Ruling confirms litigation steps may be carried out by supervised staff under the Legal Services Act 2007 where authorised lawyers retain responsibility
The Court of Appeal has overturned the High Court’s earlier ruling in Mazur v Charles Russell Speechlys LLP, clarifying the meaning of the statutory concept of the “conduct of litigation” and confirming that supervised delegation of litigation work within legal teams remains lawful under the Legal Services Act 2007.
The appeal concerned whether work carried out by individuals who were not themselves authorised litigators could amount to the reserved legal activity of conducting litigation when performed within a supervised law-firm structure. The issue arose after the High Court held that certain litigation steps undertaken by non-authorised staff could fall within the statutory prohibition on unauthorised persons carrying out reserved activities.
Allowing the appeal in CILEX & Ors v Mazur & Ors, the court held that the earlier approach adopted by Mr Justice Sheldon was inconsistent with the structure and purpose of the statutory scheme and with long-established litigation practice across England and Wales.
Giving the leading judgment, Sir Colin Birss, Chancellor of the High Court, said there had long been a “widespread, general and well-regulated practice of delegation by solicitors to unqualified individuals”, and nothing in the Legal Services Act displaced that position.
He said it was wrong to interpret the legislation as preventing delegated performance of litigation steps by non-authorised staff working within supervised legal teams.
The court rejected the distinction drawn by the High Court between assisting with litigation and conducting litigation under supervision. Sir Colin said an unauthorised person “is not limited merely to assisting or supporting” an authorised practitioner, provided appropriate supervisory arrangements are in place and responsibility remains with the authorised lawyer.
The appeal concerned whether litigation work undertaken by individuals who were not themselves authorised persons could amount to unlawful conduct of litigation within the meaning of the statutory regime governing reserved legal activities.
Mr Justice Sheldon had held that only authorised persons could carry out litigation functions and that employment within a regulated law firm or supervision by an authorised practitioner did not permit non-authorised staff to undertake those functions themselves. That interpretation created uncertainty about the lawfulness of routine delegation across litigation teams.
The Court of Appeal concluded that this approach was incorrect.
Sir Colin said there was “no justification” in the statutory wording for treating delegation within supervised teams as unlawful conduct of litigation and emphasised that responsibility for proceedings remains the central feature of the statutory scheme.
He explained that the conduct of litigation continues to be a reserved legal activity and must remain under the control of an authorised person. However, the legislation does not prevent appropriately supervised individuals from carrying out procedural work forming part of litigation practice.
The court declined to produce a definitive list of which steps amount to the conduct of litigation, recognising that the statutory concept operates across a wide range of procedural contexts and cannot be reduced to a closed category of tasks.
Instead, the judgment emphasised that the relevant question is whether responsibility for the conduct of proceedings rests with an authorised person rather than whether particular steps were performed personally by that individual.
Sir Colin also observed that it was difficult to see why the dispute had continued as long as it had, given the established understanding of litigation practice prior to the enactment of the Legal Services Act 2007.
The decision restores the position widely understood to apply before the High Court ruling and confirms that supervised delegation within litigation teams remains consistent with the statutory framework governing reserved legal activities.
While allowing the appeal, the court reaffirmed that the right to conduct litigation remains restricted to authorised persons under the statutory regime. However, it clarified that delegation within supervised legal teams does not breach that restriction where authorised practitioners retain responsibility for proceedings.
The ruling therefore resolves uncertainty affecting litigation practice across the profession and confirms that long-standing team-based working arrangements remain compatible with the legislative structure governing the conduct of litigation in England and Wales.
In the case, litigants in person Julia Mazur and Jerome Stuart challenged a costs bill on the basis that an unauthorised person handled the litigation. The court said there was no doubt that the supervising solicitor ‘bore the relevant responsibility for the proceedings and was carrying on the conduct of litigation’.
Both Lady Justice Andrews and Sir Geoffrey Vos agreed with the ruling. Justice Andrews said that, in essence, the question was whether the unauthorised person, in carrying out whatever tasks that fall within the scope of ‘conduct of litigation’ had been delegated to them, was in truth acting on behalf of the authorised individual.
She stressed that there must always be an authorised person delegating tasks and taking responsibility, adding: ‘If the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.’
The Sheldon ruling sent shock waves through the profession, causing firms to reconsider their business models and remove cases from people deemed to be acting unlawfully.
In a response following the ruling, CILEX chief executive Jennifer Coupland said it was “the most consequential judgment for legal services in recent history”.
In its response, the SRA ‘welcomed the clear direction from the Court of Appeal’ recognised ‘the concern and confusion among practitioners and firms’ after the High Court’s ruling.
SRA said: ‘The clarity the judgment provides will enable us to review our guidance and update it where necessary. We will do this as soon as possible. We will be working closely with other regulators and organisations to make sure there is consistency and clarity for everyone.’
SRA added, in the immediate term, if firms or lawyers have queries on this, in addition to them reviewing the judgment, our Professional Ethics Helpline is available to offer advice and support.
Read the Court of Appeal judgment.