Birss: 2007 Act did not intend to change position
The Court of Appeal has overturned the decision in Mazur, holding that an unauthorised person can conduct litigation so long as they are under the supervision of an authorised lawyer.
An unauthorised person “is not limited merely to assisting or supporting an authorised individual, and the distinction drawn in the court below by the Law Society and SRA [Solicitors Regulation Authority], and adopted by the judge, between (a) supporting (or assisting) and (b) conducting litigation under supervision was not correct,” said Sir Colin Birss, Chancellor of the High Court, in giving the unanimous ruling.
This was so long as the authorised individual had in place “appropriate arrangements for the supervision of and delegation to the unauthorised person”.
The ruling supported the central argument made by CILEX that, as Sir Colin put it, before the Legal Services Act 2007, “there was a widespread, general and well-regulated practice of delegation by solicitors to unqualified individuals” and that the Act did not intend to alter the position.
“This practice of delegation did not absolve solicitors of their professional responsibilities for the performance of the person undertaking delegated duties,” he said. “Nor did it undermine either the solicitors’ duties to their clients or their duties to the court.”
In passing the Act, “Parliament must be taken to have understood that individual solicitors had, and were regulated in respect of, a widespread practice of delegating litigation work to unqualified individuals”, he explained.
“The regulatory regime applicable to solicitors addressed the process of delegation in detail. It included provisions for proper delegation and supervision. When delegation took place, the solicitor delegator retained professional responsibility for the delegated tasks.”
When it came to the phrase ‘carrying on the conduct of litigation’, the judge said that ‘conduct of litigation’ referred to the tasks to be undertaken, whilst ‘carry on’ referred to “direction and control of, and responsibility for, those tasks”.
As a result, the court rejected the Law Society’s submission that, where an authorised individual and an unauthorised person were working on an activity falling within the scope of the conduct of litigation, the authorised individual must take responsibility for it by directing and controlling the performance of the activity.
“An unauthorised person can lawfully perform any tasks, which are within the scope of the conduct of litigation, for and on behalf of an authorised individual such as a solicitor or appropriately authorised CILEX member,” said Sir Colin.
“The authorised individual retains responsibility for the tasks delegated to the unauthorised person. The authorised individual is, therefore, the person carrying on the conduct of litigation. The unauthorised person is not carrying on the conduct of litigation and does not commit an offence.
“The delegation of tasks by the authorised individual to the unauthorised person requires proper management supervision and control, the details of which are a matter for the regulators.”
In some circumstances the degree of appropriate control and supervision “will be high”, with approval required before things are done.
But in “other, for example routine, circumstances”, a lower level of control and supervision would be required.
“In such cases, it may be sufficient for the authorised individual to conduct regular meetings with the unauthorised person and to sample their work. The degree of prior approval contended for by the Law Society and SRA is not required by the 2007 Act.
“In short, provided the authorised individual puts in place appropriate arrangements for supervision of and delegation to unauthorised persons, those persons may perform tasks that amount to the conduct of litigation for and on behalf of the authorised individual.”
Sir Colin concluded that despite “the obvious desirability of clarity”, it was “simply not possible” to provide a comprehensive list of all those tasks that fell within and outside the conduct of litigation.
But he listed seven that there “unlikely” to fall within the statutory definition of conduct of litigation: pre-litigation work, giving legal advice in connection with court proceedings, conducting correspondence with the opposing party on behalf of clients, gathering evidence, instructing and liaising with experts and counsel, signing a statement of truth in respect of a statement of case, and signing any other document that the CPR permits to be signed by a legal representative.
The court was also required to consider the working model of law centres – as the Law Centres Network was one of the intervenors – but this was not necessary given the main finding.
Sir Colin noted: “This court has heard much fuller argument than either of the courts below. I would allow the appeal, but I do not find the result that [Mr Justice Sheldon] reached surprising. The judge asked for assistance, but he did not receive as much help as could have been expected.”
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