Law Society issues practice note on conduct of litigation following Mazur appeal

The Court of Appeal's decision last month found that unauthorised staff may conduct litigation under proper supervision.

Handing down their decision, Sir Geoffrey Vos, Master of the Rolls, Sir Colin Birss, Chancellor of the High Court, and Lady Justice Andrews said: “[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 judgment reversed the High Court's previous finding, which said that an employee of an authorised firm cannot conduct litigation simply by virtue of their employment, even if supervised by an authorised person.

Chancery Lane's new guidance provides advice on how solicitors, law firms and legal businesses can make sure that only those authorised to do so carry on the conduct of litigation.

It includes information on what litigation is, who is authorised to conduct litigation, what and does and does not fall within the reserved activity of the conduct of litigation.

It also details what can be done by a non-authorised person, and the consequences of a breach.

Law Society vice president, Brett Dixon, said the 'practice note' sets out "our understanding of how the judgment should be interpreted, pending further guidance from the Solicitors Regulation Authority (SRA), which we are working with them to develop".

He said that the judgment establishes a "less restrictive framework" in relation to the conduct of litigation than the High Court judgment, "but it does not remove all limitations on what an unauthorised person employed by a regulated entity may do".

Dixon added: “The Court of Appeal judgment did not alter the position that only authorised persons are entitled to carry on the conduct of litigation. However, it confirmed that an authorised person can delegate tasks within the litigation to an unauthorised person, as long as the authorised person maintains responsibility for those tasks.

“Responsibility in this context means both formal responsibility for the task itself and responsibility to adhere to the professional principles."

He advised Law Society members to make sure that they are familiar with the SRA’s guidance on supervision, conducting litigation, and its enforcement strategy.

The Law Society is also scheduled to host a webinar on Tuesday (14 April) to explain what the judgment means for firms, and to take questions from members.

CILEx Regulation is also set to publish guidance following the Court of Appeal's decision. Last month, the independent regulatory body of the Chartered Institute of Legal Executives said it planned to "with regulators and stakeholders to update guidance to reflect the full implications of the appeal judgment in due course".

Adam Carey