Following three days of submissions last week, the Court of Appeal has reserved judgment in Mazur v Charles Russell Speechlys LLP, with the profession waiting with bated breath over whether, and to what extent, the appeal will seek to unwind the quagmire that Mr Justice Sheldon’s decision has caused since last September.
It is difficult to overstate the legal community’s concern over the continued litigation in Mazur v Charles Russell Speechlys LLP and it appears that at least some reprieve may be on the way. The appeal, brought in the first instance by CILEX does appear to have landed on sympathetic ears at the Court.
The biggest hint came from the bench’s intense questioning of those appearing for the Law Society and the Solicitors Regulation Authority who both sought the appeal’s dismissal, albeit with slightly different caveats about what this would mean. The Judges were clearly highly sceptical of their claims as to how Mazur, as it stands, would be applied in practice.
The appeal was concerned, at its most basic, with understanding whether delegation from an authorised person to a non-authorised person constituted the non-authorised person conducting litigation themselves. It was argued that the Legal Services Act 2007 did not appear to allow the delegation of conducting litigation, and simply because the industry has grown reliant on this model does not retrospectively change the intention of the legislation. These submissions, however, seemed to struggle to find traction.
While emphasising a desire not to criticise Mr Justice Sheldon, Sir Geoffrey Vos, leading the panel, made clear that he felt the decision made was an extremely binary one. Vos constantly returned to an analogy of a small Solicitor’s practice seeing their only authorised person taking a short holiday versus a long-term sabbatical. The Court appeared uncomfortable at the prospect that the former could attract regulatory attention, or indeed criminal prosecution.
It was that latter point which appeared to suggest that the Court is likely to intervene here. Sir Geoffrey Vos in particular appeared highly concerned about how a person delegating, or being delegated to, was meant to establish whether they had crossed that line. The concern intensified by the fact that crossing this line would be a criminal offence. The Court also heard concern about the floodgates which would be thrown open to examine old decisions again exposing lawyers to regulatory and criminal action years after the fact.
In this context it is difficult to see the Court simply leaving the decision as it presently stands. However, hope of a simple return to the old status seems likewise misguided. Firstly Miss Mazur, appearing in person, argued that the public needed protecting from the risk of unauthorised persons conducting litigation, a submission with which the Court showed clear sympathy. Secondly, it does seem clear that the Court of Appeal will recognise some limits on delegation, there being no party to the appeal actually arguing against such limits. With some hypothetical line to be set, it seems almost impossible to imagine the argument over delegation will be put to bed.
Whatever decision is reached this is unlikely to be the end of this regulatory headache. Notwithstanding an almost inevitable attempt to involve the Supreme Court, challenges to delegation seem unlikely to be left behind. With some limits on delegation there will always be those skirting close to the line and lawyers now alive to the possibility of challenges of this nature are unlikely to simply ignore a potential advantage for their client.
While reading tea leaves is fraught with risk, it does appear that the Court is poised to at least reign in the decision reached by Mr Justice Sheldon. Whether it seeks to do away entirely or find a middle ground between the decision and the old status quo remains to be seen.