The Law Society has published guidance for solicitors practising litigation in the wake of last month’s landmark Court of Appeal ruling in Mazur.

A new practice note explains how law firms can ensure only authorised persons conduct litigation, while also seeking to help solicitors understand which tasks unauthorised team members can undertake in their own right. 

Overturning the judgment of the High Court, the Court of Appeal ruled in March that an unauthorised person may lawfully perform any tasks within the scope of the conduct of litigation, for and on behalf of an authorised person such as a solicitor or CILEX member, provided the authorised person retains responsibility for the tasks delegated. That requires 'proper direction, management, supervision and control (the details of which are a matter for the regulators)'. 

Law Society vice president Brett Dixon said: 'This practice note sets out our understanding of how the judgment should be interpreted, pending further guidance from the Solicitors Regulation Authority, which we are working with them to develop. The Court of Appeal judgment did not alter the position that only authorised persons are entitled to carry on the conduct of litigation. However, it confirmed that an authorised person can delegate tasks within the litigation to an unauthorised person, as long as the authorised person maintains responsibility for those tasks.

'Responsibility in this context means both formal responsibility for the task itself and responsibility to adhere to the professional principles,' Dixon added. 'We advise our members to make sure they are familiar with the SRA’s guidance on supervision, conducting litigation, and its enforcement strategy.'

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Society: webinar tomorrow

The practice note outlines practical steps firms can take immediately as updated SRA guidance on effective supervision is awaited. These encompass:

  • reviewing policies and procedures to make sure they document the steps involved in litigation processes and who carries each of these out;
  • making sure an authorised person is responsible for each matter and checking that the practising rights of the authorised person include the conduct of litigation and that they have the relevant technical skills and competences for the litigation in question;
  • making sure key formal trigger points which amount to the conduct of litigation are the responsibility of the authorised person;
  • documenting delegations and decision-making to demonstrate the professional judgement applied to these steps in the proceedings; and
  • training all staff involved in litigation processes on policies and procedures to be followed.

The Society is holding a webinar tomorrow to explain what the judgment means and give solicitors the opportunity to ask questions.

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