Miller: Custom and practice has existed for decades, if not centuries
The Court of Appeal hearing the Mazur case will have to decide between statutory interpretation and “the contextual argument”, the solicitor bringing the appeal said last week.
Meanwhile, the Solicitors Regulation Authority (SRA) has confirmed that it will seek to intervene in the case.
Iain Miller, a partner at City firm Kingsley Napley, is acting pro bono for CILEX in its appeal against Mr Justice Sheldon’s ruling.
The Court of Appeal has granted permission [1] because, it said, the case “raises an important point of practice and its significance to the legal profession as a whole is a compelling reason for an appeal to be heard”.
Speaking on Friday’s Legal Futures webinar, Mazur – Your questions answered, Mr Miller explained Sheldon J’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.
“The judge concluded that must be intentional and therefore you can’t have supervised conduct of litigation.”
The “alternative viewpoint”, he went on, was that an exception has existed through custom and practice “for decades, if not centuries”.
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”.
As an example, he cited the comments of Lord Atkin in a 1940 House of Lords decision (Myers v Elman [1940] AC 282): “The duty owed to the court to conduct litigation before it with due propriety is owed by the solicitors for the respective parties whether they be carrying on the profession alone or as a firm.
“They cannot evade the consequences of breach of duty by showing that the performance of the particular duty of which breach is alleged was delegated by them to a clerk.
“Such delegation is inevitable, and there is no one in the profession, whether in practice or as a judge, who will not bear ungrudging tribute to the efficiency and integrity with which, in general, managing clerks, whether admitted or unadmitted, perform their duties. The machinery of justice would not work without them.”
Mr Miller continued: “The picture seems to be that, before 2007, no one thought you couldn’t conduct litigation under supervision.” This was also reflected in guidance from the Law Society as the pre-SRA regulator of solicitors.
It was also “quite clear” that the 2007 Act only sought to consolidate the pre-existing statutory position and not change it – as shown by the underlying Clementi report, the white paper and comments of ministers as the bill went through Parliament.
Further, when CILEX applied for the right to grant standalone rights after the Act was in force, “saying we’ve been doing this under supervision for years, no one bats an eye lid”.
He added: “So the argument before the Court of Appeal is going to be the statutory interpretation argument against the contextual argument.”
Mr Miller said the Court of Appeal had directed an expedited hearing and he hoped it would take place in the early part of next year.
Also on the webinar, Paul Bennett, a partner and solicitor-advocate at Bennett Briegal who represented the law firm involved before Sheldon J, said he had “ventilated this argument” at the hearing.
But he described the judge “a statutory interpretation specialist” who gave it “pretty short shrift”.
Mr Bennett, who is not involved in the appeal, said: “I do think that the CILEX argument has great credibility – but I would say that, wouldn’t I, having broadly argued the same thing.”
He pointed to how publicly funded criminal work has long worked, with managing clerks (the forerunners of chartered legal executives) handling the most serious cases under supervision for at least a century. This approach “inevitably cascades through other types of work”.
Neither the Legal Aid Agency, nor the Law Society in the criminal litigation accreditation scheme, had ever suggested differently, he went on.
Mr Miller argued that they had common sense on their side, questioning whether the intention was to criminalise those who stepped over the “very grey line” between assisting with and conducting litigation.
The bench would also have to consider the “human impact” the ruling has had, as well as on other courts.
He said: “I doubt the judiciary is not fully understanding of the importance of this to the legal profession and currently an already stretched Court Service is now having to deal with quite a lot of applications around costs in relation to Mazur that wouldn’t exist if it was wrongly decided.”
Mr Miller indicated that, given the breadth of the impact of the case, various organisations may seek to intervene before the Court of Appeal.
While the SRA has told Legal Futures that “we do plan to make submissions in this matter”, the Law Society has yet to confirm whether it will. Both intervened in the High Court hearing.
To buy access to the webinar, which covered a wide range of questions about the impact of Mazur, email webinars@legalfutures.co.uk [2]