of them don’t, and that the buck stops with them.
“So maybe they want to look to see who they’re employing and encourage if they’ve got capable costs draftsmen to get them into the regulated community because it’s in their interest to do so.
“So actually the outcome of Mazur is likely to be positive for costs lawyers – one of the few parts of the legal landscape where I think it’ll be positive.”
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