Mazur: Law Society publishes new guidance for profession

News

Following the High Court’s judgment in Mazur v Charles Russell Speechlys, the Law Society of England and Wales has today (17 October) published a new practice note for solicitors practising litigation.

Mazur considered whether a non-authorised person is entitled to conduct litigation* under the supervision of an authorised person.

The Mazur judgment held that:

• non-authorised persons cannot carry on the reserved legal activity of the conduct of litigation simply by virtue of being an employee of an authorised firm. Both the firm and the individual carrying on the activity must be authorised
• a non-authorised person cannot carry out the conduct of litigation under the supervision of an authorised person
• a non-authorised person can, however, provide extensive support to an authorised person who is undertaking the conduct of litigation

The guidance provides a breakdown of the pertinent questions raised from the judgment, including who is authorised to conduct litigation and what work can be conducted by a non-authorised person.

Law Society president Mark Evans said: “We are aware that Mazur created uncertainty across the legal profession and – while the judgment does not change the statutory requirements relating to authorisation to conduct litigation as a reserved legal activity – we hope this practice note will provide greater clarity to our members. However, there remain grey areas where further guidance from regulators and others is required.

“Those authorised to conduct litigation include solicitors on the roll that hold a practising certificate. They also include costs lawyers, chartered legal executives, barristers and patent/trademark attorneys, if they have litigation rights.”

Commenting on the work that can be conducted by non-authorised persons, Mark Evans said: “Non-authorised staff can undertake work prior to the issuing of proceedings, as it doesn’t amount to the reserved activity of the conduct of litigation, and can provide extensive assistance to an authorised person.

“They can help draft pleadings, particulars of claim, applications, correspondence, witness statements and can sign a statement of truth.

“Tasks can be delegated so long as there is an authorised person responsible for each matter, the work is actively supervised in line with wider regulatory obligations, and the key decisions and formal steps in the proceedings are escalated to the authorised person, who exercises their professional judgement in relation to them.”

Mark Evans concluded: “Acting without authorisation is a breach of a solicitor’s regulatory obligations and may result in disciplinary action. Firms and practitioners should review their processes to ensure they are compliant with the Legal Services Act 2007 and the Solicitors Regulation Authority’s guidance.

“The Law Society has been made aware that some firms are seeking to make applications to the court based on an allegation that the other side has acted in breach of the Legal Services Act.

“Previous case law has made clear that generally the penalty for any breach should be through disciplinary proceedings and should not have any impact on the case before the court.”

Notes to editors

*The ‘conduct of litigation’ is one of the six activities reserved under the Legal Services Act (LSA) 2007 to persons who are either authorised by an approved legal regulator, or exempt, under the LSA 2007.

Read the Mazur v Charles Russell Speechlys ruling in full.

Read the Law Society’s practice note: Mazur and the conduct of litigation.

Read the Legal Services Board’s statement on undertaking a regulatory review.