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

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

The short answer to this question is “no”: Mr Middleton was not entitled to conduct litigation under the supervision of Mr Ashall. The learned judge’s conclusion to the contrary, in reliance on the SRA’s letter of 2 December 2024, was therefore an error of law.

In their submissions to this Court, the SRA have disavowed the suggestion that this was permitted by section 21(3) of the LSA. They were right to do so. Mere employment by a person who is authorised to conduct litigation is not sufficient for the employee to conduct litigation themselves, even under supervision. The person conducting litigation, even under supervision, must be authorised to do so, or fall within one of the exempt categories. In my judgment, this is the proper construction of the LSA.

The LSA sets out a framework for the regulation of persons who carry out certain legal activities. Section 12 defines “reserved legal activity” as including at subsection (1)(b) “the conduct of litigation”. This is further defined at paragraph 4 of Schedule 2 to the LSA:

“(1)

The “conduct of litigation”  means–

(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).”

Section 13(1) of the LSA provides that whether or not a person is entitled to carry on a reserved legal activity “is to be determined solely in accordance with the provisions of this Act”. Section 13(2) provides that a person is entitled to carry out a reserved legal activity where they are “an authorised person in relation to that activity” or “the person is an exempt person in relation to that activity”. There are, therefore, two distinct circumstances in which a person is entitled to carry out a reserved legal activity: they are an “authorised person” (which is defined at section 18), or they are an “exempt person” (which is defined at section 19).

If a person carries on a reserved legal activity without being entitled to do so, this is a criminal offence: section 14(1) of the LSA. Section 15 of the LSA provides that:

“(1)

This section applies for the interpretation of references in this Act to a person carrying on an activity which is a reserved legal activity.

(2)

References to a person carrying on an activity which is a reserved legal activity include a person (“E”) who (a) is an employee of a person (“P”), and (b) carries on the activity in E's capacity as such an employee.

(3)

For the purposes of subsection (2), it is irrelevant whether P is entitled to carry on the activity.

(4)

P does not carry on an activity (“the relevant activity”) which is a reserved legal activity by virtue of E carrying it on in E's capacity as an employee of P, unless the provision of relevant services to the public or a section of the public (with or without a view to profit) is part of P's business.

(5)

Relevant services are services which consist of or include the carrying on of the relevant activity by employees of P in their capacity as employees of P. . . .”

Section 15(2) of the LSA makes it clear that an employee (referred to as “E”) who carries on the activity as an employee is to be treated as a person carrying on the reserved legal activity, whether or not their employer (referred to as “P”) is entitled to carry on that activity. Section 15(3) deals with the circumstances in which P will be treated as carrying on the reserved legal activity by virtue of E carrying it on in their capacity as an employee of P.

Section 16 of the LSA provides that:

“(1)

Where subsection (2) applies it is an offence for a person (“P”) to carry on an activity (“the relevant activity”) which is a reserved legal activity, despite P being entitled to carry on the relevant activity.

(2)

This subsection applies if (a) P carries on the relevant activity by virtue of an employee of P (“E”) carrying it on in E's capacity as such an employee, and (b) in carrying on the relevant activity, E commits an offence under section 14.

(3)

If P is a body, references in subsection (2) to an employee of P include references to a manager of P. . .”

In other words, when E commits an offence under section 14 when carrying out a reserved legal activity P will also be committing an offence, even if P is entitled to carry on the relevant activity.

It is clear from sections 15 and 16 that the LSA separates out the entitlement of employees (E) to carry out reserved legal activities from that of their employer (P). If E was entitled to carry out reserved legal activities merely because they worked for P, section 16 would make no sense.

Section 18 of the LSA defines the term “authorised person”. For present purposes, the relevant subsection is (1)(a):

“For the purposes of this Act “authorised person”, in relation to an activity (“the relevant activity”) which is a reserved legal activity, means (a) a person who is authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity”.

The SRA is a relevant approved regulator in relation to the conduct of litigation. It is necessary, therefore, for a person to be authorised to carry on the relevant activity by the SRA.

Section 19 of the LSA defines the term “exempt person” by referring to Schedule 3 to the LSA. Schedule 3 provides that a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings in a number of circumstances, including if they have “a right to conduct litigation granted by a court in relation to those proceedings” (paragraph 2(2)), or if they have “a right to conduct litigation in relation to those proceedings granted by or under any enactment” (paragraph 2(3)).

Sections 20 and 21 of the LSA deal with approved regulators. Section 20(6) provides that:

“An approved regulator may authorise persons to carry on any activity which is a reserved legal activity in respect of which it is a relevant approved regulator.”

Section 21 of the LSA provides that:

“(1)

In this Act references to the “regulatory arrangements” of a body are to

(a)

its arrangements for authorising persons to carry on reserved legal activities,

(b)

its arrangements (if any) for authorising persons to provide immigration advice or immigration services,

(c)

its practice rules,

(d)

its conduct rules,

(e)

its disciplinary arrangements in relation to regulated persons (including its discipline rules), . . . .

