Delegation of “Conduct of Litigation” Tasks: “Carry On” Requires Responsibility, Not Mere Performance

1. Introduction

This appeal addressed a question with significant practical consequences for law firms and the not-for-profit sector: what it means to “carry on the conduct of litigation” under the Legal Services Act 2007 (“the 2007 Act”), and whether non-authorised staff commit an offence if they perform litigation tasks under the supervision of an authorised individual.

The dispute arose from debt recovery proceedings issued by Goldsmith Bowers Solicitors (GBS) on behalf of Charles Russell Speechlys LLP (CRS) against their former clients, Mrs Mazur and Mr Stuart, for unpaid fees. The claim was issued via Money Claims Online, and key steps were taken by Mr Peter Middleton, a suspended solicitor employed by GBS as a “Senior Litigation Executive” under SRA permission and supervision conditions. Mrs Mazur and Mr Stuart argued that Mr Middleton was unlawfully conducting litigation (a reserved legal activity) and that the proceedings were a nullity.

At first instance and on interim applications, courts grappled with shifting positions (including an SRA letter incorrectly suggesting section 21(3) authorised employees to undertake reserved activities). Ultimately, Sheldon J held that unauthorised persons may “support” litigation but may not “conduct litigation under supervision”—a distinction pressed by the Law Society and (in court) the SRA. CILEX, supported by APIL and the Law Centres Network (LCN), appealed, arguing that supervised delegation of litigation tasks has long been lawful where the authorised individual retains responsibility.

2. Summary of the Judgment

The Court of Appeal allowed CILEX’s appeal and rejected the lower court’s “support vs supervised conduct” distinction. It held that:

• “Conduct of litigation” refers to a category of tasks (as defined in Schedule 2, paragraph 4(1)).
• “Carry on” refers to direction, control, and—crucially—responsibility for those tasks.
• Therefore, an unauthorised person may lawfully perform tasks that fall within “the conduct of litigation” for and on behalf of an authorised individual, provided the authorised individual retains responsibility (including professional responsibilities under section 1(3)).
• The required level of supervision and control is context-dependent and is primarily for regulators to articulate; the 2007 Act does not mandate “universal prior approval” of each step/document by the authorised individual.

On the other issues:

• Baxter v Doble [2023] EWHC 486 (KB), [2023] 1 WLR 2948 (Baxter) was not misunderstood in law but was widely misunderstood in effect: it concerned unauthorised persons acting for litigants in person (who cannot delegate their personal right to conduct litigation), and it did not expand the range of tasks constituting the conduct of litigation.
• The court declined to provide an exhaustive list of “conduct of litigation” tasks, but identified items likely outside it and clarified that “ancillary functions” are limited to formal steps.
• The law centres’ delegation model is lawful on the same principles: delegation to unauthorised caseworkers is permissible if authorised individuals retain responsibility with appropriate supervision arrangements.

Lady Justice Andrews agreed, summarising the practical test: is the unauthorised person truly acting on behalf of the authorised individual? If yes, it is the authorised individual conducting the litigation; if no, the unauthorised person risks committing an offence. The Master of the Rolls agreed.

3. Analysis

3.1 Precedents Cited

(A) Long-standing recognition of delegation in legal practice

A central plank of the court’s reasoning was that Parliament legislated against a background where solicitors routinely delegated litigation work to unqualified staff, subject to regulation and continuing professional accountability.

