Summary of Legal Opinion (Anonymised)

Factual and Procedural Background

This dispute arose from a claim by Company A for unpaid fees against two individuals (the Defendants). Company A instructed Company B to issue proceedings. Attorney Middleton (an unauthorised individual) used the court's online system to issue the claim and undertook other litigation steps. The Defendants applied to the court contending that Attorney Middleton was unlawfully "conducting litigation" contrary to the Legal Services Act 2007 (the 2007 Act).

Judge Campbell stayed the proceedings and sought explanation from Company B. Company B (through Attorney Ashall, an authorised solicitor) explained that Attorney Ashall supervised Attorney Middleton and asserted that Attorney Ashall had the conduct of the litigation. The regulator (Company H) initially stated no further action was required but later revised its position in submissions to the court.

Following hearings at first instance and on appeal to a higher judge (Judge Sheldon), the judge below concluded that an unauthorised person who performs acts constituting the conduct of litigation under the supervision of an authorised individual is unlawfully "carrying on the conduct of litigation". Company C (an approved regulator for Chartered Legal Executive lawyers) was granted permission to appeal and Company G, Company H and several other bodies intervened. The appellate court allowed Company C's appeal.

Legal Issues Presented

1. Whether an unauthorised person is "carrying on the conduct of litigation" if they perform acts constituting the conduct of litigation while supervised by an authorised individual.
2. Which acts fall within the statutory definition of "conduct of litigation" under schedule 2 paragraph 4 of the 2007 Act (and the correctness of Baxter v Doble on that issue).
3. Whether the delegation model used by law centres (a group of authorised individuals delegating litigation tasks to unauthorised staff under supervision) is contrary to the 2007 Act.

Arguments of the Parties

Company C (CILEX)'s Arguments

• The 2007 Act does not prohibit an unauthorised person performing tasks that fall within the conduct of litigation when those tasks are performed for and on behalf of an authorised individual who retains responsibility.
• "Carry on the conduct of litigation" comprises two dimensions: performance of tasks and responsibility for them; responsibility may remain with the authorised individual.
• The long-standing practice of delegation (including commencing proceedings) supports this construction; regulators should control supervision details.

Company D (APIL)'s Arguments

• Agreed with Company C on delegation concerns and emphasised access to justice and operational impact.
• Argued Baxter was wrongly decided and urged narrow construction of "conduct of litigation" given penal consequences.

Company E (Law Centres Network)'s Arguments

• Described law centres' delegation model (few solicitors supervising multiple unauthorised caseworkers) and the practical harms from the judge's decision to service access to justice.
• Relied on contractual and regulatory supervision mechanisms and transitional protections as relevant.

Company G (Law Society)'s Arguments

• Submitted that authorised persons cannot delegate reserved legal activities to unauthorised persons except as explicitly permitted by schedule 3 exemptions; where an unauthorised person assists, the authorised person must direct, control and approve the activity (originally arguing for universal prior approval).
• Framed the issue as one of substantive control and professional responsibility.

Company H (SRA)'s Arguments

• Adopted Company G's position subject to a qualification: for routine matters, rigorous systems and controls may permit unauthorised staff to commence proceedings without prior individual approval so long as professional responsibility and control remain with the authorised person.
• Emphasised public-interest prosecutorial discretion and the need for practical regulatory solutions.

Company F (LSB)'s Arguments

• Advocated for clarity and submitted the 2007 Act draws a distinction between assistance and supervision; absent an express exemption in schedule 3 for the conduct of litigation, supervision does not authorise an unauthorised person to carry on litigation.
• Argued "carry on" could mean simply "do" and urged narrow reading of penal provisions.

Defendants' Arguments

• The Defendants supported Company G's construction and sought mechanisms (including case-specific exemptions) to address law-centre practice where necessary.
• One Defendant suggested regulatory failures and asked for retrospective relief in appropriate cases.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified the task as one of statutory construction of the phrase "carry on the conduct of litigation" in the 2007 Act and applied established interpretive principles (context and purpose). The court reviewed historical practice (Victorian cases through the 1990 Act) showing long-standing, regulated delegation by solicitors to unqualified staff and that such delegation did not absolve solicitors of responsibility.

The court analysed the statutory text: schedule 2 paragraph 4 defines "conduct of litigation" as tasks (issuing proceedings; commencement/prosecution/defence; ancillary formal functions). The court concluded that "conduct of litigation" denotes the tasks to be performed, whereas "carry on" denotes direction, control and responsibility for those tasks. The court rejected the view that "carry on" simply means to do acts.

Authorities decided under the 2007 Act (Ndole, Baxter) concern unauthorised persons acting for litigants in person and apply a fact-and-degree test to determine whether responsibility has been assumed. The court distinguished those authorities from the present situation where an authorised individual with power to delegate retains responsibility for delegated tasks.

Applying these principles, the court held that an unauthorised person may lawfully perform tasks that fall within the conduct of litigation for and on behalf of an authorised individual so long as the authorised individual retains responsibility (both formal and the professional responsibilities in s.1(3) of the 2007 Act). The required degree of supervision and control depends on circumstances and is a matter for regulators; universal prior approval is not required by the statute.

Holding and Implications

Holding: The appeal is allowed. The court held that an unauthorised person does not, by performing tasks within the scope of the "conduct of litigation" under the supervision of an authorised individual, necessarily "carry on the conduct of litigation" for the purposes of section 14 of the 2007 Act, provided the authorised individual retains responsibility and appropriate supervisory arrangements are in place.

Implications:

• The direct effect is that authorised individuals may delegate litigation tasks to unauthorised staff where responsibility, direction and control remain with the authorised individual; such unauthorised persons will not automatically commit the section 14 offence.
• The judgment leaves unresolved a comprehensive catalogue of which specific tasks amount to "conduct of litigation"; the court declined to provide an exhaustive list and emphasised that some tasks are clearly within and others clearly outside the definition, with many cases requiring fact-and-degree analysis.
• The court indicated that the details of appropriate supervision and delegation are to be set by regulators and that existing professional duties and regulatory objectives (including access to justice and maintenance of standards) inform the construction.
• No novel overarching precedent expanding the list of acts constituting conduct of litigation was created; the decision clarifies that delegation consistent with retained responsibility is lawful under the 2007 Act.