MPs have called on the government to step in and clarify the laws around the conduct of litigation amid ongoing uncertainty post-Mazur.
Andy Slaughter, chair of the justice committee, this week wrote to justice minister Sarah Sackman asking her to step in and help advise the profession on what is permitted.
The Mazur judgment last month, which stated that unauthorised people could not conduct litigation even under supervision, set in motion a host of largely unintended consequences, with firms removing caseloads from long-serving legal executives, speculation about potential costs claims where unauthorised staff handled litigation, and a backlash against regulators and professional bodies who appeared to have misled members about what they were entitled to do.
Slaughter said the ruling had ‘significant ramifications’ for the profession and asked the Ministry of Justice for its assessment of Mazur – particularly whether there is potential for litigation costs to increase substantially given that lower grade fee earners may be removed from the process.
Slaughter asked specifically whether the relevant provisions of the Legal Services Act 2007 need to be amended, and whether the existing Civil Procedure Rules contain any provision which may cause confusion.
He pressed Sackman to look into whether advice and guidance from existing regulators and other professional bodies have been adequate, adding: ‘There is also an obvious concern that regulators may have failed for many years to address adequately the illegal practice of allowing non-authorised employees to conduct litigation.’
Meanwhile, the Solicitors Regulation Authority has provided further guidance this week about whether unauthorised people may be in breach of the LSA in relation to the conduct of litigation. The organisation has already stated that unauthorised individuals can only ‘support’ authorised colleagues rather than conduct litigation under supervision.
‘Whether an individual is supporting or conducting litigation will be fact dependent,’ says the guidance. ‘It falls to the authorised person to determine the appropriate supervision to apply to someone’s support of litigation.
‘The starting point is the statutory language, and these words, must be given their natural and ordinary meaning. Given the penal nature of the legislation the words should be construed narrowly.’
The SRA said firms should consider who has assumed ultimate responsibility for steps taken in the litigation and how it is being progressed. They should also be looking at the caseload and relevant experience of authorised staff providing supervision. Firms should obtain independent legal advice if necessary and maintain records of decision-making and work processes.
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