Changes to the Deputy Standards 2023

Ellie Howard-TaylorLeave a comment

There has been an update to the existing Property & Finance and Health & Welfare Deputy Standards (‘Standards’), which will come into effect from mid-February 2023.

The single set of refreshed standards will apply to everyone who has been appointed as Deputy, including lay Deputies. Guidance tailored for professionals, public authorities and lay Deputies will also be published at the same time.

This is not the introduction of a new set of standards. The guiding principles of the refreshed standards remain the same and continue to be aligned with the Mental Capacity Act (MCA). The main changes are to make the standards more focused.

What has been changed?

The number of standards has been reduced from more than 40 to 8 core areas, which reflect the duties and responsibilities of all Deputies. Much of the material included in the original standards has now been re-shaped and included within the guidance documents.

The Office of the Public Guardian (OPG) has contacted all Deputies to notify them of the changes.

The refreshed standards can be found at published at https://www.gov.uk/guidance/opg-deputy-standards.

Failure to properly investigate Before the Event Insurance Policy led to disallowance of success fee

Ellena HunterLeave a comment

The decision in Evans v Fletchers Solicitors [2026] EWHC 1523 (SCCO), relates to a claim under the Solicitors Act 1974, in which the Claimant sought the total disallowance of the Defendant’s base costs, success fee and an after the event insurance premium (“ATE”) totalling £61,615.13. The remedy sought by the Claimant was based on a failure by the Defendant to adequately explore (and advise the Claimant on) the availability of before the event insurance (“BTE”). The Claimant argued that if the availability of BTE had been adequately investigated, he would not have incurred a liability for a success fee and ATE premium. Although the Court refused to disallow the Defendant’s base costs, the success fee totalling £30,365.13 was disallowed and the Judge stated that the ATE premium would have been disallowed but it did not form part of the assessment.

Background

The Claimant instructed the Defendant to represent him in a personal injury claim following a road traffic accident. The claim was settled for damages in the sum of £250,000 and the inter partes costs were agreed. The Defendant issued an invoice to the Claimant totalling £61,615.13 which included a success fee of £30,365.13, capped at 25% of the relevant damages.

When the Claimant became a client of the Defendant, he completed a form in which he confirmed that he had the benefit of family legal expense insurance as part of his home insurance with Zurich. Despite this, the Defendant produced a Conditional Fee Agreement (“CFA”) which the Claimant signed. The Court found no evidence of enquiries being carried out by the Defendant in relation to the BTE until a new fee earner took over conduct of the case 2 years after the CFA was signed.

Zurich responded to the enquiry to attach a copy of the policy booklet. In response, the Defendant sent a letter in which they sought confirmation of various points regarding the legal expense insurance cover and stating that if a response was not received within 14 days, then they would advise the Claimant that he should purchase an ATE policy. Zurich responded to again attach the policy booklet and direct the Defendant to the relevant page concerning legal expenses covered by the Claimant’s policy. Despite this, the conducting fee earner took the view that she had been unable to establish that the BTE policy covered the Claimant’s legal expenses. The Defendant, therefore, wrote to the Claimant to confirm the same. On that basis, the Claimant agreed to an ATE policy being taken out.

Following settlement of the claim, the Claimant instructed a new firm to provide advice in relation to the fees he had been charged by the Defendant. Investigations were carried out by the new firm in relation to the BTE policies, whether the same would have covered the legal expenses of the Claimant, and whether the Defendant contacted them to investigate the potential for funding of the claim. The insurers refused to confirm whether the legal expenses of the claim would have been covered by the policy if pursued at the relevant time.

Issues

There were 4 issues for the Court to determine.

Issue 1 – Was the Defendant’s approach to the enquiries into alternative funding unreasonable?

The Court found that the enquiries made by the Defendant were lacking in numerous respects, but the fact that no enquiries were carried out until 2 years after the Claimant provided details of the potential BTE policy was significant. Furthermore, the Court found that the Defendant had mischaracterised the letter from Zurich as one which simply refused to indicate whether cover was available. The Court found that the letter sent to Zurich was drafted in a way which “sought to encourage a lacklustre response from any potential LEI insurer so that the existing CFA arrangement was not disturbed by any putative BTE cover.”

