Lawyers Covered - May 2026

It can be tough for busy lawyers to find enough time to service clients, make it safely through the regulation obstacle course, win new work and keep up-to-date with developments, but we've got you covered! Welcome to our Lawyers Liability & Regulatory Update, in which we highlight the last month's key developments affecting lawyers and the professional risks they face.

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Post-Mazur guidance from the Law Society

Following the Court of Appeal's decision in Mazur & Stuart v Charles Russell Speechlys LLP & Others [2026] EWCA Civ 369, the Law Society has published a helpful practice note summarising the law following the judgment and setting out best practice suggestions for solicitors and law firms on the delegation of tasks which fall within the definition of the conduct of litigation to non-authorised persons.

The Court of Appeal construed the "conduct of litigation" for the purposes of the Legal Services Act 2007 narrowly as the taking of formal steps in proceedings such as the issue and service of claims or applications.  Importantly, the Court of Appeal decided that the conduct of litigation can be delegated to non-authorised persons as long as the work is done under the "… proper direction, management supervision and control…" of an authorised person. 

It will be a matter for the SRA to decide if litigation conducted by a non-authorised person has been properly directed, managed, supervised and controlled. The SRA's own guidance on effective supervision is being updated following Mazur.  In the meantime, the Law Society has set out its own guidance which includes:

• Reviewing and updating firm policies and procedures concerned with litigation processes and who may carry out which tasks during litigation.
• Appointing an authorised person to be responsible for each matter
• Ensuring there is a clear record of the instructions from an authorised person to an unauthorised person including key decisions about formal steps in the proceedings.
• Ensuring work delegated to unauthorised persons is actively supervised.
• Ensuring work delegated to an unauthorised person is not delegated to any other person.

The good news for most firms is the Law Society guidance is consistent with best practice for the delivery of good client service and managing risk. As such, it may not require significant changes to existing practices.

Pension Schemes Act introduces a statutory fix for scheme alterations impacted by the Virgin Media case

The Pension Schemes Act has introduced a statutory remedy for pension scheme trustees to address historic pension scheme alterations impacted by the decision in Virgin Media Ltd v NTL Pension Trustees II Ltd & Ors [2024] EWCA Civ 843.  

In Virgin Media, the Court of Appeal held that a lack of written actuarial confirmation (as required by section 37 of the Pension Schemes Act 1993 for amendments impacting member benefits in contracted-out final salary pension schemes) would render an amendment void, regardless of whether such actuarial confirmation would have been granted at the time. Schemes can now resolve the uncertainty by obtaining retrospective actuarial confirmation in respect of past alterations impacted by the judgment (alterations lacking actuarial confirmation or evidence of the same).

This is positive news for solicitors that oversaw scheme alterations as the adviser as it reduces the prospect of professional negligence claims premised on an argument that the solicitor should have ensured actuarial confirmation was secured at the relevant time, where the result of a lack of an actuarial confirmation is a void amendment attracting the cost of additional benefits.

However, solicitors may be asked to pick up the costs associated with obtaining retrospective actuarial confirmation under the Act. In a recent blog we considered TPR's guidance for trustees making use of the statutory remedy and the regulator noted the potential need for legal advice to identify impacted deeds, whether they required actuarial confirmation and whether they can be remedied under the Act. There will be a cost of implementing and communicating the issues to members along with actuarial costs of exercises under the Act – but these costs should be substantively less than the costs of the potential increase in benefits arising from a void amendment.

On the whole the statutory fix is welcome news to pension lawyers.

Personal injury firms put on notice over inflating costs to justify the maximum 25% deduction from damages under conditional fee agreements (CFAs)

Personal injury firms have been warned that this course of conduct could trigger court scrutiny and, potentially, regulatory investigation. In Spicer v Greene King Brewing and Retailing Ltd [2026] EWCC 18, District Judge Lumb raised concerns about how some solicitors structure deductions and success fees in “no win, no fee” cases. In a postscript, he pointed to the SRA's warning notice issued in January and warned that so‑called “costs padding” will be clamped down on, with the “next step” potentially being an SRA investigation.

The case followed the settlement of a personal injury claim for £10,000. In comparison to the settlement sum, Express Solicitors (the claimant’s solicitors), presented a costs schedule asserting £13,316 of profit costs, with 73.1 hours recorded across 18 fee earners. A CFA and risk assessment applied a 100% success fee, leading the firm to seek the maximum £2,500 deduction (reflecting the 25% cap) plus £1,120 for ATE premium.

The judge ordered an assessment, expressing scepticism that such costs were reasonably incurred and described the 100% success fee as “obviously too high”. As part of the assessment, the litigation friend in the case read a statement that the judge concluded was prepared by the solicitors and not her own words. The litigation friend seemed not to understand what she had said. Similarly, a trainee solicitor had given witness evidence that was deemed not to be in their client's interest, but rather in the interest of persuading the judge to grant the maximum deduction. Ultimately, given admissions on liability and the minimal risk involved in the claim, the judge assessed prospects of success at 90%, reducing the success fee to 11% and discounting the ATE premium as unreasonable

The Court of Appeal has considered the extent to which breaches of SRA regulatory rules amount to professional misconduct

At the end of April, the Court of Appeal handed down its decision in Dentons UK and Middle East LLP v The Solicitors Regulation Authority [2026] EWCA Civ 508.

