Roger Mallalieu laments continuing uncertainty over 50-year-old law
Replacing the Solicitors Act 1974 with updated primary legislation is “a route to further disaster” because it would be as inflexible as the existing law, a leading costs silk said week.
Roger Mallalieu KC said any new Act should set out the basic right to an assessment, leaving “how it works, what the limitations are and what the qualifications are” to secondary legislation so that it could be updated “simply, quickly and efficiently as working practices change”.
The 4 New Square silk has been a long-time critic of the Act. Speaking at last week’s Costs Law Reports conference in London, he said: “It tells us quite a bit about the inadequacies of the Solicitors Act 1974, that despite it being 50 years old in its current form, we find ourselves in a situation where in the space of just 12 months we’ve had two Court of Appeal cases and one Supreme Court case dealing with really quite fundamental and basic issues.
“What is a statute bill? What amounts to payment of a statute bill? What rights does a person have to an assessment of a statute bill?
“These aren’t esoteric side issues about niche parts of rights to assessment; these are some of the most fundamental and basic questions which the Solicitors Act is meant to regulate… It is simply profoundly unsatisfactory that we’re in a situation where we need appeals to the highest courts in the land to decide these most fundamental issues.
“How are solicitors, how are clients supposed to understand the position that they’re in if the lawyers don’t know until we’re told by the highest court in the land what the position is.”
The cases he referred to were Kenig and Ivanishvili in the Court of Appeal, and Menzies v Oakwood Solicitors in the Supreme Court, the decision in which is awaited.
The latter two both gave solicitors the problem of not know whether they money they’ve been paid could be subject to challenge at some point in the future. In Ivanishvili, he noted, Lord Justice Coulson highlighted the fact that the Solicitors Act has not been amended to reflect modern practice.
But an application has just been made for permission to appeal to the Supreme Court. “We may end up with the Supreme Court looking at the question, remarkably, of what is a statutory bill,” Mr Mallalieu observed.
While there was a Civil Justice Council working group considering reforms to the Solicitors Act, he said, its focus was on the contentious/non-contentious issue, and he also questioned whether there was “any real prospect that it will be a legislative priority any time soon”.