As the Legal Services Act 2007 makes clear all questions as to who is entitled to carry out reserved legal activities are now to be determined “solely in accordance with the provisions of this Act” (section 13).
As we know there are six kinds of reserved legal activities (see section 12): the exercise of a right of audience (advocacy); the conduct of litigation; reserved instrument activities (some elements of conveyancing); probate activities (very limited aspects of probate practice); notarial activities; and the administration of oaths.
The exercise of a right of audience, the provision of notarial services and the administration of oaths are necessarily personal and not delegable in the strict sense; the reserved activity involves an individual standing up in court, notarising a document, or administering an oath. These are not services that can be provided directly by a firm or entity. In terms of advocacy we may note that there is an exemption in favour of individuals who are not themselves authorised persons for the purposes of exercising a right of audience, but whose work includes assisting in the conduct of litigation, and acting on the instructions and under the supervision of a person authorised to conduct litigation. Such non-authorised persons are permitted to exercise rights of audience in chambers in the High Court or a county court where reserved family proceedings are not involved (schedule 3, paragraph 1(7)). Otherwise we can disregard these three ‘personal’ reserved legal activities for the purposes of the current debate.
The remaining three forms of reserved activity are those which firms of solicitors, as firms, generally undertake; litigation, conveyancing and probate.
In relation to conveyancing and probate there are comprehensive and near identical provisions in relation to delegation. A non-authorised individual is exempt from the requirement that all those performing reserved legal activities must be authorised to do so, if the individual is an employee of an authorised person, or a fellow employee with an authorised person, or a fellow manager with an authorised person, and the authorised person directs and supervises the non-authorised individual (Schedule 3, paragraphs 3(3) and (4); paragraphs 4(2) and (3)).
So, without limitation as to the numbers involved, the Act envisages the possibility of a single conveyancing solicitor or probate practitioner, who is him/herself a sole practitioner, manager or employee, directing and supervising a team or teams of paralegals.
Litigation is the poor relation – there are no comparable delegation provisions. So only “authorised persons” may conduct litigation unless they are otherwise permitted by a particular court or particular enactment (with a couple of other inconsequential exceptions – Schedule 3, paragraph 2).
Does this therefore mean that anything which comprises the conduct of litigation may not be lawfully delegated to paralegals?
The conduct of litigation means:
• The issuing of proceedings before any court in England and Wales;
• The commencement, prosecution and defence of such proceedings; and
• The performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).
… unless the acts in question were not restricted prior to the LSA coming into force (Schedule 2, paragraph 4). The previous statutory provisions were contained in section 20 of the Solicitors Act:
“No unqualified person shall … act as a solicitor or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction”
and in the Courts and Legal Services Act 1990, section 119 of which defined the “right to conduct litigation as the right:
“(a) to issue proceedings before any court and (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)”.
It will be seen that the LSA definition is an amalgamation of the previous provisions.
The limited number of relevant authorities, decided by reference to the law as it was before the LSA came into force, define “conducting litigation” in very narrow terms, but otherwise in a singularly unhelpful way. In Agassi v Robinson (HMIT) [2005] EWCA Civ 1507 the Court of Appeal considered the issue and determined that the statutory provisions should be given a restricted ambit consistent with their penal nature; and that the activities must amount to “formal steps required in the conduct of litigation” [56]). Unfortunately the court went on in the same paragraph:
“It is not necessary for the purposes of this case to decide the precise parameters of the definition of “the right to conduct litigation”. It is unfortunate that this important definition is so unclear. But because there are potential penal implications, its very obscurity means that the words should be construed narrowly. Suffice it to say that we do not see how the giving of legal advice in connection with court proceedings can come within the definition. In our view, even if, as the Law Society submits, correspondence with the opposing party is in a general sense “an integral part of the conduct of litigation”, that does not make it an “ancillary function” for the purposes of section 28 [of the Courts and Legal Services Act 1990 which restricted the classes of person who had a right to conduct litigation].”
So inter partes correspondence may be regarded as outside the definition of “conducting litigation”. It is relevant that the court drew assistance from the Civil Procedure Rules and the definition of “legal representative” at that time, which was “A barrister or a solicitor, or a solicitor’s employee or other authorised litigator…”.
