The Court of Appeal’s decision in Mazur (opens a new window) has confirmed a long‑standing and well‑understood model of delegation under supervision in litigation, reassuring much of the profession that established practices remain lawful. At the same time, it highlights real risk where appropriate supervision and delegation arrangements are absent or inadequately evidenced, leaving open the possibility that an unauthorised person is in fact conducting litigation. A clearer, fact‑specific approach to supervision, delegation, and retained responsibility can help firms maintain established working practices while reducing regulatory and procedural exposure.
How we got here
Most people reading this will already know the broad outline of Mazur, and they will probably be rather relieved at the outcome. To recap, the case originates from a claim for unpaid fees brought by Charles Russell Speechlys LLP against their clients, Mrs Mazur and Mr Stuart. Charles Russell engaged a second firm, Goldsmith Bowers Solicitors, to recover those fees, and a claim was issued and signed by the “Head of Commercial Litigation”. Mrs Mazur and Mr Stuart identified that this person did not hold a practising certificate and applied to the court on the basis that he was unlawfully conducting litigation.
The claim progressed through the County Court to Mr Justice Sheldon – it was initially stayed, that stay was subsequently lifted, and Mrs Mazur and Mr Stuart were ordered to pay the costs. The lift of the stay was based in part on the position reached at that time by the SRA that under section 21 of the Legal Services Act 2007 Mr Middleton was entitled to undertake reserved activities given his employment at a firm authorised and regulated by the SRA. Mrs Mazur and Mr Stuart appealed to the High Court both on the interpretation of the Act and the costs order.
That High Court appeal was before Mr Justice Sheldon who found for the claimants. Sheldon J distinguished between: (a) supporting or assisting an authorised person in conducting litigation, and (b) conducting litigation under the supervision of an authorised person, deciding that an unauthorised person could do (a) but not (b). The effect of that ruling was considered to mean that, in practice, an unauthorised person could not do very much at all in a litigation context – and the impact on the profession was feared to be significant (despite the fact the rules had not changed). Notably, by the time of the High Court appeal the SRA had disavowed their previously expressed position that section 21 permitted any unauthorised employee to conduct litigation.
Following the High Court ruling, a subsequent appeal was lodged with the Court of Appeal. The interesting feature of this appeal was that the party who appealed – CILEX – was not a party to the original action at all. They were given permission by the Court of Appeal to appeal on the basis that they would not be challenging the costs order made and would not seek costs. The Law Centres Network also intervened, and APIL – representing personal injury lawyers – did so too. The dispute in the Court of Appeal ended up being principally between CILEX, APIL and the Law Centres Network on one side, and the Law Society, the SRA and the Legal Services Board on the other to decide the future role of an unauthorised person including those with CILEX qualifications in the conduct of litigation.
What the Court of Appeal decided
Perhaps unsurprisingly – though it certainly was not a foregone conclusion – the Court of Appeal overturned Mr Justice Sheldon's reasoning. The leading judgment was delivered by the Chancellor, Sir Colin Birss, with whom the Master of the Rolls, Sir Geoffrey Vos, and Lady Justice Andrews agreed.
The offence under section 14 of the 2007 Act is committed when someone carries on the conduct of litigation without authorisation. The key to the decision lies in the interpretation of the phrase “carries on the conduct of litigation”. The words “conduct of litigation” refer to the tasks to be undertaken, whilst the words “carries on” refer to the direction and control of, and responsibility for, those tasks. That is the conceptual heart of the judgment. Crucially, the Court of Appeal held that an authorised person who properly supervises an unauthorised person performing litigation tasks is the one doing the carrying on, not the person physically doing the task. This is a pragmatic and reasonable solution to the problem faced in the lower courts.
The practical guidance that emerges is fairly straightforward. Supervision starts from the position of who is being supervised.
The Court of Appeal found that an unauthorised person can lawfully perform any tasks which are within the scope of the conduct of litigation for and on behalf of an authorised person such as a solicitor or appropriately authorised CILEX member. The authorised person retains responsibility for the tasks delegated to the unauthorised person. The authorised person is, therefore, the person carrying on the conduct of litigation; the unauthorised person is not carrying on the conduct of litigation and does not commit an offence.
Crucially, the Court of Appeal disagreed with Sheldon J when he distinguished between (a) supporting or assisting an authorised person in conducting litigation, and (b) conducting litigation under the supervision of an authorised person. Both activities, the Court of Appeal found, are lawful. It is not unlawful for an unauthorised person to act for and on behalf of an authorised person so as to conduct litigation under their supervision, provided the authorised person puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.
That phrase – “appropriate arrangements” – is central to everything. The degree of appropriate control and supervision will always depend on the circumstances.
