KA-2025-000012 - [2025] EWHC 2341 (KB)

At the end of the hearing before me, it seemed that some of the legal issues being raised on this appeal may be of wider significance. As a result, I adjourned the hearing and invited the Law Society and Solicitors Regulation Authority to make representations to the Court on the following questions:

“Pursuant to the Legal Services Act 2007, is a non-admitted person (such as a previously admitted solicitor, trainee solicitor, pupil barrister, paralegal, clerk etc.), who is employed by a firm authorised and regulated by the Solicitors Regulatory Authority:

a.

permitted to support an authorised solicitor in undertaking the reserved legal activity of conducting litigation?

b.

permitted to undertake the reserved legal activity of conducting litigation under the supervision of an authorised solicitor?

c.

permitted by virtue of the authorisation of the firm to undertake the reserved legal activity of conducting litigation themselves as an employee of the regulated entity?”

The Law Society made written submissions through solicitors, Russell-Cooke LLP. The short answer to the questions posed was that a person who is not individually authorised but who is employed by an authorised entity:

“a)

is permitted to support an authorised solicitor in undertaking the reserved activity of conducting litigation;

b)

is not permitted to undertake reserved legal activity even under the supervision of an authorised solicitor except in relation to specific activities which were permitted prior to 2007 or are otherwise specifically permitted;

c)

is not permitted by virtue of the authorisation of their firm to undertake the reserved legal activity of conducting litigation themselves as an employee of the regulated entity”.

The Law Society’s analysis of the legal framework was as follows. There are certain activities among the services that have traditionally been supplied by solicitors that may only be carried on by persons who have been authorised to do so, or who are exempt under the LSA. “Reserved legal activities” (as referred to at section 12(1) of the LSA) can only be carried out by those authorised to do so, this includes “the conduct of litigation”. This is defined in paragraph 4 of Schedule 2 to the LSA as:

“(a)

the issuing of proceedings before any court in England and Wales,

(b)

the commencement, prosecution and defence of such proceedings, and

(c)

the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)”.

Reference was made to R v AUH [2023] EWCA Crim 6 where Lord Burnett of Maldon CJ observed at [75] that:

“given the potential penal consequences of conducting litigation when not authorised to do so, it has been interpreted narrowly and does not extend beyond formal steps in the litigation. It does not extend to “purely clerical or mechanical activities” and is intended to encompass “formal steps required in the conduct of litigation””.

The Law Society also referred to the fact that the LSA introduced the words “the commencement, prosecution and defence of such proceedings” which had not been included in the previous legislation.

The Law Society submitted that whether or not a person supporting or assisting a solicitor to conduct litigation is conducting litigation themselves is a question of fact and degree. Indicators may include the way that important decisions in the case are taken; who drafts or specifically approves formal documents; the degree of direction from the authorised person; evidence as to who is taking specific responsibility for formal steps or, in general terms, who is conducting the case. It is expected that those providing support will be properly directed and supervised. Tasks may be delegated but conduct of the litigation may not. General supervision by an authorised person does not mean that an unqualified individual is, or is not, conducting litigation. The Law Society contended that the service of process, preparing bundles and searches are “mechanical functions”, and have never been regarded as ancillary steps amounting to the conduct of litigation.

Reference was also made to Baxter as being the best up to date statement of the correct approach. In that case, Cavanagh J noted at [176] that there was a category of legal activity which did not amount to a reserved activity, referring to sections 12 and 13 of the LSA. Cavanagh J observed at [177] that the definition of conduct of litigation at paragraph 4 of Schedule 2 to the LSA was wider than the earlier statutory definition. Under the LSA, the conduct of litigation includes functions which are ancillary to the commencement, prosecution, and defence of proceedings before any Court in England and Wales.

The Law Society referred to the SRA’s Authorisation of Individuals Regulations which provide at paragraph 9.1 that a solicitor with a practising certificate was “entitled to carry on all reserved legal activities except notarial activities”. Further, that the SRA’s Authorisation of Firms Rules provide at paragraph 5.3 that “An authorised body may only carry on a reserved legal activity through a person who is entitled to do so”. The Law Society contended that an employee conducting litigation is not exempt even if their employer would be exempt.

With respect to the LSA, the Law Society submitted that both the employer and employee need authorisation, and the authorisation of the employer does not authorise an employee to conduct litigation. With respect to body corporates, the Law Society submitted that a party which is a body corporate must act through a natural person as its representative. If that representative is required to conduct litigation they must be authorised to do so or be exempt. Where, therefore, pursuant to CPR Part 39.6 a Court gave permission to a company being represented at trial by an authorised employee, they would be exempt.

