Stacey: Entirely unsurprising ruling
The Legal Services Board (LSB) is to review how all the regulators and representative bodies have “ensured that information on conducting litigation was accurate and reliable”, in the wake of the Mazur ruling.
It has also agreed to prioritise an application from CILEx Regulation that would enable chartered legal executives to obtain standalone litigation practice rights – at the moment, they come bundled with advocacy rights.
The oversight regulator issued a statement this morning stressing that the judgment did not change the law under the Legal Services Act 2007 but had prompted “discussion” about how the reserved legal activity of conducting litigation has been interpreted and applied.
As first revealed by Legal Futures, the LSB met senior executives from all the relevant regulators and representative bodies last Thursday.
A spokesman said: “At our meeting, we emphasised that lawyers and legal professionals conducting litigation need clear and accurate information.
“Furthermore, all regulated individuals must work within their authorised scope of practice. We stressed the importance of collaboration between the relevant bodies to ensure a consistent approach across the sector.
“The attendees agreed to work together on these issues. They also told us that they had reviewed their current guidance. If needed, they had issued more advice to provide clear and accurate information.”
The LSB said it would undertake a review to “examine how approved regulators and regulatory bodies ensured that information on conducting litigation was accurate and reliable”. CILEX and CILEx Regulation have both been accused of giving incorrect advice in the past.
The spokesman did not hint that any disciplinary action could result: “Our review will help us all learn lessons and maintain clarity and confidence in the regulatory framework.”
In seeking to decouple litigation and advocacy rights, the CILEx Regulation application said the market had changed since it applied for them in 2013: “CILEX members tell us that their employers or the firms that they lead, and particularly local authorities, rarely provide advocacy services and when they are required to offer such services, they purchase the external services of a solicitor or barrister on an ad-hoc basis.”
The LSB said: “We are prioritising the application within our statutory process.” It has an initial 28 days to decide on the application but can extend this to 90 days.
Separately, Michael Stacey – who acted for the Law Society as intervener in Mazur – has said he “wasn’t anticipating the consternation it has prompted in the profession”.
Now a partner at London firm Russell-Cooke, he was involved in formulating the Legal Services Act while working at the Ministry of Justice and then implementing it at the LSB.
“The decision was entirely unsurprising to me,” he said, speaking in a personal capacity.
He recalled that, back in 2015, in writing a chapter for The Law of Legal Services textbook, he had rejected the 2013 opinion of Andrew Hopper QC [1] that firm authorisation to conduct litigation was sufficient to allow non-authorised people working for it to do so.
“I expressed the view that this was incorrect because the effect of section 15 of the Legal Services Act is that both the individual and the entity providing reserved services to the public must be authorised, and in relation to litigation there is no equivalent to the exemption for reserved instrument activities and probate activities carried out under supervision.
“In my view [Mazur] did not change the law and is consistent with previous authority on the point – and the SRA’s guidance on supervision published in 2022.
“What it has done is raised awareness of the issue and exposed that many had not understood the requirements. The ‘seismic shift’ referenced in the legal press is in the profession’s understanding, not in the legal position, which remains as I have been advising clients for many years.”
Mr Stacey acknowledged that the precise scope of the conduct of litigation reserved activity could be difficult to define in practice.
“In many cases it may be hard to discern the practical difference between an unauthorised person assisting an authorised person conducting litigation, which is permissible, and an unauthorised person conducting litigation under supervision, which is impermissible.
“The key is that the authorised person takes responsibility for the conduct of the litigation.”
He added: “I don’t underestimate the impact of the uncertainty on individuals and firms. Regulators need to respond, and in fairness they have been – see for example CILEX Regulation’s guidance.”