The widely-reported Mazur case goes to the heart of how many firms are actually run. The High Court has confirmed, in very clear terms, that only an “authorised person” under the Legal Services Act 2007 can conduct litigation. Being employed by an authorised firm, or being supervised by an authorised litigator, does not give you litigation rights.
That single clarification has triggered a huge post-mortem. Large swathes of the profession have been operating on the assumption – encouraged, at times, by regulator and civil procedure commentary – that supervised paralegals, trainees and CILEX members without independent rights could lawfully “run” cases. Mazur exposes that as a misunderstanding. The law has not changed; what has changed is the profession’s appreciation of what it always meant.
What Mazur actually decided
The underlying facts are almost mundane. A firm found that fees of around £54k were unpaid. The firm instructed a specialist firm to recover the debt. The “Head of Commercial Litigation” at the debt recovery firm took most of the procedural steps – including signing the particulars of claim – but did not hold a practising certificate and was not otherwise authorised to conduct litigation.
When the claim was challenged on that basis, the County Court initially treated his involvement as a reserved activity but ultimately allowed the case to continue, relying heavily on the fact that he was said to be supervised and on a letter from the SRA suggesting that section 21(3) LSA allowed employees of authorised firms to conduct litigation under supervision. On appeal, Mr Justice Sheldon firmly rejected that interpretation:
- Section 21(3) creates a category of “regulated person” (someone within the regulator’s jurisdiction).
- It does not convert those employees into “authorised persons” with practice rights.
- Only those who fall within the statutory definition of “authorised person” – for example, solicitors with a practising certificate, barristers, costs lawyers, chartered legal executives with litigation rights – can conduct litigation.
Supervision, employment status and job titles are all irrelevant to the question of authorisation. In fact, the Legal Services Act makes it a potential criminal offence for an authorised body to allow an unauthorised individual to carry out a reserved activity.
Where is the line between “conducting” and “supporting”?
This is the $64,000 question. Everyone now wants to know where the boundary lies between:
- conducting litigation (reserved, needs authorisation), and
- supporting an authorised person (unreserved, open to non-authorised staff).
The statutory definition of the “conduct of litigation” points to things like issuing and serving proceedings, signing statements of case and other formal steps in the court process. But in real life the more useful question – and the one we discussed at length in a recent webinar – is: who is the directing mind of the case?
You are probably in “conduct” territory if a person is:
- deciding strategy and next steps
- exercising professional judgment on prospects and settlement
- owning the relationship with the client and the court
- putting their name to the formal steps in the litigation
By contrast, non-authorised staff can safely operate in a support role: drafting documents, gathering evidence, preparing bundles, liaising with the court on routine administrative matters – provided there is a genuinely engaged authorised litigator directing and supervising those tasks, not just rubber-stamping the file.
The wider ripple: maybe it’s not just litigation departments
Mazur is a litigation case, and the judgment is limited to the conduct of litigation as a reserved activity. But it inevitably prompts awkward questions elsewhere in firms. Other reserved activities – for example preparing certain probate papers and conveyancing instruments – have slightly different statutory frameworks containing express supervision exemptions.
Even so, the underlying principle carries across. A non-authorised file handler needs to work under the direction and supervision of an authorised person, when touching upon any of the reserved activities.
“Direction” and “supervision” sounds very similar to the arrangements litigation departments are now being advised to take, doesn’t it?
If your business model relies on very experienced but non-authorised staff effectively running probate or conveyancing files with light-touch solicitor oversight, Mazur should at least trigger a review. It’s hard to imagine a seasoned non-lawyer “Head of Residential Property” toddling off down the corridor to take direction from a junior solicitor on every single conveyancing transaction.
You may not be in quite the same legal territory as litigation, but you are playing with similar concepts.
The uncomfortable questions Mazur raises
I keep circling back to three questions that firms are now wrestling with:
Have we technically been committing offences?
If an unauthorised person has in fact been conducting litigation, then – in principle – the firm may have exposed itself to the criminal provisions in the Legal Services Act for allowing an unauthorised person to carry out a reserved activity. That sounds dramatic and it is one reason why Mazur has put everyone on edge. Prosecutions are arguably more likely now that we are all on notice of the issue.
What about costs and existing judgments?
Costs specialists are already pointing out that Mazur gives paying parties an extra argument to resist or reduce costs if the successful party’s case was run by non-authorised staff. There is also nervous talk about whether historic costs orders or judgments could be challenged where conduct has been in unauthorised hands. How far that goes remains to be seen, but firms need to go into costs negotiations and detailed assessments with eyes open to the point.
