A recent High Court decision in Mazur & Stewart v Charles Russell Speechlys LLP has far reaching consequences for the legal sector, including private and in-house practices.
The High Court, on Appeal from the County Court, considered the issue of non-authorised employees, such as paralegals, conducting litigation under solicitor supervision, was lawful or not. In a far-reaching Judgment, they concluded that they cannot.
The case arose from Goldsmith Bowers (GB), an SRA regulated practice, representing Charles Russell Speechlys LLP in litigation against the appellants. GB issued a Claim Form and Particulars of Claim signed by their Head of Commercial Litigation, who did not hold a practicing certificate.
This was challenged and, following a stay of proceedings, GB accepted the individual was not entitled to conduct reserved activity but averred he had done so under the supervision of an ‘authorised person’.
They relied upon a letter from the SRA stating GB ‘employees are permitted to undertake reserved activities and the individual in question had ‘not conducted reserved legal activity without entitlement to do so’.
However, clarifying matters on Appeal, the SRA and the Law Society, both of whom had been added as intervening parties, confirmed that the statutory term ‘conduct of litigation’ had a narrow definition and any non-authorised persons are not permitted to undertake reserved legal activities, including conducting litigation, even under supervision. A position Mr Justice Sheldon agreed with when making his findings and one which must now be considered by any organisation conducting litigation.
What does ‘conduct of litigation’ mean?
Somewhat unhelpfully, there is no specific definition of ‘conducting litigation’ beyond the Legal Services Act 2007 which states:
The conduct of litigation means:
a. the issuing of proceedings before any court in England and Wales;
b. the commencement, prosecution and defence of such proceedings; and
c. the performance of any ancillary functions in relation to such proceedings
The question is therefore fact and case specific and whilst the Judgment is clear that non-authorised persons can ‘support’, they cannot ‘conduct’ litigation.
Providers of litigious services, including in-house lawyers, will now have to ensure their practices are aligned in a manner which ensures that non-authorised persons do not conduct litigation. The key question to be asked is whether a person has ‘assumed responsibility for the conduct of litigation’ and ‘exercises professional judgement’.
It remains to be seen whether practices can evolve to ensure they stay on the right side of this ruling. With possible criminal and costs sanctions for parties who flaunt this Judgment, inadvertently or otherwise, it should not be taken lightly. We anticipate a flurry of satellite litigation to emerge. Our team of Litigation and Governance experts are well placed to advise and assist with any compliance review which will inevitably be required as a result of this Judgment.