Mazur v Charles Russell Speechlys – Unauthorised fee earners acting alone

Following on with the analysis of the fallout from Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB), if an unauthorised fee earner is able to:

• Deal with their own cases up to the point proceedings are issued and
• undertake most post-litigation work so long as the case itself is being conducted by an authorised individual,

is there any work that an unauthorised fee earner can undertake where there is not an authorised individual with conduct of the litigation.

Baxter v Doble & Anor [2023] EWHC 486 (KB) is authority for the fact that the giving of legal advice is permitted. See paragraph 203:

“The giving of legal advice in itself does not amount to the conduct of litigation. This applies even if the legal advice is about the procedures that need to be followed in the proceedings. This was said in Agassi, at paragraph 56, and, in my view, it still holds good.”

This makes sense. Otherwise, a family member, friend or bloke down the pub who expresses a view as to what they “reckon” about someone else’s litigation is potentially guilty of a criminal offence and in contempt of court.

Correspondence with another party to litigation is also probably permissible. Although dealing with the earlier legislative regime of the Courts and Legal Services Act 1990, rather than the LSA 2007, in Agassi v HM Inspector of Taxes [2005] EWCA Civ 1507 the Court of Appeal at paragraph 56 stated:

“In our view, even if, as the Law Society submits, correspondence with the opposing party is in a general sense ‘an integral part of the conduct of litigation’, that does not make it an ‘ancillary function’ for the purposes of section 28.”

For similar reasons, I would suggest that undertaking negotiations with an opposing party would also not amount to conducting litigation.

However, there is a danger in looking at specific steps in isolation. As noted in Baxter:

“In my judgment, the answer is that the court should look at the entirety of the activities undertaken by the Respondents to assist their client and then decide whether, taken in the round, they amount to the conduct of litigation. To do otherwise would be to lose sight of the context in which things are being done, and would lead to the risk of a misleading impression being gained. It would also run the risk of form being prioritised over substance.

The authorities show that it is the totality of the activities that have been undertaken that should be focused upon. In Ndole, in the context of consideration of whether service of documents amounted to the conduct of litigation, the Court of Appeal expressly took account of the whole course of events, including correspondence that had passed from the consultants to the defendant in the proceedings (judgment, paragraph 71). Similarly, in Gill v Kassam, the judge looked at the “package of services” that were provided by the advisors to the client (paragraphs 47 and 48). A similar approach was adopted in Peter Schmidt.

It is true that this marks a difference from the position under the 1990 Act. Under that Act, as the Court of Appeal said in Agassi, an activity would only fall within the definition of the conduct of litigation if it was a formal step in the proceedings. However, in my view this no longer applies, because the additional wording introduced in the 2007, which includes the prosecution and defence of proceedings, is not apt to cover formal steps in the proceedings and nothing else. The words used in the 2007 Act, referring to ‘prosecuting’ and ‘defending’ the proceedings, are not words that Parliament would have used if it had intended only to refer to narrow or technical steps.”