Appeal centres on whether supervised staff can lawfully conduct litigation under long-standing practice
The solicitor acting in the Mazur appeal has said that the Court of Appeal will have to choose between a strict reading of the statute and the wider context of long-standing legal practice when it hears the case next year. The Solicitors Regulation Authority has also confirmed that it will seek to intervene.
Iain Miller, a partner at Kingsley Napley, is representing CILEX on a pro bono basis in its appeal against the ruling of Mr Justice Sheldon. Permission was granted after the Court of Appeal said the case raises an important point of practice with significant implications for the legal profession.
Speaking at a Legal Futures webinar titled Mazur, Your Questions Answered, Miller explained that the High Court judgment rested on the absence of an explicit exception in the Legal Services Act 2007 allowing supervised staff to conduct litigation. While the Act includes exceptions for reserved instrument activities and probate, it does not provide one for litigation. Miller said the judge concluded that this omission must be intentional and that supervised conduct of litigation is therefore not allowed.
Miller contrasted this with the alternative viewpoint that supervised conduct of litigation has existed through custom and practice for decades and possibly centuries. He said all pre-2007 case law located so far suggests courts had no difficulty with supervised staff undertaking litigation work.
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He cited comments by Lord Atkin in a 1940 House of Lords decision, which acknowledged that solicitors routinely delegate work to clerks and that the justice system relies heavily on this structure. Miller said that historically no one appeared to doubt that supervised litigation was lawful, a position also reflected in guidance issued by the Law Society before the SRA became the regulator.
He argued that the 2007 Act was intended to consolidate the previous position rather than alter it, pointing to the Clementi report, the government white paper and parliamentary statements made during the passage of the legislation. He added that when CILEX later applied for the right to grant standalone litigation rights, it was on the basis that supervised work had been carried out for many years without challenge.
According to Miller, the appeal will therefore be a contest between statutory interpretation and the context provided by long-standing practice. He said the Court of Appeal has ordered an expedited hearing and he hopes it will take place early next year.
Also speaking at the webinar was Paul Bennett, a partner and solicitor advocate at Bennett Briegal, who acted for the law firm involved before Sheldon J. Bennett said he advanced the contextual argument at the original hearing, but that the judge, who is regarded as a specialist in statutory interpretation, dismissed it quickly.
Bennett said the supervised approach has been central to publicly funded criminal work for at least a century, with managing clerks handling serious cases under supervision. He noted that neither the Legal Aid Agency nor the Law Society in its accreditation scheme had ever taken a different view.
Miller said that common sense should be considered, asking whether the intention could really be to criminalise those who cross what he described as a grey line between assisting with and conducting litigation. He said the Court of Appeal will need to consider the human impact of the ruling as well as its effect on already stretched courts.
He also said various organisations may intervene given the scale of the issue. While the SRA has confirmed it will make submissions, the Law Society has not yet stated whether it will do so. Both took part in the High Court proceedings.