Letters roundup: 19 May 2023

Markets should be fair and free

At the 20th anniversary conference of the Competition Appeal Tribunal, Sarah Cardell, CEO of the Competition and Markets Authority (CMA), focused her speech on private actions and public enforcement, recognising private actions’ ‘overall complementary pursuit of deterring anti-competitive conduct’.

Deterrence is fundamental to the CMA’s mission, but resources are finite and demands are at ‘an all-time high’ post-Brexit, which means that not all meritorious cases can be investigated by the regulator. Private enforcement plays an important role in helping to fill that gap, by allowing meritorious cases to be brought without spending taxpayers’ money.

While the CMA can impose financial sanctions, these will often be dwarfed by damages ordered by the court, demonstrating the greater potential deterrent effect of private enforcements.

We can see the positive impact of private enforcement in other areas of law, such as the ‘dieselgate’ scandal. This egregious breach of environmental regulations was brought to light as a result of litigation on behalf of about 90,000 UK car owners. Without litigation funding, claims such as these would not get off the ground. As investors, litigation funders have to make a return on their investment, and as Cardell highlighted, ‘the ability for a third party to make such a return can play a role in providing access to justice’.

Overall, the CMA’s support for private enforcement and willingness to engage with proceedings must be applauded. Public and private enforcement, thanks to the passing of the Consumer Rights Act 2015, will ensure the continued integrity of the UK’s competition regime and the rule of law for the benefit of society, business and the UK economy more broadly.

This is in stark contrast to the US Chamber of Commerce, a lobbying group for big US companies and the largest lobbying group in the world, which has been trying every trick in the book since 2015 to undermine the UK’s collective redress regime. It is currently campaigning under the title of ‘Fair Civil Justice’ to stop UK claimants bringing legal actions against big US companies. The US chamber must be prevented from interfering with our enforcement of competition law, and from limiting the UK’s ability to deter anti-competitive behaviour. Markets should be fair as well as free.

Michael O’Higgins

Economist, former chairman of the Channel Islands Competition and Regulatory Authorities and proposed class representative in the FX cartel claim against Barclays Bank PLC and others, London 

Off the roll – what can I call myself?

The Solicitors Regulation Authority is reimposing a charge on retired solicitors who want to keep their names on the roll. This prompts the question in my heading.  

But first a different question: if you are off the roll, are you a solicitor? Never mind what you can call yourself, are you in fact a solicitor? I have been in touch with the SRA and the Law Society and both have said no. This seems to me wrong.

The starting point is s.3 of the Solicitors Act 1974 (as amended): anyone of good character who has passed the exams ‘may apply… to be admitted as a solicitor’. That the resulting admission certificate constitutes admission as a solicitor (without any requirement that your name should be on the roll) is clear from the wording of s.3 and from other provisions of the act – e.g., ss.1(a), 2, 7, 28(1) and 50(1). Some wording may point in the other direction: s.8(2) refers to someone whose name has come off the roll as a ‘former solicitor’, and s.47(1) and (2) have the same wording in a similar context. But this phraseology is surely outweighed by the other provisions.

Now for the real question: what can you call yourself if you come off the roll? Section 21 says: ‘Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence…’

By sections 1 and 87(1), anyone is an ‘unqualified person’ unless they have ‘been admitted as a solicitor’ and are on the roll and have a practising certificate. So, lacking a practising certificate, I have been an unqualified person since retirement despite being on the roll, and if I come off the roll I shall be no more or less an unqualified person.

Section 21 does not prohibit me, as an unqualified person, from calling myself a solicitor unless in doing so I am holding myself out as qualified to act as a solicitor. Describing myself simply as a solicitor is no doubt a breach of the section. But on retirement I was assured that I could properly call myself a ‘non-practising solicitor’, and a similar description is ‘solicitor without a practising certificate’. These descriptions surely come to the same thing and neither breaches s.21.

But this letter is prompted by two official statements. The SRA website says: ‘You can only call yourself a solicitor without a practising certificate if you remain on the roll’, and in a Professional Update, the Law Society says the same. Both seem to me wrong. If you already lack a practising certificate, you are already an unqualified person. The fact that your name comes off the roll changes nothing.  

So why are the SRA and the Law Society saying these things? Since they believe that you aren’t a ‘solicitor’ at all if you are off the roll, perhaps they think it must be unlawful to give yourself any description containing that word. But this would be false reasoning. The only legal restriction on what you can call yourself is in s.21, and its effect is unchanged. My indispensable cleaning lady could call herself a non-practising solicitor without breaching s.21.

Will the SRA and the Law Society justify their advice? The SRA has the power to prosecute under s.21; unless they get the law right, they may find themselves launching unwarranted prosecutions.  

Richard Oerton

Bridgwater, Somerset