(2)

In this Act –

. . .

“conduct rules”, in relation to a body, means any rules or regulations (however they may be described) as to the conduct required of regulated persons;

“discipline rules”, in relation to a body, means any rules or regulations (however they may be described) as to the disciplining of regulated persons; . . .

“practice rules”, in relation to a body, means any rules or regulations (however they may be described) which govern the practice of regulated persons;

. . .

(3)

In this section “regulated persons”, in relation to a body, means any class of persons which consists of or includes

(a)

persons who are authorised by the body to carry on an activity which is a reserved legal activity;

(b)

persons who are not so authorised, but are employees of a person who is so authorised.

(4)

In relation to an authorised person other than an individual, references in subsection (2) and (3) to employees of the person include managers of the person”.

Section 21 of the LSA is concerned with “regulatory arrangements”. Section 21(3) defines “regulated persons” as that term is used in the section – for purposes such as the regulator’s “practice rules”, “conduct rules”, “discipline rules”. The definition of “regulated persons” includes (a) “persons who are authorised by the body to carry on an activity which is a reserved legal activity”, and (b) “persons who are not so authorised, but are employees of a person who is so authorised”. In other words, persons who are subject to a regulator’s various rules will be those who are “authorised” by the regulator to carry out reserved legal activities and employees of such a person.

Section 21(3), on its face, is not extending the definition or scope of who is “authorised” to carry out reserved legal activities, but is saying that for the purposes of regulation there are two categories: persons who are authorised to carry out reserved legal activities and their employees. In other words, employees of an authorised person can be regulated.

The natural reading of section 21(3) of the LSA – that it is defining who is subject to the regulatory authority of a body such as the SRA, and does not extend the scope of who is authorised to carry out reserved legal activities (as argued for by Mr Bennett) -- fits clearly with the other provisions of the LSA that I have set out above. Those other provisions make a clear distinction between persons who are entitled to carry out reserved legal activities and those who are not. An employer, even if authorised to carry out a reserved legal activity, can commit a criminal offence if one of their employees carries on a reserved legal activity without being entitled to (and therefore commits an offence).

Accordingly, Mr Middleton was not entitled to conduct litigation merely because he was an employee of a person (here GBS) that was authorised to carry out the reserved legal activity of conducting litigation. The conclusion reached by the SRA in the decision letter of 2 December 2024, and which was relied upon by His Honour Judge Simpkiss, that “employees [of GBS] are permitted to undertake “reserved legal activities” due to section 21(3)” is clearly wrong.

The learned judge’s reliance on the confirmation from the SRA that “Mr. Middleton had authority to conduct litigation under the supervision of Mr. Ashall” was also an error. Both the Law Society and the SRA in their submissions to the Court distinguish between (a) supporting an authorised solicitor in conducting litigation and (b) conducting litigation under the supervision of an authorised solicitor. They contend that activities falling within (a) are permitted, but those falling within (b) are prohibited by the statutory regime. I agree with this analysis for the reasons that both entities have given and which I have summarised at paragraphs 25-42 above.

This analysis is also supported by the text of the LSA itself. The LSA expressly contemplates that there will be persons falling within category (a); that is, persons who “assist” in the conduct of litigation: see paragraph 1(7)(a) of Schedule 3 to the LSA (a provision is concerned with the exemption for the purpose of exercising a right of audience before a court). There is nothing in the LSA, however, which contemplates category (b): that is, a person who conducts litigation under the supervision of an authorised solicitor. The absence of such a category is highlighted by the fact that there is express reference in the LSA to an individual who carries on a “Reserved instrument activity” at the direction and “under the supervision of another individual”: see paragraph 3 of Schedule 3 to the LSA.

Paragraph 3 of Schedule 3 to the LSA is concerned with whether a person is exempt for the purpose of carrying out a “Reserved instrument activity”: this includes preparing any instrument of transfer or charge for the purposes of the Land Registration Act 2002. One set of circumstances in which exemption arises is provided by sub-paragraphs (3) and (4):

“(3)

The person (“E”) is exempt if

(a)

E is an individual,

(b)

E carries on the activity at the direction and under the supervision of another individual (“P”),

(c)

when E does so, P and E are connected, and

(d)

P is entitled to carry on the activity, otherwise than by virtue of subparagraph (10).

(4)

For the purposes of sub-paragraph (3), P and E are connected if

(a)

P is E's employer,

(b)

P is a fellow employee of E,

(c)

P is a manager or employee of a body which is an authorised person in relation to the activity, and E is also a manager or employee of that body”.

I do not need to decide for the purposes of this appeal whether, in fact, Mr Middleton was conducting litigation under the supervision of Mr Ashall or was merely assisting or supporting Mr Ashall in the conduct of litigation. Indeed, it would not be appropriate for the Court to do so given that this would interfere with any regulatory intervention that the SRA may wish to consider in light of this judgment, and there would be a real unfairness to Mr Middleton if this Court was to make any findings about this matter given that he is not a party to the present appeal or to the proceedings below.