Page 18 - PIC-Magazine-Issue-26

THE
MAZUR APPEAL
Th e hearing was presided over by Th e Master
of the Rolls. He was accompanied by Lord
Justice Birss and Lady Justice Andrews.
I counted 16 wigs as we got underway.
Nick Bacon KC acting pro bono for CILEX asserted that
Sheldon J in the judgment under appeal had failed to
distinguish between tasks and responsibilities. Someone
who was not a solicitor could, he said, run litigious
matters. The ultimate responsibility for their acts and
omissions always fell at the feet of the qualifi ed lawyers
who owned or managed the practice. If something
went wrong the aggrieved client would always have
a remedy as against the fi rm.
A recurring issue throughout the 2.5 day hearing was
what exactly was meant by “conduct of litigation“, the
thing that the High Court below had said could not be
left in the hands of unqualifi ed staff . When it was said
that it clearly included the issue of proceedings Lady
Justice Andrews who is fi ercely intelligent pointed out
that it was always the court that issued them!
As the close of day one approached Counsel indicated
that he wanted to review authorities going back over
centuries which had accepted without any qualms that
managing clerks, unqualifi ed staff , had been recognised
as competent to conduct litigation. Sir Geoff rey Vos MR
said you don’t need to go down that path. He told us
that when he started at the Bar one magic circle fi rm
had no qualifi ed litigators at all. Claims were conducted
by clerks alone.
The hearing resumed on February 25th and soon Ben
Williams KC, acting for the Association of Personal
Injury Litigators, launched into the most eloquent
demolition of BAXTER and MAZUR. He pointed out
that the plain intention of the relevant legislation, the
2007 LEGAL SERVICES ACT, was to liberalise access
to justice and not to introduce a cosy closed shop
where only authorised lawyers could run claims. He
highlighted what one might regard as an embarrassing
issue for the Law Society. Whilst some of its members
would be glad to see MAZUR upheld, there would be
many whose business model and indeed very existence
was predicated upon the pyramid structure where
responsible lawyers oversaw staff conducting claims
at economic rates. Who exactly were the Law Society
speaking for? P.J. Kirby KC had risen from his sick
bed on day 2 to identify the problems which MAZUR
presented to his Law Centre clients. They were madly
underfunded when looking after those who could never
aff ord lawyers. The MR and Lady Justice Andrews spoke
up in praise of Law faculties around the country which
they had visited to see students under supervision
helping with housing and benefi ts problems amongst
other matters.
Richard Coltman KC from Fountain Court for the Law
Society boldly asserted that Mr Justice Sheldon was
spot on. He adhered to this position when the MR
pointed out that it would mean a Solicitor could not
take a decent holiday because there would be no one
running the offi ce in their absence. Like a dog with
a juicy bone he was not prepared to give an inch.
Interestingly, the Court threw more questions and
challenges at him in 135 minutes than had been put to
the appellants in the preceding 5 hours of submissions.
The highlight of the last day of the hearing was a
bravura performance from Mr Stuart, the partner
of Ms Mazur. In particular, he denounced the SRA
which has always asserted that Sheldon J was correct.
Why then had it stood by for years as law fi rms openly
delegated litigation to non-authorised staff . We await
a judgment. The 3 scenarios that I see are that the
court could uphold MAZUR in full, it could modify it
or it could reverse it altogether. I don’t for a moment
see the decision surviving intact. Realistically, we are
looking at either the judgment being narrowed down
or being overturned altogether.
It is inevitable that some authorities, including
BAXTER V DOBLE which widened the interpretation
of “conduct of litigation“ will be reversed or adjusted.
This in itself will be good news for the appellants
because it would widen the range of steps that they
because it would widen the range of steps that they
can lawfully undertake. The legitimacy of MAZUR itself
can lawfully undertake. The legitimacy of MAZUR itself
hangs in the balance.
Professor Dominic Regan,
Head of the Knowledge Hub
at Frenkel Topping
Th e 3 scenarios that I see are that the court could uphold
MAZUR in full, it could modify it or it could reverse it altogether.
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