Court Of Appeal Confirms Unauthorised Individuals Can Lawfully Perform Tasks That Amount To The Conduct Of Litigation, Provided They Do So For And On Behalf Of, And Under The Supervision Of, An Authorised Person Who Is “carrying On” That Litigation

The Court of Appeal has held that unauthorised individuals can lawfully perform tasks within the scope of the conduct of litigation, including “tasks that amount to the conduct of litigation for and on behalf of the authorised individual” provided that the authorised individual retains responsibility for such tasks. In that situation, it is the authorised individual who is “carrying on the conduct of litigation”, not the unauthorised individual: Mazur v Charles Russell Speechlys LLP [2026] EWCA Civ 369.

The delegation of such tasks to unauthorised individuals requires proper direction, management, supervision and control. The degree of appropriate control and supervision required will always be dependent on the circumstances: “In some circumstances the degree of appropriate control and supervision will be high, with approval required before things are done. In other, for example routine, circumstances, a lower level of control and supervision will be required.” 

Although the Court of Appeal did not consider it possible to provide an exhaustive list of what does (and does not) amount to the conduct of litigation, it provided a short list of activities that are unlikely to fall within the statutory definition, including pre-action work and giving legal advice, even where that advice is in connection with court proceedings. While there remains an element of uncertainty as to when one might be engaged in the conduct of litigation, following the Court of Appeal's decision this is likely to be less of a concern to firms who ensure that their unauthorised individuals are appropriately supervised by authorised individuals.

The decision will be particularly welcomed by firms that conduct low value or volume litigation, where cases are typically handled by unqualified individuals, such as specialist paralegals, in order to minimise cost, and for all firms that employ non-solicitor fee earners. 

Background

The underlying dispute concerned unpaid fees owed to a law firm by its former clients. In order to recover this sum, the firm engaged a second law firm, which issued proceedings. 

The Particulars of Claim were signed by that firm’s Head of Commercial Litigation, Mr Middleton, who did not hold a practising certificate. The clients applied for him to be replaced, on the basis that he was unlawfully conducting litigation, one of the six reserved legal activities under the Legal Services Act 2007 (LSA 2007).  The proceedings were stayed of the court's own motion. 

The law firm applied to lift the stay and the application came before HHJ Simpkiss. 

In the interim, Mr Middleton was replaced by a qualified solicitor and his firm made a self-report to the Solicitors Regulation Authority (SRA). The SRA decided not to investigate the matter further, on the basis that it considered that Mr Middleton was entitled to conduct litigation in reliance on the firm's authorisation.  In view of the SRA's letter, HHJ Simpkiss lifted the stay, and ordered the clients to pay the firm's costs. 

The clients appealed to the High Court, where Sheldon J held that mere employment by an authorised firm is not sufficient to enable an unauthorised employee to conduct litigation, even under supervision. Any individual conducting litigation, even if they are doing so under supervision, must be authorised to do so or be exempt under the LSA 2007. Sheldon J further distinguished between: (a) supporting an authorised individual in conducting litigation; and (b) conducting litigation under the supervision of an authorised individual. Sheldon J concluded that the former is permitted under the LSA 2007, while the latter is prohibited. 

For further detail on the High Court's judgment, please see our previous post here.

While not a party to the original proceedings, the Chartered Institute of Legal Executives (CILEX) obtained permission to appeal the High Court's decision as a third-party appellant and intervener. 

Judgment

The Court of Appeal allowed CILEX's appeal. Sir Colin Birss gave the lead judgment, with which the Master of the Rolls Sir Geoffrey Vos, and Lady Justice Andrews, agreed.

The Court of Appeal addressed two principal issues: 

1. Was the High Court right to hold that unauthorised persons were "carrying on the conduct of litigation" if they did acts that constituted the conduct of litigation under the supervision of an authorised individual?
2. What acts actually constitute "conducting litigation"?

Can unauthorised individuals perform tasks that constitute the conduct of litigation under the supervision of an authorised individual?

The Court of Appeal noted that, at its foundation, the case was an exercise of statutory construction. In particular, the court was tasked with interpreting the phrase "carry on the conduct of litigation", which was introduced by the LSA 2007. In order to do so, it was important to consider the context and purpose of the changes introduced by the Act. 

The Court of Appeal noted that before the LSA 2007, there was a widespread, general and well-regulated practice of delegation by solicitors to unqualified individuals. That practice was recognised and taken into account by the courts. The Court of Appeal concluded that the LSA 2007 was not intended to make a significant change to the offences in the Courts and Legal Services Act 1990, which prohibited unqualified persons from acting as a solicitor or commencing, prosecuting or defending a claim (which offence appears in fact to have been in place at least since the introduction of the Attorneys and Solicitors Act 1728). Rather, the LSA 2007 was intended to be a liberalising statute in relation to the diversity of regulatory bodies. Accordingly, the Court of Appeal concluded that, when passing the LSA 2007, 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. 

As to the ordinary meaning of the phrase "carry on the conduct of litigation", the Court of Appeal concluded that "conduct of litigation" refers to tasks which are undertaken, whereas "carry on" refers to the direction and control of, and the responsibility for, those tasks.  

Accordingly, the Court of Appeal held that an unauthorised individual may lawfully perform any tasks that are within the scope of the conduct of litigation, for and on behalf of an authorised individual, provided the authorised individual retains responsibility for such tasks. Further, the Court of Appeal concluded that the delegation of tasks by an authorised individual to an unauthorised individual requires proper direction, management, supervision and control, the details of which "are a matter for the regulators". While the authorised individual must put in place appropriate arrangements, the degree of appropriate control and supervision required will always be circumstance dependent.

The High Court was therefore wrong to distinguish between (a) supporting or assisting an authorised solicitor in conducting litigation, and (b) conducting litigation under the supervision of an authorised solicitor. In the Court of Appeal's view, both activities are lawful in the circumstances outlined above. It is not, therefore, unlawful for an unauthorised individual to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place arrangements for the supervision of and delegation to the unauthorised individual.

What tasks fall within the definition of the "conduct of litigation"? 

While the Court of Appeal appreciated the plea for clarity in relation to the question of what acts or tasks are or are not within the conduct of litigation as defined in the LSA 2007, it felt unable to provide an exhaustive definition.

The Court of Appeal did, however, identify seven tasks that are unlikely to fall within the statutory definition of "conduct of litigation":

1. Pre-litigation work. 
2. Giving legal advice in connection with court proceedings. 
3. Conducting correspondence with the opposing party on behalf of clients.
4. Gathering evidence. 
5. Instructing and liaising with experts and counsel.
6. Signing a statement of truth in respect of a statement of case. 
7. Signing any other document which the CPR permits to be signed by a legal representative, as defined by CPR 2.3

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.