In depth: Mazur landmark appeal concludes

Half a dozen lawyers made submissions to the Court of Appeal, with a veritable army sitting behind them all, but none managed to stun Court 71 into silence the way litigant in person Jerome Stuart did. 

The husband of Julia Mazur, whose costs challenge sparked this existential crisis for parts of the legal sector, rose to his feet yesterday to say in effect how ridiculous the average citizen would find the whole thing. Stuart said he was baffled about why the court was being asked to dilute protections offered by the Legal Services Act confining the conduct of litigation to authorised people.

The fact that the legal profession had evolved in the past 15 years to sometimes overlook this restriction – while representative bodies and regulators stood by and let it happen – was neither here nor there for the client or litigant in person.

‘We have lost sight of the interests of the public and the consumer, and crucially lost sight of the unrepresented defendant,’ he told the court. ‘It seems to me we have spent the best part of two days dancing on the head of a pin trying to construe the words [conducting litigation]. The ordinary citizen could consider that to carry on the conduct of litigation would simply mean the conduct of litigation. There is nothing more, nothing less.’

Parliament had offered a near-guarantee that consumers might be protected by the law, which stated that employers and employees would need to be authorised.

‘It is not for the law to be adapted in such a way as to absolve the [legal] industry of any potential responsibility,’ Stuart added.

At times this week, it felt as if the various parties – appellant CILEX, its supporters APIL and the Law Centres Network, respondents the SRA, Law Society and Legal Services Board – were tying themselves in knots trying to understand the definition of litigation conduct; whether it could be delegated and to what extent; and when it became unlawful to carry it on. You heard the term ‘carry on’ mentioned so much that you half expected the shade of Kenneth Williams to make an appearance.

CILEX tried to make the proposition simple: there was nothing unlawful about delegating tasks involved in litigation, so long as someone who was authorised retained responsibility and accountability.

'It is not for the law to be adapted in such a way as to absolve the [legal] industry of any potential responsibility'

Jerome Stuart

‘The [Legal Services] Act doesn’t provide for delegation, but we would not expect it to, because of course you can delegate,’ said CILEX counsel Nick Bacon KC. He added that authorised people could not be expected to physically carry out every litigation task.

The problem, as raised several times by judges, was where responsibility was passed to someone who was not authorised. What about in a personal injury firm with paralegals running 1,000 cases a week under the supervision of a handful of solicitors? What about when the solicitor took a holiday and a lucrative case needed to be progressed?

Richard Coleman KC, for the Law Society, said that while appropriate delegation of tasks is permitted, a point may come where the unauthorised person is carrying on the conduct of litigation.

The Society stressed that authorised people must ‘direct and control’ the performance of litigation. Unauthorised staff could assist but not direct or control cases. They could prepare a claim form, but the authorised person must approve it and must adopt it as their own work before it goes out of the building. However, many solicitors commenting on social media asked why the Society appeared to be supporting a proposition that could sink law firms whose business model relied on unauthorised staff.

Coleman said that ‘talk of shockwaves and disarray is overstated’. He urged judges to think of the consequences for the public and the reputation of the profession if rules were relaxed too much.

Tom Lowenthal, for the SRA, said the regulator believes that legal executives can offer ‘significant’ assistance and that individual tasks could be delegated. Unauthorised fee-earners could make a ‘valuable contribution at every stage’, but whole caseloads and the conduct of cases could not be delegated. Lowenthal added that parliament had deemed litigation to be a reserved activity and ‘there are at least some people [parliament] wanted to exclude from doing that’.

Judgment was, as expected, reserved. Master of the rolls Sir Geoffrey Vos, Lord Justice Birss and Lady Justice Andrews will make what on the surface should be a straightforward decision about who can conduct litigation. After three days of submissions – not to mention the six months of chaos since the initial decision of Mr Justice Sheldon – it is clear this is a simple issue marinaded in complexity.