Discussion: Mazur v Charles Russell Speechlys LLP

Coupon-mad

Le_Kirk said:

I see the term "authorised" being used; is an authorised person suddenly "qualified" just because their employer states so?

No, so this is why Jackson Yamba wants them to appeal. IANAL but it looks like a big part of his way of working is scuppered unless he just lay reps.

But also it looks like JB at VCS, plus DCB Legal should be very worried. And currently, this authority is binding.

So this case needs adding into EVERY parking WS including CCJ set aside ones. 

@Johnersh or @A_Geordie, is a paralegal taking part in court mediation (without the parking firm being present or involved) allowed? Is that conduct of litigation?

Making offers to settle always seems to come from DCB Legal themselves (like they have assigned a shedload of bare causes of action), hence loss leaders settled at £10 ... a cynic might say, purely to bloat their success stats pour encourager les autres PPCs.

doubledotcom

Elsewhere, I have a case in which Moorside Legal filed an N279 Notice of Discontinuance 24 hours before the hearing. The Particulars of Claim were defective (contrary to CPR 16.4(1)(a)); the trial fee was paid; they failed to serve a witness statement in accordance with directions; and then they discontinued. I have advised the defendant to pursue costs under CPR 27.14(2)(g).

On reviewing the N1SDT claim form, it was noted that it was signed ‘for Moorside Legal’ by a solicitor regulated by the SRA who appears to be employed by a different, unrelated firm. I have advised the defendant to email Moorside’s COLP seeking confirmation that, as at the issue date, the solicitor was employed by, seconded to, or consulting for Moorside Legal, and that he was authorised by Moorside to sign N1SDT claim forms/statements of truth.

Depending on the response, the defendant can then rely on the recent Mazur decision in support of a costs application.

I think that in light of the Mazur decision, the forum should advise everyone who posts documents relating to litigation, should not redact the signatory.

A_Geordie

Coupon-mad said:

@Johnersh or @A_Geordie, is a paralegal taking part in court mediation (without the parking firm being present or involved) allowed? Is that conduct of litigation?

Making offers to settle always seems to come from DCB Legal themselves (like they have assigned a shedload of bare causes of action), hence loss leaders settled at £10 ... a cynic might say, purely to bloat their success stats pour encourager les autres PPCs.

Mediation generally, no since this is a form of ADR that typically falls outside the litigation process. 

Court-mandated mediation i.e. small claims mediation I would say yes.

The LSA 2007 stipulates that a legal activity includes: 

(a) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and

(b) any other activity which consists of one or both of the following—

(i) the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

(ii) the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.

But: 

(4) “legal activity” does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).

ChirpyChicken

@Coupon-mad you are spot on with your contestor legal point 

doubledotcom

I would have thought that even when the court mandates mediation (e.g. via the Small Claims Mediation Service), the call is still ADR, not a reserved legal activity. That means a bulk litigator’s non-authorised employee may attend and speak for the claimant at the mediation without breaching the Mazur “conduct of litigation” rule.

Johnersh

I think we all can agree that there is a bit of a grey area.

FWIW, I agree with @A_Geordie the CPR provisions that now mandate SCT ADR mean that it can be argued that it is an essential procedural step in the litigation being completed pursuant to an order of the court.

It is (in my view) therefore progressive of the litigation, not ancillary to it, such that is regulated conduct.

doubledotcom

My understanding, after discussing with a district judge, is that under the Legal Services Act 2007, conduct of litigation is a reserved legal activity (s.12 & Sch. 2). That covers issuing proceedings, taking management of the case in court, and ancillary court-facing acts (e.g., filing/serving documents, acknowledgments, statements of truth on pleadings).

Mediation participation is a regulated legal activity (the SRA can police competence/supervision), but it is not a reserved activity. Making ADR mandatory by CPR/case-management doesn’t convert it into a reserved act. Mandatory status affects compliance/costs, not the LSA classification.

