Mazur v Charles Russell Speechlys: what it means for litigators
Mazur and the conduct of litigation
We’ve responded to our members’ request to develop a new practice note to help solicitors, law firms and legal businesses understand:
- who is authorised to practise litigation under the Legal Services Act 2007 (LSA 2007), and
- where the dividing line is between conducting litigation and supporting an authorised person to do so
Mazur v Charles Russell Speechlys considered whether a non-authorised person is entitled to conduct litigation under the supervision of an authorised person.
“We are aware that Mazur created uncertainty across the legal profession,” said Law Society president Mark Evans.
“While the judgment does not change the statutory requirements relating to authorised conduct of litigation as a reserved legal activity, we hope this practice note will provide greater clarity to our members.
“However, there remain grey areas where further guidance from regulators and others is required.”
Read the practice note on Mazur and the conduct of litigation.
To further support members, we held a free online classroom to answer your questions.
Find answers to common practical, procedural and legal questions on Mazur.
Who should use the practice note?
Solicitors and their teams who handle litigation:
- any solicitor in legal practice or employed as an in-house solicitor in England and Wales
- any trainee solicitor or employee of a solicitor, law firm or legal business
- any law firm or legal business
The right to carry on the conduct of litigation is reserved to any person authorised to conduct litigation by an approved regulator under LSA 2007. This includes:
- solicitors on the roll that hold a practising certificate
- costs lawyers
- chartered legal executives
- barristers
- patent and trademark attorneys
In each case, they must have the relevant practising rights.
The practice note also offers practical advice on:
- what work can be conducted by a non-authorised person
- the consequences of a breach
“Acting without authorisation is a breach of a solicitor’s regulatory obligations and may result in disciplinary action,” said Law Society president Mark Evans.
“Firms and practitioners should review their processes to ensure they are compliant with the LSA2007 and the Solicitors Regulation Authority’s guidance.
“The Law Society has been made aware that some firms are seeking to make applications to the court based on an allegation that the other side has acted in breach of the LSA 2007.
“Previous case law has made clear that generally the penalty for any breach should be through disciplinary proceedings and should not have any impact on the case before the court.”
The case
Defendants to a debt claim acting in person, sought a direction that the individual acting for the claimants be replaced by a qualified solicitor.
A stay was imposed and later lifted with a costs order made against the defendants.
The defendants appealed against that costs order on the basis that the judge making it had been wrong in deciding that the individual conducting the litigation for the claimants had been entitled to do so.
The decision
The Administrative Court restated the position in the LSA 2007 and the SRA’s 2022 guidance on effective supervision that even within a regulated entity, only an “authorised person” may “conduct” litigation.
Non-authorised staff cannot carry on the reserved legal activity of the conduct of litigation simply by being an employee or an authorised firm.
Both the firm and the person carrying on the activity must be authorised.
Whilst affirming those principles, the court did not decide that the conduct of the specific litigation giving rise to the appeal had been unlawful.
Nor did it identify any particular working practices which would generally be considered lawful or unlawful.
It was recognised that any such decision would depend on fact and degree in individual cases.
What this means for solicitors
The Mazur judgment relates only to litigation, not to other reserved activities.
However, solicitors undertaking other reserved activities may still wish to review the SRA guidance on supervision to make sure their processes are compliant.
Anyone undertaking litigation who is concerned that they have non-authorised staff “conducting” (as opposed to “supporting”) litigation will wish to review their processes to make sure they are not acting in breach of the LSA 2007.
There are no statutory restrictions on non-authorised staff undertaking work pre-litigation or on someone who is an exempt person in relation to the conduct of litigation.
While previous cases have looked at the question of where the boundary is between “conducting” and “supporting” litigation (for example, Baxter v Doble [2023] EWHC 486), this remains a grey area.
You may wish to consider this judgment and possibly take independent legal advice if you have doubts as to whether your practices fall on the right side of the line.
What this means for conveyancers
While Mazur was about the conduct of litigation, it has wider implications for those carrying out other reserved legal activities (section 12(1) and Schedule 3(3) LSA 2007).
Reserved legal activities may only be carried on by persons who are either authorised or exempt.
One of the exemptions is for “an individual who carries on the activity at the direction or under the supervision of an authorised person who is the individual’s employer, fellow employee or manager or employee for whom the individual is carrying on the activity”.
This exemption is available to conveyancers and does not apply to the conduct of litigation.
The SRA provides guidance on supervision.
If in breach of the supervision requirements, part of the risk is the possible loss of professional indemnity insurance (PII) cover.
Next steps
The Legal Services Board (LSB) will carry out a regulatory review following the Mazur ruling.
The review aims to establish:
- what happened in the past, and
- how approved regulators and regulatory bodies ensured that information on conducting litigation was accurate and reliable
The LSB review will help identify possible lessons to maintain clarity and confidence in the regulatory framework.
We will provide an update on what further guidance the SRA is planning to provide as soon as possible.
I want to know more
Check our practice note on Mazur and the conduct of litigation.
Find answers to common practical, procedural and legal questions on Mazur.
Read the SRA’s guidance on effective supervision.