Responsibility, not activity: who is carrying on litigation after Mazur?

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The Court of Appeal’s decision in Mazur, has drawn a clearer – and more practical – boundary in litigation practice: the distinction between the ‘conduct of litigation’ and ‘carrying on the conduct of litigation.’

In doing so, the Court has confirmed that modern delivery models, including the use of non-qualified persons, remain permissible. The mere fact that tasks falling within conduct of litigation are carried out by unauthorised individuals does not, without more, amount to a breach.

However, the decision sharpens a more fundamental question for firms: Who is actually responsible for litigation in substance?

The focus is no longer on activity – who drafted, who communicated, who carried out the task – but on the delegation, appropriate controls, and supervision of the work.

Key findings

1. ‘Conduct of litigation’ and ‘carrying on’ are not the same.

The Court of Appeal confirmed that:

Litigation tasks (even those falling within ‘conduct of litigation’) can be performed by unauthorised individuals.
Without automatically amounting to a breach.

The critical issue is who is ‘carrying on’ those activities.

2. Delegation is lawful with caveats.

Work may be delegated where:

It is carried out for and on behalf of an authorised person.
That person puts in place appropriate arrangements for the supervision of and delegation to the unauthorised individual.

In those circumstances, it is the authorised person who is ‘carrying on’ the conduct of litigation, not the individual performing the task.

3. Proper management supervision underpins lawful delegation.

The court confirmed that:

The details of proper management supervision and control are a matter for the regulators.
However, the degree of appropriate supervision and control will vary depending on the circumstances of the matter – sometimes it will be high, with approval before things are done and sometimes a lower level of control and supervision will be required.
It is for the authorised individual to put in place appropriate arrangements for supervision and delegation to unauthorised persons.

Thus, supervision is the mechanism by which the firm demonstrates it retains carriage of the litigation.

A regulatory gap?

While the Court of Appeal places clear emphasis on supervision as the mechanism by which an authorised solicitor demonstrates they are “carrying on” the conduct of litigation, existing regulatory guidance does not fully align with this test.

The Solicitors Regulation Authority requires firms to maintain effective systems and controls for supervision, ensuring work is competently carried out and risks are appropriately managed. However, that framework is expressed at a high level.

In particular, current guidance does not:

Define when delegated work crosses into the ‘conduct of litigation’.
Describe what level of supervision is required to retain “carriage” of a matter.
Or explain how firms should evidence that responsibility and control remain with an authorised individual.

This potentially creates a gap between regulatory expectations and the test articulated by the Court of Appeal, albeit that the Court of Appeal has Mazurs confirmed that it is unlikely that the following list would fall within the statutory definition of “conduct of litigation”: pre-litigation work, giving legal advice in connection with court proceedings, conducting correspondence with the opposing party on behalf of clients, gathering evidence, instructing and liaising with experts and counsel, signing a statement of truth in respect of a statement of case, and signing any other document that the CPR permits to be signed by a legal representative, as defined by CPR Part 2.3.

Practical risk mitigation

In the absence of further guidance, firms should proceed on the basis that it will not be sufficient to demonstrate that supervision exists in principle - it must be proportionate, targeted and capable of evidencing real control. Many firms can evidence this and have done so for many years, and may not need to change. However, litigation is a wide field and control and supervision vary significantly. Given the likely focus in this area, we consider all firms should test whether control can be demonstrated by reviewing their litigation practice areas.

Firms should therefore consider:

Clarifying who has conduct of each matter in substance, not just by designation.
Ensuring that authorised solicitors retain:
- Direction over strategy and progression.
- Involvement in key procedural and substantive steps.
Introducing clear sign-off points, particularly for:
- Issuing proceedings.
-Statements of case and formal pleadings.
- Settlement decisions and key tactical steps.
Strengthening audit trails of supervision, including:
- evidence of review and input
- instructions and guidance provided
- oversight at critical stages of the matter Mazurs
Reviewing existing files against a simple but important question: ‘Can we demonstrate that an authorised solicitor was ‘carrying on’ the conduct of this litigation in substance?’

Even if such a review does not reveal any significant concerns, it is likely to surface areas where practice on the ground diverges from what management understand and expect.

A shift in emphasis to supervision

The practical effect of the decision is a shift in focus concerning conduct of litigation.

Supervision is not just a matter of good practice - it is the mechanism by which firms demonstrate that they retain carriage of the litigation.

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