Sheldon: APIL challenges judge’s interpretation of Legal Services Act
The Legal Services Board, the Association of Personal Injury Lawyers (APIL), and the Law Centres Federation have all been granted permission to intervene in next month’s Mazur appeal.
They join the Law Society and Solicitors Regulation Authority – which both intervened in the High Court too – with the appeal brought by CILEX [1] set to be heard on 24 February.
A Legal Services Board spokesman said: “We sought permission to intervene in this appeal to assist the court in reaching a decision and support clarity on issues that matter for the regulation of legal services.”
Yesterday, the board published an interim review [2] that found some of the information provided to lawyers over the years about the conduct of litigation was not clear enough.
The Law Centres Federation, meanwhile, will be seeking clarity on the position of law centres. Non-commercial organisations like these are ‘special bodies’ under the Legal Services Act 2007, which means they can provide reserved legal activities without being regulated.
APIL is backing the CILEX argument that Mazur was wrongly decided. An APIL spokeswoman said: “We listened to the concerns of members and have taken this next step to bring to the court a unique perspective from the claimant personal injury sector.”
The skeleton argument that sought permission to intervene said: “As the court will appreciate, personal injury litigation is an area of legal practice where for many years significant elements of case handling have been delegated to unadmitted staff, and not merely without judicial or regulatory complaint but very often with positive approval.
“Indeed, many well-respected personal injury practitioners over the years have been what were once known as ‘managing clerks’ and are now legal executives.
“The newly perceived limitations on solicitors delegating work would, unless this appeal is allowed, force APIL’s members to make significant changes to their operations which would have serious negative consequences for them, and, more importantly, for access to justice for those who they currently are able to represent.”
In addition, the skeleton said, the “inevitable increases” in costs that would result from solicitors being less able to delegate work to unadmitted staff would adversely impact on the public generally, “as it is the public, through insurance premiums and taxes, who are the ultimate source of personal injury compensation”.
Drafted by Benjamin Williams KC, Matthew Waszak and Theo Barclay of 4 New Square, APIL’s argument was that Mr Justice Sheldon’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.
Second, it said the judge failed to take proper account of the effect of the rights of audience exemption in the Act, “which is itself premised on unauthorised persons ‘assisting in the conduct of litigation’ under the instructions and supervision of an authorised person”.
APIL submitted that this was “a very clear indication that the [Act] maintained the status quo ante whereby authorised litigators could delegate the conduct of litigation to unadmitted staff acting under supervision”.
Third, APIL said Sheldon J’s interpretation would lead to “unworkable, impracticable and unreasonable results, many of which would be most acutely felt by those undertaking work in the personal injury sector”.
In the event the Court of Appeal upholds the judge’s interpretation, meaning large numbers of people may have unwittingly committed an offence by conducting litigation, APIL asks it to consider encouraging courts use the power in the Act to grant the right to conduct litigation in specific cases so as to remove this risk.
CILEX’s solicitor, Iain Miller, a partner at Kingsley Napley, said last month [3] that the Court of Appeal would have to decide between statutory interpretation and “the contextual argument”.