Mazur overturned at Court of Appeal

In CILEX and others v Mazur and others, Sir Geoffrey Vos, Master of the Rolls, Sir Colin Birss, Chancellor of the High Court, and Lady Justice Andrews allowed CILEX's appeal, finding that it is “not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person”.

The professional body for CILEX Lawyers, Chartered Legal Executives, paralegals and other legal professionals, launched its appeal bid last year over “serious concerns” about the impact of Mr Justice Sheldon's judgment on law firms, lawyers and the public.

Sheldon J ruled that an employee of an authorised firm cannot conduct litigation simply by virtue of their employment, even if supervised by an authorised person.

His decision raised questions over the use of legal executives in the conduct of litigation and has led to a series of practice notes and guidance being published by legal bodies, including the Law Society and CILEX Regulation.

Handing down judgment in the Court of Appeal on Tuesday (31 March), the Chancellor of the High Court said: "The result of this case means that the role of an unauthorised person in the context of the conduct of litigation is not limited merely to assisting or supporting an authorised individual, and the distinction drawn in the court below by the Law Society and SRA, and adopted by the judge, between (a) supporting (or assisting) and (b) conducting litigation under supervision was not correct.

"It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person."

Elsewhere, he identified "some tasks which are clearly within the conduct of litigation, and some tasks that are clearly outside the conduct of litigation".

He added: "Despite, however, the obvious desirability of clarity, I have concluded that it is simply not possible to provide a comprehensive list of all those tasks that fall within and outside the conduct of litigation."

Setting out his conclusions on the proper meaning of carrying on the conduct of litigation, he said:

1. There has always been a widespread and well-regulated practice of delegation by solicitors to unqualified individuals (see Waterlow at [123]-[126] above and Hollins at [142]-[144] above).
2. The offence in section 14 of the 2007 Act (as for the one in section 70 of the 1990 Act) is to be interpreted narrowly (see Agassi at [149]-[151]). The 2007 Act did not make a significant change from the 1990 Act in this regard.
3. The words “conduct of litigation” refer to the tasks to be undertaken, whilst the words “carry on” refer to direction and control of, and responsibility for, those tasks.
4. Ndole and Baxter were cases decided in the context of an unauthorised person conducting litigation for a litigant in person. That is not this case. They also decided, however, that the question of whether a section 14 offence is committed is one of fact and degree and depends on whether the unauthorised person is taking responsibility for the tasks that amount to the conduct of litigation or whether the tasks are simply mechanical or administrative.
5. An unauthorised person may lawfully perform any tasks, which are within the scope of the conduct of litigation, for and on behalf of an authorised individual such as a solicitor or appropriately authorised CILEX member, provided the authorised individual retains responsibility for the tasks delegated to the unauthorised person (both formal responsibility and the responsibilities identified at section 1(3) of the 2007 Act). In that situation, the authorised individual is the person carrying on the conduct of litigation.
6. The delegation of tasks by the authorised individual to the unauthorised person requires proper direction, management supervision and control, the details of which are a matter for the regulators. The authorised individual must put in place appropriate arrangements. The degree of appropriate control and supervision will always depend on the circumstances. This is hardly surprising.
7. It is described in the 1946 Managing Clerk’s article (see [130]-[133] above) and recognised in the SRA’s 2019 guidance on solicitor’s supervision cited by the LCN [Law Centres Network] in argument (see [104] above). It was also reflected in a passage in the SRA’s 2022 Guidance on Effective Supervision cited by counsel for CILEX.
8. The concept was also inherent in the distinction drawn by the SRA and adopted by the Law Society between cases in which prior approval was required and others in which it was not.
9. The judge was wrong to distinguish between (a) supporting or assisting an authorised solicitor in conducting litigation, and (b) conducting litigation under the supervision of an authorised solicitor. Both activities are lawful in the circumstances I have explained. It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.

He also noted that the Court of Appeal had heard "much fuller arguments than either of the courts below", adding that he did not find the result that the High Court judge reached surprising.

"The judge asked for assistance, but he did not receive as much help as could have been expected," he said.

Lady Justice Andrews and the Master of the Rolls agreed.

Summarising her position, Andrews LJ said: “I agree. In essence, the question in any given set of circumstances will be whether the unauthorised person, in carrying out whatever tasks which fall within the scope of “conduct of litigation” have been delegated to him or her, is in truth acting on behalf of the authorised individual. If they are, it is the authorised individual who is conducting the litigation.

“But if the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.”

CILEX chief executive Jennifer Coupland described the ruling as the "most consequential judgment for legal services in recent history", adding: "CILEX professionals play a critical role in the justice system; they are well qualified, highly skilled, hugely experienced and, given they are more likely to come from groups traditionally underrepresented in the legal profession, bring different perspectives to their work. Many have been profoundly impacted by the uncertainty created by the Mazur judgment and we hope that they are now able to move forward with their careers.

"CILEX joins the voices of others in the sector, including the Legal Services Consumer Panel, in calling out the regulatory failure the Mazur judgment and its consequences represent.”

She said CILEX will now look to lobby the government to address some of the regulatory shortcomings of the Legal Services Act. She said the organisation will also await updated guidance from its regulator, CILEx Regulation.

Commenting on the decision, Law Society of England and Wales vice president, Brett Dixon, meanwhile said: “Whilst the Court did not accept all of the Law Society’s points, its judgment provides an outline framework for those involved in litigation to use in assessing whether supervision is adequate and lawful.

“The judgment confirms the continuing importance of supervision being in place which will require further regulatory guidance.”

He said Chancery Lane now plans to update its guidance and practice note to ensure it aligns with the ruling.

A spokesperson for CILEx regulation said: "In our role as regulator, our priority continues to be supporting Chartered Legal Executives to be able to continue delivering high-quality legal services with confidence. Since the original Mazur ruling, over 750 CILEX Fellows have successfully secured litigation practice rights. These rights enable Chartered Legal Executives to litigate without the need for supervision.

"We will now be working with regulators and stakeholders to update guidance to reflect the full implications of the appeal judgment in due course."

Iain Miller, Head of the Legal Services Regulatory team at Kingsley Napley, which advised CILEX, said the decision is of "vital significance to the wider legal profession by providing guidance not only on the ability of authorised persons to delegate tasks to those they work with but also on the scope of conduct of litigation itself".

He said: "As we argued in Court, authorised persons have always been able to delegate tasks to those they work alongside, including CILEX members, paralegals and other members of the legal profession including trainee and foreign lawyers.  As the court has now confirmed, the 2007 Act was not intended to change that.

"There will be many individuals and businesses, including those operating in the not-for-profit sector, who will be relieved by this outcome. It will also be a relief for many members of my profession, be they solicitors or their firms, who have had to grapple with the uncertainty and disruption which was caused by last year’s judgment."

Adam Carey