Mazur: answering your questions

What is the impact of Mazur on qualifying work experience (QWE) during litigation 'seats'? My understanding is that aspiring solicitors can only support solicitors, so cannot use this time as QWE.

The Mazur judgment states that, while each situation will be considered on its own facts an unauthorised person is likely to be able to undertake a significant range of activities on a case, including:

• handle a case file
• undertake any steps prior to the issuing of proceedings
• draft pleadings and statements
• correspond with the client and the other side
• gather evidence, and
• play a significant role in handling the matter,

so long as an authorised person has overall responsibility and makes the key decisions on each case, such as:

• issuing proceedings
• issuing applications, and
• prosecuting or defending the litigation

There is no reason why the trainee should not be asked what they would do in those latter situations, for discussion with the solicitor, so long as the solicitor makes the final decision.

There is no reason why this would not provide experience that would enable an individual to develop the relevant competencies and therefore count as QWE.

How far does this judgment stretch to trainee lawyers, paralegals across other areas of law, not just litigation? 

The judgment relates to the conduct of litigation only.

The Legal Services Act 2007 (LSA 2007) includes provisions in relation to some other reserved activities, including “reserved instrument activities”, permitting an unauthorised person employed by a regulated body to undertake the reserved activity under the supervision of an authorised individual.

This provision does not exist for the reserved activity of conducting litigation.

How many ‘assistants’ can a solicitor have for litigation cases and how many qualified people can a solicitor supervise? 

When considering how many individuals one solicitor can oversee, solicitors will want to consider the Solicitors Regulation Authority’s (SRA) guidance on supervision.

The important consideration is whether supervision is effective.

Supervision is required whether an individual is an unauthorised member of staff assisting an authorised person in the conduct of litigation or an authorised person conducting litigation in their own right.

A more highly qualified and experienced member of staff is likely to require less supervision than a more junior and less qualified person.

Should supervision focus on a firm's legal process as a whole, rather than requiring supervision on a case-by-case basis, especially if not contentious or defended?

It is important to distinguish between two different concepts.

Only an authorised person may conduct litigation. The authorised person must undertake the key litigation steps in every individual case, although they can be assisted in doing so.

As the Mazur judgment makes clear, a lot of work on an individual case will not comprise the conduct of litigation and can be delegated to an unauthorised person, so long as the matter is escalated to the authorised person at the relevant stages.

The authorised person does not need to oversee each and every step delegated to the unauthorised person on every case.

Instead, the unauthorised person’s work in the round needs to be supervised in accordance with the SRA’s guidance on supervision.

Can an authorised person take into account the view of the (highly experienced) non-authorised person when exercising their professional judgement in terms of conducting litigation?

The authorised person must exercise their own professional judgment, and not merely automatically follow a recommendation or decision made by someone else.

What information and advice they rely on in reaching that judgment is a matter for them.

Should pre-issue Part 36 offers be signed by a solicitor?

Work undertaken prior to the issue of proceedings is not the conduct of litigation.

It will be a matter for the individual firm what level of oversight of Part 36 offers prior to proceedings being issued is required.

How do we see Mazur working with bulk litigation?

The volume of cases conducted is a matter for an individual firm.

The legal requirement remains that only an authorised individual may conduct litigation.

This means an authorised individual must make the key decisions, such as to issue proceedings, on each case.

Is a registered provider an exempt person by virtue of being a party to proceedings? If so, can it authorise its employees (and managers) to conduct litigation on its behalf?

An individual or organisation is entitled to engage in litigation as a party, and the exemptions in the LSA 2007 recognise this.

An organisation will of course carry on any activities through its people.

However, the Court of Appeal judgment in Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865 makes it clear that a person cannot undertake a reserved activity simply by reason of being an “agent of a litigant in person”.

It would appear that a distinction would need to be made between a person exercising the judgment of the organisation itself and a person (whether internal or external) who is effectively acting on the organisation’s instructions as its agent.

Tribunal work is regarded under the Solicitors Act 1974 as non-contentious business and has been treated differently for costs purposes. Does this mean all tribunal work is to be treated differently to court work?

While there may have been a connected rationale for the position in the Solicitors Act 1974, the case law suggests that application of the statutory test would relate to whether the case is as a matter of fact contested.

The rules relating to the conduct of proceedings before the tribunals are governed by each tribunal’s own rules.

Can paralegals appear or make written representations in the General Medical Council, General Dental Council and similar bodies?

Yes. These bodies are not within the definition of courts in the LSA 2007.

How does this affect Citizens Advice, as it is not governed by SRA and regulated?

Citizens Advice does not itself need to be authorised to carry on a reserved activity, as it is entitled to do so under the provisions relating to non-commercial bodies in section 23 of the LSA 2007.

Most work conducted by Citizens Advice does not involve the conduct of proceedings.

Where proceedings are underway, an unauthorised person may provide advice or assistance to a litigant in person in relation to proceedings, so long as it is clear the client remains the person conducting the litigation.

In the usual way, however, any individuals working within Citizens Advice and taking responsibility for the conduct of the litigation will need to be authorised to do so.

Will there be clear guidance on the areas of law and any appropriate exemptions to ensure we are all working in line with the LSA?

We are putting out as much guidance as we can.

Practitioners operating in niche areas and before less mainstream bodies may need to check the specific rules for the relevant jurisdictions and bodies for any exemptions that may apply.

In personal injury cases dealt with on portals, cases are essentially pre-issue but can proceed to stage 3 hearing and/or quantum/liability hearings. This involves issuing Part 8 proceedings within the portal systems. How does Mazur impact this?

As the move to stage 3 involves the issuing of Part 8 proceedings, this would almost certainly be regarded as issuing proceedings.

The decision to do so would therefore amount to the conduct of litigation.

An unauthorised person can deal with the mechanics of this within the portal, so long as the authorised person has made the decision to issue proceedings.

Can retrospective action be made about action done before the judgment? If yes, would that be against the firm or the fee earner personally? 

The judgment states what the law is and always was: it does not change the law.

Regulatory or criminal action under the LSA 2007 could be taken against either the firm or the individual.

It will be a matter for the SRA whether any such action is taken in any individual case, in accordance with their established approach to enforcement action.

Firms and individuals will want to note the statutory defences in the LSA 2007.

CILEx Regulation has said its members do not need to self-report. Can the Law Society give solicitors the same guidance?

This is a matter for the SRA. We have requested that it issues such guidance.

Unless and until it does, solicitors will wish to consider the SRA’s:

• guidance on reporting and notification obligations
• guidance on solicitors reporting themselves
• enforcement strategy

What should we do if we suspect a non-authorised person is conducting litigation on the other side of a matter?

This will depend on the individual circumstances. Solicitors will need to consider their obligations as officers of the court, and their duty to report serious matters to the SRA.

In some cases, raising the matter with the other party’s representative to clarify the position and correct any errors may be sufficient.

In others, the solicitor may want to report the matter to the court or to the SRA.

Solicitors should not under any circumstances use their suspicion that the other party may have an unauthorised person conducting litigation to try to gain a tactical advantage in the litigation.