High Court Confirms That Non-authorised Fee Earners Cannot Conduct Litigation

The decision clarifies the scope of work which may be undertaken, in the course of litigation, by fee earners who are not authorised to conduct litigation by a relevant regulator.

The High Court has clarified that the requirement for authorisation to conduct litigation under the Legal Services Act 2007 (LSA) is personal in nature, so a non-authorised individual cannot conduct litigation (even under supervision) simply because their firm is authorised: Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB).

The authorisation requirement, as noted by Mr Justice Cavanagh in Baxter v Doble [2023] EWHC 486 (KB), is not a new one: it has been the position since no later than the enactment of the Courts and Legal Services Act 1990. This decision, however, provides some clarity on the type of litigation work that may be undertaken by, for example, trainee solicitors, paralegals, some employed barristers and some foreign-qualified lawyers.

At first blush, a finding that non-admitted fee earners are not permitted to conduct litigation seems unsurprising, but the judgment will cause some firms to reassess their business models.

The judgment will be particularly relevant to:

• Firms which conduct low value or volume litigation. Clients of these firms will typically expect cases to be staffed in a way which minimises cost, which typically results in a greater use of non-solicitor resources. Firms specialising in the area will often employ paralegals who are highly specialised in their field of expertise and – but for their lack of qualification – could properly conduct litigation in that area.
• All firms which employ non-solicitor fee earners, including employed barristers and foreign-qualified lawyers.

While the judgment will be of interest to firms, responsibility for breach of the LSA can also be a personal matter for individual fee earners.

Background

The dispute arose from fees allegedly owed by the appellants to the respondent, their former solicitors. Proceedings were commenced in the fee dispute by the respondent's new solicitors, with the particulars of claim signed by that firm's Head of Commercial Litigation, Mr Middleton, who was a solicitor without a current practising certificate. The appellants objected to Mr Middleton's involvement in the matter, asserting that he was not authorised to conduct litigation. They applied for directions, including an order requiring his replacement by a qualified solicitor. Acting of his own motion, Deputy District Judge Campbell ordered a stay of the proceedings, citing evidence that Mr Middleton had engaged in one of the six reserved legal activities in the LSA – namely, the conduct of litigation – without authorisation.

The respondent made an application to lift the stay, which came before His Honour Judge Simpkiss. In the interim, Mr Middleton was replaced by a qualified solicitor, and his firm submitted a self-report to the Solicitors Regulation Authority (SRA). Interestingly, the SRA decided not to investigate the matter, on the basis that, in their view at that time, Mr Middleton was entitled to conduct litigation in reliance on the firm's authorisation.

In view of the SRA's letter, HH Judge Simpkiss found that there was no breach of the LSA. He therefore lifted the stay and ordered the appellants to pay the respondent's costs.

The appellants appealed to the High Court and also invited the court to consider referring Mr Middleton and his supervising director to the SRA for further investigation, notwithstanding the SRA's earlier decision not to pursue the matter.

Decision

The High Court (Mr Justice Sheldon) allowed the appeal.

Recognising the wider significance of the appeal, Sheldon J invited submissions from the Law Society and the SRA on the circumstances in which a non-admitted person may conduct litigation. Both bodies were aligned in their interpretation: whilst non-admitted individuals may assist in litigation, they are not permitted to conduct it, even under supervision.

The SRA recognised that their earlier letter to the firm had been wrong.

The Law Society emphasised that litigation must be controlled by authorised individuals: a principle which, they said, was rooted in public interest. They noted that non-admitted individuals may assist with – as opposed to conduct – litigation and may therefore undertake routine administrative tasks such as serving documents or preparing bundles. In their view, whether an individual crosses the threshold depends on the facts and degree of their involvement.

Sheldon J agreed. He referred to section 15(2) of the LSA, which makes it clear that an employee who carries out a reserved legal activity is treated as personally undertaking that activity, regardless of whether their employer is authorised. Indeed, section 16 of the LSA states that an employer commits an offence if a reserved legal activity is carried on by one of their employees, in their capacity as such, without that employee being appropriately authorised.

Like the Law Society, Sheldon J distinguished between assisting with and conducting litigation. In doing so, he drew an analogy with another reserved legal activity: exercising rights of audience. Under Schedule 3 to the LSA, a person does not need authorisation for that activity insofar as they are merely assisting in the conduct of litigation.

On this basis, Sheldon J held that Mr Middleton was not entitled to conduct litigation, because he was not personally authorised, and he could not rely on his firm's authorisation. He found that HH Judge Simpkiss was mistaken in relying on the SRA's earlier letter. Despite this finding, Sheldon J declined to make a referral to the SRA, on the basis that the SRA was already aware of the judgment, having been involved as an intervening party.

Unfortunately, Sheldon J did not need to consider whether Mr Middleton had in fact conducted litigation. The decision therefore leaves an important question unanswered: namely, what test should be applied in assessing whether a fee earner has gone beyond assisting in litigation. The SRA submitted that the question is one of fact and degree, relying on an earlier decision of Mr Justice Cavanagh in Baxter v Doble [2023] EWHC 486 (KB), and the key consideration is whether the individual has assumed responsibility for the conduct of litigation and exercises professional judgement in respect of it.

Whilst a qualitative and multi-factorial analysis may be sensible, it poses difficulties for firms when deciding how to delineate the responsibilities of their non-solicitor fee earners. It may be possible to draw insights from previous cases: for instance, in Baxter it was held that steps taken prior to the commencement of proceedings cannot amount to the conduct of litigation, and that the provision of legal advice does not in itself amount to the conduct of litigation. The Law Society also provided a menu of indicators in this case, which Sheldon J summarised: namely, how important decisions are taken on the case, who drafts or approves documents, the degree of direction from the supervisor, and evidence as to who is taking specific responsibility for the matter. Similarly, the SRA submitted that an individual who assists an authorised solicitor in the conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses or similar does not conduct litigation provided that the authorised solicitor is the one who exercises the final professional judgement about how the litigation is to be conducted and takes responsibility for that judgement.

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