Issue 2 – Was there BTE with legal expense insurance which the Claimant could have used?

The Court found that whilst there could be no absolute confirmation of insurance cover, on the balance of probabilities, there was BTE that would have covered the legal expenses of the claim.

Issue 3 – Would the BTE mean that there would have been no deductions?

The Defendant argued that the £50,000 limit of indemnity on the BTE policy was insufficient and, therefore, it could not have been utilised regardless. Whilst the Court accepted this argument to an extent, it was noted that the limit of indemnity on the ATE policy taken out was also insufficient at £100,000. The Court also noted that there would have been the option to obtain a ‘top-up ATE policy’ to increase the level of indemnity to an adequate level.

Issue 4 – Would the Claimant have used it if it were available?

The Court accepted the Claimant’s evidence that if he had been made aware that instructing a solicitor associated with his BTE policy would have resulted in no, or fewer, deductions from his damages then he would have chosen that option over instructing the Defendant.

Conclusion

The Court declined to disallow the base costs. The Court distinguished this case from the decision in McDaniel & Co (a firm) v Clarke [2014] EWHC 3826 (QB). In that case there was a failure to advise a Claimant to use trade union funding, which, if it had been used, would have left the Claimant with no direct liability to her solicitors. Here, the alternative funding was BTE which is an indemnity, therefore the Claimant would have remained liable for the Defendant’s base costs.

An argument was raised by the Claimant that the limit of indemnity on the unused BTE (£50,000) should be set against the Defendant’s bill. The Court rejected that argument because the Claimant had won his claim and recovered costs from the paying party. The only costs that would not have been recovered were costs that were unreasonable, and unreasonable costs would not have been recoverable under the BTE policy in any event.

However, the Court did disallow the success fee on the basis that it would not have been payable if the BEI policy had been utilised.

This case is a reminder to all litigators of the importance of undertaking thorough enquiries into alternative methods of funding at the outset.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercial@clarionsolicitors.com

Parties claimed costs multiple times more than the claim was worth

Katie SpencerLeave a comment

Background

In O’Sullivan v Trading 212 UK Ltd [2026] EWCC 32 (03 June 2026), the Claimant brought a claim arising from the Defendant’s closure of his trading account. The Court was highly critical of the parties’ approach to litigation, noting the apparent absence of ADR and the disproportionate escalation of a modest claim into a half‑million-pound costs dispute.

Costs awarded

Applying the usual rule, CPR 44.2(2), the Court held that the Defendant was the successful party and the Claimant should pay the Defendant’s costs.

However, the Court identified specific issues which justified departures from the default position.

  1. The Defendant’s late disclosure

Although the late disclosure did not affect the outcome, it prolonged the trial, triggered additional applications and increased costs for both parties.

The Court deprived the Defendant of its own costs for the disclosure phase and ordered the Defendant to pay the Claimant’s costs caused by the late disclosure.

The Claimant claimed £54,115, whereas a total of £27,000 plus VAT was allowed.

  1. The Defendant’s Strike-Out application

This application was pursued based on the Claimant’s alleged conduct towards witnesses. Although the application was adjourned on the basis of undertakings, the Court found it was reasonable to bring some form of application.

The Defendant claimed £59,513.67, which the Court found disproportionate. A total of £15,000 was allowed.

The Court adopted a broad‑brush approach to summary assessment, emphasising that costs should be assessed by reference to overall proportionality rather than a line-by-line analysis.

The Court declined to engage in wider conduct-based arguments advanced by both parties, considering such analysis disproportionate.

Departing from the Costs Budgets

Despite CPR 3.18, the Court found good reason to depart from the approved costs budgets, resulting in downward revisions.

The Court looked at proportionality, the value of the claim and the relatively small number of documents. The Court also observed that the case had likely been misallocated and should not have proceeded on a multi-track basis of this scale. The court also raised concern about the hourly rates, finding significant reductions necessary.

