Lord Justice Birss has given the lead judgement on the appeal hearing of Mazur, in which the appeal has been upheld. The case concerned the proper meaning of the words “carry on the conduct of litigation” as they are used in the Legal Service Act 2007 (“the 2007 Act”).

It was decided that the words “conduct of litigation” refer to the tasks to be undertaken, whilst
the words “carry on” refer to direction and control of, and responsibility for, those tasks.

The issues:
Three issues were identified in considering this matter in the appeal:

1) “Was the judge right to hold that unauthorised persons were “carrying on the conduct of litigation” if they did acts that constituted the conduct of litigation under the supervision of an authorised individual?”

2) “What acts actually constitute conducting litigation? In this regard (and in relation to the first issue), it will be necessary to consider the correctness of the recent decision of Cavanagh J in Baxter v Doble [2023] EWHC 486 (KB), [2023 1 WLF 2948 (“Baxter”).”

3) “Whether the working model adopted by Law Centres (whereby a group of authorised individuals delegate the conduct of litigation to unauthorised persons, whilst supervising their work and retaining ultimate responsibility for it) is contrary to the 2007 Act?”

In the first issue, Lord Justice Birss considered that before the 2007 Act, there was a widespread, general and well-regulated practice of delegation by solicitors to unqualified individuals. He referred to the cases of The Law Society v Waterlow Bros & Layton (1883) 8 App Cas 407 (HL) (Waterlow) and Hollins v Russell [2003] EWCA Civ 718, [2003] 1 WLR 2487 (CA) (Hollins), along with the Legal Services Act 1990 (“the 1990 Act”).

It was noted that it was not the intention of the 2007 Act to make a significant change from the 1990 Act. The relevant historical context was that Parliament would have understood that individual solicitors had, and were regulated in respect of, a widespread practice of delegating litigation work to unqualified individuals.

Lord Justice Birss then referred to the cases of Ndole Assets v Designer M&E Services [2018] EWCA Civ 2865 (“Ndole”) and Baxter. Both cases involved an unauthorised person purporting to act in litigation but with no authorised individual supervising. In both cases, the question of whether tasks were purely mechanical or administrative, or whether responsibility had been assumed, came down to an analysis of fact and degree.

On this basis, Lord Justice Birss concluded on the first issue [para 25] that:

“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. The authorised individual retains responsibility for the tasks delegated to the unauthorised person… In some circumstances the degree of appropriate control and supervision will be high, with approval required before things are done. In other, for example routine circumstances, a lower level of control and supervision will be required… In short, provided the authorised individual puts in place appropriate arrangements for supervision 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.”

In respect of the above, Lord Justice Birss commented that the third issue concerning the working model or practice adopted by Law Centres of delegation required no separate treatment given the conclusion of the first issue above.

In respect of the second issue, no exhaustive list could be provided as to what constitutes conducting litigation. Lord Justice Birss refers to the three limbs of the definition of the conduct of litigation at paragraph 4 of schedule 2 to the 2007 Act. The first is clear and narrow – “issuing proceedings before any court in England and Wales”. The third is also limited to formal steps where it is “the performance of ancillary functions in relation to such proceedings (such as entering appearances to actions)”. The scope of the second limb, “the commencement, prosecution and defence of such proceedings,” is less clear.

Lord Justice Birss has at para 193 listed 7 items which likely fall outside the statutory definition of “conduct of litigation”:

1) Pre-litigation work
2) Giving legal advice in connection with court proceedings
3) Conducting correspondence with the opposing party on behalf of clients
4) Gathering evidence
5) Instructing and liaising with experts and counsel.
6) Signing a statement of truth in respect of a statement of case.
7) Signing any other document that the CPR permits to be signed by a legal representative, as defined by CPR Part 2.3.

Conclusion

• 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, as long as the authorised individual retains responsibility for the tasks delegated.
• The delegation of tasks by the authorised individual to the unauthorised person requires proper direction, management supervision and control, the details of which are a matter for the regulators. The degree of appropriate control and supervision will always depend on the circumstances.
• Limited clarification has been given as to what acts constitute ‘conduct of litigation’ and whilst no exhaustive list has been provided, Lords Justice Birss has included some guidance as to what work falls outside that definition (see above).
  
  Please find the full judgment here.

By Emily Ham at Davies and Partners Solicitors