Stop carrying on (about carrying on the conduct of litigation)

In CILEX and others v Mazur and others [2026] EWCA Civ 369 (“Mazur”) the Court of Appeal has decided that unauthorised persons can conduct litigation under the supervision of an authorised person without committing an offence. In so doing the Court has overturned the September 2025 judgment of Mr Justice Sheldon which had sent such tremors through the legal services industry.

Legal executives and paralegals across the realm will breathe a sigh of relief, and some of the urgent attempts to mitigate the effects of Mr Justice Sheldon’s decision will no doubt be put into reverse. In general, Mazur provides welcome clarity on what is meant by “carrying on the conduct of litigation” for the purposes of the Legal Services Act 2007 (“the LSA 2007”). 

The Court of Appeal framed the appeal as constituting three issues [13]: 

“i) Was the judge right to hold that unauthorised persons were “carrying on the conduct of litigation” if they did acts that constituted the conduct of litigation under the supervision of an authorised individual? (The first issue). 

ii) What acts actually constitute conducting litigation? In this regard (and in relation to the first issue), it will be necessary to consider the correctness of the recent decision of Cavanagh J in Baxter v Doble [2023] EWHC 486 (KB), [2023] 1 WLR 2948 (Baxter). (The second issue). 

iii) Whether the working model adopted by Law Centres (whereby a group of authorised individuals delegate the conduct of litigation to unauthorised persons, whilst supervising their work and retaining ultimate responsibility for it) is contrary to the 2007 Act? (The third issue).”

A tale of two distinctions

On Issue 1 the headline is that the prior orthodoxy has been restored: an unauthorised person can lawfully perform any tasks which are within the scope of the conduct of litigation, for and on behalf of an authorised person provided that apprioayte supervision and direction is in place.

In relation to Issue 1 the touchstone of the prior decision of Sheldon J in the High Court was the distinction between assisting with the conduct of litigation and actually conducting litigation under supervision from an authorised individual. An assumption pervading the judgment was that “carrying on” simply meant doing acts or activities. In contrast the leading judgment of Sir Colin Birss, adopting the submissions of CILEX, APIL and LCN, frames the distinction as between performance of tasks and responsibility for those tasks.

Sheldon J’s distinction in combination with the assumption regarding “carrying on” lead to the conclusion that an unauthorised person was not able to perform tasks that constituted conduct of litigation under supervision of an authorised individual. Therefore, the analysis of what acts fall within the scope of conduct of litigation is of real significance.

Sir Colin Birss scrutinised and rejected the assumption on the basis of the ordinary meaning of the words. “Conduct of litigation” refers to the tasks undertaken whilst the words “carry on” refer to the direction and control of and responsibility for those tasks. On the way he also concluded that Parliament, when it passed the LSA 2007 “must be taken to have understood that individual solicitors had, and were regulated in respect of, widespread practice of delegating litigation work to unqualified individuals”. His conclusion on Issue 1 was that an unauthorised person may perform tasks that amount to the conduct of litigation for and on behalf of an authorised individual provided that the individual puts in place appropriate arrangements for supervision.

The Scope of conduct of litigation post Baxter

Having answered Issue 1 in the affirmative, the Judge was wrong, the analysis of the scope of conduct of litigation declines somewhat in practical importance. If you are an unauthorised individual working for and on behalf of an authorised individual, with appropriate supervision arrangements in place, then you are not breaching the LSA 2007 simply by crossing the line from performing tasks which are outside the scope to those which are inside the scope of conduct of litigation.

In any event, Sir Colin Birss analysed the line of cases including Ndole Assets v Designer M&E Services [2018] EWCA Civ 2865 (Ndole) and the decision in Baxter. He found that Ndole supported the proposition put forward by CILEX & others, in relation to Issue 1, that persons must assume responsibility for tasks for the person to be carrying on conduct of litigation. Ndole and Baxter were differentiated from the Mazur case, as they concerned the situation where an unauthorised person (acting for a litigant in person with no right to delegate) had performed tasks within the scope of conduct of litigation. The question in those cases was whether said unauthorised person was performing purely mechanical or administrative tasks or whether they had assumed responsibility for the tasks. The approach that emerged in the two cases is that it is a matter of fact and degree.

The question of fact and degree made its way into Mazur in the High Court via the submissions of the Law Society [HC/29] and SRA [HC/41], who specifically cited Baxter [181] to [184], as to the approach to determining whether an unauthorised person was merely supporting the conduct of litigation or was conducting litigation under supervision. This appears to have been inappropriate given the comments of Sir Colin Birss emphasising the difference in context in Ndole, Baxter and Mazur. Addressing Issue 2 directly it was concluded that some tasks are clearly within the scope of the conduct of litigation and some are clearly not. Ultimately, this thorny question will remain  as it was not possible to lay down a comprehensive list of all tasks falling within and without the scope of conduct of litigation.

The practice adopted by law centres (and others)

The answer to Issue 3 followed directly from an application of the principles discerned in relation to Issue 1. Accordingly, the working practice of law centres, heavily relation on delegation of tasks, was not contrary to the LSA 2007.

Solicitors’ agents

Sir Colin Birss’ analysis will likely have wider ramifications throughout the legal services industry. For example, in the course of his judgment he addressed the construction of paragraph 1(7) of schedule 3 of the LSA 2007, a provision that is commonly relied upon by unauthorised persons to exercise a right of audience in Chambers when “assisting in the conduct of litigation” and when “under the supervision” of an authorised individual.

In his judgment the Chancellor was clear to distinguish between the conduct of litigation and the exercise of a right of audience as separate reserved activities to which separate considerations apply; however, he suggested [165] that the situation was analysable in terms of a principal who would be “carrying on the exercise of a right to appear before and address a court” and a supervised person appearing in Chambers for their solicitor principal. The Court’s judgment may have important implications for solicitors’ agents exercising a right of audience pursuant to paragraph 1(7) of schedule 3.