Mazur Revisited: A Reminder on the Boundaries of Litigation Work

Now that the dust is beginning to settle on the Mazur judgment of 16 September, it is perhaps time to recap what this judgment reminds us of when it comes to the conducting of litigious legal work.
 
Just cutting things back to the basics briefly, the case confirms that the Legal Services Act 2007 makes no provision for unauthorised people to carry out litigation under supervision. Those who are not themselves authorised to conduct litigation (there are of course several ways other than by being on the Roll of Solicitors whereby someone can be authorised to conduct various forms of litigation) can only support authorised individuals to conduct litigation, rather than conduct litigation themselves under the supervision of an authorised individual.
 
Nothing has changed there, the above has been the position for a long time. Litigation can only be conducted/carried out/run/executed/performed/achieved/fulfilled/completed/realised/finished – however you may want to put it – by an authorised person. A non-authorised person cannot conduct litigation under the supervision of an authorised person. A non-authorised person cannot conduct litigation themselves by virtue of being an employee of a regulated entity.
 
So, what does the reserved activity of conducting litigation amount to. It extends to:

• Issuing proceedings before any court in England and Wales (noting that not all Tribunals come within the definition of Court for this purpose, and that the Employment Tribunal Act 1996 permits parties to appoint representatives who are not authorised persons);
• The commencement, prosecution and defence of such proceedings; and
• The performance of any ancillary functions in relation to such proceedings.

Conducting litigation does not include purely clerical or mechanical activities – it only encompasses the formal steps required in the conduct of litigation. Ancillary tasks are described as subordinate, secondary, supplemental or additional tasks in the overall litigation. But they still need to be formal steps to qualify as ancillary tasks. Examples of clerical/mechanical activities would typically include photocopying documents, preparing bundles etc. whereas an ancillary task might be filing pleadings or other documents with the Court.
 
On the one hand, this is arguably simple – litigation can only be run (sometimes its better to use simple words!) by an authorised person. Perhaps we all know instinctively what that really means and shouldn’t overthink it. It’s tempting to stop there, but we can’t as the outcome risks of regulatory errors is too great. Are particular pieces of work on a litigation file ancillary or not – is that non-authorised person working on that litigation file acting in an ancillary way or not? Are they running the file or not? Let’s now consider that point on the basis that we all agree that the overall holder of the file must be authorised – i.e. there is an authorised person in the building.
 
The answer is that it is a question of fact and degree. Here, however, are some suggested indicators to bear in mind/questions to ask (it is of course a given that those providing support who are unauthorised are being properly directed and supervised by someone who is authorised):

• How are important decisions in the case taken?
• Who is drafting, or perhaps better still, approving formal documents?
• What is the degree of direction that is being provided by the authorised person with overall responsibility for the file?
• Who is taking responsibility for the formal steps?
• Who is really conducting the case? Does final responsibility for the conduct of the litigation rest with an authorised person?

Another good way of looking at this is to consider the similarity of the non-authorised person’s role to that if an authorised person. The more similar it is, the more likely they (the unauthorised individuals) are conducting litigation.
 
The best way to begin to conclude this discussion is by reminding ourselves that form cannot be prioritised over substance when working out where the line is in a particular case. A non-authorised person who completes tasks such as witness proofing or instructing counsel (for example) is not conducting litigation assuming they are not the overall directing mind in the case. If they are basically doing all that unincumbered by any interference from an authorised person, then they are.
 
The Mazur case has no real effect on the previous status quo and long-established practice of solicitors running cases with support from non-admitted employees. Files must still be run with the input of judgement from authorised persons. The rules places some perhaps, to most, acceptable restraint on what unauthorised individuals can do in servicing a litigation file (remember of course that you do not have to be on the Roll to conduct litigation – there are other routes). Does that limit access to justice or ensure that in litigation there is a gatekeeper present to ensure good quality representation – perhaps many would argue the latter position?
 
The judgment has implications for the following:

• Firms whose model involves non-authorised persons undertaking substantial roles and clear involvement in ancillary tasks that are not administrative or mechanical, it may be important to obtain some expert advice as to regulatory compliance. Ultimately, remind everyone that their legal career pathway is not negatively affected by this judgment. If you do not have one, create a process map and keep records of the role and contribution of the authorised directing minds in each case, with particular emphasis on what appear to be the highest risk areas from the perspective of regulatory compliance. Where those potential risk flashpoints are obvious, train the whole team on this issue – ultimately that will protect your business from any fall-out from last week’s ruling;

• In-house Counsel, where they conduct litigation internally and have similar models to those above;

• Firms may also wish to ensure that those they instruct have arrangements in place which comply with the regulatory arrangements. In the instant case, Charles Russell Speechlys instructed Goldsmith Bowers Solicitors in respect of a claim for unpaid invoices, and firms who engage Solicitors for similar purposes may wish to make enquiries of the firm’s working arrangements.

If you have any questions or would like to discuss the case in further detail, please contact Partner and Regulatory specialist, Nick Leale.

We can advise on the implications of the Mazur case, including:

1. Audits – Advising firms on whether their litigation departments are being run in a way which is compatible with the Court’s decision, and practical steps that firms can take to document their compliance.
2. Advice on self-reporting – advising firms on the potential requirement to self-report to the SRA if they are of the view that their arrangements are not compatible.
3. Training – training for firms on the implications of the Court’s decision and key takeaways for law firms.