• The Law Society v Waterlow Bros & Layton (1883) 8 App Cas 407 (HL) (Waterlow): The House of Lords held that penal provisions restricting certain activities to qualified solicitors did not require the solicitor to do them personally; tasks could be done by a competent agent in the solicitor’s name, where there was a “real solicitor” initiating and carrying on the business. This supported the modern idea that task-performance may be delegated while responsibility remains with the qualified principal.
• France v Dutton [1891] 2 QB 208 (Court of Appeal): A clerk’s signature could suffice where signed with authority and in the solicitor’s name—again reflecting agency and delegation in procedural acts.
• Myers v Elman [1940] AC 282 (House of Lords) (Myers): Delegation to a managing clerk did not relieve the solicitor of duties to the court; the solicitor remained answerable. The Court of Appeal used this as reinforcement that delegation is “inevitable” in practice but responsibility remains with the solicitor.
• Hollins v Russell [2003] EWCA Civ 718, [2003] 1 WLR 2487 (CA) (Hollins): The Court of Appeal accepted delegation of important client-advice/information duties in CFA context, grounded in historical delegation practice and regulatory supervision obligations, emphasising that solicitors remain professionally responsible. Hollins was deployed to show continuity: the system works through supervised delegation, not personal execution of every step.

(B) Narrow construction of penal provisions and the “non-delegable” litigant-in-person context

The court distinguished sharply between (i) delegation by an authorised individual within a regulated practice and (ii) unauthorised third parties acting for litigants in person.

• Agassi v Robinson (Inspector of Taxes) (Bar Council intervening) [2005] EWCA Civ 1507, [2006] 1 WLR 2126 (Agassi): Under the 1990 Act, the definition was unclear and carried penal implications; therefore it should be construed narrowly. Agassi also recognised that “purely clerical or mechanical activities” fall outside the prohibition. The Court of Appeal treated Agassi as a key guide to construing penal reserved-activity provisions and as part of the lineage for the “responsibility” focus.
• Gregory v Turner [2003] EWCA Civ 183, [2003] 1 WLR 1149 (Gregory v Turner): Held that litigants in person have personal rights (right of audience / conduct of litigation) which are non-delegable. This case was pivotal in Ndole and influential here for separating “delegation by an authorised professional” from “delegation by a litigant in person”.
• Ndole Assets v Designer M&E Services [2018] EWCA Civ 2865 (Ndole): The Court of Appeal held an unauthorised company could not “serve” a claim form for a litigant in person in a way that assumed legal responsibility; it introduced the “fact and degree” assessment distinguishing purely mechanical delivery from assuming responsibility. In the present case, Ndole was treated as authority that responsibility is the hallmark of “carrying on” (but the “fact and degree” inquiry arises in the litigant-in-person/unauthorised-agent setting, not where an authorised individual retains responsibility).
• Baxter v Doble [2023] EWHC 486 (KB), [2023] 1 WLR 2948 (Baxter): Applied Ndole in the same litigant-in-person context; the unauthorised person assumed responsibility and thus contravened section 14 (subject to the section 14(2) defence). The Court of Appeal’s key corrective move was to confine Baxter to its setting: it did not decide the permissibility of supervised delegation within a regulated practice.

(C) Defining the scope of “conduct of litigation” (tasks)

• R v AUH [2023] EWCA Crim 6, [2023] 1 WLR 1399 (AUH): Confirmed that “commencement, prosecution and defence” can encompass the act of prosecuting proceedings in court and repeated that, given penal consequences, the definition is narrow; “ancillary functions” capture formal steps.
• R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No. 8) [2002] EWCA Civ 932, [2003] QB 381 (Factortame): Used to support items outside “conduct of litigation” (e.g., gathering evidence; instructing experts and counsel) and for a restrictive approach to reserved litigation functions.
• Heron Bros v Central Bedfordshire [2015] EWHC 1009 (TCC) and JK v MK (E-Negotiation Ltd and another intervening) [2020] EWFC 2, [2020] 1 WLR 5091: Cited to illustrate that pre-litigation work and giving legal advice are not themselves “conduct of litigation”.
• O'Connor v Bar Standards Board (unreported, 17 August 2012): Referenced for the proposition that signing a statement of truth may not be within “conduct of litigation” (and more generally, that CPR-permitted signature by a “legal representative” does not necessarily equate to reserved conduct).

