New Law Society guidance has set out the limited litigation tasks that unauthorised law firm staff can undertake to comply with the Mazur judgment in September.
In the guidance, Chancery Lane says the definition of conduct of litigation is narrow and limited to formal steps in proceedings – for example, the issuing, filing and serving of applications and statements of case. It assures firms that much of the work involved in pre-action litigation can still be carried out by non-authorised staff – either as it does not amount to the reserved activity of the conduct of litigation or because it falls within their role assisting an authorised person.
This includes the giving of general legal advice, drafting pleadings, particulars of claim, applications and correspondence, and proofing witnesses, and drafting witness statements.
The guidance comes as some legal executives and paralegals are being sidelined or even removed by their firms following the Mazur judgment. In that ruling, Mr Justice Sheldon reiterated the law as set out by the Legal Services Act that unauthorised individuals could not conduct litigation even under the supervision of an authorised person.
But while the Law Society said that some work can still be carried out by non-authorised staff, the question of who is responsible for the conduct of litigation depends on the facts in each case. The guidance adds: ‘Solicitors and firms will wish to make sure their processes and records demonstrate that appropriately authorised persons are exercising their professional responsibility for the key formal steps and strategic decisions in connection with proceedings initiated before the courts. Tick-box’ oversight from an authorised person will not be sufficient.’
Meanwhile, hundreds of legal executives who found they were unable to conduct litigation have applied in the last two months to their regulation, CILEx Regulation, for the authorisation rights. Nearly 600 individuals have now applied for litigation practice rights, through either the portfolio route of the assessment-only route offered by ULaw.
The processing time pre-Mazur was on average 11 weeks but CILEx Regulation is aiming to reduce this wait through extra staff numbers. ‘We have invested heavily in our capacity and capability to process high numbers of portfolio applications,' a spokesperson said. 'We have hired and trained new external assessors and re-engineered our processes to reduce inefficiencies and offer earlier feedback.'
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