10 considerations when conducting litigation after Mazur

The litigation landscape in England and Wales has undergone significant upheaval following the Mazur decision.

The Legal Services Act 2007 (LSA) outlines that non-authorised persons cannot conduct litigation under the supervision of an authorised person.

While it’s fair to say Mazur hasn’t changed the law, it has highlighted the complexities and uncertainties that exist in this area.

This is particularly relevant following the judgment in Baxter v Doble, which has become the leading authority on what counts as conducting litigation.

These cases present compliance challenges and real-world implications, especially for practices that take on high volumes of litigation.

Below are 10 key issues that firms and non-authorised individuals should consider to ensure they remain within the legal boundaries.

1. Understand the definition of 'conducting litigation'

Under the LSA, 'conducting litigation' is a reserved legal activity. It includes:

• issuing and commencing proceedings before any court in England and Wales
• prosecuting or defending proceedings
• performing ancillary functions related to proceedings

The case of Baxter provided a list of activities that amounted to conducting litigation, such as:

• filing a claim form and particulars of claim
• drafting a reply and defence to counterclaim
• drafting witness statements and instructing an advocate

Only authorised persons can carry out these activities.

2. Clarify the role of non-authorised persons

A key finding in Mazur was that non-authorised persons can’t conduct litigation before a court, even under supervision.

Non-authorised persons include:

• paralegals
• trainees
• foreign-qualified lawyers
• barristers without additional rights to conduct litigation
• chartered legal executives (unless authorised to conduct litigation)

Firms must ensure that non-authorised individuals do not undertake work, or hold roles, where they could inadvertently cross the line into conducting litigation.

3. Implement clear protocols and policies

While non-authorised persons can't conduct litigation themselves, they can provide significant help to authorised individuals by:

• assisting with drafting statements of case
• preparing witness statements
• filing or serving documents (if their role is purely clerical or mechanical)

However, it's essential that the authorised person:

• has made all legal and strategic decisions about the case
• has provided instructions about the relevant task
• approves the final documents (including signing them – especially if the correspondence is with the court)
• retains responsibility

Firms should implement clear protocols and policies to delineate these boundaries.

4. Apply the holistic test from Baxter

Baxter introduced a ‘holistic test’ to assess whether someone is conducting litigation.

Following the SRA’s comments in Mazur, this involves evaluating:

• who used professional judgement
• who assumed responsibility for the litigation

Baxter held that pre-action conduct cannot amount to the conduct of litigation. However, this may still be relevant to the holistic test.

Even if individual tasks appear clerical, or are carried out pre-action, the non-authorised person’s actions could still amount to conducting litigation, depending on their level of involvement.

Firms must assess roles as a whole, not just by task.

5. Understand the definition of court

This is defined in section 207 of the LSA and includes:

• a court-martial
• a statutory inquiry and an ecclesiastical court
• tribunals that were classed as a listed tribunal under schedule 7 to the Tribunals, Courts and Enforcement Act 2007 before that schedule was repealed
• other tribunals that were designated as ‘listed tribunals’ by the Administrative Justice and Tribunals Council Order 2007/2951 (the order), such as the Employment Tribunal

Non-authorised persons can't conduct litigation before any type of court (subject to any legacy rights and enactments).

'Court' has a wide definition. However, it doesn't generally apply to mediations, arbitrations or other forms of alternative dispute resolution.

6. Audit legacy rights and enactments

Proceedings before certain tribunals and courts will not amount to the conduct of litigation if:

• there were no restrictions on a non-authorised person’s ability to conduct litigation before 1 January 2010
• an enactment exempts a non-authorised person by granting them the right to conduct litigation before the relevant court or tribunal

For example, there are legacy rights before the First-tier Tax Chamber and before the Employment Tribunal.

Firms should audit their practice areas and consider the relevant courts and tribunals they are litigating in front of to determine whether any legacy rights or other exemptions may apply.

7. Document decision-making on file

Firms must retain evidence on file demonstrating that authorised persons have:

• made key decisions about the case, including strategy and approach
• exercised their professional judgement
• provided instructions to the non-authorised person
• reviewed and approved documents and correspondence

8. Prepare for challenges about costs and conduct

Paying parties will almost certainly raise objections about costs incurred by non-authorised persons who have conducted litigation.

Senior Costs Judge Jason Rowley said recently that the Mazur case had already been cited before him.

Challenges may also come from existing clients as the decision gains further traction.

Courts are unlikely to strike out proceedings if they have been issued, or conducted, by a non-authorised person, especially where limitation may be an issue.

Cost challenges are more likely and are ripe for argument on costs assessments.

It is important that firms take appropriate steps now and adopt working practices to mitigate these risks.

9. Train fee earners and support staff

Training should be tailored to different roles, and should include practical examples from Mazur, Baxter and other relevant cases.

All fee earners and support staff undertaking litigation should understand:

• what constitutes the conduct of litigation
• the limitations on their roles
• the consequences of non-compliance

10. Carry out a compliance audit

Firms should immediately audit their litigation workflows, employee roles and the supervision structures in place.

This should include:

• mapping the departments and teams most at risk
• reviewing their procedures
• making the necessary adjustments to working practices to ensure that non-authorised persons only assist in the conduct of litigation

Conclusion

The decisions in Mazur and Baxter have reshaped the boundaries around conducting litigation.

While waiting for further guidance from regulators, firms and non-authorised individuals must take proactive steps now to ensure compliance.

As a first step in this area, we published the Mazur and the conduct of litigation practice note.

Going forward, it will be interesting to see how other regulators interpret these pivotal cases and outline what is and isn’t permissible for non-authorised persons when conducting litigation.