The decision arises out of disciplinary proceedings brought by the SRA against Dentons UK and Middle East LLP (the Firm) in respect of alleged breaches of regulation 14 of the Money Laundering Regulations 2007 (the MLRs). Regulation 14 concerns measures to investigate the source of client funds. The SDT heard the proceedings in 2024. The SRA argued that a breach of the MLRs amounted to a breach of Principle 7 of the SRA 2011 Principles and Outcome 7 of the SRA Code of Conduct 2011, both of which provide that a law firm must comply with its legal obligations. The SDT applied a test of whether the breach was sufficiently serious to amount to professional misconduct. It concluded that it was not and found that the breach had been inadvertent.

The SRA appealed the SDT decision to the High Court. Mrs Justice Lang held in 2025 that the SDT had erred when deciding whether professional misconduct had taken place, as it had wrongly applied a requirement of seriousness to the breach. Mrs Justice Lang found that the "seriousness test" should be applied only in circumstances where such a test was inherent in the underlying professional rules. She found that the test was not required within the ambit of Principle 7 of the SRA 2011 Principles and Outcome 7 of the SRA Code of Conduct 2011, and therefore any failure of a firm to comply with its legal obligations was a breach of SRA rules. She held that "there is no universal requirement that breaches of the Principles and the Outcomes can only be established where the requirements of seriousness, culpability and reprehensible conduct are met". She held that the findings of breach of anti-money laundering regulations were sufficient to establish professional misconduct.

The Firm appealed the decision to the Court of Appeal, who considered Mrs Justice Lang's ruling and rejected her “grammatical interpretation” of Principle 7 (and Outcome 7.5).  That interpretation could, in effect, give rise to strict liability, such that any breach of the MLRs or other legal obligations, however minor, would establish a breach of Principle 7/Outcome 7.5, without any evaluative serious threshold.  The Court found that such an approach would be inconsistent with the SRA's own rules on a seriousness threshold, and would represent a "very substantial departure" from the common law definition of misconduct of a solicitor. The Lord Justices held in the Court of Appeal judgment that “mere negligence was not enough; there had to be an element of seriousness calling for professional censure”.

This is an important clarification by the Court of Appeal and has significant consequences for the profession. The Lord Justices' finding of an "inherent requirement of seriousness in considering whether a solicitor’s conduct amounts to a breach of the SRA principles" will be welcome news for the profession. It also may discourage professional conduct proceedings for non-relevant breaches. The Court of Appeal itself observed that if Mrs Justice Lang's interpretation was allowed to stand, the SDT could face dealing with proceedings where breaches are clearly not matters of professional misconduct, such as workplace health and safety violations.

The case has been remitted to a freshly constituted SDT to consider whether, applying the Court of Appeal's seriousness test, the Firm breached Principle 7 and Outcome 7.5 and, if so, what sanction should follow.

NDAs will be invalid without legal advice, government proposes

The government’s latest consultation on non‑disclosure agreements (NDAs) signals a more interventionist approach to regulating workplace confidentiality clauses. In particular, it proposes that NDAs relating to harassment or discrimination would only be enforceable where the worker has received independent legal advice explaining the effect of the NDA and the statutory limits on what it can lawfully restrict. The consultation also canvasses additional safeguards, including mandatory cooling‑off periods, plain‑English drafting requirements, and clearer protected “speak‑up” carve‑outs allowing disclosures to lawyers, trade unions, medical professionals and support services.

For employers and employment practitioners, the proposals are notable for two reasons. First, they would narrow the substantive scope of NDAs in sensitive workplace disputes. Secondly, they would make enforceability contingent on procedural safeguards designed to address inequality of bargaining power. The direction of travel is clear: confidentiality clauses are increasingly being treated less as ordinary contractual protections and more as mechanisms requiring regulatory oversight where fundamental rights and public policy considerations are engaged.

The consultation also reflects growing scrutiny of the role of solicitors in drafting and negotiating confidentiality provisions. The SRA and the LSB, alongside campaign groups such as Can’t Buy My Silence, have highlighted the “chilling effect” that can arise from overly broad clauses, particularly in harassment and discrimination cases.

Taken together with recent developments (including amendments referenced in the Employment Rights Act 2025 and the Victims and Prisoners Act 2024), the proposals point towards a model in which NDAs remain available to protect legitimate commercial confidentiality but are increasingly vulnerable to challenge where they deter reporting, inhibit accountability, or restrict access to advice and support.

Promotions

We are delighted to announce promotions within our team. This is a recognition of the great work and fantastic effort they put in every day.

To partner: James Ainsworth, Tom Lloyd and Tom Wild.

To of Counsel: Jo Makin and Susan Periselneris.

With thanks to our additional contributors: Sally Lord, Aimee Talbot and Wai Chan.

If there are any issues on which you'd like more information (or if you have any questions or feedback), please do let us know or get in touch with your usual contact at RPC.

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