Probate: Rules at odds with Legal Services Act
Private client group STEP is to lobby the government to bring the Non-Contentious Probate Rules (NCPR) in line with the Legal Services Act 2007 in the wake of the Mazur ruling.
It comes as the Law Society has issued a practice note on the implications of the judgment and a leading criminal defence solicitor warned about the case’s impact on that sector too.
A guidance note [1] issued by STEP said that while the Act expressly provides for certain exempt individuals to carry out probate activities under supervision – typically employees working under the direction of an authorised person – the NCPR define a ‘probate practitioner’ specifically as an authorised person for the purposes of the Act.
“This definition has the effect of excluding exempt individuals from carrying out activities under the NCPR, even where they would otherwise be permitted to do so under the LSA,” it said.
“STEP intends to call on the government to amend the NCPR so that they align with the provisions of the LSA.”
In the meantime, STEP advised that only authorised persons should undertake probate activities.
The body also warned that, where a member has “wilfully ignored” the restrictions of the Act and undertaken reserved legal activities without authorisation, this may constitute illegal practice and it would consider disciplinary action in liaison with the relevant regulator.
It added: “Where a member has acted in good faith, relying on regulatory advice that was subsequently found to be incorrect or misleading, or where a regulated member has supervised unregulated colleagues under that advice, STEP will generally not commence disciplinary action.”
The Law Society practice note [2] considers the impact of Mazur on civil, family and criminal litigation, and warned that the conduct of proceedings by a non-authorised person “does not automatically nullify the proceedings or any of the activities in question”.
Case law showed that criminal and regulatory sanctions were the intended consequences of the statutory scheme.
“Whilst the courts might decide to set these aside on the individual facts, this was considered to be unlikely in [the 2018 case of Ndole Assets [3]] for several reasons, including that the acts were done in good faith.
“The draconian impact, where this had no relevance to the merits of the case, was also raised.
“A similar position was taken in Mazur in which the judge declined to strike out the claim as an abuse of process, commenting that whether or not the lodging of the initial claim had been tainted, the issue had been rectified and to do so would cause real prejudice to the respondent.
“Given this indication by the courts, particularly in the cases relating to civil proceedings, you should be careful not to behave in a way that risks straying into improper use of satellite litigation to attempt to influence another party’s behaviour or the progress of the litigation.”
The Solicitors Regulation Authority may consider this to be misconduct, the Law Society said.
Law Society president Mark Evans said: “We are aware that Mazur created uncertainty across the legal profession and – while the judgment does not change the statutory requirements relating to authorisation to conduct litigation as a reserved legal activity – we hope this practice note will provide greater clarity to our members.
“However, there remain grey areas where further guidance from regulators and others is required.
Mr Evans explained that non-authorised staff could undertake work prior to the issue of proceedings, as it did not amount to the conduct of litigation, and could provide “extensive assistance” to an authorised person.
“They can help draft pleadings, particulars of claim, applications, correspondence, witness statements and can sign a statement of truth.
“Tasks can be delegated so long as there is an authorised person responsible 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 escalated to the authorised person, who exercises their professional judgement in relation to them.”
The guidance said firms should review their policies and procedures to make sure these document the steps involved in their litigation processes and who carries each of these out.
They should ensure an authorised person is involved in each matter. “Check that the practising rights of the authorised person include the conduct of litigation and that they have the relevant technical skills and competences for the litigation in question.”
The “key formal trigger points” which amount to the conduct of litigation must the responsibility of the authorised person and firms should document decision-making to demonstrate the professional judgement applied.
Writing on LinkedIn [4], well-known criminal defence solicitor Andrew Bishop noted that non-authorised persons have often managed Crown Court caseloads.
“This is always under the supervision of a solicitor but the legal executive/paralegal would do most of the work… There are variations on this way of working and it is not universal but it has been a common and cost effective model in many firms for many years.”
There was often “sufficient shared experience” between legal executives and barristers “that there was rarely a need to engage the supervising solicitor”, he went on.
“Post Mazur, if every substantive step in a case must be signed off by an authorised litigator then a significant additional demand upon the firm’s resources has been created.
“Legal executives may be reluctant to sign and upload documents, for example a defence statement or witness table without first running it past the solicitor – even where such documents have been approved by the client and barrister.
“Matters that are time critical in the Crown Court may not be able to proceed until the solicitor, perhaps busy in the magistrates’ court, is located and asked about it, for example a proposed change of plea.
“For private client work firms will inevitably increase fees to absorb these additional burdens.
“For legal aid work there must likewise be an urgent increase in fees. Standard ‘graduated’ fees in the Crown Court were introduced in about 2008 and reflected most cases being run by non-authorised persons. That can no longer be the case and so fees must reflect this if firms are to survive.”