Conclusion

The table below demonstrates the disparity between costs incurred and costs allowed, highlighting the severity of the disproportion:

Party Costs incurred Costs allowed
Claimant £246,426 £32,400

(For the Defendant’s late disclosure)
Defendant £452,456.26 £128,750

 

 

Following set-off, the Claimant was ordered to pay £96,350.

This case serves as a clear reminder that the Court will closely scrutinise proportionality in litigation and may impose significant downward adjustments, even where costs budgets have been approved.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

CRPC Annual Open Meeting (8 May 2026): Key Costs Takeaways

angelanakoLeave a comment

The Civil Procedure Rule Committee’s Annual Open Meeting on 8 May 2026 provided useful insight into the Committee’s current thinking on civil costs. Whilst no immediate rule changes were announced, a number of important costs issues were discussed, highlighting the CRPC’s approach to future reform.

Key Costs Issues Discussed

  1. Mazur

The Committee was asked whether it intended to amend the CPR following the Court of Appeal’s decision in Mazur, particularly regarding the definition of ‘legal representative’. The Committee indicated that it wishes to observe how the industry responds to the decision before proceeding with any intervention.

  1. Costs Budgeting (Precedent H)

The meeting addressed uncertainty surrounding CPR 3.15(5)(a), specifically on whether the £1,000 or 1% cap applies only to the first draft of a Precedent H or also covers subsequent revisions prior to the first CCMC.

Master Sullivan confirmed that the intention is for the cap to cover the preparation of the budget, which is presented at the costs management hearing. She acknowledged that the wording could be clarified and suggested that the CPRC should consider whether any amendments are required.

Those in practice will know that there are occasions when multiple versions of the initial budget are required before the matter proceeds to a CCMC, which causes tension with the current wording of the CPR and fee caps which can only be lifted in exceptional circumstances.

  1. Bill Certification

Following Mazur, the Committee was asked whether the certification of a bill of costs should be extended to other authorised legal professionals such as CILEX practitioners, Costs Lawyers and barristers with the relevant rights.

The CPRC indicated that when the overall consequences of Mazur become clear, it will consider whether any rule changes are required. Therefore, the current process is preserved.

  1. Fixed Recoverable Costs (FRC)

Several concerns were raised about the operation of the extended FRC regime:

  • Clinical Negligence FRC – No update was provided on extending FRC to lower-value clinical negligence claims. The Committee confirmed that this remains a matter for the Department of Health and Social Care, indicating that there will be no imminent procedural changes.
  • Fast Track – v – Intermediate Track Costs – Concerns were raised about the potential for higher recoverable costs on the Fast than Intermediate Track due to differences in staging and case types. Mr Justice Trower clarified that the structure of the two tracks is based on proportionality rather than linearity, meaning that the figures correspond to how each track is intended to operate rather than forming a single ascending scale. The two tracks constitute separate frameworks designed to provide predictable fixed costs within their respective scope and that their differing outcomes arise from their distinct structures, rather than from inadvertence.
  • Intermediate Track Band 1 – Specific concerns were expressed about the low costs recovery for liability-admitted personal injury claims in Intermediate Track Band 1. Mr Justice Trower indicated any reform will depend on the government’s consideration of the Fixed Recoverable Costs stocktake and forthcoming post-implementation review.
  • Interim Application Costs under FRC – It was suggested that the current fixed costs for interim applications no longer reflect the reality of practice, as many now require extensive preparation, contested hearings and advocacy. As a result, the fixed recoverable amounts often fall short of the work involved. The Committee advised that these concerns would be considered as part of the broader post-implementation review.
  • Further FRC Issues – Questions were raised in relation to late acceptance of Part 36 offers under FRC, as well as the specific issues outlined in Attersley v UK Insurance Limited [2026] EWCA Civ 217, and inconsistent judicial allocation of cases to Complexity Bands. It was advised that these issues will be considered/responded to out-of-committee.

