Local authority legal teams after Mazur

The decision of Sheldon J in Mazur v Charles Russell Speechleys LLP [2025] EWHC 2341 (KB) established unequivocally that a person who is not authorised to conduct litigation may not nonetheless do so because they are an employee of a person that is authorised to carry out that (or any other) “reserved legal activity” (“RLA”).

Indeed, if an unauthorised employee were to do so without benefiting from an exemption granted under s.19 and Schedule 3 of the Legal Services Act 2007, both they and their employer would commit a criminal offence under sections 14 and 16 of the Act.

“RLAs” are specified by s.12 and Schedule 4 of the Act. They include the exercise of a right of audience; the conduct of litigation; and “reserved instrument activities” (which include certain land transactions). Local authority legal teams do a lot more than this, notably providing general legal advice, drafting contracts and serving all manner of notices. However, reserved activities will usually be a core part of their work.

Whilst this has set off alarm bells and a concern that “something needs to be done” the difficulty with Mazur is that it does not provide any guidance on when a unauthorised person who is carrying out tasks that fall within the definition of the conduct of litigation (or any other RLA) may continue to do so because their work is limited to assisting or supporting a person who is authorised.

Fortunately, some assistance on the point of what an unauthorised person may do is provided by the decision of Cavanagh J in Baxter v Doble and another [2023] EWHC 486 (KB) who reviewed a range of authorities on the subject. Baxter involved an application for committal for contempt of court by lawyers who had provided legal services to a landlord in a way that amounted to the conduct of litigation for the purposes of section 12(2) of the Legal Services Act 2007 (the 2007 Act), by persons who are not entitled to do so.

The essence of the judgment is that the focus should in fact be on the totality of the activities that have been undertaken; the fact that an unauthorised individual may have carried out some tasks which fall within the ambit of a RLAs (such as the conduct of litigation) does not mean that they will be taken to have actually conducted litigation. Cutting to the heart of the matter, what this means in practical terms is that local authorities must implement systems that avoid the “farming out” of files that are primarily concerned with RLAs (most obviously litigation) to team members who are not authorised persons files.

Acting prudently, those cases must be supervised by a Solicitor or other suitably qualified lawyer who will need to direct, review, and “sign off” a litigation (or other strategy depending on the activity involved) and key tasks at each stage of the proceedings. That does not mean a Solicitor must micro-manage every such case. Nor does it mean that the unauthorised persons should not hold any files in their own name. Systems can be flexible and proportionate. But there can be no question of handing out files on a “fire and forget” basis to an unauthorised person no matter how experienced, trusted and competent they are judged to be.

A few other things need to be borne in mind. Section 223 of the Local Government Act 1972 allows any member or officer of a local authority who is authorised by it to prosecute or defend and conduct proceedings on the authority’s behalf in a magistrates’ court. A person so authorised will fall within the exempt persons under s.19 and Schedule 3 of the Act.

Additionally, activities that are undertaken before litigation commences are strictly not a RLA. Nor are “clerical or mechanical tasks”. However, that does not mean these tasks can be completely ignored. When the question is asked, “was a particular reserved activity conducted by an authorised person?”, it needs to be viewed as a whole and as a matter of substance.

So what needs to be done in-house with some urgency? The critical task is to audit who is doing precisely what and to devise, implement and monitor systems that ensure unauthorised lawyers genuinely assist and support authorised colleagues in the discharge of RLAs. This process adds real value to Lexcel and other systems that are sometimes regarded as mere tick box exercises.

In the longer-term, teams may need to be reconfigured, and job descriptions, gradings and remuneration reviewed (especially if a Solicitor is required to take on a much greater supervisory role). Training and recruitment strategies may need to be reviewed.

This may all be far from straightforward if services are shared. Councils will also need to be reassured that both public and private sector legal service providers have taken similar steps to assure the services they provide. As Baxter illustrates, a failure to play by the rules could have serious consequences for individuals and organisations. It is not just a case of the risk of prosecution. Where reserved activities are found to have been carried out by unauthorised staff costs might be disallowed, especially if a council “ploughs on regardless” now that the rule in Mazur is notorious. There’s no need to panic. But Council legal teams need to act purposefully and quickly to put their house in order.

This article is not intended to be and does not comprise legal advice and is not published as such, and no reliance should be placed on any opinion expressed in it for any purpose whatsoever.

Timothy Leader is a Public & Administrative Law barrister at St John's Chambers.
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