In a case that had apparently been going on since 2019, an independent paralegal called Sarah Doble (in the form of Sarah Doble Associates Ltd) routed a solicitor called Ms Irvine-Yates in a residential possession order.
The very recent judgement of Cavanagh J in the High Court, dated 10.3.23, has - as the learned judge himself puts it - far reaching consequences.
Ms Irvine-Yates, clearly smarting because of her crushing defeat to a paralegal, decided to bring a private case with her client against Ms Doble and her firm in a committal proceeding in the High Court for contempt of court. This was for allegedly breaking a part of the Legal Services Act 2007 rules concerning the Conduct of Litigation and 'reserved activities'.
The judgement of Cavanagh J exonerated Ms Doble from the contempt of court charges. The judge made it clear that Ms Doble had done the utmost in her power to amend her business model when required, even to the extent of employing a regulatory specialist solicitor to advise upon any changes she might need to make to avoid scrutiny and keep within the law as she and many others understood it to be.
All activities undertaken by the respondent before the case was brought - and all to no avail.
Despite her exoneration, the rest of the judgement is extremely complex and distinctly damning of alternative legal service providers that have burgeoned since the eradication of legal aid, and the failure of the government and the justice system to cap the fees of avaricious solicitors.
The learned judge has, in my view, dealt a severe body blow to the (much needed) alternative legal services market that provides some sort of representation to many litigants and also assists the courts by guiding members of the general public through the stages of complex litigation.
I believe that his main decision was completely wrong. Whilst detailing how confusing, woolly and ineffective these parts of the rules of the 2007 Act are anyway, the judge has closed down this alternative legal services market almost overnight. Many citizens, especially those with lesser budgets will suffer badly. McKenzie Friends will be forced to cut back their already threadbare service. Even barristers under Direct Access will have to consider their position in view of any ancillary services they might have offered clients.
The judge says that taken individually - filing letters to courts, drafting Particulars of Claim, statements for clients etcetera - these are not to be considered breaches. However when taken in the round (a 'package of services' he refers to it as) they amount to a breach. So the question is - how much ‘in the round’ should ‘in the round’ be? Is it 1 item per client, 1 + 1 items or indeed what?
Cavanagh J also refers to, amongst other cases, the judgement of the esteemed Mostyn J in a separate case involving a non-regulated family law entity called 'Amicable' . Mostyn J praised the Amicable firm for giving assistance where it was sorely needed. He simply went on to say that such firms would need to be subordinate to the rules and would need to change their business model if they were not. In the Family Court I can tell you that the involvement of ancillary organisations such as Sarah Doble’s and Amicable are considered by judges as being of paramount importance in order to have cases running smoothly and not bogged down interminably by the unfortunate ignorance of the ever increasing army of litigants in person.
Given that Cavanagh J has also dismissed the Bar's interpretation of the Conduct of Litigation, there may or may not be some rumblings against this judgment from someone or some quarter. There are a substantial number of practising barristers who operate under the Direct Access scheme but do not have Conduct of Litigation certificates. These barristers are also now conceivably breaching the rules in drafting documents et cetera for clients and they will now have to obtain Conduct of Litigation certificates in order to be able to do any of it.
Perhaps the ultimate hypocrisy of this judgement is the fact that, in the family and lower criminal courts, lay magistrates and lay justices sit on a bench, deciding peoples’ fate. These people are not qualified yet are employed by the courts because there are not enough judges.
Quite how a judge can rule that experienced paralegals such as Sarah Doble cannot assist litigants in person to conduct litigation yet allow unqualified lay justices to mete out judgments is one of the great hypocrisies of our time.
Once again it is the poor who will suffer - an increasing pattern in modern day life in the UK.
As a postscript to the Cavanagh J decision the Legal Standards Board (LSB) has just decided that the Legal Services Act 2007 won’t be updated for ‘one or two decades’.
The tone of the LSB material appears to be there will be no review and change of the Act because there is ‘no demand’ for change.
No demand from whom exactly?
The Act is in serious and critical need of reform and it’s highly unlikely that any member of the public was ever consulted. These so called findings reek of people intent on preserving the status quo.
This past week a report by Baroness Casey on the Metropolitan Police was published and was as damning as it could possibly have been.
If a similar exercise was taken out in respect of the UK court system, the Met Police report would pale by comparison.
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