Although no immediate reforms were announced, the meeting demonstrated that the CPRC is monitoring the recent costs reforms made. The Committee’s current approach seems to be to allow recent developments to settle prior to considering further procedural amendments, with many of the issues raised expected to be considered by the

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Post-Judgment Security for Costs? The SCCO Clarifies the Position

ujjainimistryLeave a comment

In the case of Magomedov & Ors v Rabinovich & Ors [2026] EWHC 962 (SCCO), Costs Judge Brown considered an “unusual application” concerning whether the SCCO had jurisdiction to order security for costs in detailed assessment proceedings.

Background Facts

Following the substantive claim, the Applicants (Defendants in the original claim) served Notice of Commencement of Detailed Assessment and a Bill of Costs totalling £4.2million, pursuant to four costs orders made in their favour. No request for detailed assessment was made, and Points of Dispute had not been served. Also, interim payments totalling £1.8 million had already been received.

The Applicants applied for an Order under CPR 25 for the Respondents (the Claimants in the original claim) to provide security for the costs of detailed assessment proceedings. The Respondents opposed the application on the basis that the SCCO lacked jurisdiction to consider the application because its powers were limited to those set out in CPR 47, which provides for the court to grant an interim costs certificate ordering the paying party to pay such sum as the SCCO considers appropriate.

The Applicants sought the sum of £336,000 which was some 70% of the costs it said would be incurred of £480,000.  A bill of costs had been prepared at a cost of £220,000. It was said that some £259,000 would be incurred in the assessment, assuming a three-week hearing.

The Court referred to the relevant provisions of CPR 25, specifically 25.1 which enables the court to grant an order for the security of costs as one of the interim remedies outlined in that subsection. Subsections 25.26(1) and 25.27 were also relied upon in support of the application.

The Application

The Application was dismissed. Costs Judge Brown held that, although the court hearing the substantive claim may order security for the costs of detailed assessment as part of the overall costs of the proceedings, once the substantive proceedings had concluded, the SCCO did not possess the wider jurisdiction available to the court hearing the substantive claim and was instead limited to the narrower powers under CPR Part 47.

While CPR 25.12 allows the court dealing with the substantive claim to order security for costs “after judgment”, this did not extend to subsequent detailed assessment proceedings. CPR 47 was described as a ‘self-contained code’ governing detailed assessment and did not incorporate the provisions of CPR 25.

The Court also emphasised that CPR 47 contains mechanisms that are designed to protect the receiving party and that the only interim remedy available in detailed assessment proceedings was an interim costs certificate under CPR 47.16.

The judge identified several structural reasons for declining jurisdiction, including the absence of a clear enforcement mechanism, the difficulty in identifying the “defendant” for CPR 25 purposes once the parties had become receiving and paying parties, and the risk of creating disproportionate satellite litigation.

In any event, even if jurisdiction had existed, the judge stated that the application would have been refused as a matter of discretion, particularly because the Applicants had failed to raise the issue before the court determining the substantive claim. The appropriate course for parties seeking security for the costs of detailed assessment is therefore to apply to the court dealing with the substantive proceedings, which has sufficient power to include such costs within a security for costs order.

Conclusion

The Senior Courts Costs Office (SCCO) has held for the first time that it lacks jurisdiction to order security for costs under CPR 25, which in turn highlights the fact that CPR Part 47 operates as a ‘self-contained code’.

The judgment clarifies the limit of the SCCO’s jurisdiction, confirming that powers that derive from the CPR cannot be imported into general discretion.

The key takeaway for practitioners is if an application for security for costs is required, it should be made to the court hearing the underlying claim. Once the proceedings enter the costs jurisdiction in CPR 47, the available tools to remedy matters become narrower.

Ujjaini Mistry is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

The Proposed Amendments to the Costs Rules in the Employment Tribunal

angelanakoLeave a comment

On 6 May 2026, the Tribunal Procedure Committee (TPC) launched a consultation on potential reforms to costs rules across the First-tier Tribunal, Upper Tribunal and employment tribunals. The proposals are intended to promote greater consistency between tribunals and focus, in particular, on payments on account of costs and pro bono costs orders.

