The Chartered Institute of Legal Executives (CILEX) has opened submissions at the Court of Appeal in its appeal against the ruling in Mazur v Charles Russell Speechlys, which limited the extent to which legal executives and paralegals can conduct litigation.
Nick Bacon KC outlined the arguments from CILEX before Master of the Rolls Sir Geoffrey Vos, Vice Chancellor Sir Colin Birss, and Lady Justice Andrews, on the first day of submissions scheduled to take place over two and a half days. The Law Society, the Solicitors Regulation Authority and the Legal Services Board will make representations in their opposition of the appeal on Wednesday and Thursday, along with Julia Mazur.
The case presented by Bacon centres on the distinction between carrying on litigation and the responsibility for conducting it.
The decision by Mr Justice Sheldon in September last year held that non-authorised individuals cannot conduct the protected activity of litigation under the supervision of an authorised person, but could provide support.
In their submissions to the High Court in September, both the Law Society and the SRA distinguished between supporting an authorised solicitor in conducting litigation, and conducting litigation under the supervision of an authorised solicitor, with the former permitted but the latter prohibited.
In agreement, Mr Justice Sheldon said the analysis was supported by the text of the Legal Services Act, which “expressly contemplates that there will be persons… who ‘assist’ in the conduct of litigation…” but there is nothing in the LSA referring to a person who conducts litigation under the supervision of an authorised solicitor.
He added: “The absence of such a category is highlighted by the fact that there is express reference in the LSA to an individual who carries on a “Reserved instrument activity” at the direction and “under the supervision of another individual”.
However, Bacon told the Court of Appeal that Mr Justice Sheldon did not focus on the distinction between the tasks of litigation and the responsibility for conducting it – a distinction he said underpins the case.
The right to conduct litigation, he added, cannot be delegated, but that tasks required by it can.
He told the court: “The Act doesn’t provide for delegation but we would not expect it to because of course you can delegate”. The alternative, he suggested, would be “requiring the authorised person to carry” every step of the litigation process.
The hearing continues.