(D) Statutory interpretation framework

The court expressly situated its construction within modern interpretive method:

• Darwall v Dartmoor National Park Authority [2025] UKSC 20, [2025] AC 1292 (Darwall), Hassam v Rabot [2024] UKSC 11, [2025] AC 534, and News Corp UK & Ireland Ltd v Revenue and Customs Comrs [2023] UKSC 7, [2024] AC 89: cited for context-and-purpose interpretation.
• R (N3) v Secretary of State for the Home Department [2025] UKSC 6, [2025] 2 WLR 386 and R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255: relied upon for the constitutional value of citizens being able to understand legislation.
• Pepper v Hart [1993] AC 593: Parliamentary materials were considered but found insufficiently specific to resolve ambiguity.

(E) Other supporting authorities on responsibility and supervision

• Bamrah v Gempride Ltd [2018] EWCA Civ 1367, [2019] 1 WLR 1545 (Bamrah): In wasted costs context, emphasised that solicitors remain responsible for delegated “parts of the conduct of litigation”, underpinning supervisory jurisdiction.
• Graham v Lewis (1888) 22 QBD 1 (Graham v Lewis) and Waghorn v Care Quality Commission [2012] EWHC 1816 (Admin): Supported the proposition that “carry on” connotes managing/controlling activity in context, not merely performing tasks as an employee/agent.

Notably, SRA v Khan [2021] EWHC 3765 (Ch) (Fancourt J) (Khan) featured in the factual history (and lower-court arguments) as an example of the need for proper authorisation where an unauthorised person purports to act; but the Court of Appeal ultimately did not need to decide law-centre “transitional protection” questions connected to section 23 or revisit Khan’s contours.

3.2 Legal Reasoning

(A) The statutory scheme and where the offence bites

The judgment turns on careful separation of:

• What the reserved activity is: “the conduct of litigation” is a reserved legal activity (section 12(1)(b)), defined by Schedule 2, paragraph 4(1) as tasks including issuing proceedings, commencing/prosecuting/defending proceedings, and ancillary functions (formal steps).
• What the offence is: it is an offence (section 14(1)) to carry on a reserved legal activity without entitlement; contempt consequences may follow (section 14(4)).
• Who is the bearer of professional principles: section 1(3) identifies professional principles (independence/integrity, standards, best interests, duty to the court, confidentiality), which inform the court’s understanding of what “responsibility” means in this context.

The court’s interpretive move is to read “carry on” as the statutory latch that identifies the person who is answerable—i.e. the person directing, controlling, and taking responsibility for the defined tasks. On this analysis, an unauthorised person can physically do a defined task, yet not “carry on” the reserved activity, if they do so as part of the authorised individual’s conduct of litigation.

(B) Continuity with pre-2007 delegation practice

A major feature is the court’s finding that Parliament did not intend, in enacting the 2007 Act, to criminalise standard supervised delegation long recognised in cases like Waterlow and Hollins. The 2007 Act was described as liberalising in terms of regulatory architecture and market structure, not as a radical re-drawing of the delegation boundary.

(C) The “responsibility” axis: correcting the lower-court distinction

Sheldon J accepted a sharp line between “supporting/assisting” and “conducting under supervision”. The Court of Appeal rejected that taxonomy as legally erroneous. The lawful/ unlawful line is not semantic (“assist” vs “conduct”), but functional:

• If the authorised individual retains responsibility and has appropriate supervision and control arrangements, then the unauthorised staff member’s performance of conduct-of-litigation tasks is lawful and does not constitute the staff member “carrying on” the reserved activity.
• If the unauthorised person in substance assumes responsibility (especially where there is no authorised individual involved, as in Ndole/Baxter settings), then they may be “carrying on” the activity and risk section 14 consequences.

(D) Supervision is required, but “universal prior approval” is not

The court recognised that regulators may require high levels of control in some contexts (e.g. complex matters; inexperienced staff), while routine, systematised claims may justify lower levels (e.g. sampling, periodic review). The 2007 Act does not itself impose a rigid rule that an authorised individual must approve each document or each issuance step in advance.