It is also worth noting the historical backdrop, which the Chancellor drew on heavily. Before the 2007 Act, there was a widespread, general and well-regulated practice of delegation by solicitors to unqualified individuals. It was a matter for the solicitor principal to decide what tasks should be delegated and to whom, and to put in place proper arrangements for the management and supervision of that work. This practice of delegation did not absolve solicitors of their professional responsibilities for the performance of the person undertaking delegated duties, nor did it undermine the solicitors' duties to their clients or the court. Parliament must be taken to have understood that individual solicitors operated a widespread and regulated practice of delegating work undertaken in the conduct of litigation to unqualified staff.
In short, the profession has been doing this for well over a century. The 2007 Act was never intended to change that. And now the Court of Appeal has confirmed as much.
Has anything actually changed?
The honest answer is: not really, at least for the vast majority of firms that were already running sensible and appropriate supervision arrangements.
Whether, prior to Sheldon, matters had become perhaps more lax than they should have been – there can be no doubt that unauthorised persons should be supervised – is another question.
What the judgment does is confirm that the level of supervision is fact-specific, and that those facts may be specific both in relation to the personnel being supervised and in relation to the particular type of litigation being conducted.
The practical guidance that emerges is fairly straightforward. Supervision starts from the position of who is being supervised. If you are supervising, for example, a legal executive who doesn't have the conduct of litigation authorisation but has nevertheless been doing this for 25 years without any suggestion that they didn't know what they were doing, then the level of supervision is likely to be light. In such cases, it may be sufficient for the authorised person to conduct regular meetings with the unauthorised person and to sample their work.
Whilst the judgment is very clear that the precise details are for the relevant regulators, in certain circumstances the level of supervision can be lower for more routine matters. This may include high-volume work conducted within approved templates, where much of the steps are likely to be formulaic. The key will be to carefully document the process and obtain sign off at the right level.
In short, supervision and delegation will be fact and individual specific depending on experience and type of work. However, the authorised person's responsibilities remain intact. The authorised person retains the responsibility to act with independence and integrity, to maintain proper standards of work, to act in the best interests of their clients, and to comply with their duty to the court to act with independence and in the interests of justice.
The caveat: poor supervision is still a problem
Here is where the good news has to be tempered slightly. The judgment goes some way to restoring the familiar working model, but it does not give anyone a free pass. In some circumstances the degree of appropriate control and supervision will be high, with approval required before steps are taken. Whilst the Court of Appeal did not go through every possible scenario in detail some thought can be given to appropriate standards of practice and the interrelationship between authorised and non-authorised persons.
There are some steps in proceedings that should be referred to the supervisor. Cases involving the biggest weapons in civil litigation – freezing orders, search orders, Norwich Pharmacal orders – are obvious examples. Applications made without notice, where the duty of full and frank disclosure is engaged, are another situation where best practice may require an unauthorised person to seek approval from their supervisor.
And, crucially, there are situations where arrangements that look like supervision on paper might not amount to supervision in substance. It is important to note that there could still be situations where an unauthorised person is conducting the litigation, where any supervision is effectively a sham and they are not being supervised at all. One still has to look out for the possibility that the absence of proper supervision and delegation means that the unauthorised person is, in fact, conducting litigation.
What one cannot do is simply hand over a process, deal with thousands of cases and have no authorised person ever look at them again. There needs to be actual supervision; authorised persons are left to use their own professional judgment when delegating subject to guidance from the regulators which is awaited.
A few loose ends
The judgment did not resolve everything, and it is worth knowing what remains open.
On the question of what actually constitutes the "conduct of litigation" in the first place, the arguments in this appeal did not equip the court to attempt an exhaustive definition. The Law Society provided a list of seven categories of work likely to fall outside the statutory definition – including pre-litigation work, giving legal advice in connection with proceedings, conducting correspondence with the other side, gathering evidence, instructing and liaising with experts and counsel, and signing statements of truth. Those are probably fine, although not definitely in every case, and a number of them could quite easily tip into conduct of litigation. And would one really want unauthorised persons not being supervised when gathering evidence or signing statements of truth? Probably not.
On rights of audience, it seems likely that judges will go back to the pre-Sheldon Mazur position and be more willing to allow unqualified advocates to address the court – particularly in the DJ's list and other lower-level procedural hearings although this may well come under further regulatory scrutiny.
Final thoughts
The profession is back to pre-Sheldon Mazur, but with more emphasis – or rather, at least a proper reminder – that if you are going to delegate, it must be done with elements of proper supervision. The level of that supervision will be fact-specific and will depend on the individual, the task, and the type of case involved.
The message from this judgment is reassuring, but it is not a licence for complacency. Firms ought to take the opportunity to review their supervision arrangements and satisfy themselves that they are genuine and proportionate – not because there is a new legal requirement to do so, but because the most serious failings tend not to be the result of unauthorised persons doing work, but of work not being properly supervised. That has always been true; Mazur simply reminds us of it.
For more information, reach out to a member of our team.
Further reading
Law Society: Mazur and the conduct of litigation (opens a new window)
