Posted by Iain Miller, partner, and Stephen Nelson, senior associate, at City firm Kingsley Napley
George II was on the throne when the Attorneys and Solicitors Act 1729 was enacted
Many law firms in the last few weeks have been working out the consequences of the decision in the High Court in Julia Mazur & Ors v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB).
The effect can be summarised as follows: in order to provide the reserved legal activity of ‘conduct of litigation’, not only must a firm be authorised but also the individual conducting the litigation.
It is not possible for authorised individuals to ‘supervise’ an unauthorised person who is conducting the litigation but an unauthorised individual can ‘assist’ so long as the control of the strategy and direction of the litigation stays with the authorised person.
The decision has triggered many legal professionals, law firms and other providers of legal services to look at their own structures and processes. In doing so two quite distinct issues have been highlighted.
First it has acted as a reminder of the need for the ‘conduct of litigation’ not only to be done within an authorised law firm but also under the control and direction of an authorised individual.
It is clear that this point was not front of mind in some firms where litigation cases (or entire teams) were run by individuals who were not authorised to conduct litigation. These could either be unqualified persons such as foreign-qualified lawyers or legal professionals who had not applied for their personal authorisation to be extended to include the ability to undertake the reserved legal activity of conduct of litigation, for example barristers and CILEx fellows.
To avoid this problem, those conducting litigation should, if possible, extend their practice rights to include the conduct of litigation and firms should ensure that there are no inadvertent breaches by persons who are conducting litigation not being authorised.
Particular care needs to be taken around foreign-qualified lawyers, barristers and CILEx fellows.
The second issue is more interesting and the focus of this article. There are a large number of firms whose business model relies upon non-authorised persons, such as paralegals, conducting litigation under the supervision of authorised individuals.
In addition, there are a number of not-for-profit organisations, such as law centres which rely on a similar model to be able provide legal services to those who are least able to afford them. By finding that it is not possible to conduct litigation under supervision, the decision in Mazur creates an issue for these models, both in terms of affordability and practicality, and in turn risks undermining access to justice.
Since access to justice is one of the regulatory objectives of the Legal Services Act 2007 (LSA), it is odd that an effect of the LSA is to inhibit access to justice. It is perhaps even more odd that, following the reasoning of Mazur, the profession finds itself in a position where a number of firms may well have been providing a service illegally despite their approach being out in the open for all, including the regulators, to see for some time.
That makes no sense. How we got here is much more nuanced and requires an understanding of the position prior to the LSA.
Iain Miller
Why is ‘conduct of litigation’ reserved?
Every legal system regulates access to courts. This is understandable. The courts sit at the heart of the rule of law and can only function if those representing litigants are trustworthy and competent.
How this regulation is done can vary. Some jurisdictions limit litigation to particular professions. Some, like the US, make the practice of law the sole preserve of lawyers. Other jurisdictions regulate particular legal activities.
The approach taken in England and Wales has been to both reserve the activities of advocacy, litigation, conveyancing, probate, oaths and notarial services to ‘authorised persons’ and to regulate the various legal professions by virtue of their particular titles.
The historic development of the conduct of litigation
Whilst solicitors have long held a monopoly on conducting litigation, this was first set out in statute in the Attorneys and Solicitors Act 1729.
Section 3 of that Act states: “no Person… shall be permitted to act as a Solicitor, or sue out any Writ or Process, or commence, carry on, solicit or defend any Suit, or any Proceedings, in the Name of any other Person… unless such Person shall take the Oath hereinafter directed and appointed to be taken by Solicitors in Courts of Equity, and shall also be admitted and inrolled.”
This statutory framing continued in some form in various successor pieces of legislation, including section 20 of the Solicitors Act 1974 (as enacted but now superseded).
It is striking that the wording used over this period of 300 years is so similar to the current wording of the LSA, but also notable and key to this discussion that the 1729 provision and its successors conflate acting as a solicitor and doing certain acts in litigation.
At the time, only solicitors could conduct litigation, so this conflation did not have any relevance. However, as the market for who could conduct litigation opened, this conflation has arguably become more important.
The first crack in the solicitor’s monopoly appeared with the Courts and Legal Services Act 1990, which for the first time did not reserve litigation to solicitors, but instead to persons who met certain educational and training requirements and were granted by approved professional bodies with appropriate rules of conduct.
At the time of coming into force, this included only the Law Society, with the ability to award practising rights granted to other bodies later in 1999, including the Bar Council and what was then the called the Institute of Legal Executives (now CILEX). All of this was then codified by the LSA.
