Following on the from the continued fallout from the landmark Mazur decision, which has raised the spectre of unqualified staff being unable to conduct litigation work, even under supervision, the Law Society has moved to publish a new practice note for litigation solicitors.
Mazur considered whether a non-authorised person is entitled to conduct litigation under the supervision of an authorised person. The judgements found
- 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 practice note confirms
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
- drafting statements, and
- signing a statement of truth
The Law Society said it has become aware of firms seeking to make applications to the Court based on an allegation that the other side breached the Legal Services Act in their case handling. But President Mark Evans reiterated ‘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.’
He added
“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.”
“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.”
He concluded firms should review the processes to ensure they are compliant with the LSA 2007 and Solicitors Regulation Authority’s guidance. Failure to do so could result in disciplinary action.
