The law allows for authorised solicitors to delegate litigation tasks, the Court of Appeal heard on day one of the challenge to the High Court's seismic ruling in Mazur.
Nick Bacon KC, for appellant the Chartered Institute of Legal Executives, said Mr Justice Sheldon had been wrong last September to conclude that unauthorised people could not conduct litigation tasks while under supervision.
The Legal Services Act, Bacon said, was never intended to exclude people from carrying out litigation tasks so long as the authorised person retained responsibility and accountability for the matter overall. He also suggested that upholding the judge’s decision in Mazur could open the floodgates to satellite litigation as costs are challenged and clients demand to know how their cases had been run.
The first day of this eagerly-awaited appeal was heard yesterday before a packed court 71 of the Royal Courts of Justice. Court 63 had to accommodate an overspill normally associated with trials involving celebrities.
Last Friday it had emerged that proceedings would not be live streamed and that remote access was only available on request. Master of the rolls Sir Geoffrey Vos clarified at the outset of the hearing this was a statutory requirement because one of the parties, Julia Mazur who had made the initial costs challenge underpinning the case, was a litigant in person.
In his opening submissions, Bacon said the court should focus on the distinction between the tasks of litigation and responsibility for conducting it. Unauthorised individuals, he stressed, do not act unlawfully by undertaking tasks that have been delegated to them.
‘The [Legal Services] Act doesn’t provide for delegation but we would not expect it to, because of course you can delegate,’ said Bacon, who added that authorised people could not be expected to physically carry out every litigation task.
Bacon added that the court should be wary of changing the way the legal services sector has worked for decades: the outcome of Mazur has been ‘completely unnecessary’. He also warned that upholding the decision would open a ‘complete can of worms’ in terms of costs challenges in the future.
‘You can rest assured, such is the nature of the business of insurers paying costs and losers paying costs, they will take these points and you will be unleashing onto the county courts a wave of satellite litigation around the facts of how managed the supervision was,’ the costs specialist said.
The master of the rolls, who is sitting alongside Lord Justice Birss and Lady Justice Andrews, said more than once that this was a simple issue, albeit one which had wide-ranging consequences.
The appeal judges pushed Bacon on several issues, not least the level of supervision that is provided in practise, for example when a firm running hundreds of cases with paralegals employs just a few authorised solicitors.
Bacon said the courts and regulators provided for this: the authorised person was still ‘in the cross hairs’ in terms of accountability and responsibility.
The hearing resumes on Wednesday and can go into Thursday if necessary. The Association of Personal Injury Lawyers and Law Centres Network will follow CILEX in making submissions in favour of the appeal. The Law Society, Solicitors Regulation Authority and Mazur herself will argue in favour of upholding the High Court decision.
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