Mazur in the Court of Appeal: the Judgment That Saved Half the Profession from Accidental Criminality

The Court of Appeal has delivered a landmark judgment clarifying what it means to ‘carry on the conduct of litigation’ under the Legal Services Act 2007 (LSA 2007). The decision resolves months of uncertainty following Sheldon J’s ruling in the High Court, which had caused widespread disruption across the profession, particularly for law centres, personal injury firms, and any practice relying on paralegals or unadmitted staff. Many family law firms did not escape the implications of Sheldon J’s judgment.

The Court of Appeal – Vos MR, Birss C and Andrews LJ – has now overturned the High Court’s restrictive interpretation and restored the long‑established principle that unauthorised staff may perform litigation tasks under appropriate supervision, without committing a criminal offence.

What was the issue?

Section 14 LSA 2007 makes it a criminal offence for a person to ‘carry on’ a reserved legal activity – such as the conduct of litigation – unless authorised or exempt.

The High Court had held that unauthorised persons may ‘support’ litigation but may not ‘conduct litigation under supervision’. This distinction caused immediate operational chaos. Many firms routinely allow experienced paralegals, caseworkers and clerks to issue claims, serve documents, and progress litigation under solicitor supervision.

The Court of Appeal was asked to decide whether this restrictive interpretation was correct or not.

The Court of Appeal’s conclusion

Unauthorised staff can perform tasks that constitute the conduct of litigation, provided an authorised individual retains responsibility.

Birss C summarised the position succinctly at para 25:

‘An unauthorised person can lawfully perform any tasks … within the scope of the conduct of litigation, for and on behalf of an authorised individual … The authorised individual retains responsibility … The unauthorised person is not carrying on the conduct of litigation.’

Why did the court reach this conclusion?

Longstanding practice of delegation

Delegation to clerks and managing clerks has always been integral to legal practice. The Court of Appeal cited authorities going back to 1883 (see The Law Society v Waterlow Bros & Layton (1883) 8 App Cas 407 (HL)) confirming that the justice system depends on such delegation.

Parliament must have intended this practice to continue

Nothing in the 2007 Act suggests Parliament intended to criminalise routine supervised delegation. Restricting delegation would undermine access to justice, consumer protection, competition and diversity.

Proper construction of ‘carry on the conduct of litigation’

‘Conduct of litigation’ = the tasks (issuing, prosecuting, defending, ancillary steps).

‘Carry on’ = direction, control, and responsibility for those tasks.

Thus, an unauthorised person performing a task is not ‘carrying on’ the conduct of litigation if they do so for and on behalf of an authorised person who retains responsibility.

Ndole and Baxter were misunderstood

The Court of Appeal concluded that both Ndole Assets v Designer M&E Services [2018] EWCA Civ 2865 and Baxter v Doble [2023] EWHC 486 (KB) had been misunderstood because they were cases involving unauthorised persons acting for litigants in person, who have no right to delegate. They do not apply where an authorised person is supervising.

What tasks are (and are not) ‘conduct of litigation’?

The court declined to produce a definitive list, but gave helpful guidance:

Clearly within the conduct of litigation

• Issuing proceedings.
• Formal steps such as service of claim forms or statements of case.
• Other ‘ancillary functions’ that are formal in nature.

Clearly not within the conduct of litigation

• Pre‑action work.
• Giving legal advice.
• Correspondence with opponents.
• Gathering evidence.
• Instructing experts or counsel.
• Signing statements of truth (where permitted).
• Signing documents the CPR allows a ‘legal representative’ to sign.

What does ‘appropriate supervision’ mean?

The Court of Appeal endorsed a flexible, risk‑based approach. For example:

• High‑risk or complex matters → closer supervision, possibly prior approval.
• Routine, low‑value, high‑volume work → general instructions, sampling, periodic meetings may suffice.

Practical implications for solicitors

A. Delegation is lawful – but must be properly supervised

Firms should ensure:

• Clear lines of responsibility.
• Documented supervision structures.
• Regular review and sampling.
• Clear escalation procedures.
• Training for unauthorised staff.

B. No need for prior approval of every document

The court expressly rejected the Law Society/SRA’s earlier position.

C. Issuing proceedings can be delegated

Provided the authorised individual retains responsibility.

D. Regulators may update their guidance in due course

Expect further updates from your regulator.

Why the case matters

This is the most significant appellate decision on the conduct of litigation since the 2007 Act came into force. It restores the status quo, prevents criminalisation of routine practice, protects access to justice, and supports the viability of many family law firms as well as law centres and high‑volume litigation practices.

Conclusion

The court’s message is clear: Delegation is lawful. Responsibility is what matters.