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Litigating Without Authorisation:

by | Oct 30, 2025 | Litigation

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Unlawful Conduct, Strike-Out Risk, Regularisation & Practical Steps

Introduction

Questions often arise mid-proceedings as to whether the opposing party’s representative has been conducting litigation without the requisite authorisation under the Legal Services Act 2007 (LSA 2007). Typical scenarios include a non‑authorised fee earner signing statements of truth, issuing or serving proceedings, filing pleadings, or otherwise acting as the litigant’s representative on the record. These acts, if performed by an unauthorised person, may constitute a criminal offence under section 14 LSA 2007. The immediate concern for litigants is whether the court will strike out the offending party’s statement of case or otherwise grant draconian relief, particularly where trial is imminent, and how to protect position on costs and case management.

This article explains the statutory framework, the civil court’s approach to unauthorised conduct (including the court’s preference to regularise defects where possible), the circumstances in which strike out may be entertained, the implications of the Court of Appeal’s decision in Mazur v Charles Russell Speechlys LLP, relevant SRA guidance, and the practical steps to take whether you are opposing an unauthorised representative or discover that your own representative is in default.

The legal framework: reserved activities and criminality

  • Reserved activity: “Conduct of litigation” is a reserved legal activity under the LSA 2007. It encompasses issuing proceedings, acknowledging service, filing statements of case, and other core steps taken in the conduct of court litigation on behalf of a party.
  • Who may conduct litigation: Only “authorised persons” may carry on reserved legal activities. In broad terms, this includes solicitors with practising certificates and litigation rights, barristers with litigation rights, CILEX Fellows and other authorised legal professionals with specific litigation authorisation, and entities regulated for the activity.
  • The criminal offence: Section 14 LSA 2007 makes it a criminal offence for an unauthorised person to carry on a reserved legal activity. Supervision does not cure the defect – an unauthorised individual cannot “borrow” litigation rights from an authorised supervisor.
  • Civil consequences vs criminality: While s.14 concerns criminal liability and regulation, the civil courts focus on the just disposal of proceedings under the overriding objective. The courts distinguish between (i) marking the breach (usually through costs and directions), and (ii) depriving a party of a hearing on the merits (strike out or similar). The latter will be exceptional.

What amounts to unauthorised “conduct of litigation”?

Authorities and guidance recognise that “conduct of litigation” includes:

  • Issuing and service of proceedings on behalf of a client.
  • Signing and filing statements of case, applications, and statements of truth as representative.
  • Taking steps on the court record as the party’s representative (without being authorised to do so).
  • Managing the case within the court process in a representative capacity.

By contrast, some activities (e.g., purely clerical filing for an authorised person or assisting a litigant in person without purporting to conduct the case) may not cross the line into the reserved activity. However, the boundary is fact-sensitive and risk-laden; where doubt exists, regularisation is prudent and early disclosure to the court may be necessary.

The court’s powers: strike out and regularisation

  • Strike out under CPR 3.4(2): The court may strike out a statement of case where it discloses no reasonable grounds, is an abuse of process, or there has been a failure to comply with a rule, practice direction, or order. Unauthorised conduct may be characterised as a serious failure to comply or as abusive if it undermines the integrity of the process.
  • Relief and correction under CPR 3.10: The court has a general power to remedy errors of procedure, including steps taken by the wrong person, unless doing so would cause injustice. CPR 3.10 is frequently deployed to regularise unauthorised steps.
  • Statements of truth: If a statement of case or witness statement has been signed by an unauthorised representative purporting to act for the party, the court may direct re‑signature by the party personally or by an authorised representative, without vacating the trial, unless prejudice dictates otherwise.
  • Adoption of steps: The usual course is to direct that an authorised person goes on the record and formally adopts previous steps taken in the litigation. This preserves the timetable whilst curing the defect.
  • Costs marking: The court can disallow the defaulting party’s costs for any work constituting unauthorised conduct, and in serious cases award indemnity costs or make wasted costs orders against those responsible.

In practical terms, courts might be slow to penalise innocent parties for the errors of their representatives if a fair trial remains achievable. The focus remains on managing the case proportionately and fairly, with sanctions directed at the conduct rather than the cause of action or defence itself. Though one should note that all cases are fact specific.

