The Court of Appeal has brought much-needed clarity to the conduct of litigation by restoring the principle of delegation. But law firms will still need to revisit their oversight procedures
The Chartered Institute of Legal Executives portentously described the Court of Appeal’s ruling in Mazur as the ‘most consequential judgment for legal services in recent history’. Perhaps it is. Exactly what the judgment means for how law firms practise will be deliberated next Tuesday, when the Law Society hosts a free lunchtime webinar to answer that question (tinyurl.com/2vdnj3az).
An updated practice note from the Society is expected on Monday.
While hardly a surprise, the 31 March ruling was greeted with a collective sigh of relief – not least by legal executives. Overturning the first instance decision of Mr Justice Sheldon, the court found that an unauthorised person can conduct litigation under the supervision of an authorised person, providing that the authorised person remains responsible for the conduct of that litigation.
Giving lead judgment, Lord Justice Birss said there had always been a ‘widespread and well-regulated’ practice of delegation by solicitors and that the Legal Services Act had not changed this position. The crucial element was that solicitors or authorised legal executives should retain responsibility for the tasks delegated to unauthorised individuals.
The court said the delegation of tasks by the authorised individual to the unauthorised person ‘requires proper direction, management supervision and control’, and made clear the details were a matter for regulators. The authorised individual must put in place ‘appropriate arrangements’ to ensure compliance.
In the underlying case, litigants in person Julia Mazur and Jerome Stuart challenged a costs bill on the basis that an unauthorised person handled the litigation. The court said there was no doubt that the supervising solicitor ‘bore the relevant responsibility for the proceedings and was carrying on the conduct of litigation’.
CILEX, which brought the appeal, had submitted that someone carrying on the conduct of litigation was the person directing and controlling the performance of a given task. Birss clarified that ‘carry on’ also involves a ‘degree of direction or responsibility for it’.
Both Lady Justice Andrews and Sir Geoffrey Vos agreed. Andrews said that, in essence, the question was whether the unauthorised person, in carrying out whatever tasks that fall within the scope of ‘conduct of litigation’ had been delegated to them, was in truth acting on behalf of the authorised individual. She stressed that there must always be an authorised person delegating tasks and taking responsibility, adding: ‘If the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.’
Describing the ‘common-sense’ judgment as the ‘most consequential for legal services in recent history’, CILEX chief executive Jennifer Coupland said she was ‘delighted’ that the Court of Appeal had brought much-needed clarity to the conduct of litigation, and the role of authorised and unauthorised professionals. ‘It means the profession can now operate effectively, maintaining high standards and consumer confidence, while opening up legal services to alternative business models and providers,’ she added. Coupland thanked CILEX’s ‘outstanding legal team’, who acted pro bono.
The representative body also announced plans to lobby the government to address ‘regulatory shortcomings’ of the Legal Services Act.
CILEX was supported in its appeal by the Association of Personal Injury Lawyers and Law Centres Network. Ranged on the other side were both the Solicitors Regulation Authority and Law Society. Mazur and Stuart also made submissions in favour of dismissing the appeal.
Law Society vice president Brett Dixon confirmed in the aftermath that the Society would be updating its practice note. He added: ‘While the court did not accept all of the Law Society’s points, its judgment provides an outline framework for those involved in litigation to use in assessing whether supervision is adequate and lawful. The judgment confirms the continuing importance of supervision being in place which will require further regulatory guidance.’
The SRA recognised ‘the concern and confusion among practitioners and firms’ after the High Court’s ruling and ‘welcomed the clear direction from the Court of Appeal’. It added: ‘The clarity the judgment provides will enable us to review our guidance and update it where necessary. We will do this as soon as possible. We will be working closely with other regulators and organisations to make sure there is consistency and clarity for everyone.’
David Bailey-Vella, chair of the Association of Costs Lawyers, said: ‘This decision should calm the legal market. It also stresses the responsibility of authorised persons – such as costs lawyers – to supervise the conduct of litigation. We welcome that responsibility and believe we have a key role to play in ensuring law firms’ compliance.’
