Heard the name “Mazur” yet? It’s caused nothing short of pandemonium in the private sector and has lawyers and scholars debating furiously at the impact upon the inhouse sector. I could be hamming this up at bit, but with all sincerity, it’s a ruling which has landed hard. Both the SRA and Law Society intervened and the implications for CILEx without litigation practice rights are, well, greatly restricted.
This is the case of
Julia Mazur & Ors v Charles Russell Speechlys LLP, where Mr Justice Sheldon held that supervision of a non-authorised person during the conduct of litigation is not permitted. A non-authorised (i.e. non-qualified person) may only
support the work of a qualified person in reserved matters. Support here is a matter of ‘fact and degree’, and the key question to ask is ‘who is exercising their professional judgement’?
How does all of this affect local government? Well, login to the
LLG Forum and join the debate on that one but as usual, local government cannot be swept up with the same brush because we are creatures of statute with our own constitutions and delegations and specific authorisations; not to mention a plethora of statutory provision outside that of the Legal Services Act. Here at LLG and beyond we are looking to provide more assistance to our sector to assist with the impact of this decision and steps to take moving forwards.
Some of the law currently in contemplation and contained within the forum include section 15 Legal Services Act 2007 (LSA 2007) which sets out whether an organisation needs to be authorised by the SRA or another approved (legal services) regulator in respect of undertaking reserved legal services (which are set out in section 12 and schedule 2 of the LSA 2007)
The SRA has previously acknowledged that there may well be situations where local authority legal teams fall within the definition of a not for profit body as set out in section 207 of the Legal Services Act 2007 (LSA 2007): Under the transitional provisions in section 23 LSA 2007 (which remain in force), a “not for profit body” is permitted to undertake reserved legal activities, without needing authorisation.
We also have s222 and s223 of the Local Government Act to consider (although specific provision for the magistrate’s court begs the question why that was specifically needed at the time). Question- “to what extent does s222 of the Local Government Act 1972 enable officers under delegated authority to sign court paperwork or other legal matters on the basis litigation is being conducted by the authority itself?” You should take a look at
R (City of York Council) v AUH & Others [2023] EWCA Crim 6 as to an officer
not being the ‘embodiment’ of the local authority. We also have a myriad of other provisions which are limited in scope, such as s60 of the County Courts Act 1984- but this does not confer actual rights.But let’s take a look at what the regulators have to say…………
The SRA confirmed that the judgment does not change the legal position under the Legal Services Act 2007. It states that “Only regulated individuals can conduct litigation as it’s a reserved legal activity” and that “being employed by a regulated firm does not confer litigation rights on unqualified staff”. Further that “people who are not themselves authorised to conduct litigation can only support authorised individuals… rather than conducting litigation themselves under supervision.” The SRA has acknowledged that “previous advice may have been misunderstood, contributing to confusion” and that it is “working with stakeholders to clarify the practical boundaries and ensure compliance”
You have to hand it to the Law Gazette for noticing that guidance provided by the SRA in respect of what constitutes qualifying work experience for the purposes of qualifying through the SQE route includes work carried out under s12 of the Legal Services Act- something which would amount to reserved legal activity for a non-qualified person under the judgement. This will need addressing.
In terms of CILEx, regulator CRL have confirmed that the judgment aligns with its longstanding interpretation of the Legal Services Act 2007 and that it is preparing updated guidance for firms and members. Crucially, it states that it intends to apply to the Legal Services Board to allow standalone litigation rights, without requiring advocacy rights.
The Law Society has acknowledged the confusion and distress caused in firms with senior fee earners without litigation rights having had files reassigned and some staff feeling “ostracised” or fearing for job security. It has called for clarification of the boundary between “conducting” and “supporting” litigation and wants engagement with the SRA to produce “clear, practical guidance”.
Practical boundaries would be of tremendous use to the profession not least because the case of
Baxter v Doble [2023] EWHC 486 (KB) held that work done altogether can amount to the overall impression that the conduct of litigation is taking place.Watch this space. Guidance is coming.
Helen Bennett
Director of Policy & Governance
LLG
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