It’s a simple question, and a seemingly simple answer. Who can conduct litigation? Answer: Authorised individuals as per the Legal Services Act 2007.
And yet, it’s really not an overstatement to say that the case of Mazur v Charles Russell Speechlys [2025] EWHC 2341 has ricocheted through the legal community. On the face of it, a rather niche and possibly stretching argument about a costs order, it has significant ramifications – some of which may be yet to emerge.
Who’s impacted?
The first ramification is the most obvious: a re-focus on who can conduct litigation. In the facts of the case, the litigator who was conducting the case didn’t hold a current practising certificate (and so was not authorised). The argument that he was conducting the litigation under the supervision of an authorised person was not accepted: the judgment ratified that you can only “conduct” litigation if you yourself are authorised. Otherwise, you are not conducting but supporting… so there has to be someone else (who is authorised) to do the conducting.
The SRA and the Law Society, who intervened, agreed with this.
What does this mean?
So what does the conduct of litigation entail? Well, helpfully the intervening parties both agreed that this was a question of fact and degree. Desperately trying to balance on that fencepost, the SRA added that the key question was who was exercising “professional judgement”.
There is, in short, nothing definitive, so firms who are grappling with this need to be clear amongst themselves what stages or activities would be “conduct of litigation” and therefore when and how “professional judgement” needs to be exercised by an authorised person. You need a considered process map and, if you have unqualified or non-authorised staff working in your litigation departments, there must be a crystalline level of clarity about what they can do, and when they should pass it over to a colleague.
The ripple effect
Those are the basic takeaways, both of which are breathtaking in and of themselves. However, it doesn’t stop there.
Other reserved activities
At the heart of this decision is the mess that is the Legal Services Act 2007 (sorry if you’re the person who worked really hard on it). This is where we find the definition of “reserved activities”, for which you have to be an appropriately authorised person if you want to carry them out.
Litigation activities are one, but so are reserved instrument activities and probate activities (other reserved activities are available). Probate activities are pretty obvious: it’s preparing a probate application. Reserved instrument activities can trip people up but are broadly things to do with transferring, charging or registering real or personal estate. To give examples that people understand, it’s your TR1s, your charge documents and so on.
Does Mazur impact non-authorised or unqualified conveyancers or probate practitioners? The commentary is mixed. One view is that the LSA already has the “supervision” exception for conveyancers and probate practitioners that the litigators tried to rely upon in Mazur, namely that if you are carrying out these activities under the “supervision” of someone else in your firm, you can do so without needing to be authorised directly. That is not an exception that extends to the conduct of litigation.
In reality, though, this seems a rose-tinted view. There are many firms who have unqualified or non-authorised, but extremely experienced, conveyancing or probate practitioners who run cases completely independently. On paper, they may be “supervised” just like everyone else is, but in practice they are not walking over to a colleague to get them to look over a TR1 or a Grant of Probate application on the basis that the colleague, by dint of holding a practising certificate, knows better what they are doing.
With this focus, it seems entirely reasonable that any firm which carries out any reserved activities and may have at least one non-authorised or unqualified member of staff rethinks their supervision procedures.
CILEX
There is also huge concern amongst those regulated by CILEX. Up until December 2023, the CILEX website advised its members that, so long as they were employed in solicitors’ firms, they could conduct litigation. The advice was quietly changed after this to confirm – as per Mazur – that unauthorised people cannot conduct litigation, even if under supervision. However, this initially incorrect advice has never previously been flagged to its members.
As the Law Gazette pointed out this week, the ramifications could be that thousands of legal executives have unlawfully worked on litigation matters. Currently, the only advice seems to be for CILEX members to obtain the separate right to conduct reserved activities – which will cost them, both in money and in time (and wouldn’t necessarily absolve any historic issues).
The SRA
And where is our regulator in this? Somewhat awkwardly, the firm in the Mazur case had actually asked the SRA whether their employee could undertake the conduct of litigation. The answer given was… yes. However, in Court, they changed their mind. All we know is that there is currently a review to see whether anyone else might have received the same, blatantly incorrect advice. A recent statement has reaffirmed the importance of good supervision.
Is Mazur “right”?
There is active debate about whether the High Court’s approach in Mazur is correct. Legal Futures has reported a range of practitioner views questioning aspects of the reasoning and its practical consequences. For further context, readers may also find the late Andrew Hopper QC’s 2013 commentary (Delegation of the Conduct of Litigation – What Can Paralegals Do?) on our blog helpful. Mr Hopper was of the view that under the Legal Services Act, it is the firm itself which is the authorised person.
Might we see a future challenge to the High Court decision?
So what do I do?
- Personnel reviews: check you understand what status staff have – are they authorised or not?
- Process maps: consider the stages or activities that your staff carry out when working on matters – what would fall under a “reserved activity”? What supervision or oversight processes do you need to ensure are followed? For safety, ensure you are documenting this
- Training and awareness: there’s no point doing the above in a vacuum: you need an honest conversation with staff about how this might affect them and what they need to do. This is serious – remember it is a criminal offence to carry out reserved activities if you are not authorised and there is no other exemption
- Support: this is the big one. Your non-authorised colleagues, many of whom will hold qualifications or who have qualified through experience, are shocked and worried. If there is one thing you can do which they will remember, it is to offer them support. This decision is not about an interesting quirk or misreading of law: at its heart, it has very real effects on individuals who have been doing such work really well for many years. How best can you show how you have your colleagues’ backs?
