Andrew Roy KC says Mazur judgment conflicts with principles of agency and delegation
The basic principles of agency and delegation could be used to argue that the Mazur judgment was wrongly decided, a King’s Counsel and judge has suggested.
Andrew Roy KC said it required a “very purposive” reading of the Legal Services Act 2007 to say an authorised person was lawfully entitled to delegate the performance of litigation provided they retained responsibility for its conduct, but argued there were “powerful arguments” for doing so.
Giving the keynote address at last week’s Association of Costs Lawyers conference in London, Mr Roy, who practises from 12KBW and sits as a deputy costs judge but spoke in a personal capacity, said: “The legislation, with great respect to the drafters, is abysmal. It is simultaneously Delphic and Byzantine.”
He explained that there were “any number of very important statutory duties which can be delegated, providing responsibility is retained”, such as duties on employers.
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“These provisions impose criminal liability. You could go to jail for two years, therefore they must be construed narrowly,” he said.
He said a statute was presumed not to alter the common law on agency and delegation unless it provided so either expressly or “by necessary implication” and if it did, this must be “to no further degree than is necessary”.
“Statute should, of course, also be construed to avoid absurd or undesirable results,” he went on, saying the Legal Services Act “does point in that direction.”
Mr Roy noted that, among the regulatory objectives in the Act, were protecting the public interest, improving access to justice, protecting the interests of consumers and promoting competition in legal services. A criminal ban on delegation “arguably goes contrary to those objectives,” he said.
On the other side was the regulatory objective of maintaining professional standards and principles, “but my point is that Mazur focused explicitly on that to the exclusion of the other important parts of the jigsaw.”
A Court of Appeal authority giving “tangential support” for this was the 2018 case of Gempride v Bamrah, in which a solicitor sought to blame misconduct in a detailed assessment on an unauthorised costs draftsman. This case was not referenced in Mazur.
“The Court of Appeal said, ‘No, you’re the solicitor, you’re the qualified person. You just can’t shy away from your responsibilities’,” Mr Roy said, adding that the manner in which it did was “instructive”.
He said the lead judgment was given by Lord Justice Hickinbottom, one of the few former solicitors to sit in the court, and that the Legal Services Act scheme for the conduct of litigation was satisfied so long as a solicitor remained responsible for anyone to whom they subcontracted the work. The non-authorised person was only able to conduct litigation because they were acting as the solicitor’s agent.
Mr Roy said this came at the same issue as Mazur from “a slightly different angle” and provided “a much more satisfactory solution to the mischief in question,” namely the risk to the administration of justice of a non-authorised person conducting litigation.
With no news of an appeal in Mazur, he said it would need someone to take the point and have it leapfrogged to the Court of Appeal.
Mr Roy also questioned recent Law Society guidance which suggested that the conduct of proceedings was limited to a few formal steps. “I’m not convinced, either as a matter of language or by reference to authority, that that’s correct,” he said.
He said the combination of Mazur with the 2018 case of Ndole Assets brought “vast swathes” of work into the definition of conducting litigation and questioned the Law Society’s position when it intervened in Mazur, saying it “might be said that it was borne of knee-jerk protectionism without proper appreciation of how many solicitors’ business models depend on proper delegation.”
Mr Roy said that, while he might have sympathy for the argument against Mazur, as a judge he had to apply the law as it stood. He also said that, in most cases, unauthorised conduct of litigation would not render costs irrecoverable, consistent with the position taken in Mazur.
Also at the conference, David Heath, a former MP who now chairs the Costs Lawyer Standards Board, said it was “always assumed” when the Legal Services Act was passed that the provisions on reserved legal activities were “simply passporting rights but also responsibilities that were already there into the new enactment.