Discussion: Mazur v Charles Russell Speechlys LLP

Coupon-mad

Car1980 said:

"Beware of relying fully on Mazur in a case where the POC was signed by a solicitor."

Wouldn't apply in that case anyway though?

Yes it could if the WS was signed by a paralegal who says they 'have conduct of the case' ...which is why it was argued at Luton by a solicitor this week, before a Judge.

Still worth arguing before other judges.

  

A_Geordie

Coupon-mad said:

Still worth arguing before other judges.

  

Out of curiosity, what are you trying to achieve with the argument?

Spirity

Key Details of the Case

The Situation: A debt recovery firm, Goldsmith Bowers Solicitors (GBS), instructed by a large city firm, Charles Russell Speechlys, issued a claim where the Particulars of Claim were signed by Peter Middleton, the firm's "Head of Commercial Litigation". 

The Issue: Ms. Mazur and her partner objected, arguing that Mr. Middleton was not a practising solicitor and thus was unlawfully conducting litigation. 

The Claim Form in my situation by claimant ParkingEye, was signed for by Sarah Ensall (Claimant's Legal Representative), with address for sending documents being DCB Legal.

At DCB Legal website, her profile is, Sarah EnsallHead of Bulk Litigation.

It's a bit astonishing to me you can have top positions in law firms, Head of Litigation, who aren't qualified solicitors, or don't hold valid practicing certificates. 

Coupon-mad

A_Geordie said:

Coupon-mad said:

Still worth arguing before other judges.

  

Out of curiosity, what are you trying to achieve with the argument?

The idea is to have their WS dismissed, leaving them with no evidence in the case. 

jd576

Coupon-mad said:

The idea is to have their WS dismissed, leaving them with no evidence in the case. 

Can you walk us through how you see that argument unfolding? Is it a case of I've signed a statement of truth which is false: I'm not conducting this litigation because I'm not authorised to do so and therefore the entire witness statement needs to be dismissed as unreliable?

Coupon-mad

It's similar to any argument to have the other side's WS dismissed, which we've done for years for various reasons. Sometimes judges agree and disregard the Claimant's WS.

Did you think I meant the solicitor was at the hearing for the Claimant?

No, the solicitor was for the Defendant.

He tried Mazur (judge said no because the Claim Form was signed by a solicitor), so he relied on Chan and Akande and got costs and an unless order.

Separately, @bargepole says he will try the same at other courts / before other judges:

"While DCB Legal and Gladstones are authorised and regulated by the SRA, the actual work of drafting claim forms, completing DQs, drafting and signing Witness Statements etc is generally done by paralegal employees, who are not authorised to conduct litigation.

Given the sheer volume of claims emanating from those two firms, it is vanishingly unlikely that any qualified solicitor is exercising any supervisory function.

So, next time I get a parking case hearing, with the WS drafted and signed by one of those paralegals, I will be raising this point, and relying upon that Judgment."

A_Geordie

I understand that the witness statement might say that the paralegal's witness statement might say that they have conduct of the matter but how does that invalidate the witness statement? 

Sure, the paralegal may be committing a criminal offence for the purposes of the LSA 2007, but under the CPR anyone can be a witness.I don't recall there being anything in the CPR that says a witness statement cannot be used if they are not authorised to conduct litigation or that the witness statement is defective and cannot be relied on. 

Not trying to be awkward, but I'm just probing whether you are wasting your time with this line of argument and if you should really be reporting the paralegal to the SRA as a more effective way of dealing with the issue. 

Even if defective, the court can still grant permission to rely on it. 

Coupon-mad

Not trying to be awkward, but I'm just probing whether you are wasting your time with this line of argument and if you should really be reporting the paralegal to the SRA as a more effective way of dealing with the issue.

I get that and see you aren't being awkward. This is all worth discussing.

Let's see if @bargepole or @troublemaker22 see this and have thoughts they wish to add, given I rarely do hearings now.

Car1980

A_Geordie said:

I understand that the witness statement might say that the paralegal's witness statement might say that they have conduct of the matter but how does that invalidate the witness statement? 

Sure, the paralegal may be committing a criminal offence for the purposes of the LSA 2007, but under the CPR anyone can be a witness.I don't recall there being anything in the CPR that says a witness statement cannot be used if they are not authorised to conduct litigation or that the witness statement is defective and cannot be relied on. 

Not trying to be awkward, but I'm just probing whether you are wasting your time with this line of argument and if you should really be reporting the paralegal to the SRA as a more effective way of dealing with the issue. 

Even if defective, the court can still grant permission to rely on it. 

We've seen statements thrown out when the witness is too far removed to be a genuine witness. They're usually an employee of the parking company, but a WS from a paralegal should be worthless in a parking case anyway because they have witnessed absolutely nothing first hand.

A_Geordie

Car1980 said:

We've seen statements thrown out when the witness is too far removed to be a genuine witness. They're usually an employee of the parking company, but a WS from a paralegal should be worthless in a parking case anyway because they have witnessed absolutely nothing first hand.

I'll be honest, I have never seen or heard of a witness statement being struck out on the basis that the witness is too remote to be a genuine witness to give evidence. Generally a court will just give little weight to the evidence contained in the statement usually with the explanation why such little weight is given. Far better to ask for the statement to be struck out because it contains so much drivel related to opinion, case law and arguments instead of facts. 

Here, we are talking about parking cases which a good majority of the time are ANPR related disputes. An employee would witness the images of the vehicle taken from the ANPR camera that is subject to the alleged violation, but then so would the paralegal or solicitor since that is evidence that would be passed on to support the parking company's case. Not entirely convinced that the paralegal's witness statement would be worthless in that situation. 

On the contrary, in a case where a parking officer witnesses the violation personally then perhaps there may be a plausible argument but still, a lot of the evidence will be documented electronically or digital images. Again, I wouldn't be convinced that the paralegal's statement is so worthless that they are so far removed from the dispute that they cannot be a genuine witness. It's common for solicitors to draft witness statements for interim applications like an injunction despite not being physically present to witness events. 

That said, if I was the paralegal/solicitor writing a witness statement to support a client's case, I would be more worried about compromising my independence as well as my duties to the court and the client in terms of privileged information and confidentiality, because theoretically they can be called to testify on behalf of their client - a particular point made clear by the High Court in SRCL Ltd v NHS England. 

However, back to my point, I mentioned in an earlier post on page 2 of this thread that the Court of Appeal in Ndole Assets Ltd v Designer M&E Services UK Ltd was clear that unauthorised conduct of litigation would not invalidate a claim form, so the fact that a paralegal says they have conduct of the claim in a witness statement, is unlikely to be considered defective or should otherwise be struck out in my opinion.