On 31 March, the Court of Appeal overturned the first instance decision of Mr Justice Sheldon in Mazur, finding that an unauthorised person can conduct litigation under the supervision of an authorised person, providing that the authorised person remains responsible for the conduct of that litigation.
The authorised person retains responsibility for the conduct of the litigation by delegating tasks and supervising them effectively. What amounts to effective supervision will depend on the facts and risk profile of the case, as well as the level of experience of the unauthorised person, and can vary from active supervision of individual matters, to conducting regular meetings with the unauthorised person and sampling their work. Regulators will clearly need to provide further and more refined guidance on supervision in light of this Judgment, and the SRA have already indicated that they will be reviewing their guidance on effective supervision, published in November 2022, and revising it accordingly.
It follows from the decision that an unauthorised person will still be conducting litigation unlawfully if they are doing so in circumstances where the authorised person has not adequately delegated or is failing to supervise it effectively. This would also most likely lead to the relevant firm being in breach of Rule 4.4 of the Solicitors Code of Conduct for Firms, which provides that firms have effective systems for supervising client matters. Firms will accordingly want to document their supervision arrangements and their rationale for differing levels of supervision, firstly for their own risk management process, secondly in order to ensure regulatory compliance (Rule 2.2 of the Solicitors Code of Conduct for Firms requires firms to keep and maintain records to demonstrate regulatory compliance) and thirdly, to be able to pre-empt any queries from opponents and/or the Court. In practice however, the scope for challenge by opposing parties is likely to be greatly diminished, particularly as, in the vast majority of the cases, the litigation will be being conducted perfectly adequately/competently by the unauthorised person, meaning there is no reason to suspect that supervision is ineffective/inadequate.
In summary, the effect of the decision is to place the onus on authorised persons and firms to have effective systems of delegation and supervision. Providing such systems are in place, the Court of Appeal’s conclusion that unauthorised persons can conduct litigation under supervision must surely be correct. There are many unauthorised persons who are perfectly capable of conducting litigation under supervision, and, sadly, some of them will have already borne the consequences of the incorrect first instance decision. This decision is a welcome relief to those persons as well as clients, who will want their cases to be conduct as cost effectively as possible, within the limitations of the legal/regulatory framework.
The authorised person retains responsibility for the conduct of the litigation by delegating tasks and supervising them effectively. What amounts to effective supervision will depend on the facts and risk profile of the case, as well as the level of experience of the unauthorised person, and can vary from active supervision of individual matters, to conducting regular meetings with the unauthorised person and sampling their work. Regulators will clearly need to provide further and more refined guidance on supervision in light of this Judgment, and the SRA have already indicated that they will be reviewing their guidance on effective supervision, published in November 2022, and revising it accordingly.
It follows from the decision that an unauthorised person will still be conducting litigation unlawfully if they are doing so in circumstances where the authorised person has not adequately delegated or is failing to supervise it effectively. This would also most likely lead to the relevant firm being in breach of Rule 4.4 of the Solicitors Code of Conduct for Firms, which provides that firms have effective systems for supervising client matters. Firms will accordingly want to document their supervision arrangements and their rationale for differing levels of supervision, firstly for their own risk management process, secondly in order to ensure regulatory compliance (Rule 2.2 of the Solicitors Code of Conduct for Firms requires firms to keep and maintain records to demonstrate regulatory compliance) and thirdly, to be able to pre-empt any queries from opponents and/or the Court. In practice however, the scope for challenge by opposing parties is likely to be greatly diminished, particularly as, in the vast majority of the cases, the litigation will be being conducted perfectly adequately/competently by the unauthorised person, meaning there is no reason to suspect that supervision is ineffective/inadequate.
In summary, the effect of the decision is to place the onus on authorised persons and firms to have effective systems of delegation and supervision. Providing such systems are in place, the Court of Appeal’s conclusion that unauthorised persons can conduct litigation under supervision must surely be correct. There are many unauthorised persons who are perfectly capable of conducting litigation under supervision, and, sadly, some of them will have already borne the consequences of the incorrect first instance decision. This decision is a welcome relief to those persons as well as clients, who will want their cases to be conduct as cost effectively as possible, within the limitations of the legal/regulatory framework.
If you would like to discuss the implications of Mazur, or have any questions arising from the Court of Appeal’s decision, please contact our Regulatory and Professional Discipline Partner, Andrew Pavlovic.
Andrew Pavlovic is recognised by Legal 500 UK 2026 as a “Next Generation Partner” and Chambers and Partners UK 2026 as “Up and Coming” in the field of Professional Discipline: “Andrew Pavlovic is my go-to lawyer for any professional disciplinary matter.” “Andrew is a recognised expert, particularly in legal regulation.”
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