Payments on Account of Costs

At present, employment tribunals have authority to make costs orders under Part 13 of the Employment Tribunal Procedure Rules 2024, however they do not have specific legal authority to order a payment on account of costs before a detailed assessment has taken place.

The TPC is proposing to address this gap by permitting employment tribunals to require the paying party to make a reasonable payment on account, where a costs order has been made and where a detailed assessment is to follow, in advance of that assessment being concluded. In line with other tribunals, employment tribunals would be required to take the approach that best achieves justice in each case.

Pro Bono Costs Orders

Employment tribunals already possess the power to make pro bono costs orders, as outlined by Section 194A of the Legal Services Act 2007 (LSA 2007). The TPC proposes incorporating a short permissive rule in the Employment Tribunal Procedure Rules 2024 to make express reference to this existing Tribunal power. The TPC is also consulting on whether employment tribunals should take additional factors into account when deciding whether to make a pro bono costs order and on what terms, its preliminary view being there are no other required matters.

Interest on Costs

No proposals are made regarding interest on costs in employment tribunals because that power remains with the government not the TPC. However, the consultation notes that the government is sympathetic to aligning the approach between the employment tribunal and other tribunals on the issue of interest on costs and will consider the outcome of the consultation.

Conclusion

The proposed amendments represent a potentially significant development in the employment tribunal costs regime as the consultation reflects efforts to improve consistency across tribunal jurisdictions.

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

$35 Million in Costs for a Two-Week Hearing: Is Arbitration Still More Cost Effective Than Litigation?

Image Daniel MurrayLeave a comment

Introduction The High Court’s decision in Genel Energy Miran Bina Bawi Limited v The Kurdistan Regional Government of Iraq [2026] EWHC 1003 (Comm) reinforces two familiar themes in English arbitration law: the finality of arbitral awards and the limited scope for court intervention under the Arbitration Act 1996. The case arose from a challenge under […]

New Guidance on Post-Discharge Work in Court of Protection Costs

Lydia MarshallLeave a comment

The SCCO has recently provided guidance on post-discharge costs, clarifying their stance on authority for assessing these costs and what this means in terms of claiming work in detailed assessments.

What is “Post-Discharge Work”?

Post-discharge work refers to tasks undertaken after a Deputyship has officially ended. This could include wrapping up outstanding matters, liaising with successors, or providing accounts. While it might feel like a continuation of the Deputy’s duties, the SCCO has made it clear that the scope for cost recovery in these cases is very limited.

SCCO Guidance

According to the SCCO, a Deputy’s authority ceases upon discharge and therefore, the SCCO cannot assess costs for work done after discharge. The SCCO consider that post-discharge begins two days after the date on the seal of the discharge Order. This means any work undertaken after this short buffer period is technically outside the Deputy’s authority and will be disallowed on assessment as a result.

What Happens With Costs After Discharge?

Most discharge Orders include provisions for the costs to be agreed with the new Deputy. This allows some flexibility in transferring responsibility however, if agreement with the successor Deputy cannot be reached, the burden falls on the outgoing Deputy to determine the best way forward in terms of recovering their costs.

Practical Takeaways

  1. Plan ahead: Deputies should aim to complete as much work as possible before the discharge Order is sealed.
  2. Clarify costs in advance: If work is likely to continue post-discharge, consider negotiating with the successor Deputy before discharge and include a costs clause within the discharge Order to allow for costs to be agreed.
  3. Document carefully: Keep a clear record of any post-discharge tasks and communications—this can help if disputes over costs arise.

Conclusion

The SCCO guidance makes one thing clear: post-discharge costs are outside the formal remit of court assessment. While this may seem restrictive, it is consistent with the principle that a Deputy’s authority ends at discharge and Deputies to should take the appropriate steps ahead of the discharge to limit post-discharge work wherever possible. Effective planning and clear communication with successor Deputies can help mitigate potential disputes over outstanding costs.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

The practicalities of costs budgeting in the B&PC when a preliminary issue or split trial may be appropriate

Anna LockyerLeave a comment

The Chancery Guide at paragraphs 6.10 and 6.11 is practical: consider early (and in any event before the first CMC/CCMC) whether a decisive issue can be tried first, or whether the case should be staged (for example, liability then quantum). It is important to align the case-management proposal with (i) the DQ narrative, (ii) draft directions for the first CMC, and (iii) the costs budget, clearly setting out stage 1 work.

