Jessica Jarvis

The High Court’s decision in Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) has landed with unusual force across the profession.  What began as a discrete costs appeal over a law firm’s use of an employee without a practising certificate has spiralled into a wider crisis of confidence about who, within a regulated practice, can actually “conduct litigation”.

For solicitors’ firms that rely on large teams of CILEX members, paralegals and caseworkers, the judgment has reopened uncomfortable questions: what does “conduct of litigation” really mean?  And, more alarmingly, how far does that catch reach into the day-to-day work we’ve always regarded as safe, routine, and entirely lawful?

The decision itself didn’t change the law.  It confirmed, rather drily, that section 21(3) of the Legal Services Act 2007 doesn’t magically authorise employees of regulated firms to conduct reserved activities.  But the tone of the judgment, read alongside Baxter v Doble [2023], has left many practitioners second-guessing whether ordinary supervised work might now be viewed as criminally unauthorised.  The statutory phrase causing the most anxiety; “performing any ancillary functions in relation to such proceedings”, feels alarmingly open-ended.  Some fear it could encompass almost every act that supports a case, from drafting to correspondence.

That uncertainty has practical consequences, particularly in the Court of Protection, where litigation is only part of the picture.  CoP teams combine solicitors, paralegals, and specialist administrators who handle everything from deputyship management to welfare reviews.  These roles are essential, yet few of those individuals hold independent practising certificates.  If “ancillary functions” were interpreted at its broadest, much of the sector’s day-to-day work would grind to a halt.

The reality is probably more nuanced and, one hopes, more forgiving than the current panic suggests.  The following discussion tries to unpick where the line is likely to fall, without pretending that there is any settled certainty. 

“Ancillary Function”

The examples given in the statute, “for example, entering an appearance to proceedings”, hint at what “ancillary” was meant to mean: procedural acts inside live proceedings, not the entire ecosystem of preparatory or support work.

In both Baxter and Mazur, the problem wasn’t drafting or research; it was taking procedural control: sending documents to court, signing statements of truth, or writing under firm letterhead as if the individual personally “acted for” the client.

Those steps amount to representation before the court, and that is the line the law was always designed to protect.

Where The Boundary Lies

While the judgments don’t draw a perfect map, a practical reading suggests two key tests:

1. Control: who bears legal responsibility for the step?

2. Visibility: does the action present the individual to the court or opponent as the client’s representative?

If the answer to either is “yes”, the act likely falls within the conduct of litigation.

If the work stays behind the curtain, drafting, compiling evidence, liaising with witnesses, preparing bundles, then it probably sits outside the reserved zone, provided an authorised person reviews and signs off.

Court of Protection Context

Nowhere does the uncertainty around “ancillary functions” feel more misplaced than in the Court of Protection.  Most CoP lawyers spend only a fraction of their time inside live proceedings.  The rest is slow, administrative, often pastoral work: managing finances, arranging care packages, signing payroll forms, dealing with local authorities, or guiding families through capacity assessments.  None of this looks or feels like “litigation”, yet the recent judgments have prompted anxiety that even these day-to-day acts might somehow trespass into the reserved sphere.

A) Day-to-Day Management

For both property and affairs and health and welfare deputyships, the majority of tasks are essentially fiduciary and administrative.  They involve exercising authority under an existing court order, not engaging in new proceedings.  In that setting, a CILEX member or paralegal, working under a solicitor’s supervision, can usually:

– correspond with banks, accountants, care homes and payroll providers;

– arrange insurance, pay invoices, reconcile statements, or authorise expenditure once approved by the deputy;

– draft correspondence with HMRC or DWP;

– prepare annual OPG reports and collate supporting evidence; liaise with case managers, therapists and social workers about day-to-day best-interests decisions;

– attend best-interests or care-planning meetings as the deputy’s representative or note-taker;

– instruct valuers, estate agents or brokers, provided any conveyance or transfer is ultimately executed by an authorised person;

– prepare documentation for routine applications such as authority to purchase a property, pay a gratuity, or vary a care regime, so long as the solicitor signs and files the COP1/COP9.

These are the lifeblood of CoP practice and, in most views, remain comfortably non-reserved.  They are acts of implementation, not representation.  The court is not yet seized of a dispute; the deputy is simply administering an existing order within its scope.

Where things start to shade towards the reserved zone is when that management work evolves into a dispute; for example, a conflict with a local authority over funding, or an application to sell property against family opposition.  Once a formal application is contemplated, the preparatory work is still fine; the filing and procedural control revert to the authorised solicitor.

B) When Proceedings Begin

When a COP1 has been issued, whether for appointment, variation, or a s.21A liberty challenge, the ground changes.  Everything filed or served now forms part of the court record.  At that point, tasks that actually progress the case (filing, serving, signing statements of truth, corresponding with the court) fall within “conduct of litigation”.

Supervised staff can still prepare almost everything behind the scenes, draft pleadings, collate disclosure, build bundles, chase evidence, but must hand those drafts to the solicitor for review and submission.  They can continue to liaise with clients, witnesses and experts, attend hearings as support, and implement directions once orders are made.  The solicitor, however, remains the visible legal representative before the court.

C) Caution

There remains an interpretive gap: some of these day-to-day steps, particularly correspondence that refers to ongoing or potential proceedings, might arguably be “ancillary” if they influence how the case proceeds.  The High Court hasn’t ruled on that point in a CoP setting.  Most practitioners take the view that as long as the solicitor retains oversight and accountability, the work is safe.  But it’s sensible to maintain clear records of supervision, avoid phrases such as “I act for”, and ensure anything heading to the court or tribunal passes through an authorised sign-off.

D) The Dividing Principle

In practice, the boundary turns on purpose and audience.

– Work aimed at the client or third parties, managing funds, arranging care, compiling reports, is administrative and preparatory.

– Work aimed at the court or other parties to progress or defend proceedings starts to look like the conduct of litigation.

Most deputyship management clearly falls on the administrative side.

The “ancillary functions” clause should not be read so widely as to criminalise normal casework done under supervision.  The risk only sharpens once a matter enters formal proceedings, or when correspondence presents the individual as the client’s representative.

Beyond that, good records and clear supervision remain the safest defence: who filed, who signed, and who owns each procedural step.  Everything else, the day-to-day work that keeps deputies’ clients safe and supported, should continue undisturbed.

Closing Thoughts

What’s followed Mazur isn’t so much a change in the law as a wave of uncertainty about what the law was trying to protect in the first place.  The Court of Protection doesn’t fit neatly into the litigation box.  Most of our work isn’t about fighting cases; it’s about keeping someone’s finances stable, their care in place, and their life running smoothly.  To treat all of that as “conducting litigation” feels like we’ve lost sight of the purpose behind the rules.

The LSA was meant to stop people pretending to be lawyers, not to stop good, supervised professionals from doing their jobs.  If every call to a care home or every COP form draft suddenly counts as a reserved act, the whole deputyship model falls apart.  The truth is simpler: it’s not about who presses “send” on an email, it’s about who holds responsibility for the case.  So long as the authorised solicitor stays accountable, the rest of the team can, and should, keep things moving.

There’s no clear line yet, and maybe there never will be.  What we can do is stay transparent about who’s doing what, make supervision obvious, and make sure anything that reaches the court bears an authorised name.  Beyond that, we keep serving clients the way we always have; carefully, collaboratively, and with common sense.

If Mazur forces us to think harder about those boundaries, that’s fine.  But it shouldn’t scare the profession into silence.  The people we act for don’t have the luxury of us standing still.