Lawyers challenge Mazur ruling, warning it could upend rules on who may conduct litigation
A contentious High Court judgment on the conduct of litigation has triggered fierce debate among lawyers, with growing concern that the ruling in Mazur may have been wrongly decided.
Mr Justice Sheldon held that non-authorised employees of law firms cannot conduct litigation under the supervision of an authorised person, though they can provide support. The decision, which has drawn significant scrutiny across the profession, rests on the interpretation of the Legal Services Act 2007 (LSA) and the Civil Procedure Rules (CPR).
Among those questioning the ruling is Jackson Yamba, a registered foreign lawyer at Halifax firm SAZ Solicitors. Writing on LinkedIn, he argued that the court had misapplied the definition of “exempt persons” under schedule 3 of the LSA.
He reasoned: “Schedule 3, para 2 makes it clear: an exempt person is someone who, though not authorised, has been granted permission ‘by or under an enactment’ to carry on a reserved legal activity. The Civil Procedure Act 1997 and the CPR are such enactments. Importantly, CPR 2.3 defines a legal representative broadly – including not just solicitors and barristers, but also employees. That means employees conducting litigation under the CPR are recognised as legal representatives and therefore fall within the statutory definition of exempt persons. Ignoring this framework leads to a legally unsustainable conclusion.”
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Responding to critics who said CPR 2.3 only applied internally within the rules, Yamba maintained that the provision had wider impact. He pointed to practice direction 22, which allows a legal representative to sign a statement of truth. Because CPR 2.3 expressly includes a solicitor’s employee within the definition, he said, the rule confers that procedural right directly.
Ben Dougal, head of legal practice at specialist debt recovery firm TM Legal, took a similar position. He stressed that much of the reaction was overstated, noting that online court systems such as Money Claim Online already operate on the basis that employees may act as legal representatives.
“As per CPR r. 2.3(1), a ‘legal representative’ includes ‘solicitor’s employees’,” he explained. “Many court forms expressly state they can be signed by a legal representative as defined in the CPR. MCOL’s own guidance confirms ‘legal representatives’ can issue claims via their portal. If Mazur is to be read as some would have us believe, there is significant upheaval needed to the whole court process, not merely to firms’ workflows. The inconvenient truth is that it should be business as usual.”
The debate is not new. Andrew Hopper QC, widely regarded as the leading authority on the regulation of lawyers before his death in 2018, addressed the issue as far back as 2013. Writing for compliance consultancy Jonathon Bray, he linked section 207 of the LSA – which extends authorisation to entities – with CPR 2.3, concluding that firms, as authorised bodies, could delegate litigation steps to employees.
Hopper accepted that schedule 3 created an anomaly, by expressly allowing supervised delegation in conveyancing and probate but not in litigation. Nonetheless, he argued that the statutory definition of “legal representative” offered a solution. In practice, he wrote, the authorisation of the entity sufficed, and paralegals were not barred from performing ordinary litigation steps when acting for an authorised firm.
His view contrasts with Sheldon J’s judgment, which restricts the scope for delegation and could affect everyday litigation practice if strictly applied.
The Law Society intervened yesterday, stating that it was seeking “urgent engagement with the Solicitors Regulation Authority to understand how it intends to respond” to the ruling. With uncertainty over how the decision will be implemented, firms await clarification on whether long-established litigation practices can continue without disruption.