Miller: Act’s drafters would have been unaware of need for litigation exemption
The Mazur ruling likely came about because the Legal Services Act 2007 (LSA) inadvertently failed to codify what had been custom in the legal profession for a long time, two experts have argued.
Writing for Legal Futures today, Iain Miller and Stephen Nelson of City law firm Kingsley Napley said explanatory notes to the LSA were clear that it was not intended to change the position that non-authorised people could conduct litigation under the supervision of authorised lawyers, “but following Mazur it has inadvertently had that effect”.
Mr Miller, a partner, is also the general editor of the textbook Cordery on Legal Services, while Mr Nelson, a senior associate, was until earlier this year the head of legal at the Solicitors Regulation Authority.
Exploring the history of the right to conduct litigation, which dates back to 1729, when King George II was on the throne, they said that, prior to the Act, “it was an integral part of the conduct of litigation that solicitors could supervise unqualified persons within their firm who conducted litigation”.
This was reflected in the Solicitors Code of Conduct 2007 and applications for litigation practice rights by CILEX in 2010 and 2013, with this premise accepted by the Legal Services Board.
“The intention of the LSA was to passport the existing reserved legal activities into the new statutory regime, not create new forms of reserved legal activities or redefine what came before,” they said – the explanatory notes to the Act provide that the reserved legal activities are “all activities that were regulated under previously enacted legislation”.
The Act carried forward previous statutory exemptions to allow non-authorised persons to conduct the reserved activities of conveyancing and probate under supervision; however, the right to conduct litigation did not have a similar legislative history.
“In our view this is most likely due to the way in which reservation developed and a previous reliance on ‘custom’ in respect of how legal practice operated.
“As some commentators have noted, albeit anecdotally, it was not uncommon for managing clerks to be heavily involved in the running of litigation files ostensibly under the ‘supervision’ of the solicitor by whom they were employed.”
As a result, “in transposing existing provisions, those drafting the [LSA] would not have been alerted to the need” to insert an exemption for the conduct of litigation.
The lawyers concluded: “Clearly none of this was before the court in Mazur and one can only speculate as to whether it would have made a difference.
“What is clear is that, until 2007, it was part of the regulatory framework to allow unqualified persons to conduct litigation under supervision. Such an arrangement balances the need for appropriate regulation with access to justice and appears to have operated for at least 300 years.
“The Legal Services Act did not intend to change the position but following Mazur it has inadvertently had that effect.
“The issue will now need to be resolved by amendment to the Legal Services Act or potentially by further consideration by the court with a fuller understanding of the context.”
I wonder why the word ostensibly was used, and ‘supervison’ put in quotation marks. I had much experience of being instructed in matters being handled primarily by legal executives but never had reason to doubt that there was genuine supervison.