As any footie fan will tell you, the offside rule, and especially whether a particular player is ‘interfering with play’, is one of the most vociferously contested issues in the beautiful game. If you do not believe me, just ask any Liverpool fan who watched their team’s 3-0 defeat at Manchester City last Sunday if Reds defender Andy Robertson was interfering with play when he ducked out of the way with his back to the goal. Apparently, he was.
According to Andrew Roy KC, the offside rule is how we need to think of things in the post-Mazur world. Giving his personal views in a speech to the Association of Costs Lawyers’ conference last week, the costs silk from 12 King’s Bench Walk disagreed with the Law Society’s recent Mazur guidance suggesting conduct of proceedings was limited to, as he put it, ‘a few formal steps’.
Roy, who also sits as a deputy costs judge of the senior courts, said: ‘I’m not convinced, either as a matter of language, or by reference [to] authority, that’s correct. If you’re working within a law firm or the like, dealing with a case, if you’re not conducting proceedings, what on earth are you doing? It’s analogous to a football manager with respect to the offside rule. The goal was allowed because the other player wasn’t interfering with the play. Well, if he’s not interfering with the play, what on earth is he doing on the pitch? It’s the same concept, in my view.’
He noted that when it comes to the hotbed of Mazur opinion, many will disagree with his own analysis; and he firmly stressed that his personal views will have no bearing on how he rules as a judge, where he must apply the law as it is.
The barrister observed that the problems stemming from Mazur are compounded by the earlier case of Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865; [2019] BLR 147, which gives a very wide definition of what is a reserved legal activity.
‘It’s pretty much anything beyond your really clerical, administrative, or mechanical,’ said Roy. Ndole itself related to the process of serving a claim form, which did not involve any decision or thought. ‘However, by parity of reason, any step in litigation which involves any application of professional judgement, executive decision-making or the like, would fall from that definition,’ he remarked, adding that there is ‘immense scope for pitched battles as to where the line would be drawn here… on my view, Ndole Assets encompasses vast swathes of work.’
Another big problem is the way Mazur will now inevitably skew the detailed assessment of costs. Any argument that the other side should have used a grade D, or grade C non-authorised fee-earner has just flown out of the window. How could a firm be expected to do so when they would risk falling foul of Mazur? All this will lead to higher costs, and will hugely disrupt the business models of law firms. There is little hope of keeping costs proportionate, and in the area of fixed costs, either clients will need to make up the shortfall themselves – leading to even more satellite litigation – or they will end up struggling to find a lawyer to act for them.
What, then, is the solution? Changing the law would mean primary legislation, and as Roy pointed out, the government is probably not thinking, ‘Economy, Ukraine, what’s next – Mazur?’ Meanwhile, Mazur itself is unlikely to be appealed. The costs at stake are just £636 and the parties involved have no incentive to take an expensive, risky trip to the Court of Appeal.
Within the current statutory framework, however, Roy suggests it is arguable that Mazur is wrong. And an authorised person should be able to lawfully delegate the ‘performance’ of the conduct of litigation, as long as they keep ‘responsibility’ for its conduct. This reflects the basic principles of agency and delegation.
For example, an employer can lawfully engage a consultant to discharge mandatory health and safety duties, while still being responsible (and liable) for the proper performance of those duties. Admittedly, this line of argument requires the court not only to depart from previous authorities, but also to take a very purposive reading of the Legal Services Act 2007. That could be justified, however, on the basis that statutory provisions imposing criminal liability should be construed restrictively, and statutes should avoid perverse or undesirable outcomes.
So the legal arguments are lined up and ready. All that is needed now is for someone to take up the baton, find the right case, and get it before the Court of Appeal. From the point of view not just of law firms, but also the clients who need legal services to be affordable, that can’t happen soon enough.
Rachel Rothwell is editor of Gazette sister magazine Litigation Funding, the essential guide to finance and costs.
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