The Court of Appeal has now concluded a three-day hearing in Mazur v Law Society, a case that has attracted considerable attention across the profession. The appeal raises a deceptively simple but practically significant question: to what extent can authorised lawyers delegate work relating to reserved legal activities, particularly the conduct of litigation, to non-authorised staff?
Background
The appeal arises from a High Court decision which suggested that certain activities undertaken by non-authorised individuals within solicitors’ firms could amount to the unlawful conduct of litigation under the Legal Services Act 2007 (“LSA”). The decision has prompted concern across the profession because of the potential implications for common working practices within litigation teams.
I for one, am already feeling the practical impact of the decision. In two recent hearings in which I appeared — one a trial and the other an application hearing — the issue arose directly as a preliminary matter. In each case the court was required to consider whether the signing of a application form or defence by a non-authorised individual amounted to the conduct of litigation and whether that affected the validity of the proceedings. The decision of the Appellate Court, regardless of the which outcome, will be profound.
The Issues on Appeal
The Court of Appeal (Sir Geoffrey Vos MR, Birss LJ and Andrews LJ) heard submissions from a wide range of interveners and interested bodies including CILEX, APIL, the Law Centres Network, the Law Society, the Solicitors Regulation Authority and the Legal Services Board.
At the centre of the dispute is how the LSA should be interpreted in practice.
Those supporting the appeal argued that:
- The statutory framework permits delegation of tasks, provided an authorised lawyer retains responsibility and supervision.
- Long-standing professional practice has always involved trained but non-authorised staff assisting in litigation work.
- A restrictive interpretation risks substantial practical consequences, including satellite litigation over costs and disruption to existing litigation models.
Bodies opposing the appeal, including the Law Society and the SRA, emphasised the wording and structure of the LSA. Their position broadly contends that reserved legal activities require professional judgment and therefore cannot simply be delegated, even if assistance is permitted.
The court repeatedly tested both positions through practical examples, with the Master of the Rolls observing that the court must consider “the real world – how solicitors operate.”
Interveners also raised significant access to justice considerations. The Law Centres Network in particular warned that a restrictive interpretation of the LSA could materially limit the work that law centres and similar organisations are able to undertake, with consequences for vulnerable clients.
A Question of Definition
A notable aspect of the hearing was the suggestion that the central question may not simply be who can conduct litigation, but what amounts to the “conduct of litigation” for the purposes of the statute. That issue may prove pivotal to the court’s eventual reasoning.
Awaiting Judgment
The court has reserved judgment. Sir Geoffrey Vos indicated that the decision is expected to provide much-needed clarity for the profession.
Given the potentially wide-ranging consequences for litigation practice, the judgment is likely to be closely watched across the legal sector. I hope to provide a further insight on this post-judgment.
