Discussion: Mazur v Charles Russell Speechlys LLP

BigToad31

Umkomaas said:

‘Tick-box’ oversight from an authorised person will not be sufficient.

DCB Legal might find that difficult, even with its latest issuing with a registered solicitor 'signing' its current batch of Claim Forms!

Much of the work involved in litigation can nonetheless be carried out by non-authorised staff – either as it does not amount to the reserved activity of the conduct of litigation or as it falls within their role assisting an authorised person.

This will include activities that take place prior to proceedings being initiated. It will also generally include matters such as:

• the giving of general legal advice
• drafting pleadings, particulars of claim, applications and correspondence
• proofing witnesses
• drafting statements, and
• signing a statement of truth

Would that be correct? 🤷‍♂️

Does this make any difference to defences submitted before this new guidance from The Law Society?

I have a defence with DCB Legal where proceedings were drafted and signed by a non-SRA registered party and referenced the Mazur case.

foden11

I might have missed this but how does this effect past cases where people have lost in court?

A_Geordie

BigToad31 said:

Does this make any difference to defences submitted before this new guidance from The Law Society?

I have a defence with DCB Legal where proceedings were drafted and signed by a non-SRA registered party and referenced the Mazur case.

This is where the grey area applies. BSB v O'Connor suggest not but this was pre-Mazur and a non-binding decision. Interestingly, there is an article I found by a set of barrister chambers that gives the view that signing a statement of truth post-Mazur might be suggestive of conducting litigation. 

A particular concern arises from the application of CPR22.1(6) and the associated Practice Direction.
CPR22.1(6) sets out that in the case of a ‘statement of case’ this must be signed either by the party/their litigation friend or the legal representative on behalf of the party/their litigation friend. The definition of ‘Legal Representative’ is found at CPR2.3(1) and includes a ‘solicitor’s employee’.

The Practice Direction to CPR22 at Para 3.10(3) explicitly states that ‘An employee of a solicitor or firm of solicitors in private practice representing a party is within the definition of legal representative in Rule 2.3(1) and may sign a statement of truth.’

Whilst there is no definitive appellate authority on the issue it is difficult to see how signing a statement of truth would not fall within the scope of ‘conducting litigation’ for the purposes of the LSA. Whilst current BSB guidance is that signing a statement of truth does not amount to conducting litigation for Barristers’ regulatory purposes this guidance is based on a non-binding decision of the High Court sitting as Visitors to the Inns of Court in a regulatory appeal and based on Mazur and commentary in the White Book on the topic it is my view that for the purposes of the LSA signing a statement of truth on behalf of a party could easily fall within the scope of conducting litigation. 

This leaves us in the potentially bizarre situation where a ‘non-authorised’ person employed by a firm of solicitors could sign a statement of truth in accordance with the CPR but at the same time be potentially committing a criminal offence under the LSA.

Source: https://www.trinitychambers.co.uk/news-insights/statements-of-truth-conducting-litigation-mazur-v-charles-russell-speechlys-llp-2025-james-mchugh/

Unless your well familiar with the rules on reserved legal activities, it might not be wise to raise this as an issue as it could be viewed as a cheap attack and the judge might not entertain something like that at the hearing which might require an adjournment to fully hear arguments on this point when he/she is expecting to hear something else.

Also any argument on this should be viewed in light of the Court of Appeal's judgment in Ndole  Assets Ltd v Designer M&E Services:

73. So that leads to a consideration of the consequence of service of the claim form having been unlawfully effected by CSD.

76. In my view, nullity is not to be taken as the statutorily intended consequence. As Ms Sinclair pointed out, there is no reason why so draconian a consequence should be intended to be visited on the client or principal, who ordinarily will have been entirely ignorant of the point. 

77. In my judgment, such a conclusion is not acceptable and is not compelled by the language of the 2007 Act. Moreover, that does not mean that there is no sanction available. On the contrary there are sanctions available in the form, in an appropriate case, of criminal process and sentence and a contempt application. And those sanctions are directed at the right target – that is to say, the person who has actually engaged in the unlawful conduct of litigation.

79. ... To set aside the service would be to confer an uncovenanted advantage on the defendant in circumstances of (in the present case) adventitious technicality.

A_Geordie

foden11 said:

I might have missed this but how does this effect past cases where people have lost in court?

Doesn't change the past. 

Nellymoser

Chair of Justice Committee 20/10 letter to Sarah Sackman KC MP, Minister for Courts and Legal Services 

https://committees.parliament.uk/publications/49851/documents/267287/default

Car1980

the illegal practice of allowing non-authorised employees to conduct litigation.

A useful nugget.

Humdinger1

So that very possibly means that all past litigation conducted by the unauthorised is invalid? 

Umkomaas

Humdinger1 said:

So that very possibly means that all past litigation conducted by the unauthorised is invalid? 

I guess it just takes an ambulance chasing legal firm to start the gold rush. Maybe DCB Legal will be brazen enough to try .... or perhaps best not! 😂

Dog eat dog, could be quite spectacle .... or will it be honour among thieves?

Humdinger1

Yes, quite the spectacle! If the ambulance chaser was then hounded by defendants issuing counter-claims?