Rogers: SRA has undermined regulatory system
The Solicitors Regulation Authority (SRA) is checking if it provided any other law firms with incorrect advice on whether non-authorised people can conduct litigation.
It also confirmed that the advice was checked by the SRA’s legal team before being issued.
In his ruling last week in Mazur, Mr Justice Sheldon said the SRA had been wrong to tell Bradford firm Goldsmith Bowers Solicitors that its employees were permitted to undertake reserved legal activities due to section 21(3) of the Legal Services Act 2007.
The judge at first instance, His Honour Judge Simpkiss, had placed reliance on the letter from the SRA in lifting a stay on the firm’s conduct of the case.
At the High Court, however, the SRA disavowed the advice it had given as Sheldon J held that non-authorised employees of law firms can support a solicitor in conducting litigation – but cannot conduct litigation themselves under the supervision of a solicitor.
As we reported this week, the decision has caused a significant amount of uncertainty, with concerns in particular for high-volume claims practices that employ handfuls of qualified staff to supervise teams of paralegals.
At an SRA press briefing this week, Legal Futures asked whether the advice had been an isolated error or if others had been given the same guidance.
Chief executive Paul Philip said the letter had been checked by the SRA’s legal team and “we’re doing a review of how that happened”.
The belief at the moment was that it was a one-off mistake but the SRA was “doing a bit of due diligence” to check that this was the case.
Though plenty of lawyers online have asked for guidance from the SRA, Mr Philip indicated that nothing was imminent. “We will ponder whether further guidance is required,” he said.
In a blog, Brian Rogers, regulatory director in the Access Group’s legal division, said the ruling raised “uncomfortable questions about the SRA’s competence”.
He explained: “When a regulator fundamentally misunderstands the legislation it enforces, confidence in the entire regulatory system is undermined.
“The SRA’s December 2024 decision wasn’t some minor interpretative difference – it was a complete misunderstanding of how the [Legal Services Act] works. The fact that they reversed their position when challenged by the High Court suggests they knew their original interpretation was wrong…
“The case for comprehensive reform of the Legal Services Act grows stronger with each judgment like Mazur.”
CILEX has issued advice to members, stressing that the ruling “simply reinforces the existing guidance”, namely that a chartered legal executive who does not hold separate litigation practice rights is not authorised to conduct litigation.
To gain the right to conduct litigation, there are three routes available – by assessment, by portfolio, or by training and assessment, although those now qualifying via the CILEX Professional Qualification receiving practice rights as part of the process.
CILEX said it has approached its regulator, CILEx Regulation, for guidance on whether the ruling meant chartered legal executives without practice rights could not have litigation files in their own names.
In a blog, Alec Hancock – a chartered legal executive who has practice rights – said there was a “striking juxtaposition” for those who did not: “CILEX Fellows without practice rights are prohibited from conducting litigation, yet they may sit as judges, become partners in law firms, and charge at grade A fee-earner rates.”
Litigator turned mediator Lee Stutt wrote on LinkedIn that the ruling has “highlighted but left completely open a really unclear grey area: the difference between a paralegal conducting litigation (not allowed) and helping a supervisor to conduct it (allowed)”.
He went on: “If you can articulate a clear difference between the two that couldn’t be challenged by an opponent, I’d be interested to hear it.”
David Gabell, head of the medical negligence and inquest team at Fosters in Norwich, said that “what really grates is the inconsistency”, with the Legal Services Act allowing non-authorised people to conduct reserved conveyancing and probate work under supervision, but not litigation.
“With proper and responsible supervision, non-qualified staff can and do run cases effectively – and frankly, for claims worth under £1,000, it’s neither fair nor realistic to expect solicitors to be doing every line of work themselves.
“And there’s a bigger picture here: training. Every solicitor I know cut their teeth by having day-to-day conduct of cases as a trainee or paralegal, with the safety net of careful supervision and sign-off. That’s how you actually learn to be a litigator.
“If the effect of this judgment is to shut that door, we’re risking a generation of lawyers who’ve never really run a case before qualification. That can’t be good for clients, firms, or the profession as a whole.”
This point was picked up in a blog by Vicky Lankester, an associate at London firm Brett Wilson: “Confusingly, in apparent stark contrast to the judgment is the guidance provided by the SRA in respect of what constitutes qualifying work experience for the purposes of qualifying through the SQE route.
“Someone undertaking the SQE is not an authorised person by virtue of them not yet being qualified (they are, in essence, a trainee solicitor). Therefore in accordance with this judgment, they can only do work that supports a qualified fee earner conducting litigation.
“However, the guidance suggests that if they have carried out any work that provided legal services (as defined by section 12 of the LSA 2007), that will count as qualifying work experience.
“The SRA needs to make clear whether providing support to a qualified fee-earner carrying out reserved legal activities would count as qualifying work experience.”
Steve Cole 
I see no reason why ‘litigation ‘ does not include criminal litigation.
This would put an end to these companies who bring private prosecutions with no lawyer supervision at all.