Summary of Key Points

The ratio of the judgment given by Mr Justice Sheldon states that individuals who are neither authorised nor exempt by the Legal Services Act 2007 may support others as they conduct litigation but may not “conduct litigation under supervision”.

The Judgment does not alter the position that an employee of a solicitor’s firm may be permitted to sign a Claim Form and Witness Statement.

The Judgment does not affect the rights of audience of LPC advocates who are “assisting in the conduct of litigation” when they attend court by virtue of the exemption under Schedule 3 paragraph 1(7) of the Legal Services Act 2007.

The Judgment

The recent judgment of Mr Justice Sheldon in the Appeal of Mazur & Stuart v. Charles Russell Speechleys LLP  (the Judgment) has caused considerable concern in the legal sector, particularly for firms that rely on paralegals to support their solicitors. Some headlines in the legal press have been sensationalist and misleading. The headline in the Law Gazette “Costs order overturned over litigator’s absent practicing certificate” is simply wrong. No determination was made that anyone had conducted litigation without being entitled to do so, and the costs order was overturned because the lower court had omitted to consider and apply a costs cap which applied because the claim had been provisionally allocated to the Intermediate Track. With so much misinformation it is important to consider the detail of the Judgment.

The Appeal concerned a dispute between the parties as to whether nor not a Mr Middleton (an individual who was not authorised to conduct litigation) had conducted litigation and if so, was he entitled to do so as an employee of a regulated firm. Mr Middleton had signed a claim form and undertaken numerous other tasks, listed at paragraph 8 of the judgment. The matter was in issue because, ultimately, the Appellants sought to overturn a costs order made against them for work undertaken by Mr Middleton.  If Mr Middleton was not entitled to undertake the work, then the costs of his work ought not to be recovered. His Honour Judge Simpkiss had previously found, based upon a finding by the Solicitors Regulation Authority, who had declined to investigate the matter, that Mr Middleton was entitled by s.21(3) of the Legal Services Act 2007 to carry out reserved legal activities, because his employer was authorised to do so.

As previously noted, Mr Justice Sheldon did not determine whether Mr Middleton had conducted litigation (see paragraph 67 of the judgment). Mr Justice Sheldon did decide, indeed it is the ratio of the judgment, that individuals who are not either Authorised or Exempt by the Legal Services Act 2007 may only support others as they conduct of litigation, but may not “conduct litigation under supervision”. Mr Justice Sheldon’s conclusion was supported by the SRA and the Law Society, who had been invited to make submissions to the Court. The SRA conceded that their previous statement relied on by HHJ Simpkiss was incorrect.

A popular misconception arising from the Judgment appears to be that paralegals and other support staff cannot sign the statements of truth on pleadings and witness statements. This is simply incorrect – CPR 22.1 (6) permits a legal representative to sign a statement of truth on a statement of case on behalf of their client and a witness statement must always be signed by the maker of the statement. A legal representative is defined at CPR 2.3 and includes both barristers and solicitor’s employees. One must conclude that an action is not in and of itself the conduct of litigation if an individual who is not authorised to conduct litigation is permitted by the Civil Procedure Rules to undertake it. This was the finding of three Judges sitting as Visitors to the Inns of Court in an Appeal of a Disciplinary Tribunal in O’Connor v. The Bar Standards Board; a finding by the Bar Disciplinary Tribunal that a barrister had conducted litigation by signing a statement of case on behalf of her client was overturned.  

What actions do constitute the conduct of litigation? The Courts have wrestled with this question for decades and have ultimately concluded that it is a matter of fact and degree rather than specific steps in the litigation. The leading judgment is that of Baxter v. Doble where Mr Justice Kavanagh noted that the Court should look at the entirety of the activities undertaken by the individual. Ultimately it is a question of substance rather than form. In practice this means that whilst a paralegal might undertake a great number of tasks that appear, on the surface, to be conducting litigation, if a solicitor is making all the decisions of substance in the litigation then that solicitor has conduct of the litigation and the paralegal’s role does not extend beyond assisting them.

On a final note, LPC Law have received a few queries about whether the judgment has any impact upon the practice of instructing solicitors' agents to attend hearings in chambers? It does not. In accordance with the provisions of the Legal Services Act 2007, the role of our advocates is limited to “assisting in the conduct of litigation”. Furthermore, whilst exercising a right of audience is a reserved legal activity, our advocates are recognised as being entitled to do so in chambers as Exempt Persons in accordance with a specific exemption under the Legal Services Act 2007 (see Halborg v Apple (UK) Ltd).

Pete Blackmore (Partner)