Mazur v Charles Russell Speechlys LLP: key takeaways

Mazur v Charles Russell Speechlys LLP is an important recent authority clarifying the civil consequences of unauthorised conduct of litigation. While the facts and full ratio should be read in context, the following themes are notable:

  • No automatic nullity: Steps taken by an unauthorised representative are not automatically void for all purposes. The civil court retains discretion to regularise retrospectively where appropriate, especially to avoid unfairness to an innocent client.
  • Costs consequences are primary: The court is likely to reflect the seriousness of breaches through adverse costs consequences, including disallowance of costs for unauthorised work and, where justified, wasted costs against the individual or firm responsible.
  • Strike out is exceptional: Strike out may be entertained where the conduct amounts to an abuse of process that cannot be cured, where there is irremediable prejudice, or where dishonesty or deliberate evasion of the regulatory framework undermines the integrity of the proceedings. Absent such features, regularisation is generally preferred.
  • Timeliness matters: Where the issue is raised late close to trial, courts are even more reluctant to derail the timetable absent compelling prejudice. Parties are expected not to ambush; instead they should raise the issue promptly and allow an opportunity for regularisation.

The position aligns with earlier decisions such as Baxter v Doble, which emphasised proportionate remedies and the avoidance of technical knock‑out blows where the merits can still be fairly adjudicated.

SRA guidance and regulatory risk

Recent SRA guidance reinforces that:

  • Conduct of litigation is a reserved legal activity and must only be undertaken by authorised individuals and entities. Firms must have appropriate systems to ensure only authorised staff conduct reserved work.
  • Supervisory arrangements must be effective. However, supervision does not grant rights of litigation to an unauthorised person.
  • Firms should act promptly to regularise any inadvertent breach, including notifying clients, correcting court records, and ensuring future steps are taken by authorised persons. One may also wish to refer to their indemnity policy.
  • Firms should note that their is a potential conflict between them and their clients and will need to ensure they deal with this issue appropriately.
  • Regulatory outcomes: The SRA may pursue disciplinary action for systemic or serious breaches. Where an offence under s.14 LSA 2007 is suspected, referral to enforcement authorities may follow. Individuals risk personal regulatory consequences and, in serious cases, criminal liability.

For practitioners, the guidance underscores the need for clear role delineation, careful control of who signs and files documents on the court record, and immediate self‑reporting where a breach is discovered.

When might the court consider strike out?

The court may consider striking out a claim or defence where:

  • Abuse of process: The unauthorised conduct is part of a broader pattern of abuse, dishonesty, or deliberate flouting of the court’s process or orders, undermining the justice of the case.
  • Irremediable prejudice: The breach has caused prejudice that cannot fairly be remedied by case management directions (for example, where critical steps were taken that cannot be replicated without injustice, or where evidence has been compromised).
  • Contumelious default: Persistent (if regularisation is not applied for promptly by the party in difficulties trouble may await), wilful non‑compliance after the issue is raised, including refusal to regularise, continued unauthorised steps, or breach of directions aimed at correction.
  • Integrity of proceedings: Where the court is not satisfied it can achieve a fair trial because the representative’s conduct has fatally infected the process.

Importantly, making a strike‑out application without first raising the defect and potentially inviting regularisation is risky. Courts favour fairness and transparency; a party who withholds the point to gain forensics advantage may face adverse costs and refusal of relief. A measured approach, prompt notice, opportunity to cure, then targeted relief if needed, aligns with the overriding objective.

Costs and sanctions: disallowance, indemnity, and wasted costs

  • Disallowance of costs: Costs for work constituting unauthorised conduct are commonly disallowed on assessment. This can be a significant financial sanction, even if the case proceeds.
  • Indemnity costs: In egregious cases, particularly where the breach has generated unnecessary costs, prejudice, or tactical advantage—the court may award indemnity costs against the defaulting party for specific applications or phases.
  • Wasted costs (s.51 Senior Courts Act 1981): If the improper conduct has caused the opposing party to incur unnecessary costs, the court may order the representative personally (or the firm) to pay wasted costs. The three‑stage Ridehalgh test applies: (i) improper, unreasonable or negligent conduct; (ii) causation of costs; and (iii) whether it is just to order the representative to pay.
  • Non‑recovery despite client success: Even if a party ultimately succeeds, recovery of costs for the period or steps infected by unauthorised conduct may be curtailed.

These remedies allow the court to mark the breach without depriving parties of a hearing on the merits.

Practical strategy if you face an opposing representative without litigation rights

  • Verify authorisation: Check the SRA roll, practising certificate status, CILEX Regulation register, or Bar Standards Board for rights of litigation. Confirm whether the entity is authorised and whether the individual holds specific litigation rights.
  • Act promptly, do not ambush: Write to the opposing side setting out the suspected unauthorised conduct, identifying concrete steps (e.g., pleadings signed by X; applications filed by Y), and inviting immediate regularisation.
  • Seek regularisation directions: Propose directions that (i) an authorised person goes on the record; (ii) prior steps are adopted; (iii) defective statements of truth are re‑signed; (iv) future steps are taken only by authorised persons; and (v) costs for unauthorised work be disallowed, with liberty to apply for wasted costs.
  • Consider a short application (CPR 23): If not resolved consensually, list a brief directions hearing focused on regularisation and costs. Reserve the right to seek wasted costs once the facts are clearer.
  • Reserve strike out: Make clear that, if the defect is not cured or if there is serious prejudice or abuse, you will seek strike out under CPR 3.4(2), but recognise that immediate strike out without prior notice carries litigation risk.
  • Preserve evidence of prejudice: If the unauthorised conduct has caused delay, confusion, or loss, document this and quantify the costs attributable to the breach.

