Peddie: Court provided clarity
The Solicitors Regulation Authority (SRA) has issued substantially revised guidance on effective supervision, setting out in detail how firms can delegate legal work to non-authorised staff following the landmark Court of Appeal ruling in Mazur.
The updated guidance [1], which has expanded from nine pages to 24, replaces the regulator’s previous position that unauthorised individuals could only support authorised lawyers conducting litigation.
Instead, the SRA now accepts that non-authorised staff can lawfully carry out tasks that fall within the conduct of litigation, provided they do so on behalf of an authorised person who retains responsibility and exercises appropriate direction, supervision and control.
The Court of Appeal clarified that it was the authorised individual who remained responsible for delegated litigation tasks and therefore carried on the conduct of litigation.
The SRA said solicitors must be satisfied that the arrangements they have in place allow them to exercise “proper direction, management supervision and control” over work delegated to unauthorised staff.
The revised guidance places significant emphasis on firms’ systems and controls, recognising that supervision can be achieved through structured processes as well as direct oversight of individual files.
It states that delegation can take place either through the allocation of specific tasks or through the use of defined work processes and case management systems, provided there are clear escalation procedures and supervisors retain oversight of how matters progress.
The regulator said authorised persons must be able to demonstrate that they have directed the progress of a matter, either by giving matter-specific instructions or by implementing compliant processes that require non-standard issues to be referred upwards.
The guidance also stresses the need for firms to document their decision-making. It says solicitors should record their rationale when designing supervision systems, controls and delegation arrangements so they can justify them if challenged.
In a new section devoted to the conduct of litigation, the SRA explains that the phrase refers to responsibility for and control of litigation tasks, rather than necessarily carrying out every task personally.
The guidance includes a series of case studies illustrating both compliant and non-compliant supervision arrangements.
One example describes a personal injury practice where a solicitor supervises legal executives and paralegals through structured workflows, management information, regular meetings and quality assurance processes.
The SRA said such an arrangement could be compliant provided the solicitor retained responsibility and oversight.
By contrast, another example highlights a firm where a solicitor with a fee-earning caseload supervised 10 paralegals but reviewed their work only every few months. The SRA said it would not regard this as an effective supervision arrangement.
The regulator has also expanded its guidance on claims management activity, emphasising the need for both supervision and direction where firms rely on exemptions from Financial Conduct Authority authorisation.
The revised document additionally introduces guidance on the use of artificial intelligence, making clear that while firms may use AI tools to support supervision, an authorised individual must remain accountable for the process and the work produced.
The SRA warned that enforcement action could follow where an unauthorised individual effectively takes responsibility for litigation by making substantive decisions, determining strategy or dealing with courts and opponents as though they were responsible for the case.
The guidance has been reviewed in advance by a range of organisations, including the Law Society, CILEX Regulation, government departments, the Legal Aid Agency and the Law Centres Network. “Helpful feedback and contributions were provided,” the SRA said.
Jonathan Peddie, SRA executive director, investigations, enforcement and litigation, said: “We know that recent developments have been concerning for many firms, so we are pleased to be able to release our updated guidance.
“It was important, given the previous uncertainty, that we took the time to review the position thoroughly and collaboratively with others from across the legal sector.
“The court has provided clarity and our overall position remains the same – firms should take a risk-based approach tailored to their circumstances.”
The Law Society, CILEx Regulation and the Costs Lawyer Standards Board have also issued guidance in the wake of Mazur. The society had to amend its guidance after clarification from the Court of Appeal [2] on its decision.
Law Society vice-president Brett Dixon said: “The Mazur judgment placed the onus on regulators to determine what amounts to appropriate ‘delegation, management control and supervision’ of litigation…
“While the judgment inevitably leaves some areas remaining a little uncertain, we welcome this guidance. We hope it will provide members with clarity as to how to comply with their professional and legal obligations in most situations.”