The High Court decision on 16/9/25 (Julia Mazur & Ors v Charles Russell Speechleys LLP) has caused some concern amongst litigation firms, particularly those carrying out high volume litigation using non-authorised staff.
Although the case has not on the face of it changed the law, it has uncovered significant confusion over the understanding of the difference between ‘conducting litigation’ and ‘assisting in the conduct of litigation’, which has caused much consternation and worry across the legal profession.
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 previously reassured the firm 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 do the Regulators say?
The SRA has given limited support and guidance to date other than initially confirming they do not consider the judgment changes the position in law, and referencing their guidance on effective supervision (Effective Supervision Guidance). More recently, they published a statement (Conducting litigation) signposting the profession to various resources to support understanding of LSA 2007 obligations, including the SRA’s submissions in the Mazur case. However, the main thrust of the note is that it is not their job to interpret legislation, provide legal advice or define terms used in legislation, so practical advice from the SRA is still sadly lacking (although paragraphs 41-51 of the SRA’s submissions in the Mazur case provide some assistance).
Responses from both CILEX and The Law Society have been more helpful (they can be found here Law Society Mazur and the conduct of litigation, Cilex Regulation. The-conduct-of-litigation
The guidance reiterates that:
- Mazur applies to the conduct of litigation but not to claims that settle without proceedings being issued. Giving legal advice is not a reserved activity in itself so a non-authorised person can negotiate and settle an unissued claim (but can’t issue proceedings, even if only a small claim).
- ‘Tick-box’ oversight from an authorised person will not be sufficient.
- The Law Society practice note refers to work which might not be regarded as “conduct of proceedings” including work done in preparing witness statements and instructing experts, however, the overall message was still to err on the side of caution and ensure ‘formal’ parts of the claims process – issuing the claim form, signing key documents, perhaps even completing directions questionnaires etc – are undertaken by authorised individuals.
- The line between lawful “support” and unlawful “conduct” of litigation is hard to define. The court emphasised that it depends on “fact and degree”. There are “grey areas” where it’s not always obvious whether an activity counts as “conducting litigation” or merely “supporting” it. So caution and possibly legal advice are prudent.
- Supervision alone is not enough to authorise a non-authorised person to conduct litigation. The authorised person must truly have conduct of the case, and any non-authorised person must play a supporting role only. Firms need to check their practices accordingly.
So…what next?
Whilst there has now been some helpful advice and clarification, the decision may of course still have a significant impact on firms which rely heavily on non-authorised staff, including para-legals and CILEx members without litigation practice rights, particularly if the ratio of authorised to non-authorised staff is low.
It remains to be seen whether the decision will be appealed/overturned. It is however already being cited by Slaughter & May in Município de Mariana & Others v BHP Group (UK) Ltd and BHP Group Limited as a way to undermine the legitimacy of the other party’s legal team, and it is likely others will follow. This is despite the Law Society’s guidance warning against using the Mazur case ‘to attempt to influence another party’s behaviour or the progress of the litigation’.
The difference between assisting the conduct of litigation by an authorised person, and conducting litigation under the supervision of an authorised person is nuanced and firms will need to review the steps being taken by non-authorised staff on a case-by-case basis.
Now would be a good time to check and fully document your supervision and sign-off policies and ensure that your non-authorised staff do not have ultimate responsibility for litigation matters. Any “formal steps” should be taken exclusively by an authorised person (such as the issue of claim forms, signing of key court documents, including Defences, and potentially Directions Questionnaires, listing questionnaires, Consent orders etc, and even the making Part 36 offers should be considered carefully). It is also important to ensure that everyone fully understands the boundaries of their roles and that these are documented clearly in your policies and procedures.
Whilst the Mazur case only directly impacts those carrying out the reserved legal activity of “conduct of litigation”, now may be a good time for all firms carrying out any other of the reserved legal activities to review their supervision arrangements and the terms of the Legal Services Act 2007 to ensure they are compliant.
A further reminder that 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.