Leading KC calls for regulators to give clear guidance and immunity on past Mazur-related breaches
One of the country’s leading experts on legal regulation has called on professional regulators to publicly assure unqualified practitioners that they will not face prosecution or disciplinary action for past breaches exposed by the Mazur judgment.
Greg Treverton-Jones KC, general editor of The Solicitor’s Handbook and a barrister at 39 Essex Chambers, said the fallout from Mazur has created unprecedented uncertainty across the profession. Speaking at a seminar hosted by his chambers, he urged the Solicitors Regulation Authority (SRA) and CILEx Regulation to provide “hard-edged guidance” defining what amounts to the conduct of litigation and to protect those who may have inadvertently breached the law before the ruling.
Treverton-Jones said the decision in Mazur had caused “bigger ripples” than any other case he had encountered. With no appeal lodged, he said, “that is now the law”, leaving many practitioners unsure about whether past activities could amount to criminal conduct under the Legal Services Act 2007.
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He described the 2023 High Court judgment in Baxter v Doble as an important precursor, where Mr Justice Cavanagh observed that it was difficult to identify a “clear dividing line” defining what constitutes conducting litigation. Treverton-Jones questioned that reasoning, arguing that the criminal nature of the offence requires precision.
“Surely in the criminal law, people are entitled to know what they can and can’t do,” he said. “If you are doing one thing which amounts to the conduct of litigation, let us say issuing a claim form, isn’t that a crime? Isn’t that a breach of the statute? And isn’t that therefore a criminal offence?”
He challenged the idea that a court should view a person’s actions “in the round” rather than individually, insisting each activity must be assessed on its own merits.
The KC also highlighted inconsistencies between judicial decisions and procedural rules. He pointed to Civil Procedure Rules allowing non-authorised individuals to sign a statement of truth, asking, “If that isn’t part of the conduct of litigation, what is?” He added that the Civil Procedure Rule Committee appeared to have inadvertently authorised conduct that could technically breach criminal law.
Treverton-Jones noted that while judges in earlier cases such as Ndole held that drafting a witness statement formed part of conducting litigation, both the SRA and Law Society had intervened in Mazur arguing that proofing witnesses did not. “At what point does that document become part of the conduct of litigation?” he asked. “It’s surely only when it’s completed and being signed that an authorised person has to take responsibility for it.”
He proposed four solutions to the uncertainty. First, he said experienced chartered legal executives who had previously been misinformed about the need for litigation practice rights should be “rapidly passported” into authorisation. Secondly, he called on the SRA and CILEx Regulation to collaborate urgently on definitive guidance explaining which specific actions constitute conducting litigation. “There are all sorts of grey areas,” he said, citing routine tasks such as making Part 36 offers, corresponding with the court, or using standardised pleadings.
His third recommendation was for the regulators to issue a public assurance confirming that any inadvertent breaches committed before Mazur need not be reported and would not attract prosecution or disciplinary action. “This is an area in which the regulators have got it wrong,” he said. “The rule committee seems to have got it wrong. The judges don’t know what’s meant by the conduct of litigation. Surely the regulators can step in.”
Finally, he urged legislative reform to amend the Legal Services Act 2007 so that non-authorised persons may conduct certain litigation tasks under supervision, as already permitted in other reserved legal activities. He said such an amendment “would make the whole problem disappear”.
Also speaking at the seminar, Katherine Apps KC said Ndole made clear that a breach did not render underlying litigation void. She added that while abuse-of-process arguments had failed in Mazur, they might succeed if a party had been materially misled. She warned, however, that the courts have previously exercised their “Hamid jurisdiction” to sanction non-authorised persons who misrepresented themselves as solicitors.