MAZUR MATTERS 8: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION” (1): HOW HELPFUL ARE THE REGULATORS?

This is the start of a new sub-series concentrating on one issue. We will be looking at what has become one of the key matters of concern for many litigators – what is meant by the “conduct of litigation”.   There is much comment and commentary on this. My plan is to to the source material first and foremost and then, if necessary, make observations on some of the commentary on Mazur, not all of which is necessarily helpful.  First, however, we look at the lack of clarity and guidance given by professional bodies.   This may well not be their fault.  As we shall see in this series were are attempting to pin down a difficult issue.  The plan  in this series is to look at the relevant caselaw and guidance in detail.  This is – without doubt- the safest method of looking at what is meant.

(This is described as a “grey area” – but get it wrong and you could fall off a precipice [be in contempt of court or sentenced up to two years in prison)

“The Law Society submitted that whether or not a person supporting or assisting a solicitor to conduct litigation is conducting litigation themselves is a question of fact and degree.”

“Given that the interpretation of ‘ancillary functions’ in the case law is somewhat of a grey area, the boundaries of what does and does not fall within ‘conducting litigation’ are somewhat unclear“

KEY PRACTICE POINT

Remember this is the start of a series.  I would urge practitioners to be wary of some of the things that are being written.  Sticking to the statutes, the case law and professional guidance is the safest (if not the only safe) method.  Those who purport to have “all the answers” to this issue are very much part of the problem.

THE STATUTE : SCHEDULE 2 OF THE LEGAL SERVICES ACT 2007: s.4(1)

The “conduct of litigation” means—

(a)the issuing of proceedings before any court in England and Wales,

(b)the commencement, prosecution and defence of such proceedings, and

(c)the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

THE LAW SOCIETY: “A QUESTION OF FACT AND DEGREE”…

The Law Society’s submissions are set out in the Mazur case.

26. The Law Society’s analysis of the legal framework was as follows. There are certain activities among the services that have traditionally been supplied by solicitors that may only be carried on by persons who have been authorised to do so, or who are exempt under the LSA. “Reserved legal activities” (as referred to at section 12(1) of the LSA) can only be carried out by those authorised to do so, this includes “the conduct of litigation”. This is defined in paragraph 4 of Schedule 2 to the LSA as:

“(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)”.

27. Reference was made to R v AUH [2023] EWCA Crim 6 where Lord Burnett of Maldon CJ observed at [75] that:

“given the potential penal consequences of conducting litigation when not authorised to do so, it has been interpreted narrowly and does not extend beyond formal steps in the litigation. It does not extend to “purely clerical or mechanical activities” and is intended to encompass “formal steps required in the conduct of litigation””.

28. The Law Society also referred to the fact that the LSA introduced the words “the commencement, prosecution and defence of such proceedings” which had not been included in the previous legislation.

29. The Law Society submitted that whether or not a person supporting or assisting a solicitor to conduct litigation is conducting litigation themselves is a question of fact and degree. Indicators may include the way that important decisions in the case are taken; who drafts or specifically approves formal documents; the degree of direction from the authorised person; evidence as to who is taking specific responsibility for formal steps or, in general terms, who is conducting the case. It is expected that those providing support will be properly directed and supervised. Tasks may be delegated but conduct of the litigation may not. General supervision by an authorised person does not mean that an unqualified individual is, or is not, conducting litigation. The Law Society contended that the service of process, preparing bundles and searches are “mechanical functions”, and have never been regarded as ancillary steps amounting to the conduct of litigation.

THE SRA: WHO HAS ASSUMED RESPONSIBILITY AND EXERCISES PROFESSIONAL JUDGMENT?

Again following the submissions in Mazur.

“The SRA stated that the key question to ask was whether the person has assumed responsibility for the conduct of the litigation and exercises professional judgment in respect of it. The SRA submitted that a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses, or similar functions does not conduct litigation because it is the solicitor who exercises the final professional judgement about how the litigation is to be conducted and takes responsibility for that judgement. That would be different, however, if on a true analysis and focusing on substance not form the non-authorised person was the one responsible for the litigation and exercising professional judgment in respect of it.”

THE BAR STANDARDS BOARD

The Guidance on “conducting litigation” states

“5. The BSB’s view is that the following fall within the definition of the conduct of
litigation, and therefore a barrister should refuse to do them if they are not
authorised to conduct litigation:

• issuing proceedings or applications or otherwise delivering such documents to
the court for issue (beginning court proceedings by filing details of the claim,
such as the Claim Form and Particulars of Claim, at court, or making an
application for a court order);
• filing an acknowledgement of proceedings;
• giving their address as the address for service of documents;
• filing documents at court or serving documents on another party;
• issuing notices of appeal (informing the court and the other side that the
unsuccessful party seeks a review of the case);
• signing off on a list of disclosure (so that all parties know of all documents which
have a bearing on the case);

laying of an information in a Magistrates’ court;
and
• service of an indictment on an officer of a Crown Court.

6. This list is not exhaustive. Given that the interpretation of ‘ancillary functions’ in the
case law is somewhat of a grey area, the boundaries of what does and does not fall
within ‘conducting litigation’ are somewhat unclear. Barristers should therefore
carefully consider this guidance and relevant authorities before determining whether
an activity constitutes the conduct of litigation. For example, the right to conduct
litigation can only be delegated to an agent who has been properly authorised
(Gregory v Turner [2003] EWCA Civ 183). Therefore litigants in person cannot
conduct their litigation through an agent other than an authorised legal
representative, such as a barrister authorised to conduct litigation.”

CILEX

The CILEX statement on Litigation Practice Rights. 

“The Court ruled that anyone who is not authorised to conduct litigation cannot do so under supervision. You can support and assist an authorised colleague, but you can’t carry out litigation yourself unless you hold practice rights.”