If you are still grappling with the fall-out from the case of Mazur v Charles Russell Speechleys and what this means for litigators, the “conduct of litigation”, and reserved legal activities in general, the Law Society has updated and added to its resources to help firms navigate their way through the maze.
On 30th September it published some initial guidance: Mazur v Charles Russell Speechlys: what it means for litigators | The Law Society, briefly summarising the High Court decision, which considered whether a non-authorised person is entitled to conduct litigation under the supervision of an authorised person (spoiler alert: the answer is no!) and what this means for solicitors. This was updated on 13th November to include a section on what it means for conveyancers and reference to the Legal Services Board (LSB)’s review of how regulators have ensured (or otherwise) that information for their regulated communities on conducting litigation was accurate and reliable.
Following the initial guidance, The Law Society published a much more detailed Practice Note on 16th October: Mazur and the conduct of litigation | The Law Society, which was updated most recently on 10th November. It covers the implications of the conduct of litigation being a ‘reserved legal activity’ under the Legal Services Act 2007 (LSA), the conclusions of the Mazur judgment, what litigation is and which ‘courts’ the LSA applies to, who is authorised to conduct litigation, what actions fall within ‘conduct of litigation’ and what can be done by non-authorised staff, and the consequences of breaching the LSA (including the reminder that it is a criminal offence for a non-authorised person to conduct litigation). It reminds individuals and firms that they “will wish to make sure their processes and records demonstrate that appropriately authorised persons are exercising their professional responsibility for the key formal steps and strategic decisions in connection with proceedings initiated before the courts.”
The sections on “what does and does not fall within the reserved activity of the conduct of litigation?” and “what can be done by a non-authorised person?” are probably the most helpful sections, referring to previous case law with example activities (as well as the example civil, family and criminal cases). The latest version of the Practice Note also includes a discussion about the possible distinction between contentious and non-contentious court proceedings as per previous case law (sadly there is no such distinction in the LSA itself).
Other recent additions to the latest version of the Practice Note are:
- A list of specific procedure rules which apply to certain tribunal proceedings, which might provide the right for a non-authorised person to conduct litigation outside of the ambit of the LSA;
- Elaboration on the point that both the firm and the individual carrying on the activity must be authorised (save in certain circumstances), specifically raising the fact that the issue of the use of Artificial Intelligence (AI) to make key decisions in a litigated case remains unresolved and it is unknown how a court might decide the issue if called upon to do so. (They have called on the SRA to provide clear guidance on this). For now, if AI plays any part in your litigated cases, we recommend that you carefully document that any such decisions are overseen by a (authorised) human being and that the ‘directing mind’ was the human, not the AI tool.
- Further thoughts on steps to take if you are involved in a case where an unauthorised person may have conducted litigation, with the warning that you should be careful not to stray into improper use of satellite litigation to attempt to influence another party’s behaviour or the progress of the litigation.
Finally, the “Practical steps firms can take” section and the further linked resources are definitely worth a look, including the helpful Q&A: Mazur: answering your questions | The Law Society.