Mazur’s message: 10 considerations when conducting litigation

The litigation landscape in England and Wales has undergone significant upheaval following the recent decision in Mazur & Ors v Charles Russell Speechlys LLP [2025].

While it’s fair to say the decision hasn’t changed the law, as it has always been an anomaly of the Legal Services Act 2007 (LSA) that non-authorised persons cannot conduct litigation under the supervision of an authorised person, it has highlighted the complexities and uncertainties that exist in this area – particularly following the judgment in Baxter v Doble [2023], which has since become the leading authority on what amounts to conducting litigation.

For firms and non-authorised individuals, these cases present both compliance challenges and real-world implications, especially for those practices that undertake high-volume litigation.

Below are 10 key issues that firms and non-authorised individuals should consider to ensure they remain within the legal boundaries (which is essential, given that to do otherwise is a criminal offence – both for the employer and the individual – and can amount to contempt of court).

1. Understand the definition of “conducting litigation”

Under the LSA, “conducting litigation” is a reserved legal activity. It includes issuing and commencing proceedings before any court in England and Wales, prosecuting or defending them, and performing ancillary functions.

The case of Baxter provided a list of activities that amounted to conducting litigation (such as filing a claim form and particulars of claim, drafting a reply and defence to counterclaim, drafting witness statements and instructing an advocate). Only authorised persons can carry out these activities.

2. Clarify the role of non-authorised persons

A central finding in Mazur was that non-authorised persons cannot conduct litigation before a court, even under supervision.

Firms must ensure that non-authorised individuals – such as paralegals, trainees, foreign-qualified lawyers, barristers without additional rights to conduct litigation and chartered legal executives (unless authorised to conduct litigation) – do not undertake work, or hold roles, where they could inadvertently cross the line into conducting litigation.

3. Implement clear protocols and policies

While non-authorised persons cannot conduct litigation themselves, they may assist authorised persons to do so even to a significant degree. This includes assisting with drafting statements of case, preparing witness statements and filing / serving documents (where their role is purely clerical or mechanical).

However, it is essential that the authorised person has made all legal and strategic decisions about the case, has provided instructions about the relevant task, approves the final documents (including signing them – especially if the correspondence is with the court) and retains responsibility.

Firms should implement clear protocols and policies to delineate these boundaries.

4. Apply the holistic test from Baxter

Baxter introduced a ‘holistic test’ to assess whether someone is conducting litigation. Following the SRA’s comments in Mazur, this involves evaluating who exercised professional judgement, and who assumed responsibility for the litigation. While Baxter held that pre-action conduct cannot amount to the conduct of litigation, it also said this may be relevant to the holistic test.

Therefore, even if individual tasks appear clerical, or are carried out pre-action, the overall involvement of a non-authorised person may still amount to conducting litigation, depending on their level of involvement.

Firms must assess roles in the round, not just by task. The question is one of substance over form, as Baxter described it.

5. Understand the definition of court

This is defined in section 207 of the LSA and includes a court-martial, a statutory inquiry and an ecclesiastical court, as well as tribunals that were classed as a listed tribunal under schedule 7 to the Tribunals, Courts and Enforcement Act 2007 immediately before that schedule was repealed (such as the First-tier Tribunals, like the Property Chamber and the Tax Chamber, and the Upper Tribunals).

Numerous other tribunals that were designated as ‘listed tribunals’ by the Administrative Justice and Tribunals Council (Listed Tribunals) Order 2007/2951 (the order), such as the Employment Tribunal, are also included.

It is essential to remember that court has a wide definition, and non-authorised persons cannot conduct litigation before any type of court (subject to any legacy rights and enactments). However, although the definition is broad, it does not generally apply to mediations, arbitrations or other forms of alternative dispute resolution.

6. Audit legacy rights and enactments

Proceedings before certain tribunals and courts will not amount to the conduct of litigation if:

• there were no restrictions prior to 1 January 2010 on a non-authorised person’s ability to conduct litigation before them (being legacy rights), or
• the non-authorised person is exempt (which will occur if an enactment grants them the right to conduct litigation before the relevant court / tribunal).

For example, there are legacy rights before the First-tier Tax Chamber and before the Employment Tribunal (which is one of the order’s ‘listed tribunals’).

Firms should audit their practice areas and consider the courts / tribunals before which they litigate and determine whether any legacy rights or other exemptions may apply.

7. Document decision-making on the file

Firms must retain evidence on the file demonstrating that authorised persons have:

• made key decisions about the case, including strategy and approach
• exercised their professional judgement
• provided instructions to the non-authorised person, and
• reviewed and approved documents and correspondence.

8. Prepare for challenges about costs and conduct

Paying parties will almost certainly raise objections about costs incurred by non-authorised persons where they have conducted the litigation. Senior Costs Judge Jason Rowley said recently that the Mazur case had already been cited before him. Challenges may also come from existing clients as the decision gains further traction.

While courts are unlikely to strike out proceedings if they have been issued, or conducted, by a non-authorised person (especially where limitation may be an issue), cost challenges are likely to be more prevalent and are ripe for argument on costs assessments. It is important that firms take appropriate steps now to adopt working practices to mitigate these risks.

9. Train fee earners and support staff

Given the complexity and evolving nature of this area, training should be tailored to different roles, and should include practical examples from Mazur, Baxter and other relevant cases. All fee earners and support staff undertaking litigation should understand what constitutes the conduct of litigation, the limitations on their roles and the consequences of non-compliance.

10. Carry out a compliance audit

Firms should immediately audit their litigation workflows, employee roles and the supervision structures in place. This includes mapping those departments and teams most at risk, reviewing their procedures and making the necessary adjustments to working practices to ensure that non-authorised persons only assist in the conduct of litigation.

Conclusion

The decisions in Mazur and Baxter have reshaped the boundaries around conducting litigation. Firms and non-authorised individuals must take proactive steps now to ensure compliance as we urgently await further guidance from our regulators.

While the Law Society’s Mazur and the conduct of litigation practice note, published on 16 October 2025, is a welcome first step in this area, it will be interesting to see the approach that other regulators take to interpreting these pivotal cases and outlining what is and isn’t permissible for non-authorised persons in the context of conducting litigation.