Much of the debate around legal services regulation focuses on the statutory provisions that govern legal services and the regulations of the various approved regulators and licensing authorities. However, these provisions sit within a rich and complex common law that includes an entirely freestanding supervisory jurisdiction of the High Court over solicitors as officers of the court. This jurisdiction remains important yet seems largely ignored in the wider debate.

The latest example of this jurisdiction is the decision of the Court of Appeal on 30th November 2014 in Assaubayeu and others v Michael Wilson and Partners Limited [2014] EWCA 1491. That case involved a BVI Company which provided legal services, Michael Wilson and Partners (MWP), and who had clients who were members of a prominent and wealthy Kazakhstani family. In the course of acting for their clients MWP entered an appearance in the High Court in London ticking the relevant box that they were solicitors in the process. In fact they were neither solicitors or regulated at all in England and Wales. A dispute then arose with the then former clients about the scope of an arbitration clause in the retainer which in turn raised the question of whether the court had jurisdiction over MWP for the purposes of assessing their costs on what used to be known as a solicitor and own client basis. This jurisdiction rests on the court’s inherent jurisdiction over solicitors as its officers.

Lord Justice Christopher Clarke’s Judgment summarises the nature of the jurisdiction. He cites with approval Sir John Donaldson MR John Fox v Bannister King & Rigbeys [1988] QB 925 (see paragraph 30):

The jurisdiction is "indeed extraordinary, being based upon the right of the court to see that a high standard of conduct is maintained by its officers acting as such… It is, in a sense, a domestic jurisdiction to which solicitors are only amenable because of their special relationship with the court and it is designed to impose higher standards than the law applies generally".

They key question that arose was the ambit of the court’s jurisdiction in relation to those that were not solicitors but who pretended to be solicitors. The added complication was that MWP was not a natural person but was a body corporate. The Court answered this question in three stages. First, the court does not have jurisdiction over an individual or a body that is not a solicitor, does not act as a solicitor and does not pretend to be a solicitor (see paragraphs 46 to 48). This perhaps obvious conclusion confirms that other regulated legal professionals such as barristers, legal executives and licensed conveyancers do not fall within the jurisdiction. The Court goes on to state that this also means that if an entity is a recognised body under Section 9 of the Administration of Justice Act 1985 (the 1985 Act) then that of itself does not make the body subject to the jurisdiction. Section 9 of the 1985 Act is the statutory basis for the SRA’s entity regulation framework for traditional solicitors’ practices. Those entities who are recognised under this Section will for the most part consider themselves to be solicitors’ practices. This distinction is therefore unlikely to have any practical significance. Although it does open up the theoretical prospect of a recognised body avoiding the Court’s jurisdiction by not holding itself out as solicitors.

The next stage was whether the jurisdiction extended to those who pretended to be solicitors. On that Christopher Clarke LJ seemed reasonably clear: “I regard the Court as entitled to proceed on the basis that someone who has falsely claimed to be an officer of the court cannot claim not to be subject to the Court's jurisdiction over its officers because, contrary to his representation, he is not one.” (see paragraph 61).

The final stage is whether this jurisdiction extended to a body corporate that pretended to be a solicitor. The Court appeared to conclude that it did:

“If one of the keystones of the doctrine is:

"that the man has, by virtue of his assumption of the position and privilege of a solicitor, either obtained something which he ought not to have obtained … or done some act for which there would be a remedy in the Court if it were an act done by an officer of the Court, and ... the man has done the act or obtained the property by the assumption of the privilege and position of a solicitor"

then a body corporate which has presumed to act as a solicitor and to charge for so doing, if that is what has been done, should, as it seems to me, come within the ambit of the jurisdiction since he has obtained or sought to obtain something qua solicitor. The jurisdiction is, in essence, one of the Court's creation and its application in those circumstances does not appear to me to exceed the proper bounds of curial creativity.” (See paragraph 62)

Some caution needs to be exercised in relation to stages 2 and 3 above as they were issues that the court did not consider it needed to decide and were therefore obiter albeit expressed in clear terms.

The Court’s jurisdiction over solicitors remains important. It not only relates to costs but also undertakings given by solicitors. It now seems clear that this jurisdiction is based not upon admission or recognition but on whether the person or body pretends to be a solicitor. This provides an additional layer of complexity to the regulatory framework.