In O’Connor v Bar Standard Board, LTL 1/10/2012 the Visitors considered an appeal by a barrister against findings that she had conducted litigation contrary to the provisions of the 1990 Act by signing a statement of truth in a statement of case and by sending pleadings to the opposing party. The BSB’s guidance was found to be materially out of date, by reference to Agassi, and to have had no regard to the CPR which permitted a barrister to sign a statement of truth.
Save to indicate that there is very little which falls within the definition of conducting litigation, the decided cases are unhelpful. However, the fundamental subsequent development reflects the fact that until the LSA all those who were authorised to conduct litigation were individuals who exercised rights by virtue of their status as barristers, solicitors or legal executives.
LSA changed this radically. The most important change in this respect is that a “person” authorised to carry out reserved legal activities “includes a body of persons (corporate or unincorporated” (section 207).
It is as a consequence of this and the shift to ‘entity regulation’ generally that all activity regulated by the Solicitors Regulation Authority is primarily through the authorisation of entities. It is the entity which is the authorised person (although it may also employ authorised persons, and must employ at least one lawyer – the compliance officer for legal practice). But it is the entity therefore which has the right to conduct litigation. As a corporate body can only act through individuals actions will be taken on behalf of and in the name of the entity, but it will be the entity which acts and does the thing in question. I do not read the 2007 Act to require that an authorised entity must, in relation to the conduct of litigation, ensure that all steps which it is authorised to take as an entity be carried out by individuals who are also authorised, as individuals.
Changes in the Civil Procedure Rules are also highly relevant. These changes (a) post-date Agassi (the then form of the CPR was reflected in the reasoning in Agassi; see above and [51]) and (b) specifically reflect the consequences of the LSA. A “legal representative” is now defined to include a: “person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of the Act) who has been instructed to act for a party in relation to proceedings” (Rule 2.3). As mentioned, an authorised person within the meaning of the Act includes an authorised entity.
It follows that an ABS may be the legal representative of a party, despite the fact that it cannot be, for example, an officer of the court. Every document required to be signed and every act required to be done by a party’s “legal representative” may be done in the name of the ABS. Indeed there is nothing novel about this concept; traditionally all inter partes dealings and dealings with the court are conducted in the name of the law firm.
In summary everything regarded by the Court of Appeal in Agassi as being within the narrow definition of the conduct of litigation would fall within what the CPR requires to be done by a legal representative, and an ABS or other authorised entity can now do everything in that category, acting through anyone it may authorise to act in its name.
This is rather more satisfactory than the alternative. If the firm, as the authorised person, is only able to “conduct litigation” through individuals who are also individually authorised persons, a law firm would first have to determine what, with precision, is within the definition of the conduct of litigation, which at present remains entirely unclear despite consideration by the Court of Appeal, and then to establish delegation policies which take account of that which is within or not within that category. While this may not be unworkable it is certainly burdensome, and there is no current guidance on the subject. I would be very surprised if any significant number of practitioners is alive to the point.
I recognise that there is an anomaly between the absence of provision for delegation in paragraph 2 of Schedule 3 to LSA (conduct of litigation) and the detailed provisions in relation to delegation in paragraphs 3 and 4 (reserved instrument activities and probate activities).
However, the revised definition in the CPR of a “legal representative” appears to be a complete answer.
In so far as there is an apparent inconsistency, it seems to me that in practice the Act states that when conveyancing and probate activities are undertaken there has to be an individual exercising a supervisory role who is authorised as an individual in relation to those activities, although there is no statutory limit on the mechanism for supervision, so that there is nothing to prevent, for example, a solicitor or barrister sitting at the top of a department within an ABS, with all regulated activities being delegated to non-qualified staff and monitored through sensible methods of supervision.
In relation to the conduct of litigation it is sufficient that the entity is authorised, and that the delivery of reserved legal services amounting to the conduct of litigation is regulated by rules of court and the authorisation and licensing system operated by the approved regulators. So in my opinion paralegals are not prevented by the lack of express provision for delegation in Schedule 3 to the Legal Services Act 2007 from taking any steps in the course of ordinary litigation practice which they may be instructed to carry out by an employer which is, as an entity, authorised to conduct litigation.
Yes they can!
© Andrew Hopper QC, December 2012
