Back in the middle of April we wrote about the Law Society’s updated practice note on Mazur and the conduct of litigation following the Court of Appeal judgment handed down on 31/3/26.
It turns out that wasn’t the end of the story!
Iain Miller of Kingsley Napley (who had represented CILEX in the appeal) challenged the Law Society’s practice note (as at 13/4/26), expressing concerns that the Law Society had made more of the Court of Appeal’s words than had been intended, suggesting that solicitors or firms could find themselves committing a criminal offence if their supervision of unauthorised persons was inadequate. Kingsley Napley’s position was that supervision is a regulatory, rather than a criminal matter. In response, the Law Society sought a declaration from the Court of Appeal to affirm its interpretation of the judgment. Instead, the Court of Appeal made some minor amendments to their judgment to clarify their position, and added a further paragraph to explain where these amendments had been made (see the new paragraph 31A which can be found here). Essentially, the Court of Appeal confirmed Kingsley Napley’s position – solicitors and firms will not commit a criminal offence simply by their supervision being inadequate. That of course does not give a green light for sloppy supervision, but that would be a regulatory matter (pursued for example, by the SRA) rather than a criminal matter (pursued by the courts).
Following the Court of Appeal’s clarification, the Law Society further updated its guidance on Mazur and the conduct of litigation on 29/4/26 to clarify this point. Other than some minor tweaks to revert to their pre-April wording of referencing ‘non-authorised individuals’ as ‘unauthorised persons’ throughout the majority (but not all) of the guidance note, and the removal of the words ‘very clearly’ when referring to how well Andrew LJ expressed the position of the Court of Appeal in relation to conduct amounting to a criminal offence (which is perhaps interesting in itself!), the Law Society’s substantive amendments can be found in section 6 of the Practice Guide – ‘Consequences of breach’:
Gone is the reference to criminal liability potentially arising where there has been inadequate delegation and supervision to an unauthorised person. An additional sentence now states, “The clarification of the Court of Appeal judgment now makes clear that where there is a system of delegation and supervision in place, the adequacy of that delegation and supervision will be a regulatory matter for the authorised person and the firm”.
Whilst the clear removal of potential criminal liability from the supervision arena following the Mazur Court of Appeal judgment is to be welcomed, the key point remains that ensuring that your delegation and supervision policies and practice are up to scratch is vital. For our further thoughts on what firms should do now in relation to the Conduct of Litigation, please see our earlier article here.