(E) Treatment of sections 15 and 16 (employees) and section 21(3) (regulated persons)

A recurring confusion in the history of the case was whether section 21(3) (defining “regulated persons” to include employees of authorised persons) confers entitlement to carry on reserved activities. The court’s analysis (consistent with the SRA’s later position) treats section 21(3) as a regulatory perimeter provision, not an authorisation.

Similarly, sections 15 and 16 (and the Explanatory Notes) address circumstances where an employee is regarded as carrying on the activity; the court held these are not engaged where the employee is not “carrying on” the reserved activity because responsibility remains with the authorised individual.

3.3 Impact

(A) Practical restoration of established working models

The judgment is a significant stabilising precedent. It confirms that:

• Law firms may continue to operate with paralegals, litigation executives, clerks, and other unauthorised staff performing formal litigation steps (including issuing proceedings), where those steps are performed for and on behalf of an authorised individual who retains responsibility.
• The criminal-contempt consequences of section 14 are not triggered by ordinary supervised delegation arrangements.

(B) Increased regulatory responsibility and clearer compliance focus

By locating the legal boundary at responsibility, the court effectively shifts the compliance centre of gravity:

• Regulators must articulate what counts as “appropriate arrangements” for supervision and delegation across different practice types.
• Firms must evidence that the authorised individual is truly responsible (not a nominal figurehead), and that supervision/control is real and proportionate.

(C) Access to justice and the not-for-profit sector

The court’s approach aligns with section 1 objectives (notably access to justice, consumer interests, competition, and a diverse profession). For law centres, the decision removes the existential threat implied by the lower-court distinction: their model of authorised supervision of unauthorised caseworkers can be lawful without forcing wholesale reconfiguration into solicitor-only task execution.

(D) Litigation about “who is responsible” rather than “who clicked submit”

Future disputes are likely to focus less on whether an unauthorised person performed a listed task, and more on whether the authorised individual genuinely:

• directed/controlled the work in a meaningful way,
• retained the professional responsibilities in section 1(3), and
• implemented supervision appropriate to the risk and complexity of the litigation.

This may create evidential and factual disputes at the margins (for example, “absent supervisor” scenarios), but it avoids criminalising ordinary team-based practice.

4. Complex Concepts Simplified

• Reserved legal activity: A category of legal work that only authorised (or exempt) persons may “carry on”. “The conduct of litigation” is one of these.
• “Conduct of litigation” (tasks): Defined tasks like issuing proceedings, and certain formal procedural steps (“ancillary functions”).
• “Carry on” (the person): The person who manages/directs and is responsible for those tasks. The Court of Appeal holds it is not synonymous with “perform”.
• Authorised person vs regulated person: Being within a regulator’s disciplinary reach (a “regulated person”, e.g. an employee under section 21(3)) does not itself grant entitlement to carry on reserved activities.
• Delegation vs delegation by a litigant in person: An authorised solicitor may delegate performance while retaining responsibility. A litigant in person’s right to conduct litigation is personal and cannot be delegated to an unauthorised third party (Gregory v Turner; Ndole; Baxter).
• “Fact and degree”: In Ndole/Baxter-type cases, the court assesses whether an unauthorised person assumed responsibility (beyond mechanical delivery/clerical acts). In supervised-delegation cases with a responsible authorised individual, the Court of Appeal treats the inquiry as largely unnecessary unless the supervision is a sham.

5. Conclusion

This decision establishes a clear and practice-sensitive principle: under the 2007 Act, an unauthorised person does not “carry on the conduct of litigation” merely by performing litigation tasks, provided those tasks are done for and on behalf of an authorised individual who retains responsibility and implements appropriate supervision and control.

The Court of Appeal thereby:

• rejects the lower court’s “support” versus “conduct under supervision” dichotomy,
• confines Ndole and Baxter to the non-delegable litigant-in-person context,
• anchors the offence boundary in responsibility rather than mechanics, and
• protects access-to-justice and established working practices while preserving the enforcement target: unauthorised persons who in substance assume responsibility for litigation.