Courts: Conduct of litigation under the microscope
The Legal Services Board (LSB) is to probe “the scale and impact” of breaches of the right to conduct litigation in the wake of the Mazur ruling.
The oversight regulator has set out the terms of the review it announced earlier this month into how all the legal regulators and representative bodies have provided advice and guidance, and ensured compliance with the Legal Services Act 2007.
The ruling, which said that non-authorised persons could support authorised lawyers in conducting litigation, a reserved legal activity, but not conduct it themselves under supervision.
This upturned long-standing practice in the profession and caused both firms and non-authorised persons – particularly chartered legal executives – huge alarm.
The LSB said: “The review will consider whether there has been an adverse impact on the regulatory objectives arising from the actions or omissions of approved regulators and where appropriate the regulatory bodies in their approach to advice and guidance and compliance in respect of the conduct of litigation, in the context of the Mazur judgment.”
The review, which it is hoped will report in March 2026, will cover all the approved regulators that under the Act authorise the conduct of litigation and the regulatory bodies to which they have delegated their regulatory functions.
These are the Law Society and Solicitors Regulation Authority (SRA); Bar Council and Bar Standards Board; CILEX and CILEx Regulation; Association of Costs Lawyers and Costs Lawyer Standards Board; and the Chartered Institute of Trade Mark Attorneys, Chartered Institute of Patent Attorneys and Intellectual Property Regulation Board.
The review will consider “the scale and impact of a lack of understanding/non-compliance with the Act” in each profession.
It will look too at the guidance provided both by regulators and representative bodies – and the underlying evidence for it – as well as how this changed following Mazur.
Also under scrutiny will be the level of cooperation and consultation between each regulator and representative body, and with their regulated community and wider stakeholders, in advance of publishing guidance; issues or queries relating to the conduct of litigation and direct advice provided by both; details of any disciplinary, supervisory, or remedial actions taken by regulatory bodies relating to the unauthorised conduct of litigation; and finally steps taken to ensure regulatory compliance and to mitigate the risk of consumer detriment.
At the heart of the Mazur case was incorrect advice provided by the SRA to a law firm; the regulator later accepted it had got this wrong.
The LSB is to use its statutory powers to demand information from all of the organisations, making clear that it is defining guidance broadly to include emails, blogs, practice notes and video content.
Experts like Iain Miller, general editor of the textbook Cordery on Legal Services, and Greg Treverton-Jones KC, general editor of The Solicitor’s Handbook, have suggested that the absence of an exemption in the Act to allow non-authorised people to conduct litigation under supervision was an error of drafting.