What does seem apparent is that the Court of Appeal has not simply restored the status quo ante. Paul Bennett, partner with Bennett Briegal and a regulatory expert, stressed: ‘The decision is clear. The regulators opposed to the delegation principle on which so many law firms relied, seemingly forever, were wrong. The High Court was wrong.
‘The Court of Appeal has been explicit: delegation requires proper direction, management, supervision and control. The authorised individual must put in place appropriate supervisory arrangements for non-admitted persons. The level of oversight must match the circumstances. In short, the principle of delegation is restored, but the standard of supervision is not “whatever we were doing before September 2025”.’
'We had reached a point where solicitors and CILEX lawyers were considered equals but Mazur caused that perception to slip unnecessarily'
Victoria Neale, Pepperells
Partnership advisers CM Murray also stressed that the Court of Appeal’s decision places the onus on authorised persons and firms to have effective systems of delegation and supervision. ‘What amounts to effective supervision will depend on the facts and risk profile of the case, as well as the level of experience of the unauthorised person, and can vary from active supervision of individual matters, to conducting regular meetings with the unauthorised person and sampling their work,’ the firm said. ‘Regulators will clearly need to provide further and more refined guidance on supervision in light of this judgment.’
CM Murray added: ‘Firms will accordingly want to document their supervision arrangements and their rationale for differing levels of supervision, firstly for their own risk management process, secondly in order to ensure regulatory compliance (rule 2.2 of the Solicitors Code of Conduct for Firms requires firms to keep and maintain records to demonstrate regulatory compliance) and thirdly, to be able to pre-empt any queries from opponents and/or the court.’
Of course, as CM Murray went on to acknowledge, the scope for challenge by opposing parties is now likely to be greatly diminished: ‘Particularly as, in the vast majority of the cases, the litigation will be being conducted perfectly adequately/competently by the unauthorised person, meaning there is no reason to suspect that supervision is ineffective/inadequate’.
'I am concerned that the long-term impact of Mazur could [have] put younger people off pursuing the CILEX route altogether'
Selin Cetin, Pepperells
Mazur’s traumatic initial impact was evidenced by the fact that CILEX members formed their own support group to offer advice and support. Legal executives, paralegals and trainees who had feared for their futures can now continue their careers with equanimity.
Victoria Neale, a graduate CILEX member at Pepperells, based in Newcastle, started as an office junior at 16 and worked her way through every level of the firm. She commented: ‘We had reached a point where solicitors and CILEX lawyers were considered equals, but Mazur caused that perception to slip unnecessarily. Having the appeal upheld represents a return to common sense – it means we can once again carry out the work we have always been qualified to do.
‘For a lot of people, there simply is not another option to get into law. Not everyone has a law degree or the ability to take time out to return to university. Many young professionals join a law firm, discover a real passion for the work, and need an alternative route to progress. CILEX was that route for me, and it remains an outstanding pathway into the profession.’
Neale’s colleague Selin Cetin, a trainee solicitor, admitted that she had been concerned about what the ruling meant for her career. ‘It can feel like your value is diminished,’ she said. ‘I am concerned that the long-term impact of Mazur could [have] put younger people off pursuing the CILEX route altogether.’
Lisa Burton-Durham, chartered legal executive and group director of south-east firm Family Law Partners, wrote a Gazette column bemoaning the fact that she had been denied the right to represent a client based on Mazur. ‘The Court [of Appeal] has clearly approached this issue in a pragmatic way,’ she said. ‘I really hope that this provides the opportunity for the regulators to work quickly and collaboratively to ensure absolute clarity in relation to what can and cannot be done.’
The Court of Appeal ruling has also reassured law centres that their model of bringing together solicitors and caseworkers is lawful, so long as there is a robust supervisory framework. A spokesperson said: ‘Every day, law centres support individuals who would otherwise have to navigate the legal system alone. This judgment recognises, in practical terms, how legal help is delivered on the frontline, and why that matters.’
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