On Monday 13th April, The Law Society published its updated guidance on “Mazur and the conduct of litigation” following the Court of Appeal Judgment on 31st March.
The updated guidance clarifies that non-authorised people can carry out the conduct of litigation as long as it is carried out for and on behalf of an authorised individual under genuine supervision with the authorised individual retaining responsibility for the delegated tasks. The guidance refers to the importance of firms making sure their “arrangements for delegation and supervision of tasks are appropriate in the circumstances, in line with guidance from their regulator”. We are however, still awaiting updated guidance from the SRA.
Gone are the references to non-authorised persons not being able to carry out the conduct of litigation even under the supervision of an authorised person and to the (confusing) distinction drawn by the High Court between supporting an authorised person in the conduct of litigation and working under their supervision.
Whilst a lot has been added to the guidance or amended, substantial sections of the content remain intact. The main changes are to the following sections:
- The summary at the start
- 1.2 – What is the issue? (summary of the Court of Appeal’s conclusions)
- 4 – What does and does not fall within the reserved activity of the conduct of litigation? (added the Court of Appeal’s list – based on the Law Society’s list created for the High Court hearing – of work unlikely to fall within the definition of the conduct of litigation)
- 4.1 – Relation with exemptions and other reserved activities (specific reference to CPR 2.3)
- 5 – What can be done by a non-authorised person? (wholesale replacement of the previous version)
- 6 – Consequences of breach (added Andrew LJ’s helpful quote from the end of the Court of Appeal judgment which clarifies the importance of genuine delegation and supervision)
It is also worth noting that there is an added specific reference to firms making sure they have processes in place to assure the quality of any work generated by Artificial Intelligence (AI) and its compliance with regulatory provisions and obligations to the court, and the “How this might work” examples for civil, family and criminal cases, which appeared in the previous version of the guidance, have disappeared in their entirety, reflecting the Court of Appeal’s less complicated approach to who can do what.
As we have said previously, the most important takeaway from all of this, is to ensure your delegation and supervision policies and practice are up to scratch.