The recent Mazur judgment has reignited debate about the scope of the “conduct of litigation” as defined under the Legal Services Act 2007 (LSA 2007). Specifically, it has called into question who may properly undertake litigation and in what contexts. For anyone working in fitness to practise proceedings, this may prompt you to ask the question, around the status of Fitness to Practise (FtP) proceedings: are they “litigation” in the strict sense, and does representation in such proceedings amount to a reserved activity?
The Issue in Mazur
The core issue in Mazur v Charles Russell Speechlys LLP EWHC 2341 (KB) was whether an unqualified employee, such as a paralegal, trainee, or CILEX Fellow without independent practice rights, could conduct litigation under a solicitor’s supervision in an authorised law firm. The High Court held that supervision does not grant authority to perform reserved legal activities—only those personally holding authorisation or falling within statutory exemptions may conduct litigation. Non-authorised staff may support, but not carry out procedural steps themselves, such as issuing proceedings, filing pleadings, or certifying service.
This line of reasoning has naturally raised questions about FtP work: given its seriousness, its formality, and its consequences for registrants’ livelihoods, could it be characterised as litigation for statutory purposes? If fitness to practise proceedings are classed as litigation, a reserved legal activity,the implications are profound for regulatory bodies, law firms, and legal departments that rely heavily on caseworkers and paralegals without qualified solicitors overseeing the process. Most current workflows employ large teams of non-solicitor staff, such as paralegals or CILEX members without litigation practice rights, to triage, investigate, and support regulatory cases, typically under general supervision from qualified lawyers.
Why Mazur Does Not Apply to FtP Proceedings
Despite the concerns, longstanding authority provides reassurance that FtP proceedings before bodies like the GMC, NMC or HCPC cannot be equated to litigation before a court of law.
In Attorney General v BBC AC 303, Lord Scarman stated:
“… judicial power is an exercise of sovereign power. I would identify a court in (or ‘of’) law, i.e. a court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the state. … Unless a body exercising judicial functions can be demonstrated to be part of this judicial system, it is not, in my judgment, a court of law.”
That position was applied directly to professional discipline in GMC v BBC 1 WLR 1573, where the Court of Appeal held that although the GMC’s Professional Conduct Committee:
“… acts in accordance with detailed procedural rules which have close similarities to those followed in courts of law. Nevertheless it is not part of the judicial system of the state. Instead it is exercising (albeit with statutory sanction) the self-regulatory power and duty of the medical profession to monitor and maintain standards of professional conduct.”
This distinction is critical. FtP bodies neither issue proceedings “before a court” nor exercise the “judicial power of the state.” They are disciplinary mechanisms arising from a professional’s voluntary submission to self-regulation in exchange for membership of the profession.
Litigation versus Disciplinary Hearings
It is true that FtP proceedings are adversarial, lawyer-led, and with real personal and professional consequences. But for the purposes of the statutory definition, they simply do not amount to “court proceedings.”
The consequence is that representation in FtP hearings does not constitute reserved legal activity. It is, therefore, permissible for solicitors, counsel, or indeed non-lawyer representatives to appear.
Where the Line is Crossed – High Court Proceedings
However, the situation changes once matters spill into the High Court:
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Extensions of Interim Orders (HCEs) are made by application to the High Court.
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Appeals lie to the High Court against FtP determinations.
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Judicial review may be brought, whether by registrants or regulators, to challenge a regulatory decision.
These are indisputably “proceedings before a court” and therefore fall squarely within the scope of reserved activities under the LSA 2007. They must be issued, signed, and conducted by solicitors or authorised litigators.
Conclusion
While Mazur raises interesting questions around the definition of litigation under the LSA 2007, it does not alter the established position that FtP hearings are not “litigation” for these purposes. They remain self-regulatory proceedings, even if judicial in flavour, and thus fall outside the category of reserved legal activities.
The critical carve-out lies in High Court involvement, whether by way of extensions, appeals, or judicial review. At that point, the conduct of litigation is engaged, and authorised practitioners must take responsibility.