At first instance, Sheldon J held that where an unauthorised individual was found to be conducting litigation, even under the supervision of an authorised solicitor, this would amount to a criminal offence under section 14 of the Legal Services Act 2007 (the Act). However, a distinction was drawn between impermissibly “conducting litigation” and permissibly “supporting or assisting” an authorised solicitor, with only the latter falling within the statutory framework.
The Court of Appeal rejected this distinction. Sir Colin Birss (Judge) clarified that the critical question is not simply what tasks are being performed, but who is legally responsible for them. In doing so, the Court established a clear separation between performance and responsibility, which lies at the heart of the judgment.
“An unauthorised person may lawfully perform any tasks, which are within the scope of the conduct of litigation, for and on behalf of an authorised individual such as a solicitor or appropriately authorised CILEX member, provided the authorised individual retains responsibility for the tasks delegated to the unauthorised person (both formal responsibility and the responsibilities identified at section 1(3) of the 2007 Act). In that situation, the authorised individual is the person carrying on the conduct of litigation.”
Sir Colin Birss [p.187]
The Court of Appeal looked at three key issues:
- Whether Sheldon J was correct to hold at first instance that where an unauthorised individual conducts litigation under supervision, this amounts to a criminal offence under section 14 of the Act.
- What acts undertaken by unauthorised individuals constitute “conduction litigation”, particularly in light of Baxter v Doble [2023] EWHC 486 (KB).
- Whether the existing model relied upon by legal professions, whereby authorised individuals delegate litigation tasks to unauthorised persons under supervision, fell outside the limits of the 2007 Act.
Issue One: Who is “carrying on” the conduct of litigation?
The Court clarified that “conduct of litigation” refers to the tasks themselves, whereas “carrying on” those tasks involve direction, control and responsibility (p. 21). This distinction is critical. It means that the performance of litigation tasks does not, in itself, amount to “carrying on” the conduct of litigation.
Accordingly, where an authorised individual retains responsibility for those tasks, it is they who are carrying on the reserved legal activity, even if the tasks are performed by an authorised person (p. 25).
A key aspect of Court’s reasoning was its rejection of the position advanced by the Law Society and the SRA. Both had argued for stricter approach, suggesting that authorised individuals must exercise a high degree of prior approval over litigation tasks, effectively limiting the role of unauthorised persons to mere assistance. Which would have had a detrimental effect on free Legal Clinics who rely on this structure to carry out the work that they do.
However, the Court rejected this interpretation, holding that such a level of prior approval is not required by the 2007 Act. Instead, the focus is on whether appropriate systems of supervision and delegation are in place. In doing so, the Court confirmed that unauthorised individuals are not confined to purely administrative or supportive roles and may carry out substantive litigation tasks on behalf of an authorised individual without breaching the statutory framework (p. 25, 27).
This clarification is significant. It removes the need for overly rigid supervision structures and confirms that established working practices across law firms remain lawful. More importantly, it reinforces that the statutory regime is concerned with who retains responsibility, rather than who performs each individual task.
Issue Two: What amounts to “conducting litigation”?
In addressing the second issue, the Court confirmed that the conduct of litigation encompasses a broad range of activities, including the issuing, commencement, and progression of proceedings, as well as related procedural steps.
However, the Court declined to produce an exhaustive list of such acts, recognising that whether a task falls within the conduct of litigation is ultimately a matter of fact and degree.
Importantly, the Court clarified that Baxter v Doble had been misunderstood in this context. That case concerned an unauthorised individual acting independently, without any authorised person retaining responsibility. In such circumstances, the individual could be said to be carrying on the conduct of litigation.
By contrast, where tasks are performed within a supervised structure, and responsibility remains with an authorised individual, the same acts do not give rise to liability (p. 28).
Issue Three: The delegation model
On the third issue, the Court confirmed that the widely adopted model of delegation within law firms and law centres is consistent with the statutory framework.
The delegation of litigation tasks to unauthorised individuals is lawful, provided that appropriate systems of supervision, management, and control are in place. The authorised individual must retain overall responsibility, but this does not require constant or step-by-step approval of every action (p. 25,30).
The Court therefore endorsed a flexible and practical approach, recognising that different levels of supervision may be appropriate depending on the nature and complexity of the work.
Implications for Practice
The decision provides much-needed clarity for law firms and legal service providers. It confirms that the widespread practice of delegating litigation tasks to paralegals and other unauthorised staff remains lawful, provided appropriate supervision is maintained.
Firms are not required to adopt overly restrictive approval processes. Instead, the focus is on ensuring that authorised individuals retain control and responsibility for the conduct of litigation.
More broadly, the judgment aligns the statutory framework with the realities of modern legal practice, avoiding the significant disruption that would have followed from the narrower interpretation at first instance.
