@Anonymous: Commented on:1 October 2025 3:07pm
Isn't the real problem that reserved proceedings is everything that is preparatory to commencement of proceedings so that as that is preparing a document (which need not be the plaint form itself) an example can be going to the police station to partake in the interview of a suspect and so preparing ROTI?
Sorry to be disappointing to all those who just want to sit back and 'let the money flow in'...
There's a reason young Pupils, Trainees and NQs spent years qualifying.
It took an unqualified person - Mrs Mazur to point out what neither the SRA nor CILEX seemed to know ie that the Chartered Legal Executive who was conducting the litigation didnt have the requisite regulatory authorisation to do so.
The startling incompetence of the LSB, SRA and CILEX has been laid bear for all to see. Collective incompetence of a staggering level.
Truly staggering. This opens the floodgates to satellite litigation about who was 'conducting' and who was assisting....the costs feeding frenzy to start very soon....
A welcomed decision. Many employees, litigation managers / staff etc are ruining society e.g those at Ashwells Law LLP, Bradford and RKS Solicitors, Dewsbury and another 11 staff firm recently strick off in Dewsbury. There be just one regulator (SRA). Those that face English language barrier and vulnerable people are suffer in the hands of people conducting litigation but not qualified lawyers with proper experience. Huge cost to parties - firms get away with scams, poor conduct. That is a fact.
Bluntly all affected bodies - the SRA, CILEX, the Law Society and the Association of British Insurers need to combine in lobbying the MoJ for the necessary legislation to neutralise this decision without delay. The LSA needs to be amended to allow employees of regulated bodies to conduct litigation.
The employer authorises its staff to conduct litigation and accepts full liability for their actions.
Probably a one line statutory instrument would do the job and it would probably go through on the nod.
This decision seems to throw up more problems the more one considers it. In particular a cursory glance at Schedule 2 paras 3 and 4 seem to conflict. Does the exercise of a 'right of audience' under para 3 constitute the 'prosecution' of a claim for the purposes of para 4? Does this mean that any non-solicitor employee appearing on behalf of their firm on the simplest of interim applications is in contempt of court? The flood of satellite litigation that a case where the Appellant ultimately failed in her attempt to have the claim struck out as an abuse of process beggars belief.
Anon 2310 yesterday and my 1655. Yes you’re right about the court in Mazur endorsing the SRA submissions on what is conducting litigation (and the slightly different ones by the Law Society). But leaving aside we really need a CA level direct precedent, the problem in practice is that those firms where the unauthorised run large caseloads are very unlikely to be able to truthfully rely on the method in your last paragraph at 1507. So in volume claim areas most notably, it’s a fiction to claim that a solicitor is conducting the case, now they can’t use the argument that the firm was the authorised person. They don’t have sufficient solicitor staffing ratio levels to paralegals to do so. So you end up in the situation at the end of paragraph 42 “. 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. “ It will usually be clear however. What does the client engagement letter state about who is conducting the case, and who the supervisor? Is it the solicitor supervised by a partner who may be assisted by a trainee or paralegal. Or is it a paralegal whose supervisor is a solicitor?
Anon @7.30. Two main sources.
First, para 42 of the judgment, quoting from the SRA's own submission by Counsel:
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.
Secondly a presentation from Juliet Oliver, formerly of the SRA, who set things out broadly as I have described in my 3.07 post.
I hope that provides some reassurance.
@4.55, the key difference in Baxter is that in that case, there was no authorised person. The court was looking at everything she did, and concluded that taken in the round, she was conducting litigation. It does NOT mean that every item listed in that case is something that amounts to the conduct of litigation, as the SRA's own submission in Mazur makes very clear.
Where there is an authorised person, they can delegate under supervision a wide range of activities, so long as the authorised person is the one authorising and directing the key steps in the court process.
This is a good opportunity for regulators to consider what qualifications are needed, what experiences needed, and what clients actually want. It is an opportunity to meet the expectations of these people who have worked incredibly hard and have very valuable skills and match those with the reasonable requirements that client has for their services. It is time to rein in a restrictive trade practise. There's gone far too long.
Also CPR, Part 2 - Application and Interpretation
‘legal representative’ means a –
(a) barrister;
(b) solicitor;
(c) solicitor’s employee;
(d) manager of a body recognised under section 9 of the Administration of Justice Act 19859; or
(e) person who, for the purposes of the Legal Services Act 200710, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),
who has been instructed to act for a party in relation to proceedings;
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part02
CILEx Fellows (Chartered Legal Executives) acquired their litigation experience as (c) solicitor's employee. This enabled them to move through Grades D to A (8+ years PQE) in the GHRs for costs recovery purposes. Qualification and experience invariably affects how much law firms can and do charge out their employees to clients.
Anon @2.21, it does look as if CILEx has dropped the ball in terms of determining how and when legal executives should be entitled to be designated as "authorised persons". It was always open to them to argue that someone in your position should be an authorised person, and to test any counterarguments as to why you are not. You would need to ask CILEx why they apparently did not do so.
"As we can no longer use "unqualified" staff for this - how can we possibly make this pay?"
This myth really does seem to have taken deep hold. Nobody is saying you can't use unqualified staff for this. All that is being said is that there are key steps in relation to any proceedings before the court where it has to be an authorised person who does it.
Unqualified staff can still do everything pre-proceedings, can draft proceedings, take witness statements, engage in correspondence with the opposing party, negotiate a potential settlement, draft applications to the court. It just has to be an authorised person who takes the decision that proceedings should be issued or applications made, and signs the relevant documentation.
From the current debate, it seems the LSA 2007 may have inadvertently tightened up the rules in relation to the conduct of litigation, whereas the Civil Procedure Rules, introduced around the same time, didn't anticipate any change to the previous arrangements in recognising a "solicitor's employee" as a "legal representative" within the context of litigation conduct.
The phrase I strongly object to in all comments in the legal press and elsewhere is "non-qualified employees of law firms". Chartered Legal Executives and Fellows are not "non-qualified". They have worked hard to gain their qualification. Many have been doing the job brilliantly for years and are in my experience of 34 years in a law firm (not as a lawyer), as able as any Solicitor. I think Legal Execs should be given the respect and standing they deserve. It is ridiculous that a CLE with 30+ years experience under his or her belt has to now have all their work done under the name of and checked by someone qualified for 5 minutes. Shame on the regulators for their lack of clarity, advice, guidance, support - just the usual "its not our fault and you should all have known" - well that may be coming back to bite them!
Trouble is we still don't have a proper definition of what constitutes "conducting litigation". For legislation creating a criminal offence this is a serious deficiency.
To my mind "conducting litigation" means being the legal representative of a party to litigation. So the person or firm on the court record as representing a party needs to be authorised, and any documents lodged at court that have to be signed by a party's legal representative, or signed as "[party]'s solicitor" must be signed by an authorised person.
Whether a document was actually drafted by a solicitor, legal exec, paralegal or whoever, or who physically puts the thing in the envelope, is beside the point. The person who is presented to the court and the other side as the party's legal representative needs to be authorised.
It's really unacceptable that 18 years after the 2007 Act there is still not clarity on this.
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