The Solicitors Regulation Authority (SRA) has provided guidance to help firms understand their obligations when it comes to conducting litigation. This is an area where confusion often arises, particularly around the distinction between supporting litigation and conducting litigation. Here’s what you need to know.
Who Can Conduct Litigation?
The SRA confirms that people who are not authorised to conduct litigation can only support authorised individuals, rather than conducting litigation themselves—even under supervision. Whether someone is supporting or conducting litigation will depend on the facts of each case.
It is the responsibility of the authorised person to determine the level of supervision required for those providing support.
No Bright Line – But Key Factors to Consider
There is no clear-cut legal definition separating “supporting” from “conducting” litigation. Courts will look at the substance of the activities, not just the form. The starting point is the statutory language, which should be given its natural and ordinary meaning. Because the legislation is penal in nature, it should be construed narrowly.
When assessing whether someone is conducting litigation, consider:
- Who has ultimate responsibility for the steps taken in the litigation?
- Who exercises judgment on how the matter progresses—both day-to-day and overall?
Firms should also review:
- The nature of supervision arrangements.
- The complexity of the practice area.
- Individual case loads, experience, and staff mix.
Check Authorisation Status
If your firm employs individuals authorised by another regulator (e.g., legal executives or barristers), check the scope of their authorisation. Unlike solicitors, not all legal professionals have automatic rights to conduct litigation.
Exemptions
While the Legal Services Act generally prohibits unauthorised persons from conducting litigation, there are exemptions. These include:
- A right granted by a court for specific proceedings.
- A right granted by or under an enactment (e.g., section 223 of the Local Government Act 1972 allows certain local authority officers to conduct proceedings in Magistrates’ Court).
You must confirm whether any exemption applies in your matters.
Compliance and Record-Keeping
Firms should:
- Make their own assessment in light of case law.
- Seek independent legal advice if necessary.
- Keep supervision arrangements under review.
- Maintain records of decision-making and processes to comply with 2.2 of the Code of Conduct for Firms.
Supporting Firms and Enforcement
The SRA recognises the challenges firms face in this area. Resources are available on the SRA website, and the Ethics Guidance helpline can provide support (calls are not treated as self-reports and can be anonymous).
If your firm is not compliant with the Legal Services Act, you should:
- Contact the SRA.
- Develop a compliance plan.
- Record your decision-making.
Enforcement decisions will be made case by case and only where it is in the public interest.
Final Thoughts
Conducting litigation is a reserved legal activity, and firms must ensure they have robust systems to distinguish between authorised conduct and support roles. By reviewing supervision arrangements, checking authorisation status, and maintaining clear records, firms can stay compliant and avoid enforcement action.