Mazur Monday: CILEX reveals its arguments as Court of Appeal case set to start

Lawyers for CILEX will today tell the Court of Appeal that operating in a post-Mazur framework is ‘unsustainable’ and at odds with the whole point of the Legal Services Act.

The representative body for chartered legal executives will lead the appeal, which begins this afternoon. The outcome could have major repercussions for the profession and for access to justice.

In Mazur, Mr Justice Sheldon ruled last September that litigation was a reserved activity and as such could be conducted only by authorised individuals.

In the skeleton argument filed with the Court of Appeal, seen by the Gazette, CILEX argues that in the Legal Services Act parliament never intended to alter the settled position that solicitors could conduct litigation through unauthorised but supervised staff.

This has been backed up by case law following the passing of the act, which allowed for solicitors to delegate work to unauthorised colleagues.

The skeleton adds: ‘The outcome [of Mazur] runs contrary to some of the core purposes of the LSA – namely to encourage innovation and to drive down costs. There are no public interest reasons why supervisees working under supervision of authorised persons working within a regulated entity should not be permitted to carry out tasks which would otherwise be the conduct of litigation.

‘To hold otherwise risks restricting access to justice in relation to the cost of litigation services and access to law centres and the like. It would also create real difficulty for firms whose business model is constrained by fixed costs regimes (e.g. for personal injury cases).’

CILEX said it recognises the public important of upholding standards in litigation, but it added that none of the provisions of the LSA prevents an authorised person from delegating tasks in the course of carrying on the conduct of litigation. All the Mazur case had achieved, it is submitted, is to create a distinction between supporting or assisting a solicitor and ‘conducting litigation under the supervision of a solicitor’ – a situation which is ‘unclear and unsustainable’.

CILEX is represented pro bono this week by Nick Bacon KC, head of 4 New Square, Helen Evans KC, Teen Jui Chow and Faye Metcalfe of 4 New Square, Iain Miller, a partner, and Stephen Nelson and Phoebe Alexander, senior associates, at City law firm Kingsley Napley and Greg Cox, managing partner of Simpson Millar.

The hearing is due to begin at 2pm with submissions from CILEX. Proceedings continue on Wednesday with further submissions from CILEX and then the Association of Personal Injury Lawyers and Law Centres Network – both of which support the appeal.

From Wednesday afternoon, there will be submissions from those opposing the appeal: the Law Society and Solicitors Regulation Authority. The Legal Services Board and Julia Mazur herself will also make representations to the court before CILEX replies on Thursday afternoon.

The hearing, before master of the rolls Sir Geoffrey Vos, Lord Justice Birss and Lady Justice Andrews, will not be live streamed by the Court of Appeal and anyone wanting to watch online must apply to the court. The Gazette will have live updates.