The High Court decision on 16/9/25 (Julia Mazu & Ors v Charles Russell Speechleys LLP) has caused some concern amongst litigation firms, particularly those carrying out high volume litigation using unqualified staff. At first blush it could be quite a bombshell for such firms.
However, on reflection, it appears that the main point is the clarification of the difference between ‘conducting litigation’ and ‘assisting in the conduct of litigation’. Unqualified employees of law firms can support a solicitor in conducting litigation but cannot conduct litigation even if they are supervised by a solicitor.
In this case an employee of an SRA regulated firm, who did not himself hold a practising certificate, signed the court documents and appeared to be conducting the litigation, which is a “reserved legal activity” under the Legal Services Act 2007 (LSA).
Such activities can only be carried out by an “authorised person” (e.g. qualified solicitor) or an “exempt person” (for conduct of litigation, someone who has the permission of the court or another piece of legislation). Where there is no such authorisation or exemption, a criminal offence is committed by both the employee and the employer.
The SRA had in fact reassured the firm at the time that section 21(3) of the LSA meant that an employee of an authorised firm was permitted to undertake reserved legal activities. However, the High Court ruled that this was an incorrect reading and that section 21(3), which refers to employees of authorised persons being deemed “regulated persons”, concerned regulatory arrangements (i.e. who falls under the auspices of a regulator and has to follow their rules etc) and was not concerned with the definition of “authorised persons” for the purposes of reserved legal activities.
So, what is “conduct of litigation”?
Schedule 2 of the LSA defines it as issuing proceedings, commencing, prosecuting and defending such proceedings, and the performance of ancillary functions (which are not defined). There is no definition of ‘assisting in the conduct of litigation’ but the Judge agreed with the Law Society’s submissions that “whether or not a person supporting or assisting a solicitor to conduct litigation is conducting litigation themselves is a question of fact and degree. Indicators may include the way that important decisions in the case are taken; who drafts or specifically approves formal documents; the degree of direction from the authorised person; evidence as to who is taking specific responsibility for formal steps or, in general terms, who is conducting the case….Tasks may be delegated but conduct of the litigation may not.”
The key question according to the SRA (who intervened in the case and argued against their original position regarding section 21(3)) is, “who has assumed responsibility for the conduct of the litigation and exercises professional judgment in respect of it?”. They went on to say that, “a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses, or similar functions does not conduct litigation because it is the solicitor who exercises the final professional judgement about how the litigation is to be conducted and takes responsibility for that judgement”.
What next?
This clarification may of course still have a significant impact on firms which rely heavily on unqualified staff, particularly if the ratio of qualified to non-qualified staff is low, and we expect the SRA will be busy collating their thoughts in this regard as we speak! Now would be a good time to check/ fully document your supervision and sign-off policies and ensure that your unqualified staff do not have ultimate responsibility for litigation matters and that everyone fully understands the boundaries of their roles.
For those firms carrying out ‘claims management activities’ as defined by the Financial Services and Markets Act 2000, but which are not authorised by the FCA and rely on the Regulation 89N exemption, even pre-litigation matters carried out by non-qualified staff, must be conducted under the direction and supervision of an authorised person working in the same organisation. It would also be worth reviewing the SRA’s Effective Supervision Guidance.