The Court of Appeal has ruled that appropriately supervised litigation team members are permitted to conduct litigation on behalf of authorised solicitors and qualified Chartered Institute of Legal Executives (CILEX) members.
Today’s eagerly awaited judgment overturns last September’s controversial High Court judgment in Mazur v Charles Russell Speechlys, which held that unauthorised team members – including legal executives, registered foreign lawyers, trainee solicitors and paralegals – were not permitted to conduct litigation under supervision.
It was handed down today by Lord Justice Birss following expedited hearings before Birss, the master of the rolls, Sir Geoffrey Vos, and Lady Justice Andrews last month.
Re-establishing what had been regarded as standard practice before Mr Justice Sheldon’s ruling, Birss determined that unauthorised litigation team members are permitted to conduct litigation, provided an authorised individual retains responsibility for their actions and appropriate supervision and delegation arrangements are put in place.
Jennifer Coupland, chief executive of CILEX, which brought the appeal, said: “This is the most consequential judgment for legal services in recent history: it is a victory for CILEX members but also for access to justice, the interests of consumers and the encouragement of a thriving, diverse and competitive legal sector.”
The High Court judgment had threatened to have a profound effect on litigation practices at high street law firms, law centres and within local government legal departments.
It had been met with dismay by CILEX, which argued it was anti-competitive, but was backed by the Law Society of England and Wales, which issued new guidance to clear up what it described as “grey areas”.
Birss stressed that there had to be “proper direction, management, supervision and control, the details of which are a matter for the regulators”.
The judge added: “In some circumstances, the degree of appropriate control and supervision will be high, with approval required before things are done. In others, for example, in routine circumstances, a lower level of control and supervision will be required. In such cases, it may be sufficient for the authorised individual to conduct regular meetings with the unauthorised person and to sample their work.”
The ruling is disappointing for both the Law Society and the Solicitors’ Regulation Authority, which intervened to argue that the High Court judgment should be upheld.
Birss disagreed with the distinction made by both organisations in their submissions – which Sheldon adopted – between team members supporting or assisting in litigation and the conduct of litigation.
He therefore rejected their argument that prior approval of litigation work by solicitors was needed, saying it was not required by the 2007 Legal Services Act.
Birss – the chancellor of the High Court – noted that delegation had been a “widespread, general and well-regulated practice” before the 2007 act, saying: “The judge asked for assistance, but he did not receive as much help as could have been expected.”
Andrews drew a distinction between unauthorised team members who had tasks delegated to them in the conduct of litigation and were acting on behalf of an authorised individual, and those who were not.
She explained: “If they are [acting on behalf of someone authorised], it is the authorised individual who is conducting the litigation. But if the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.”
The case arose after litigants in person, Julia Mazur and Jerome Stuart, challenged the fees charged by Charles Russell Speechleys for legal services performed by an unauthorised individual.
Nicolas Bacon KC and Helen Evans KC of 4 New Square, and their juniors, appeared for CILEX, instructed by Iain Miller of Kingsley Napley, who said the outcome was a victory for many CILEX members.
The ruling, he said, was “of vital significance”, concluding: “Many individuals and businesses, including those in the not-for-profit sector, will be relieved by this outcome. It will also be a relief for many members of my profession, be they solicitors or their firms, who have had to grapple with the uncertainty and disruption which was caused by last year’s judgment.”
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