A vastly experienced family lawyer who qualified before the Legal Services Act was enacted has been denied the right to represent her client in proceedings, in a case highlighting the post-Mazur problems blighting many careers.
In XX v GH, His Honour Judge Farquhar ruled that no exemption could be made for chartered legal executive Lisa Burton-Durham to conduct litigation in financial remedy and Children Act proceedings on the basis there were no elements of the case that took it out of the ordinary.
The court heard that before the High Court's decision in Mazur last September, Burton-Durham was among the thousands of non-authorised individuals undertaking steps which might be considered as amounting to conducting litigation, while under the supervision of an authorised person. But this had to be stopped following the Mazur decision.
The judge acknowledged that removing her from this case would ‘cause difficulties’ for the client, but said that could not be the test applied to an exemption application.
The case highlights the predicament faced by legal executives, paralegals and trainee solicitors who abruptly had their caseloads removed following the ruling of Mr Justice Sheldon in Mazur. This latest judgment was handed down while the CILEX appeal against Sheldon’s decision was being heard last week.
Read more
The court in XX heard that Burton-Durham had been a fellow of the Institute of Legal Executives for 20 years and worked for south east firm Family Law Partners, where she is one of two group directors and runs the Brighton office team. She is also trained by Resolution as a collaborative lawyer and has been the secretary of East Sussex Resolution for 10 years.
Farquhar said there was ‘no doubt’ that she was a very experienced practitioner dealing with financial remedy cases and she regularly instructed both junior and senior counsel and has been involved in highly complex cases. But the judge said that in light of the Mazur decision, until she was authorised or exempted she was not able to issue proceedings, sign statements of case or documents, file documents with the court, be a client’s main point of contact, instruct counsel or experts or make substantive case management decisions.
Burton-Durham is applying to be authorised through the CILEx Regulation portfolio route, but in the meantime her firm argued she should be able to represent her client.
It was submitted to the court that her regulated status provided sufficient safeguards in the exercise of the court power to grant the right to conduct litigation. If an exemption was not granted in the financial remedy and Children Act proceedings, there would be both delay and added cost to the client as there would be further involvement of other individuals in the case.
Farquhar said Burton-Durham was ‘fully capable’ of conducting litigation and would have little difficulty in obtaining authorisation, but it was not in the court’s power to grant an exemption. ‘The default position, following Mazur, is that Ms Burton-Durham is not authorised to conduct litigation,’ said the judge. ‘There is a clear path which can be followed for Ms Burton-Durham to obtain that authorisation and I have little doubt that this will occur in due course.
‘If a general exemption was to be permitted then it would have the effect of "authorising" Ms Burton-Durham to conduct litigation and this would not be in keeping with the decision of Mazur or the will of parliament. There is now a route which can be followed to obtain authorisation and it is not for this court to provide a short cut remedy to permit Ms Burton-Durham to conduct litigation prior to being authorised by her professional body.’
The court granted permission to appeal.
Following publication of the judgment, Burton-Durham said: 'The irony is I can deal with cases under the collaborative model or in non-court based alternatives, but the shutters come crashing down as soon as proceedings are issued. As a twenty-year qualified Chartered Legal Executive, a solicitor on day one of their career can conduct litigation, but I cannot. How does that protect the public?
'CILEX have many questions to answer. When I received my practising certificate, it was accompanied by a letter saying "this certificate recognises your authorised status under the Legal Services Act 2007". What that actually meant was I could administer oaths.'
Her firm and counsel Matthew Withers of 1 Crown Office Row worked pro bono on the authorisation application in XX. A decision on whether to appeal will be made after the Mazur ruling is handed down.
3 Readers' comments