Andrew Hopper speaking at the Legal Futures Regulation and Compliance Conference in 2015
Lawyers have been questioning whether the High Court was right in its contentious ruling in Mazur on the conduct of litigation, with the Civil Procedure Rules (CPR) key in the debate.
The issue was also addressed by arguably the leading authority on the regulation of lawyers, Andrew Hopper QC, before his death in 2018. He said unauthorised people could conduct litigation.
We have been reporting extensively [1] over the last week about the fall-out from Mr Justice Sheldon’s decision that non-authorised employees of law firms can support a solicitor or other authorised person in conducting litigation – but cannot conduct litigation under their supervision.
Jackson Yamba, a registered foreign lawyer at Halifax firm SAZ Solicitors, argued on LinkedIn that the High Court had wrongly interpreted the definition of ‘exempt persons’ in the Legal Services Act 2007.
He reasoned: “Schedule 3, para 2 makes it clear: an exempt person is someone who, though not authorised, has been granted permission ‘by or under an enactment’ to carry on a reserved legal activity.
“The Civil Procedure Act 1997 and the CPR are such enactments. Importantly, CPR 2.3 defines a legal representative broadly – including not just solicitors and barristers, but also [solicitors’] employees.
“That means employees conducting litigation under the CPR are recognised as legal representatives and therefore fall within the statutory definition of exempt persons.
“Mazur’s argument misses this crucial point: the interaction between the LSA 2007 and the CPR clearly gives employees standing to act. Ignoring this framework leads to a legally unsustainable conclusion.”
Responding to a comment that CPR 2.3 defined a key term used in the CPR rather than extended litigation rights, Mr Yamba said: “The significance lies in how that definition is then used within the CPR and practice directions.
“For example: PD22 §3.6 allows a legal representative to sign a statement of truth. Because CPR 2.3 expressly includes a solicitor’s employee within that definition, the rule extends that discrete procedural right to them.”
Similarly, Ben Dougal, head of legal practice at specialist debt recovery firm TM Legal, pointed to the guidance the courts have given for online portals such as Money Claim Online (MCOL).
“As per CPR r. 2.3(1) a ‘legal representative’ includes ‘solicitor’s employees’, and many, although not all, of the court forms typically used in litigation expressly state that they can be signed by a legal representative as defined in CPR 2.3(1).
“MCOL’s own guidance confirms ‘legal representatives’ can issue claims via their portal. If Mazur is to be read as some would have us believe, there is significant upheaval needed to the whole court process, and not merely the workflows and procedures adopted by individual businesses.
Rather, Mr Dougal said, much of the “fretting” over the judgment was unjustified – the “inconvenient truth” was that it should be business as usual.
Meanwhile, a blog on the issue [2] written in 2013 by Mr Hopper for compliance consultancy Jonathon Bray identified a vital change introduced by section 207 of the Legal Services Act 2007, namely that a “person” authorised to carry out reserved legal activities “includes a body of persons (corporate or unincorporated”.
This meant it was law firms that have the right to conduct litigation. “I do not read the 2007 Act to require that an authorised entity must, in relation to the conduct of litigation, ensure that all steps which it is authorised to take as an entity be carried out by individuals who are also authorised, as individuals,” he said.
He linked section 207 to CPR 2.3, under which a ‘legal representative’ includes a “person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of the Act) who has been instructed to act for a party in relation to proceedings”.
Mr Hopper acknowledged the “anomaly” that, while schedule 3 of the Act allowed non-authorised people to conduct the reserved activities of conveyancing and probate under the supervision of an authorised person, there was no similar exemption for the conduct of litigation.
“However, the revised definition in the CPR of a ‘legal representative’ appears to be a complete answer,” he wrote.
“In so far as there is an apparent inconsistency, it seems to me that in practice the Act states that when conveyancing and probate activities are undertaken there has to be an individual exercising a supervisory role who is authorised as an individual in relation to those activities, although there is no statutory limit on the mechanism for supervision, so that there is nothing to prevent, for example, a solicitor or barrister sitting at the top of a department within an [alternative business structure], with all regulated activities being delegated to non-qualified staff and monitored through sensible methods of supervision.
“In relation to the conduct of litigation it is sufficient that the entity is authorised, and that the delivery of reserved legal services amounting to the conduct of litigation is regulated by rules of court and the authorisation and licensing system operated by the approved regulators.
“So in my opinion paralegals are not prevented by the lack of express provision for delegation in schedule 3 to the Legal Services Act 2007 from taking any steps in the course of ordinary litigation practice which they may be instructed to carry out by an employer which is, as an entity, authorised to conduct litigation.”
In a statement [3] yesterday, the Law Society said it was seeking “urgent engagement with the Solicitors Regulation Authority to understand how it intends to respond” to Mazur.