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

Was Mr Middleton entitled to conduct litigation under the supervision of Mr Ashall?

With respect to the question as to whether Mr Middleton was entitled to conduct litigation under supervision of Mr Ashall, Mrs Mazur submitted that this was not permitted by the LSA. Mrs Mazur pointed out that there was no provision in the LSA that could be interpreted as enabling an unauthorised person to conduct litigation under the supervision of an authorised person. Section 21 of the LSA was concerned with the regulatory remit of the SRA (and other regulatory bodies), and subsection (3) was merely bringing within the scope of that regulatory remit employees of authorised persons. Mrs Mazur pointed out that this was the way in which the SRA described the matter in guidance to solicitors:

“Reserved legal activities – litigation

LSA 2007 makes no provision for unauthorised people to carry out litigation under supervision. Therefore people who are not themselves authorised to conduct litigation can only support authorised individuals to conduct litigation, rather than conducting litigation themselves under the supervision of an authorised individual”.

Mrs Mazur accepted that Mr Middleton had done everything under supervision; that was what Mr Ashall had said in his witness statement and the Appellants could not go behind that. Nevertheless, Mrs Mazur submitted that it was clear that Mr Middleton was not simply supporting Mr Ashall in conducting litigation.

For the Respondent, Mr Bennett submitted that there was no need for the Court to make a decision on whether Mr Middleton had been entitled, under the LSA, to carry out the activities that he had performed. The matter had moved on by the time of the hearing before His Honour Judge Simpkiss given the replacement of Mr Middleton with Lisa Adkin. This was reflected in the first part of the judgment at paragraph 39 where it was stated that “it is now clear that there is no question of any breach of the LSA in the conduct of this litigation following the changes which Mr. Ashall’s sets out in his witness statement even if there was before”. Furthermore, the learned judge had permitted the Respondent to amend its Claim form and Particulars of Claim, and this was set out in the Order. This would correct any alleged invalidity of the initial pleadings.

Mrs Mazur accepted that the matter had moved on by the time of the hearing before His Honour Judge Simpkiss and did not take issue with the learned judge’s ruling in the first part of the judgement at paragraph 39. Nevertheless, that did not mean that the legal issue about Mr Middleton’s entitlement to conduct litigation was no longer relevant. The Claim Form had been wrongly issued against the Appellants, and no application had been made for relief from sanctions by the Respondent. Had such an application been made, Mrs Mazur submitted that the Appellants would have been entitled to their costs up until that point.

Mr Bennett submitted that, insofar as the Court did wish to consider the LSA, Mr Middleton was entitled to conduct litigation under the supervision of Mr Ashall. The statutory term “conduct of litigation” had a narrow definition, and section 21(3) of the LSA authorised Mr Middleton, as an employee of an authorised person, to carry out reserved legal activity under the authorised entity’s supervision.

In any event, Mr Bennett contended that the SRA had permitted Mr Middleton to operate in support of litigation. Mr Bennett pointed out that the conduct of litigation under supervision had been permitted before the LSA was enacted and the LSA did not purport to change the existing law. Mr Bennett referred in this regard to the observations of the editors of Cordery on Legal Services where it is stated that:

“There is, however, no equivalent exemption for persons conducting litigation under the supervision of a person who is authorised to do so. The absence of such a provision is curious. As set out above, the scope of the reserved legal activity of litigation is narrow. It may be that those drafting the LSA 2007 did not consider such an exemption was necessary because the conduct of litigation under supervision was always permitted and the LSA 2007 did not purport to change the pre-existing law. Such an approach would reflect the practical reality both before and after the LSA 2007.It would also be permissible under the LSA 2007 because the offence in question under Section 14 is to ‘carry on’ a reserved activity. The phrase is ambiguous as to whether it means personally undertake or oversee. In addition, the paragraph 1(7) exemption in relation to rights of audience seems to recognise that it is possible for unauthorised persons to act on instructions from a person who is authorised to conduct litigation.”

Mr Bennett also referred to CPR Part 2.3 which contemplates that employees of solicitors can have a role in the conduct of litigation, as the definition of “legal representative” includes a “solicitor’s employee who has been instructed to act for a party in relation to proceedings”.