Do we need to self-report to the SRA?
This is the thorniest issue. The SRA’s Code requires firms to report serious breaches promptly. Discovering that a paralegal has been conducting litigation for years without authorisation feels, in my view, pretty serious. On the other hand, the law was genuinely misunderstood by a large part of the profession – including, at one stage, the regulator itself – and many firms will already be moving quickly to correct historic practice.
At the recent SRA conference, there was no guidance on this reporting issue – despite panels being pressed to give it. Reading between the lines, it feels like they don’t particularly want firms to self report (because it would be hard for them to manage the sheer volume), but can’t be seen to say that (because it sets an odd precedent – we are, after all talking about potential offences).
There is unlikely to be a one-size-fits-all answer. The decision whether to self-report is going to depend on scale, duration, client detriment and whether anyone has been misled or prejudiced. If you think you have a Mazur problem, I would contact Professional Ethics (0370 606 2577 or professional.ethics@sra.org.uk) and follow their guidance on reporting. This is one of those situations where doing nothing and hoping it goes away is the least defensible option.
A practical response plan for firms
So what should firms actually do with all this? Rushed restructures are tempting – but a more measured, staged response is likely to be more effective. For example:
Map reality, not just the org chart
Start by working out who really has conduct of each live litigation matter. That might not be the person named on your case management system. Look at who is signing statements of case, making strategy calls and dealing with the court. Every file should have an identifiable authorised person with conduct. That can be evidenced in your client care letters, file notes, attendance records and formal documents.
Draw a clear line between conduct and support
Write down, in plain language, which litigation tasks can only be carried out by an authorised person and which can be handled by support staff. Use concrete examples drawn from your workflows: who issues proceedings, who signs particulars, who signs certificates of service, who approves settlement and Part 36 offers, and so on. Train the whole litigation team on this – including non-legal staff – and revisit it as guidance from the Law Society and SRA evolves.
Fix role titles, job descriptions and supervision in practice
Job titles like “Head of Litigation” for non-authorised staff could now be a liability. They give the wrong impression to clients and opponents and make it harder to argue that someone was merely assisting. Job descriptions and supervision arrangements should reflect the new reality:
- authorised litigators are clearly accountable for conduct;
- non-authorised staff are explicitly in a support function;
- supervision is active (files are reviewed, advice is checked, key steps are signed off), not just a named supervisor in a client care letter.
Triage historic exposure
You probably can’t re-paper the last decade of work, but you can triage and look into risk areas. For example, look for matters where non-authorised staff have been signing statements of truth or other formal court documents, or there is a realistic prospect of a costs challenge, appeal or complaint.
For those, consider what remedial steps are open, and whether any notifications are justified.
Take a structured approach to self-reporting
If your triage throws up widespread or serious issues, you could be into reporting territory. At that point:
- Involve COLP/COFA and senior management.
- Speak to your PII broker/insurer – they will not thank you for surprise regulatory action down the line.
- Assemble a narrative: what the firm’s historic understanding was, what has changed post-Mazur, what harm (if any) has occurred, and what you have done to fix it.
Where you conclude that a report is not necessary, record the reasoning. Mazur has changed the landscape enough that SRA will expect firms at least to have considered the issue.
Watch the guidance – and be prepared to move again
The Law Society has already produced practice guidance on Mazur, and more commentary is emerging from costs lawyers, commentators and specialist firms. We can expect further clarification from regulators and perhaps even legislative reform in the medium term. For now, though, the safest assumption is that the judgment is here to stay and that the SRA will expect firms to align their models accordingly.
The litigation business model
For years, many litigation practices – particularly high-volume ones – have relied on a pyramid: a relatively small number of authorised litigators at the top, with large teams of non-authorised case handlers beneath them doing what is, in substance, reserved work. That commercial model underpins the economics and funding model of many actions. And that model is now under huge pressure.
Some firms will respond by cutting back non-authorised roles. Others will invest more in getting staff fully qualified and authorised. A few may rethink their entire offering, on the basis that it becomes commercially unviable to stray away from the status quo. Wherever you land, Mazur is forcing a more honest conversation about who actually exercises the rights your firm holds.
If there is one practical takeaway from all this uncertainty, it is this: go back to basics and ask, “who is really conducting this litigation?” If the answer is not an authorised person, Mazur suggests that something needs to change.
