Law Society issues practice note on Mazur and the conduct of litigation

Chancery Lane added that the practice note “also helps you to understand what activities non-authorised team members can carry out to provide support to authorised individuals, in their own right and/or under supervision”.

The practice note, which was issued last week and can be viewed here, covers:

• Introduction
• What is litigation?
• Who is authorised to conduct litigation?
• What does and does not fall within the reserved activity of the conduct of litigation?
• What can be done by a non-authorised person?
• Consequences of breach
• More information

The foreword to the practice note reads as follows:

For the purposes of the Legal Services Act 2007 (LSA 2007), the conduct of litigation is a ‘reserved legal activity’.

This means that a person must be authorised by the Solicitors Regulation Authority (SRA) (or other approved legal regulator) to conduct litigation.

A person who is not authorised cannot carry on the conduct of litigation; notwithstanding that they are an employee or manager of an authorised firm and/or working under the supervision of an authorised person.

The definition of the conduct of litigation is narrow and limited to formal steps in proceedings. For example, the issuing, filing and serving of applications and statements of case.

Much of the work involved in litigation can nonetheless be carried out by non-authorised staff – either as it does not amount to the reserved activity of the conduct of litigation or as it falls within their role assisting an authorised person.

This will include activities that take place prior to proceedings being initiated. It will also generally include matters such as:

• the giving of general legal advice
• drafting pleadings, particulars of claim, applications and correspondence
• proofing witnesses, and drafting witness statements

When considering who is responsible for the conduct of litigation, this will be a question of fact and degree in each case.

A finding that a person has carried out the conduct of litigation can therefore arise from a single action (such as issuing a claim form) or a series of actions taken together and in light of their actual role.

Solicitors and firms will wish to make sure their processes and records demonstrate that appropriately authorised persons are exercising their professional responsibility for the key formal steps and strategic decisions in connection with proceedings initiated before the courts.

‘Tick-box’ oversight from an authorised person will not be sufficient.

The Law Society stressed that practice notes represent its view of good practice in a particular area. “They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them but doing so will make it easier to account to oversight bodies for your actions.

“Practice notes are not legal advice, and do not necessarily provide a defence to complaints of misconduct or poor service. While we have taken care to ensure that they are accurate, up to date and useful, we will not accept any legal liability in relation to them.”

Last week the Chartered Institute of Legal Executives (CILEX) announced that it had applied for permission to appeal the High Court's Mazur judgment, saying it held "serious concerns" about the impact on law firms, lawyers and the public of Mr Justice Sheldon's decision.