Paragraph 6.37D confirms that this approach also applies to PD51ZG1 and the relevant guidance is set out as follows:

6.10 Costs and time can sometimes be saved by identifying decisive issues, or potentially decisive issues, and ordering that they are tried first. A trial of a preliminary issue may also be appropriate where its determination, although not itself decisive of the whole case, may enable the parties to settle the remainder of the dispute or otherwise shorten the proceedings. An example would be a relatively short question of law which can be tried without significant delay (or much in the way of disclosure or witness evidence) but which would be determinative of one or more of the key issues in dispute.

6.11 Parties should actively consider at the earliest opportunity, and certainly in advance of the first CMC / CCMC, whether there are any issues which are suitable for determination as a preliminary issue, or which should be tried separately such as a split between liability and quantum. If possible, parties should indicate when filing DQs whether a preliminary issue or split trial is under consideration and provide a summary of the proposed approach in Section I of the DQ. Parties should give careful consideration to the approach to costs budgeting and disclosure where a preliminary issue or split trial is proposed or agreed.

Practical steps (for one party, or both parties by agreement)

  • Confirm whether PD51ZG1 applies (including any dispute about whether the claim is £1m or more / seeks only non-monetary relief) and diarise the budgeting steps.
  • Define the preliminary issue / split with precision: what is being tried first, why it is (potentially) decisive, and what it will remove from the remainder of the case.
  • Stress-test the procedural footprint for stage 1: what (if any) disclosure, witness evidence and expert evidence is genuinely required now, and what can properly be deferred.
  • Shape budgeting assumptions to match staging: make clear which work/phases are included in stage 1 and what is excluded (with a mechanism to revisit later if a second stage remains).
  • Engage early with the other side to narrow the issue(s) and, if possible, agree directions (or at least exchange short position statements before the CMC).
  • Use the DQ and draft directions to put a workable proposal before the court: issue(s), estimated hearing length, evidence/disclosure limits, listing window, and what happens after determination (ADR/stay/further directions).
  • Be ready on proportionality: a short comparison of time/cost for “single trial” vs “preliminary issue/split” is often what makes the application persuasive at the first CMC.

If you want a preliminary issue or split trial, the practical route is to define the issue tightly, demonstrate a genuinely reduced stage 1 footprint (disclosure/evidence), and present a directions and budgeting proposal the court can adopt at the first CMC.

The full guide can be found here: The Business and Property Courts of England & Wales Chancery Guide 2022

Anna Lockyer is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Changes to Rolls Building Statements of Costs

Anna LockyerLeave a comment

As of 14 April 2026, more specific requirements became applicable to the filing and service and the format of statements of costs in the Chancery Division, TCC, Commercial Court and London Circuit Court of the Rolls Building.

  • Parties should file and serve an Excel version of N260 for all summary assessments, in addition to a signed read-only PDF.
  • Excel-Template-N260-Clean-1-4-26.xlsx is the correct template Excel version to use.

The relevant Practice Note can be found here:

Rolls Building Practice Note – Summary Assessments (2026) – Courts and Tribunals Judiciary

*Practice Note of 13 March 2026 (which referenced N260A and N260B) can be disregarded.

Anna Lockyer is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Who is “Carrying on the Conduct of Litigation”? Guidance from the Court of Appeal in CILEX v Mazur and others [2026] EWCA Civ 369

Ellena HunterLeave a comment

Background

In CILEX v Mazur and others [2026] EWCA Civ 369, the Court of Appeal provided important clarification on the interpretation of the phrase “carry on the conduct of litigation” in the Legal Services Act 2007 (“LSA 2007”). The judgment addresses the question whether an unauthorised person, working under the supervision of an authorised individual, may lawfully perform litigation tasks without committing a criminal offence. It further provides some guidance on what acts are unlikely to constitute the conduct of litigation.

