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Chartered Institute of Legal Executive (CILEX) & Ors v Mazur & Ors
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
- 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.
- 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).
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Baxter v Doble [2023] EWHC 486 (KB), [2023] 1 WLR 2948 | Applied the "fact and degree" test to whether an unauthorised person acting for a litigant in person assumed responsibility for tasks amounting to conduct of litigation. | Court treated Baxter as correctly decided in its context (litigant in person); not authority for delegation by authorised persons under supervision. |
| The Law Society v Waterlow Bros & Layton (1883) 8 App Cas 407 | Recognition that tasks within regulated activity could be performed by agents for a solicitor who retained responsibility. | Used to support historical practice of delegation and that delegating did not absolve solicitor of responsibility. |
| Hollins v Russell [2003] EWCA Civ 718, [2003] 1 WLR 2487 | Delegation by solicitors of some functions to non-solicitors is permissible where supervision and professional responsibility remain. | Supported the proposition that delegation is long-established and regulated by professional duties. |
| Agassi v Robinson (Inspector of Taxes) (Bar Council intervening) [2005] EWCA Civ 1507, [2006] 1 WLR 2126 | The predecessor offence should be interpreted narrowly; purely clerical/mechanical acts are excluded from prohibition. | Supported narrow construction of penal provisions and distinction between mechanical tasks and assuming responsibility. |
| Ndole Assets v Designer M&E Services [2018] EWCA Civ 2865 | Distinguished purely mechanical/administrative acts from acts where an unauthorised person assumed responsibility; applied fact-and-degree analysis. | Held unauthorised person acting for litigant in person had assumed responsibility; court used Ndole to frame mechanical vs responsibility distinction. |
| R v AUH [2023] EWCA Crim 6, [2023] 1 WLR 1399 | Confirmed narrow interpretation and that organisations could not prosecute civil/criminal matters in court unless represented by authorised lawyer; commencement/prosecution falls within conduct of litigation. | Reinforced that commencement/prosecution are within paragraph 4(1)(b) and ancillary functions are formal steps; supported narrow approach. |
| Factortame (R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No. 8)) [2002] EWCA Civ 932, [2003] QB 381 | Called for restricted ambit to the definition of "conduct of litigation" in light of penal consequences. | Referred to for the need for narrow construction of penal definitions. |
| Gregory v Turner [2003] EWCA Civ 183, [2003] 1 WLR 1149 | Right to conduct litigation is personal and non-delegable. | Used to reject the view that a litigant's personal rights could be delegated to a third party to circumvent the regulatory regime. |
| France v Dutton [1891] 2 QB 208 | Solicitor's clerk may sign in the solicitor's name where acting with authority; formal acts may be done by agent in solicitor's name. | Supports historical practice of clerks performing formal steps on behalf of solicitors. |
| Myers v Elman [1940] AC 282 | Solicitor cannot evade duties to court by delegating misconduct to an unadmitted clerk; solicitor remains answerable. | Affirmed solicitor's continuing responsibility for delegated work and duties to the court. |
| Arbiter Group v Gill Jennings & Every [2000] PNLR 680 | Authorities reflecting delegation principles and supervisory obligations. | Referenced in support of delegation subject to supervision and professional responsibility. |
| Ellis v Ministry of Justice [2018] EWCA Civ 2686 | Service of claim form held to be within conduct of litigation. | Cited alongside Agassi and Ndole on service as an example of an act potentially within conduct of litigation. |
| Bamrah v Gempride Ltd [2018] EWCA Civ 1367, [2019] 1 WLR 1545 | Solicitor on the record liable for acts/omissions of delegates; supervisory jurisdiction maintained by holding solicitors responsible. | Supported the view that authorised persons remain accountable for delegated litigation work. |
| Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 1009 (TCC) | Pre-litigation work is unlikely to be within the statutory definition of conduct of litigation. | Included as an example of work unlikely to fall within paragraph 4(1). |
| JK v MK (E-Negotiation Ltd and another intervening) [2020] EWFC 2, [2020] 1 WLR 5091 | Giving legal advice in connection with court proceedings may fall outside conduct of litigation. | Used to support that legal advice and correspondence are unlikely to be within the statutory definition. |
| O'Connor v Bar Standards Board (unreported, 17 August 2012) | Signing a statement of truth by a legal representative. | Noted as indicating signing a statement of truth is unlikely to be exclusively within conduct of litigation for prohibition purposes. |
| Inco Europe Limited v First Choice Distribution [2000] UKHL 15, [2000] 1 WLR 586 | Principles on rectifying construction invoked where legislative error alleged. | Referred to as part of an alternative submission on rectifying construction; not finally determined. |
| Qader v ESure Services Ltd [2016] EWCA Civ 1109, [2017] 1 WLR 1924 | Also cited on rectifying construction principles. | Referenced but not examined in detail. |
| Darwall v Dartmoor National Park Authority [2025] UKSC 20, [2025] AC 1292 | Statutory interpretation principles: meaning of words in context and purpose. | Applied as guidance on approach to statutory construction of the 2007 Act. |
| Hassam v Rabot [2024] UKSC 11, [2025] AC 534 | Statutory interpretation and context/purpose considerations. | Invoked in relation to interpretive methodology. |
| News Corp UK & Ireland Ltd v Revenue and Customs Comrs [2023] UKSC 7, [2024] AC 89 | Contextual approach to statutory interpretation. | Referenced as part of interpretive authorities. |
| Pepper v Hart [1993] AC 593 | Use of Hansard/parliamentary materials in statutory interpretation where threshold met. | Court held Parliamentary material relied on was not specific enough to engage Pepper v Hart. |
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.
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