Court-mandated small-claims mediation is without prejudice as to substance (offers and reasons). Administrative facts (the attendee’s identity, their role, and whether they have written authority to settle) are not without prejudice and can be relied on later.

What the defendant should say at the first call:

“Before I set out my position, please confirm from the claimant’s side:

1. the full name of the person attending for them,

2. their role/position at their legal representative’s firm, and

3. whether they hold written authority to negotiate and settle today.
   Please relay that back to me before we continue.”

After the mediator calls back:

If identified and authority confirmed:

“Thank you. I’m content to proceed on that basis. My settlement offer is £0, or I invite the claimant to discontinue with no order as to costs.”

If authority is unclear or not confirmed:

“Please record that the claimant’s attendee has not confirmed settlement authority. My position remains that liability is denied and my offer is £0, subject to prompt approval by an authorised solicitor if they choose to discontinue.”

Of course, all this may all become moot, if/when Mazur is appealed.

A_Geordie

@doubledotcom What you are suggesting is a valid point but I would still maintain that court-mandated mediation, especially the small claims mediation service (I'll refer to this a SCMS) could still constitute the conduct of litigation. 

t is already confirmed that conducting litigation does not occur pre-proceedings and if you are not contacting the court - per my earlier post the judge in Heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC) said: 

I see no reason to construe the definition of the conduct of litigation as extending to any activities that take place prior to the issue of proceedings and which do not involve any contact with the court.

Unlike other mediation services, the SCMS is run by HMCTS and so it is part of the court system and is (in my view) integral to the litigation process. The unauthorised individual would therefore need to have some form of contact with the court (albeit the SCMS but nonetheless the court) to confirm their appearance/attendance for mediation on behalf of their client. 

Now, if a court decided to compel the parties to ADR and stay proceedings for a period of time so that the parties could arrange ADR themselves, then yes perhaps this then brings the ADR outside the scope of conducting litigation. 

I'll be honest I haven't really thought about it beyond this but since ancillary functions under conducting litigation is to be construed narrowly, it's a an issue that could go either way.

kryten3000 said:

Jackson Yamba has posted this on their LinkedIn page:

https://lnkd.in/p/eyj9Wwjf

I just read the article and I'm not quite following the argument. The Gempride v Bamrah case simply confirms that the solicitor is responsible for the actions of the third party it instructs. That's basic agency law principles, but I don't understand how it is authority for arguing that the solicitor agent has the right to conduct litigation if they are not authorised. 

In fact, the Court of Appeal in Gregory v Turner [2003] EWCA Civ 183 which considered the LSA 1990 that preceded the 2007 Act, confirmed that an agent cannot conduct litigation unless authorised: 

78. However, whatever uncertainties there were in the past the position is now clearly regulated by section 28 of the 1990 Act. In relation to rights to conduct litigation ... It authorises conduct of litigation by the party, but not by an agent other than one who is properly authorised under one of the other categories.

doubledotcom

It's a very narrow point and I am not sure that it will matter. Mazur is about reserved activities (issuing, filing, serving, SoTs on pleadings, etc.). Even when mandatory, the Small Claims Mediation Service (SCMS) is still ADR, not a court hearing, and participation is best seen as regulated (SRA-supervised) but not reserved. Mandatory status doesn’t convert ADR into a reserved step.

The Heron Bros statement you cite narrows “conduct of litigation” to court-facing steps once proceedings are issued. SCMS is administered by HMCTS, but the mediator isn’t the court, and the call doesn’t create or vary any order. Nothing is “filed” or “served” by attending a call. That’s why courts are very likely to treat SCMS attendance as non-reserved.

No right of audience is engaged at mediation. A non-authorised employee can speak in mediation; problems arise only when they file/serve or sign court documents (e.g., N180, consent orders, N279) — that’s where Mazur will bite. Hence, why I suggest that before any mediation offer of £0, the defendant gets clarification of who is on the other end of the mediators call.

Car1980

Have we reached a consensus whether Sarah Ensall can legitimately file a claim on behalf of DCB Legal?