The Right to Conduct Litigation

The Respondent law firm carried out some legal work for the Appellants. The Respondent’s fee of £54,263.50 was not paid and another law firm, Goldsmith Bowers Solicitors (GBS) was instructed to recover the sum. A claim was issued by GBS, in response to which the Appellants put in a Defence and Counterclaim. The Claim Form was signed by GBS and the Particulars of Claim by Peter Middleton “Head of Commercial Litigation” at GBS.

The Appellants took issue with the fact that Mr Middleton, the person who they believed was conducting the litigation against them, did not hold a current practising certificate. Thus it was that the name of Mazur swiftly swept through the legal profession: Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB)  Sheldon J

Deputy District Judge Campbell ordered a stay of proceedings considering that Mr Middleton was taking part in a reserved activity within the meaning of the Legal Services Act 2007 (the LSA) in that he appeared to be conducting litigation against the Appellants. An application to lift the stay came before Judge Simpkiss but in the meantime Mr Middleton’s involvement in the proceedings came to an end and he was replaced by Lisa Adkin, a qualified solicitor with a practising certificate.

Judge Simpkiss lifted the stay and ordered the Claimants to pay £10,653 costs.

In their grounds of appeal the Appellants contended that the decision was wrong in law in that His Honour had (i) misdirected himself on section 21(3) of the LSA; (ii) failed to take into account sections 14 and 16 of the LSA; (iii) misinterpreted the judgment given by Fancourt J in Solicitors Regulation Authority v Khan [2021] EWHC 3765 (Ch); (iv) failed to take into account the judgment given by Andrews J in Jetly v Secretary of State for the Home Department [2019] EWHC 204 (Admin); (v) failed to take into account the representations made by the Law Society to the Court in Baxter v Doble [2023] EWHC 486; (vi) carried out a summary assessment of costs in breach of CPR 45.63; (vii) awarded costs in breach of the indemnity principle; and (viii) awarded costs which are not recoverable under CPR Part 45.8.

In short (i) did Judge Simpkiss err in deciding that Mr Middleton was authorised to conduct litigation under the supervision of a Mr Ashall, an authorised person and (ii) did Judge Simpkiss err in making an award of costs or making and award in the amount of £10,653 against the Appellants.

His Lordship accepted that Judge Simpkiss was right to lift the stay as Mr Middleton was no longer involved in the litigation.

Was Mr Middleton entitled to conduct litigation under the supervision of Mr Ashall? The short answer to that question was No. The learned judge’s conclusion to the contrary in reliance on the SRA letter of 2 December 2024 was therefore an error of law.

Section 13(1) of the LSA provided that whether or not a person was entitled to carry on a reserved legal activity ‘is to be determined solely in accordance with the provisions of this Act.’ Section 13(2) provided that a person was entitled to carry out a reserved legal activity where they are ‘an authorised person in relation to that activity’ or ‘the person is an exempt person in relation to that activity’. There were, therefore, two distinct circumstances in which a person was entitled to carry out a reserved legal activity: they were ‘an authorised person’ (defined in section 18), or they were ‘an exempt person’ (defined at section 19).

It was a criminal offence for a person to carry on a reserved legal activity without being entitled to do so: s14(1) LSA.

Section 15(2) of the LSA made it clear that an employee (referred to as ‘E’) who carried on the activity as an employee was to be treated as a person who carried on the reserved legal activity, whether or not their employer (referred to as ‘P’) was entitled to carry on that activity.

Section 18 of the LSA defined the term ‘authorised person’ in relation to an activity which was a reserved legal activity as meaning a person who was authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity.

The SRA was the relevant approved regulator in relation to the conduct of litigation. It was necessary, therefore, for a person to be authorised to carry on the relevant activity by the SRA.

Mr Middleton was not entitled to conduct litigation merely because he was an employee of a person (GBS) that was authorised to carry out the reserved legal activity of conducting litigation. The decision reached by the SRA in its decision letter of 2 December 2024 was clearly wrong.

The award of costs made against the Appellants could not stand. It also fell to be quashed because the sum awarded exceeded by some considerable margin the costs that the learned judge was entitled to award given that the case was allocated to the Intermediate Track.

The appeal was allowed and an order made of ‘no order as to costs’.

The lesson to be drawn

The fallout that followed this decision highlights what many have described as a lack of clarity over what is ‘litigation support’ as opposed to ‘conduct of litigation’.

The legislation defines litigation as the issuing of proceedings and the commencement, prosecution and defence of such proceedings, as well as the performance of ancillary functions such as entering appearances to actions. This includes filing and serving documents, applications and statement of case.

The boundary between conducting litigation and supporting litigation is a question of fact.

There is, however, a distinction between the formal stages and tasks that are purely clerical. In determining where the boundary line falls, courts will always look to substance rather than form.

Where there are firms employing large numbers of paralegals or other unqualified individuals to conduct multiple claims, and a qualified solicitor turns up once in a while to cast an eye over the wider picture, it will be almost impossible to justify that the solicitor is conducting the litigation.

I regret that various bodies may have unwittingly misled their members into believing that they may conduct litigation. The decision is as I have always understood it: an authorised person must maintain professional responsibility for the formal steps in proceedings, although others may support by drafting documents and correspondence, and proofing witness statements, for example.