The appeal arose from a High Court decision which held that unauthorised persons who performed acts constituting the conduct of litigation, even under the supervision of an authorised individual, were themselves carrying on a reserved legal activity contrary to section 14 of the LSA 2007. That interpretation had significant implications for law firms, law centres, and access to justice.

Legislation

The LSA 2007 identifies the ‘conduct of litigation’ as a reserved legal activity. Schedule 2 provides that it includes:

  • The issuing of proceedings;
  • The commencement, prosecution and defence of proceedings; and
  • The performance of ancillary functions in relation to those proceedings.

Section 14 makes it a criminal offence to carry on a reserved legal activity unless the person is authorised to do so. The central issue on the appeal was whether an unauthorised employee who performs litigation tasks under supervision is themselves ‘carrying on’ the conduct of litigation, or whether that activity remains attributable to the authorised individual who retains responsibility for the case.

Can unauthorised persons ‘carry on the conduct of litigation’ if they carry out acts that constitute the conduct of litigation under the supervision of authorised individuals?

At first instance, the judge drew a distinction between assisting or supporting an authorised individual in litigation and conducting litigation under supervision.

The judge held that only the former was lawful. On that analysis, unauthorised persons could assist with litigation work but could not perform acts which fell within the statutory definition of the conduct of litigation, even where an authorised person supervised their work and retained ultimate responsibility.

That approach reflected the submissions of the Law Society and the SRA and would have required close, step‑by‑step oversight by authorised individuals, including prior approval of documents before they were used, even in urgent cases.

The Court of Appeal rejected that interpretation. It held that the ordinary meaning of the statutory language distinguishes between the tasks which make up the conduct of litigation and the direction, control and responsibility for those tasks.

The Court concluded that an unauthorised person does not carry on the conduct of litigation merely because they perform litigation tasks for and on behalf of an authorised individual. Provided the authorised person retains responsibility and puts in place appropriate arrangements for delegation and supervision, it is the authorised person who is carrying on the reserved legal activity.

The Court, therefore, held that the distinction adopted at first instance between ‘assisting’ and ‘conducting litigation under supervision’ was incorrect.

What acts constitute conducting litigation?

The Court of Appeal declined to set out an exhaustive list, however, it confirmed that a number of activities are unlikely to constitute the conduct of litigation, including:

  • Pre‑litigation work;
  • Giving legal advice in connection with proceedings;
  • Correspondence with opposing parties;
  • Gathering evidence;
  • Instructing and liaising with experts or counsel; and
  • Signing statements of truth or other documents which the CPR permits a legal representative (defined in CPR 2.3 including a solicitor’s employee) to sign.

Delegation and supervision

The Court emphasised that the LSA 2007 does not mandate a single model of supervision. There had to be proper direction, management supervision and control. However, the level of supervision required will depend on the circumstances. In some cases, particularly complex or high‑risk matters, closer oversight and prior approval may be appropriate. In other, more routine cases, supervision may properly consist of structured systems, regular meetings, and sampling of work.

The statute does not require prior authorisation of every task in every case. The question is whether the authorised individual has retained responsibility and exercised appropriate direction and control.

The Court of Appeal made clear that details of the appropriate supervision were a matter for the regulators. Following the judgment, the Law Society has issued a Practice Note which is key reading for firms, solicitors and their employees as it sets out its view of good practice and practical steps firms can take. Further guidance is awaited from the Solicitors Regulation Authority.

Conclusion

The Court of Appeal’s judgment has provided reassurance across the legal industry and has restored a practical and workable model of legal service delivery which aligns with the regulatory objectives of the LSA 2007, including improving access to justice. It confirms that the LSA 2007 is concerned not with who performs individual litigation tasks, but with who retains responsibility for them. Unauthorised staff may lawfully carry out litigation tasks under appropriate supervision, without committing a criminal offence, provided responsibility remains with an authorised individual. However, an element of uncertainty remains particularly as what amounts to appropriate supervision depends on the circumstances, and we can therefore expect to see further developments.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com