MAZUR MATTERS 58: LEARN HOW TO SUPERVISE STAFF PROPERLY – OR RISK GOING TO JAIL: IT IS WISE TO RECORD SUPERVISION ARRANGEMENTS FULLY

One key element of the Mazur decision, that needs repeating, is that it does not allow unauthorised persons to “conduct” litigation.  It allows unauthorised people to assist and conduct the tasks involved in litigation so long as they are properly supervised by an authorised person.  If there is no supervision, or no appropriate supervision then there is a breach of the Act and both representatives are committing criminal offences.  Further a failure to supervise can have serious regulatory consequences.

“The delegation of tasks by the authorised individual to the unauthorised person requires proper direction, management supervision and control, the details of which are a matter for the regulators. The authorised individual must put in place appropriate arrangements. The degree of appropriate control and supervision will always depend on the circumstances.”

“In essence, the question in any given set of circumstances will be whether the unauthorised person, in carrying out whatever tasks which fall within the scope of “conduct of litigation” have been delegated to him or her, is in truth acting on behalf of the authorised individual. If they are, it is the authorised individual who is conducting the litigation. But if the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.”

WEBINAR ON THE PRACTICAL IMPLICATIONS OF MAZUR: 9th APRIL 2026

The question of appropriate supervision is  one of the issues considered in this webinar on the 9th April.  The webinar will look at the law and practical implications of Mazur in detail. There will be detailed guidance checklists provided  about supervision and compliance and the importance of putting in place and recording supervision arrangements.  Booking details are available here. 

A REMINDER – NON-AUTHORISED STAFF CANNOT CONDUCT LITIGATION AND HAVE TO BE PROPERLY SUPERVISED

During the course of submissions in the Mazur decision the Master of the Rolls commented that some of the distinctions being put forward involved “dancing on a pinhead”. However that pinhead is very important when it is your practice, and possibly your liberty, at stake.   It is important that every practitioner appreciates the important distinctions in the Mazur decision itself.

Paragraph 187 of the judgment of Sir Colin Birss:-

(1) An unauthorised person may lawfully perform any tasks, which are within the scope of the conduct of litigation, for and on behalf of an authorised individual such as a solicitor or appropriately authorised CILEX member, provided the authorised individual retains responsibility for the tasks delegated to the unauthorised person (both formal responsibility and the responsibilities identified at section 1(3) of the 2007 Act). In that situation, the authorised individual is the person carrying on the conduct of litigation. “(187 (v))

(2) “The delegation of tasks by the authorised individual to the unauthorised person requires proper direction, management supervision and control, the details of which are a matter for the regulators. The authorised individual must put in place appropriate arrangements. The degree of appropriate control and supervision will always depend on the circumstances.” (187 (vi))

(3) “It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.” (187 vii)

ANOTHER REMINDER: IF THE AUTHORISED PERSON IS NOT “CONDUCTING” THE LITIGATION  BY PROVIDING PROPER SUPERVISION THEN BOTH PEOPLE INVOLVED WILL BE COMMITTING AN OFFENCE

This is clear from the judgment of Lady Justice Andrews:-

“In essence, the question in any given set of circumstances will be whether the unauthorised person, in carrying out whatever tasks which fall within the scope of “conduct of litigation” have been delegated to him or her, is in truth acting on behalf of the authorised individual. If they are, it is the authorised individual who is conducting the litigation. But if the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.”

SO – WHO DEFINES “APPROPRIATE ARRANGEMENTS”?

As we have seen the judgment expressly states that this is a matter for the regulators.  That is the parties who were, on the face of it, the unsuccessful respondents to the appeal. It is the SRA (that argued for a much more restricted role for non-authorised persons) that now have the task of defining what suitable “supervision” is.

WHAT THE SRA SAYS..

We have already seen that the SRA website gives an inaccurate summary of the Court of Appeal decision (which is not helpful) the announcement also states

“The clarity the judgment provides will enable us to review our guidance and update it where necessary. We will do this as soon as possible. We will be working closely with other regulators and organisations to make sure there is consistency and clarity for everyone.”

IN THE MEANTIME: MAKE SURE YOU RECORD SUPERVISION ARRANGEMENTS:  “MY DOOR IS ALWAYS OPEN” IS UNLIKELY TO CUT IT…

In November 2022 the SRA provided “Effective supervision – Guidance”. This is still available and states that it is being reviewed in the light of the Court of Appeal decision.   Here I want to highlight one issue

“Recording supervision arrangements

Firms should be able to evidence the supervision arrangements they choose for each area of work, and the risk-based reasons for the approach they have taken. This should include the firm’s arrangements for ensuring that supervision is effective in line with key theme 4.

Recording these arrangements can help to support supervisors and supervisees in understanding and meeting the firm’s expectations in respect of supervision (see ‘choosing and appointing supervisors’ above). It will also help to provide continuity in the event of staff changes.

Firms should consider how they expect supervisors and supervisees to record the delivery of supervision (for instance in records of one-to-ones, casework discussions, and file reviews), and make these expectations clear to those involved. This should include consideration of how to record and share learning points from issues identified in supervision.

Good practice suggestions we have heard from firms include:

• Using protocols to identify the level of supervision needed in each practice area – for example, all communications with clients to be checked by partner/senior solicitor, no court documents to be filed without partner/senior solicitor sign-off.
• Supervision should be evidenced, for example by emails, file notes and time records – but it is not necessary to capture every instance of supervision, such as ongoing informal discussion about a draft document where the supervisor is working directly with the supervisee.
• Where tracked changes on a document are used to provide feedback, these should include an explanation of why changes have been made.”