What to do if your own representative is in default

  • Stop the breach immediately: Ensure no further steps are taken by any unauthorised person. Escalate to a supervising partner or COLP/COFA in the firm.
  • Put an authorised person on the record: File the appropriate notice so an authorised representative is listed with the court.
  • Adopt and correct: File a notice adopting prior steps; re‑sign statements of truth where required; identify any procedural defects and propose a practical timetable to cure them without derailing the trial window.
  • Notify the other side and propose directions: Transparency reduces the risk of adverse inferences and assists the court in applying CPR 3.10.
  • Prepare for costs exposure: Expect disallowance of costs for unauthorised work. Consider whether a wasted costs risk arises and take advice internally about mitigation and reporting obligations.
  • Consider regulatory reporting: Depending on seriousness and systems issues, self‑reporting to the SRA or relevant regulator may be appropriate in line with professional obligations.
  • Protect the client: The cardinal aim is to preserve the client’s ability to have the case determined on the merits while containing the cost and regulatory fallout. Move swiftly and cooperatively.

Risk analysis: strike out vs regularisation

  • Tactical strike out is high risk: Absent clear prejudice or abuse, a strike‑out application may fail and attract adverse costs, particularly if the issue was known but not raised promptly.
  • Proportionate, staged approach: Courts may favour invitations to regularise, followed by targeted applications for directions and costs consequences. This approach is more likely to succeed and aligns with the overriding objective.
  • Timing is critical: The closer to trial, the greater the premium on preserving the fixture. Expect courts to regularise retrospectively and confine sanctions to costs unless there is irremediable prejudice.
  • Evidential foundation: Whether seeking strike out or wasted costs, ensure a clear evidential record of the unauthorised acts, their impact on procedure and costs, and why lesser measures would not suffice.

Worked example of directions sought

  • By [date], [Party] to put a duly authorised legal representative on the record.
  • The authorised representative to file and serve a notice adopting all prior steps and statements of case.
  • Any statements of truth signed by unauthorised persons to be re‑signed by the party or an authorised representative by [date].
  • All future steps to be taken only by authorised persons.
  • The costs of and occasioned by the unauthorised conduct to be disallowed; costs reserved as to any wasted costs application.
  • Liberty to apply.

This suite of orders is commonly granted and minimises disruption while ensuring accountability.

References and authorities

  • Legal Services Act 2007, s.14 (offence of unauthorised person carrying on a reserved legal activity).
  • CPR 3.4(2) (strike out), CPR 3.10 (rectification of procedural errors), CPR 23 (applications), CPR 44.2 (costs discretion).
  • Mazur v Charles Russell Speechlys LLP (Court of Appeal) – confirms regularisation over nullity, with costs as primary sanction.
  • Baxter v Doble [2023] – emphasises proportionate remedies and avoidance of technical knock‑outs where fairness can be preserved.
  • SRA guidance on reserved legal activities, authorisation, supervision, and reporting obligations.
  • Section 51 Senior Courts Act 1981 and the wasted costs jurisdiction.

Note: Always check the latest reported decisions and guidance, as the court’s approach is continually refined.

Conclusion

Conducting litigation without authorisation is unlawful and can constitute a criminal offence under s.14 LSA 2007. In civil proceedings, however, the courts’ primary concern is to secure a fair and efficient determination on the merits. The modern approach, crystallised by Mazur and consistent with recent SRA guidance, is to regularise unauthorised steps promptly under CPR 3.10, preserve trial dates where possible, and mark the breach through robust costs sanctions and, where appropriate, wasted costs orders.

Strike out remains available but will generally be reserved for cases of irremediable prejudice, serious abuse, or persistent contumelious default. As a matter of strategy, applicants should avoid ambush, raise the issue early, and invite regularisation before seeking draconian relief. Conversely, parties discovering their own default must act immediately to cure the defect, notify the court and opponent, manage regulatory exposure, and shield the client from avoidable prejudice.

For litigants and practitioners alike, the key is disciplined process control: confirm authorisation status, ensure only authorised individuals conduct reserved activities, and deploy proportionate, timely remedial steps when errors occur. This protects the integrity of proceedings, aligns with the overriding objective, and minimises the risk of costly and avoidable satellite litigation.