With respect His Honour Judge Simpkiss’s finding at paragraph 39 that, by approving Mr Middleton’s employment, “the SRA has confirmed that Mr Middleton had authority to conduct litigation under the supervision of Mr Ashall”, the Law Society submitted that this was wrong. The SRA’s permission was required for Mr Middleton to be employed, but the SRA did not have power to authorise him to conduct litigation.

With respect to section 21(3) of the LSA, the Law Society submitted that a “regulated person” cannot be equated with “authorised person”. Not every “regulated person” is an “authorised person”, and for the purpose of carrying out reserved activities the relevant term is “authorised person”.

The Law Society concluded their submissions by saying that non-qualified staff play an important role in supporting the conduct of litigation by authorised solicitors. Their work, however, must not cross the boundary into conducting litigation which may only be done by authorised persons. The principle that authorised individuals should be in control of and have responsibility for litigation is in the public interest. An authorised entity which provided a platform for unauthorised staff to conduct and control litigation would not be in the public interest.

Tom Lowenthal of Counsel made written submissions on behalf of the SRA. With respect to the questions set out at paragraph 24 above, (a) was answered in the affirmative, and (b), (c) were answered in the negative. It was stated that the conduct of litigation is a reserved activity, and a person who is neither authorised nor exempt cannot lawfully engage in the conduct of litigation even if they are employed by a firm which is authorised to do so. Non-admitted persons may assist or support authorised persons in the conduct of litigation provided that final responsibility for the conduct of litigation rests with an authorised person. In such a case, the non-admitted person does not “conduct litigation”.

The SRA explained that it was a matter of the highest public interest that those carrying out reserved legal activities are fit and proper persons who are appropriately qualified and regulated. This is necessary, among other things, to secure public confidence in the administration of justice, to protect the public and consumers of legal services, and to ensure high standards of competence and propriety in the profession.

The SRA contended that under the LSA there are two ways in which a person may be entitled to perform reserved legal activities: they may be “authorised” pursuant to section 18 of the LSA, and the task of authorisation falls to the SRA; or they be an “exempt” person pursuant to section 19. When the SRA authorises a person to perform reserved legal activities they are subject to its regulatory jurisdiction. If a solicitor has been suspended, the SRA’s permission is required before a solicitor may employ them.

The SRA submitted that a person may not rely on their employer’s authorisation to carry out reserved legal activities if they are not authorised themselves. This was what the various provisions of the LSA called for. This was also supported by the decision of Fancourt J in Khan, where it was held at [32] that section 16 of the LSA makes it clear that “there is a separate requirement for the employer body and the employee to be entitled to carry on the reserved legal activity”.

The SRA rejected the submission that an entitlement for an employee to perform reserved legal activities could be derived from section 21(3) of the LSA. That submission conflated the terms “regulated person” and “authorised person”, but they were not the same thing. Not every regulated person is an authorised person.

The SRA was not able to identify a case in which a Court had to consider directly at what point a non-authorised person ceases merely to support or assist an authorised person but assumes the conduct of litigation. The SRA suggested that the matter could be determined by having regard to the text and purpose of the LSA as well as “four key points of principle” identified by the Court of Appeal in Baxter at [181]-[184]: (i) the starting point must be the statutory language itself, and the statutory words must be given their natural and ordinary meaning; (ii) the legislation is penal in nature, and so in principle should be construed narrowly; (iii) substance must prevail over form; and (iv) the question is one of fact and degree in every case.

The SRA stated that the key question to ask was whether the person has assumed responsibility for the conduct of the litigation and exercises professional judgment in respect of it. The SRA submitted that a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses, or similar functions does not conduct litigation because it is the solicitor who exercises the final professional judgement about how the litigation is to be conducted and takes responsibility for that judgement. That would be different, however, if on a true analysis and focusing on substance not form the non-authorised person was the one responsible for the litigation and exercising professional judgment in respect of it.

I permitted the parties to the appeal to make further submissions in light of the representations from the Law Society and SRA. Both parties took up this opportunity. Mrs Mazur submitted that, in deciding whether Mr Middleton was conducting litigation himself or was merely supporting Mr Ashall, the Court was entitled to focus on his actual role and on the actual activities undertaken by him. The greater the similarity of a person’s role to that of an authorised person conducting litigation, the more likely that they are conducting litigation. In this case, it was contended that Mr Middleton had given “full-service assistance” to the Respondent.

Mrs Mazur also invited the Court to refer Mr Middleton and Mr Ashall to the SRA for further investigation. Mrs Mazur also invited the Court to direct the Respondent to repay the costs that had been paid, along with interest and the costs of this appeal. Mrs Mazur also invited the Court to strike out the Respondent’s claim as an abuse of process.