The Law Society have today published an updated Practice Note on the issue of who can conduct litigation and how, considering the Court of Appeal judgment in Mazur v Charles Russell Speechlys.
It is a helpful summary of some of the key points made in the judgment which, at its core, made it clear that “an individual who is not authorised may perform any tasks which are within the scope of the conduct of litigation, for an on behalf of an authorised individual, provided the authorised individual retains responsibility for the tasks delegated to the non-authorised person”, and that such delegation “requires proper direction, management supervision and control, the details of which are a matter for the regulators”.
The new note brings renewed clarity to what amounts to the conduct of litigation, and which courts and tribunals are not considered courts within the Legal Services Act 2007 and those tribunals (e.g. the Employment Tribunal) which arguably are courts but are not hosting the conduct of litigation.
There is also a helpful analysis in the Practice Note as to what is not within the reserved activity of the conduct of litigation. That being – pre-action correspondence (including that relating to criminal proceedings)/pre-litigation work; giving legal advice in connection with court proceedings; taking witness statements and generally gathering evidence; preparing bundles; dealing with correspondence from the other party; instructing and liaising with experts and counsel and signing statements of truth/any other document that the CPR permits a legal representative (which includes a solicitor’s employee) to sign.
After a summary of the various principles arising from the Ndole, Baxter v Doble, Ellis line of cases, the document then does seem to encounter some headwinds by simply stating that appropriate supervision “will depend on the circumstances” and then referring the reader to the SRA’s Guidance on Effective Supervision – a document that is currently being “updated”.
This demonstrates that firstly, this all has some way to run if the profession is looking for real regulatory clarity on the issue of what is satisfactory supervision; secondly that this issue will always come back to adherence to the key principles of acting in the best interests of clients and maintaining proper standards of work, and thirdly that all firms must still consider very carefully what is the appropriate degree of supervision for particular lines of work in light of the complexity of the work and the experience and competence of the non-authorised individual. There will be no avoiding the onus being on the authorised supervising individual in taking responsibility for what is sufficient oversight and being part of a clearly recorded process of delegation and review that has sufficient authorised person professional judgment built into it.
Part 5 of the Practice Note really does demonstrate what has been said by many lawyers and commentators in recent weeks – that, post the Court of Appeal judgment, the status quo is not maintained, and a new line of regulatory risk has emerged. The Law Society has now put the ball in the SRA’s court by reference to the SRA’s ongoing review of its ‘Guidance on effective supervision’. The SRA often makes use of case studies – perhaps this issue is clearly set up for such an approach. Any individual and/or firm that is poorly positioned on this commits a criminal offence as well as being in breach of regulatory obligations. The SRA’s CEO has been keen to emphasise that the regulator’s evolving approach will be proportionate, pro-active, trusted and better at engagement and communications. Perhaps the SRA and its new leader are lucky that an ideal opportunity to demonstrate those qualities through clear guidance on this issue has emerged. In the meantime, the profession must keep clearly in consideration what amounts to exercising proper professional responsibility in litigation and what does not.
The new note brings renewed clarity to what amounts to the conduct of litigation, and which courts and tribunals are not considered courts within the Legal Services Act 2007 and those tribunals (e.g. the Employment Tribunal) which arguably are courts but are not hosting the conduct of litigation.
There is also a helpful analysis in the Practice Note as to what is not within the reserved activity of the conduct of litigation. That being – pre-action correspondence (including that relating to criminal proceedings)/pre-litigation work; giving legal advice in connection with court proceedings; taking witness statements and generally gathering evidence; preparing bundles; dealing with correspondence from the other party; instructing and liaising with experts and counsel and signing statements of truth/any other document that the CPR permits a legal representative (which includes a solicitor’s employee) to sign.
After a summary of the various principles arising from the Ndole, Baxter v Doble, Ellis line of cases, the document then does seem to encounter some headwinds by simply stating that appropriate supervision “will depend on the circumstances” and then referring the reader to the SRA’s Guidance on Effective Supervision – a document that is currently being “updated”.
This demonstrates that firstly, this all has some way to run if the profession is looking for real regulatory clarity on the issue of what is satisfactory supervision; secondly that this issue will always come back to adherence to the key principles of acting in the best interests of clients and maintaining proper standards of work, and thirdly that all firms must still consider very carefully what is the appropriate degree of supervision for particular lines of work in light of the complexity of the work and the experience and competence of the non-authorised individual. There will be no avoiding the onus being on the authorised supervising individual in taking responsibility for what is sufficient oversight and being part of a clearly recorded process of delegation and review that has sufficient authorised person professional judgment built into it.
Part 5 of the Practice Note really does demonstrate what has been said by many lawyers and commentators in recent weeks – that, post the Court of Appeal judgment, the status quo is not maintained, and a new line of regulatory risk has emerged. The Law Society has now put the ball in the SRA’s court by reference to the SRA’s ongoing review of its ‘Guidance on effective supervision’. The SRA often makes use of case studies – perhaps this issue is clearly set up for such an approach. Any individual and/or firm that is poorly positioned on this commits a criminal offence as well as being in breach of regulatory obligations. The SRA’s CEO has been keen to emphasise that the regulator’s evolving approach will be proportionate, pro-active, trusted and better at engagement and communications. Perhaps the SRA and its new leader are lucky that an ideal opportunity to demonstrate those qualities through clear guidance on this issue has emerged. In the meantime, the profession must keep clearly in consideration what amounts to exercising proper professional responsibility in litigation and what does not.
If you would like to discuss the implications of this Practice Note, or have any questions arising from the judgment, please contact our Regulatory and Professional Discipline Partner Nick Leale.
Nick Leale is recognised by Legal 500 UK 2026: “Partner Nick Leale is a great addition to the team. He is knowledgeable, approachable, and puts all his efforts into getting results for his clients.”
CM Murray LLP has been recommended by Legal 500 UK 2026 and Chambers and Partners UK 2026 for Professional Discipline: “The firm is a leader in the field of professional discipline.” “‘The team is very good on all matters of regulatory law.”
