The Court of Appeal has now handed down it’s hotly awaited decision in Mazur v Charles Russell Speechlys LLP and the decision is a decisive ‘as you were’. This anti-climax brings to an end six months of fervent speculation as to whether the entire nature of litigation was to be upended.
Birss LJ, authoring the unanimous decision, provides a long and detailed explanation as to why the pre-Mazur status quo was in fact both the intent and effect of the Legal Services Act 2007. The principle that an authorised person can delegate work to non-authorised persons under their supervision was therefore restored.
The Judgement, despite its details, does not in practice go much further than this, although it does clarify a few interesting points. It appeared to reaffirm the right of a non-authorised person to exercise a right of audience under supervision [57-58, 165]. It also clarified, while the reasoning was not totally upheld, that the thrust of the decision in Baxter v Doble that a lay person cannot delegate litigation to a non-authorised person was correct [185].
Of perhaps most practical use was the production of a non-exhaustive list of activities that would be unlikely to meet the statutory definition of “conduct of litigation” [193]. This will hopefully provide a useful starting point to protect non-authorised persons from spurious or improper challenge.
There was also inevitably some comment about the impact that the decisions has had on the legal community. While the Judgement stressed a desire not to criticise the Judges below, there was a clear acknowledgment of the “scramble” Mr Justice Sheldon’s decision had caused [88]. However, the real criticism appeared to be reserved for the various regulatory bodies providing unhelpful and conflicting guidance to the various courts, most explicitly directed at the SRA [197]. This criticism has been echoed by the practitioners who have seen their professional lives upended.
Will this be the last word? The SRA’s initial response to the Judgement appeared to cool any talk of a further appeal. Despite the matters importance and high profile, it may simply be the case that no one wants to reopen this Pandora’s box. There also appears little desire to relitigate this, although perhaps Miss Mazur will push on, given her frosty statement following the Judgement.
As for the risk of satellite litigation, again this was left open by the Judgement. In particular, Andrews LJ’s concurrence noted that criminal prosecution remained a real danger for those operating outside of a proper supervisory structure. However, it does seem that fears of a flood of such challenges have likely abated, to the relief of litigators everywhere.
The decision therefore is ironically poised to have little lasting impact beyond confirming the old status quo. Cold comfort to the numerous practitioners who have suffered significant professional hardship and lost jobs over this erroneous, half-baked attempt to redefine litigation.