MAZUR MATTERS 52: AND NOW WE WAIT… STATUTORY CONSTRUCTION AND “DANCING ON A PINHEAD” : SOME USEFUL LINKS

The arguments in the Mazur appeal have been completed. The profession now awaits.    I was able to watch the first 1 1/2 days.  I have to say that phrase “dancing on a pinhead” came to mind when I was watching.  It turns out that I was not the only one.   There is no doubt that, in due course, we will all be working through the practical implications of the Court of Appeal’s judgment (let us all hope it is unanimous…). In the interim here are some useful links…

(I apologise for any inaccuracies in this photo. I am fully aware that a mandolin has 8 strings…)

THE LAW SOCIETY GAZETTE

The Gazette carried live coverage of the hearing, it can be found here.

DANCING ON THE POINT OF A NEEDLE

Mr Stuart, one of the respondent’s to the original appeal, submitted.

‘It seems to me we have spent the best part of two days dancing on the head of a pin trying to construe the words [conducting litigation]. ‘The ordinary citizen could consider that to carry on the conduct of litigation would simply mean the conduct of litigation. There is nothing more, nothing less.’

The Master of the Rolls appeared to agree.

“Sir Geoffrey Vos is starting to express a bit of frustration, in the most polite judicial way, saying the submissions around the meaning of the LSA are akin to ‘how many angels can stand on the point of a needle’.”

BRIAN ROGERS’ POST

Many CLB readers may want to read Brian Rodgers post on LinkedIn “The regulatory failures that built Mazur: how just about every body charged with protecting the profession got it wrong”

In summary Brian points out that the main issue here relates to the regulator’s failure to do their jobs.  (This is a brief summary I am encouraging you to read the full post).  The issues here go beyond Mazur. They point to basic failures by the regulators which have made it difficult for working lawyers to do their jobs properly or (for that matter) safely given that there is an underlying risk of being in contempt of court or committing a criminal offence.

Regulatory Failures Identified by Brian

These include

Solicitors Regulation Authority (SRA)

• Failed to respond to consumer complaints from Ms Mazur and  Mr Stuart on two occasions.

• Ultimately advised that no action was required, despite clear concerns.

• Provided written confirmation to the lower court that s21(3) LSA 2007 authorised employees to conduct reserved legal activities.

• That interpretation was found by Sheldon J to be “clearly wrong”.

• Conflated regulation with authorisation, undermining the statutory scheme.

• Unable to state:

  • Whether common supervision-based business models are lawful.

  • Whether guidance had been issued post-Mazur.

  • How many prosecutions had been brought under s14 LSA..

Law Society

• Issued no warning or guidance to members for 18 years post-2007 suggesting supervised delegation was unlawful.

• Its own publications and officers endorsed delegation with retained responsibility.

• Intervened in the Court of Appeal to argue that Mazur reflected the law “all along”.

• Position described by the Master of the Rolls as “remarkable”.

• Conceded under questioning that:

  • Routine solicitor practice would be unlawful under its interpretation.

  • Sole practitioners would require locum cover for absences.

• Advanced concepts (“appropriate direction and control”) unsupported by the statute.

• Took neutral positions on key authorities (Agassi v Robinson; Baxter v Doble), leaving members without clarity on criminal risk.

Legal Services Board (LSB)

• Oversight regulator failed to resolve conflicting interpretations across regulators for 18 years.

• Accepted in Court of Appeal that the Act is “imperfect” and poorly drafted.

• Unable to explain omissions in Schedule 3 supervision exemptions.

• Took no substantive position on the correct legal interpretation.

• Acknowledged complexity of statutory scheme such that practitioners could not reasonably be expected to understand it unaided.