Conducting litigation under supervision
Whilst the provisions of the LSA do not make explicit reference to being able to conduct litigation under supervision, it is not clear that the intention of this approach to the drafting was to prevent such an approach to practice.
Indeed, prior to the LSA, it was an integral part of the conduct of litigation that solicitors could supervise unqualified persons within their firm who conducted litigation. The following exemplifies this approach:
The Solicitors Code of Conduct 2007, the last before the LSA, contained the requirement under rule 5 to provide for “compliance with the duties of a principal, in law and conduct, to exercise appropriate supervision over all staff, and ensure adequate supervision and direction of clients’ matters”.
Note 8 to that rule stated: “Principals are responsible in law and in conduct for their firms, including exercising proper control over their staff. For example, certain work may only be done by unqualified staff under the supervision and/or at the direction of persons who are allowed by law to do that work themselves.”
The notes in relation to ‘qualified to supervise’ state that “an important part of that person’s responsibilities would be to ensure that unqualified persons did not undertake reserved work except under supervision of a suitably qualified person – see Note 8 above”.
Reserved work in this context included the conduct of litigation.
The position of legal executives over time is also notable. In its consultation paper on extending the right to conduct litigation to legal executives in 2010, the then ILEX stated: “The rights to conduct litigation sought for ILEX members mirror the rights that they are already able to exercise, albeit as employees.
“Many ILEX members will be issuing and responding to proceedings in the natural course of the litigation work that they undertake. They will be experienced and suitably qualified to exercise those rights. The application, if approved, would allow ILEX members to continue to undertake the litigation that they do already, although they would be able to practice independently, if they so wished.”
Similar points were made by CILEX in it 2013 application to be able to award rights to conduct litigation to all suitably qualified chartered legal executives.
These were seemingly accepted by the Legal Services Board in its decision to approve the application, when it noted CILEX’s submissions that “the standards will also build upon the experience gained in litigation (when acting under the supervision of an authorised person) which CILEX Fellows will have before IPS [now CILEx Regulation] permits them to enter the litigation and advocacy rights qualification process”.
Stephen Nelson
Did the Legal Services Act change the position?
The intention of the LSA was to passport the existing reserved legal activities into the new statutory regime, not create new forms of reserved legal activities or redefine what came before.
The explanatory notes to the LSA provide: “The ‘reserved legal activities’ defined by section 12 are all activities that were regulated under previously enacted legislation.”
This view is confirmed by the terms of the Solicitors Code of Conduct 2007, the same year as the LSA. It is also clear that, writing in 2010 and 2013, CILEX did not consider that the position had changed, with the LSB accepting that premise.
In these circumstances it is perhaps unsurprising that the profession continued to conduct litigation on the basis that authorised persons could supervise unauthorised persons as it was not clear that anything had changed.
Why is there no supervision exemption for the conduct of litigation?
The essential point that the court was grappling with in Mazur was that, unlike in relation to reserved instrument activities and probate, there was no equivalent exemption in respect of the conduct of litigation for carrying out that activity under supervision.
In our view this is most likely due to the way in which reservation developed and a previous reliance on ‘custom’ in respect of how legal practice operated.
As some commentators have noted, albeit anecdotally, it was not uncommon for managing clerks to be heavily involved in the running of litigation files ostensibly under the ‘supervision’ of the solicitor by whom they were employed.
Under the pre-existing legislation, including the Solicitors Act 1974, the supervision exemptions for reserved instrument activities and probate were set out in terms similar to those now contained in the LSA. It appears that as legal services regulation developed, these were carried forward as part of the parliamentary drafting exercise.
There has never been a similar statutory exemption for the conduct of litigation, presumably because it was thought not necessary. This may be because it was conflated with acting as a solicitor or whether it was equated to acting on someone’s behalf in court proceedings rather than anything more granular.
In transposing existing provisions, those drafting the statute would not have been alerted to the need to insert such a provision.
The way forward
Clearly none of this was before the court in Mazur and one can only speculate as to whether it would have made a difference.
What is clear is that, until 2007, it was part of the regulatory framework to allow unqualified persons to conduct litigation under supervision. Such an arrangement balances the need for appropriate regulation with access to justice and appears to have operated for at least 300 years.
The LSA did not intend to change the position but following Mazur it has inadvertently had that effect. The issue will now need to be resolved by amendment to the Legal Services Act or potentially by further consideration by the court with a fuller understanding of the context.
Iain Miller is the general editor of Cordery on Legal Services, while Stephen Nelson is a former head of legal at the Solicitors Regulation Authority.
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