Burton-Durham: Glad we took a stand
A circuit judge has refused to grant a highly experienced chartered legal executive an exemption that would allow her to conduct a family law case.
His Honour Judge Farquhar in Brighton stressed [1] that his decision was no reflection on the abilities of Lisa Burton-Durham but there was no exceptional reason to grant her the right to conduct litigation.
He said he hoped the Court of Appeal ruling in Mazur – the hearing of which postdated his decision – would clarify the position.
Ms Burton-Durham is a group director at South-East law firm Family Law Partners (FLP) and heads its Brighton office. She has been a CILEX Fellow since 2006.
She sought the exemption allowed for in the Legal Services Act 2007 to carry on the reserved legal activity of conducting litigation in the case before the court, as well as other cases where she is currently instructed and for future cases too.
The judge acknowledged that, prior to Mr Justice Sheldon’s decision in Mazur last September, “Ms Burton-Durham, in keeping with hundreds or thousands of other non-authorised individuals around the country, was undertaking steps which might be considered as amounting to conducting litigation on the understanding that being under the supervision of an authorised person was sufficient to permit her to conduct such litigation”.
He was “entirely satisfied” that Ms Burton-Durham was “fully capable” to conduct litigation and would likely have “little difficulty” in obtaining the right to conduct litigation from CILEx Regulation via the portfolio route, as she intended to do.
The Act simply stated that an individual would be exempt from the requirement of authorisation to conduct litigation if granted by the court and, he noted, gave no guidance on how to decide it.
There were no authorities either but HHJ Farquar said he had seen redacted orders made by a circuit judge and a master granting other legal executives exemptions.
HHJ Farquar decided that, as there was now a clear path for Ms Burton-Durham to obtain the right, and giving due deference to the will of Parliament, an exemption should only be granted in “exceptional circumstances”.
There were none here, he went on: “It is said that the client would be prevented from having their choice of lawyer to represent them, that there will be additional costs and delay which is all inimical to the overriding objective.
“It is difficult to see how that would not be the position in every case in which a party is represented by a chartered legal executive and as such there is nothing that would make this case exceptional.”
There may be a backlog in applications to CILEx Regulation for authorisation, but that was because many others were in the same position, and this also meant it was “difficult to see how the situation that she (and her client) faces can be considered exceptional”, HHJ Farquar said.
As for granting an exemption for other cases, he said the wording of the Act, which gives the court jurisdiction to grant an exemption “in those proceedings”, indicated that he did not have the authority to do so, even if he wanted to.
“The more fundamental issue is that if a general exemption was to be permitted then it would have the effect of ‘authorising’ Ms Burton-Durham to conduct litigation and this would not be in keeping with the decision of Mazur or the will of Parliament.”
The judge granted the applicant permission to appeal on the ground that he applied the incorrect test for exemption, saying it was an issue that needed the authority of the High Court or above.
FLP having indicated that it wanted to wait for the outcome of the Mazur appeal, he extended the time to appeal to 21 days after the Court of Appeal decision is published.
Writing on LinkedIn, FLP chief executive Robert Williams said he was disappointed by the decision. “We are considering an appeal. But first, let’s see what the Court of Appeal have to say in the Mazur case.”
He added: “I confess one of the most unedifying aspects of the Mazur fallout has been reading some extremely pompous comments from solicitors which I have read as being very disparaging.
“I am immensely proud to stand with Lisa (I started the legal executive course in the early 1990s and realised I would not have the staying power to complete all the studying required over many, many years, so I take my hat off to all who did: I was very fortunate to be supported by the firm I was then at to [be] able to then take the Solicitors Finals, I got a first and then later myself lectured on the legal execuitve course!).”
Ms Buron-Durham responded: “I am incredibly fortunate to have such a supportive boss and many supportive colleagues around me at Family Law Partners.
“I know that not all CILEX members have been as lucky as me and I feel utter despair knowing that there are talented people whose careers have been hugely impacted. We were unsuccessful but I am so glad that we took a stand.”
FLP instructed Matthew Withers of 1 Crown Office Row.