Mazur again...

The Law Society has finally issued guidance to support solicitors following the judgement in Mazur v Charles Russell. You can access a copy of their advice at https://www.lawsociety.org.uk/topics/regulation/mazur-and-the-conduct-of-litigation

The Key takeaways from the Law Society's guidance are:

Authorised persons only: The core principle is that only an "authorised person" can conduct litigation. An unqualified employee, even if supervised, cannot conduct litigation.

Distinction between "supporting" and "conducting": The ruling highlights the critical difference between supporting a case and conducting it. Tasks like drafting documents or conducting searches are "mechanical functions," but final approval and the taking of important decisions must be the responsibility of an authorised person.

Supervision is key, but not a loophole: The guidance clarifies that general supervision is not enough to make an unqualified employee's actions the conduct of litigation. Firms must demonstrate that their supervision arrangements are appropriate and that they are compliant with the Legal Services Act 2007.

Firms must document compliance: Law firms are responsible for satisfying themselves that they are complying with the law. The Law Society recommends recording decision-making processes and documenting supervision arrangements to prove this compliance.

Impact on delegation and empowerment: The ruling forces firms to re-evaluate their delegation practices and supervision structures. While firms must continue to support the development of junior staff, they must do so in a way that ensures compliance and protects the client.

External providers: Firms should also ensure any outsourced work is done by a regulated provider, and not an unregulated individual, to avoid further complications.

Whilst writing I thought it might also be worth summarising what I have heard from members since the decision was handed down. If anyone has experienced any different conduct, either from defendants or the judiciary that they would be prepared to share anonymously, please do feel able to do so in confidence.

In summary, I think that defendant firms will be as worried as claimant firms about the implications of the judgement for their business model. This might explain why I have heard about little direct mention of the Mazur judgement in current litigation. Indeed, I have heard that two or three of the larger defendant firms have proactively offered and agreed a moratorium on raising Mazur as an issue, presumably following the guidance that people living in glass houses should not throw stones. It was interesting that those approaches were unsolicited and does perhaps identify that the low-cost defendant model is challenged by the decision.

I have no doubt that DWF, Keoghs, HF and DAC Beachcroft (and others) will all be working frantically to re-engineer their processes with the intention of ensuring that their processes are compliant. Once they have done that, I suspect they will also explore how (if) they can weaponise Mazur to attack the claimant model. To that end, the Law Society guidance may be helpful.

I am aware of a couple of smaller defendant solicitors having raised the issue in front of district judges. My intelligence suggest that they have had their submissions bounced.

By the same token I have also heard of credit-hire hating judges taking matters into their own hands. This has been evidence in certain tribunals in respect of applications that have been filed with a witness statement where the witness is not a solicitor. In one case I am aware of a district judge refusing the application and requiring that the solicitor with conduct of the claim must file a separate statement explaining their role in the litigation and how the original witness supporting the application was being supervised and whether they were conducting litigation whilst not authorised to do so.

And just to prove there is some kind of balance in the universe, I have also heard about Keoghs having been challenged by a judge in relation to the author of a boiler-plate templated defence. The judge made an order requiring a solicitor to identify who drafted the defence with a view to determining if they were authorised to do so.

It sounds like several judges might be using Mazur as a basis to manage their lists and avoid having to dispense justice in circumstances where they can kick a claim into the long grass.

The only other issue that has made me think is the increasing use of AI by defendant firms. Keoghs have made the loudest noises about their use of AI claiming that “Sonic enriches the extracted data and applies strategic rule sets before presenting the claims handler with a focused and concise report, which identifies risk factors and sets out the most appropriate route for processing and settling the claim, including recommended offers based on duration deductions and basic hire rate data.” We all know that their approach has evolved to comprise a ‘take it or leave it offer’ with an invitation to litigate if the offer is unacceptable.

I mention this because AI depends upon Large Language Models which are just databases populated largely through automated ‘intelligent’ processes. I just wonder in those circumstances who supervises the AI Bots which are driving the strategy and decision to invite or proceed with litigation and probably more than that when the claim is issued. My understanding from the Law Society guidance (which I accept is just guidance) is that:

Unauthorised staff can:

Draft legal documents such as pleadings, particulars of claim, applications, correspondence, and witness statements.

Sign a statement of truth.

Provide significant support to an authorised person.

Requirements for delegation include:

An authorised person must retain responsibility for the matter.

Work must be supervised according to regulatory obligations.

Key decisions and formal procedural steps must be referred to the authorised person.

The authorised person must apply professional judgment to key decisions.

One for the future perhaps; who supervises the AI Bot?