ACL chair says decision strengthens position of Costs Lawyers
The fall-out of last week’s High Court ruling on the right to conduct litigation continues to reverberate around the legal world, affecting costs specialists both in what it means for them professionally and in what it means for costs challenges.
In Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB), Mr Justice Sheldon held that, while unqualified employees of law firms could support a solicitor in conducting litigation, they could not conduct litigation under the supervision of a solicitor.
Sheldon J agreed with interventions from both the Law Society and Solicitors Regulation Authority that it would be a breach of the Legal Services Act 2007 if a non-authorised person employed by a law firm was the one responsible for a piece of litigation and exercised professional judgment in respect of it.
The Law Society argued that whether or not a person supporting or assisting a solicitor to conduct litigation was conducting litigation themselves was “a question of fact and degree”.
The consequences can be severe. Sheldon J observed that an employer, even if authorised to carry out a reserved legal activity, could commit a criminal offence if one of their employees carried on a reserved legal activity without being entitled to, and therefore committed an offence themselves.
The ruling should be read as applying to all authorised and non-authorised fee-earners, whether solicitors, Costs Lawyers or any of the other professions.
The ACL and Costs Lawyer Standards Board are both analysing what the ruling means for the profession. ACL chair David Bailey-Vella said: “Mazur clearly strengthens the position of Costs Lawyers – as we have independent rights to conduct litigation, the supervision question for our own work is moot. But Costs Lawyers supervising non-authorised staff need to ensure they are doing so properly.”
Equally, the decision raised questions about non-authorised managers of costs teams.
Mr Bailey-Vella said it risked pushing up the costs of litigation as well – because firms would need to ensure there is proper supervision of non-admitted staff – and predicted that it could lead to more costs challenges too: “A bill made up of grade D time will now inevitably raise questions about supervision and whether the fee-earner was improperly conducting litigation.”
Also at risk is consumer protection: “Shortfalls between fixed costs and actual costs will be greater as a consequence of this decision, thus reducing yet further a client’s recovery. Whilst protected by the cap on success fees, no such cap exists in terms of after-the-event insurance and shortfalls.”
CILEX has issued advice to members, stressing that the ruling “simply reinforces the existing guidance”, namely that a chartered legal executive who does not hold separate litigation practice rights is not authorised to conduct litigation.
To gain the right to conduct litigation, there are three routes available – by assessment, by portfolio, or by training and assessment, although those now qualifying via the CILEX Professional Qualification receiving practice rights as part of the process.
CILEX said it has approached its regulator, CILEx Regulation, for guidance on whether the ruling meant chartered legal executives without practice rights could not have litigation files in their own names.
Costs barrister Andrew Hogan wrote that “high-volume practices that let non-admitted case-handlers sign, issue and engage the court may have to re-engineer their workflows. An authorised solicitor must own and execute the reserved steps”.
He predicted the decision would lead to “satellite disputes about earlier pleadings issued or signed by the ‘wrong’ person”.
He explained: “The court in Mazur declined to strike out because the defects were now cured and strike-out would cause prejudice. But not every case will be so fortunate in timing or discretion. The risk is real.
“Indeed, one can see real tactical advantage to an opponent to litigation, if it is apparent from the pleadings, the precedent H, the correspondence that the litigation has been conducted by someone with no authority to conduct it.”
Finally, and “inevitably”, costs would be contested, Mr Hogan went on. “If a firm relied on an unauthorised person to conduct litigation, the opponent may resist paying for those acts. They will point to the illegality of what has been done, and point to the requirements of public policy, in disallowing such costs.
“Instead of the retainer being illegal or unenforceable in its formation, the performance of the retainer will be said to be tainted by illegality. On the other hand, this decision has the potential to dramatically increase costs, if delegation cannot be lawfully done.”
Steve Jones, who has just left Simpson Millar, where he was a partner and costs team leader, wrote on LinkedIn that, as an unqualified costs draftsman, he believed that drafting bills, points of dispute and replies were “still within scope, provided the solicitor reviews, signs and takes ultimate responsibility”.
He could continue to negotiate costs as this work was not reserved, so long as the solicitor has given authority.
As for hearings, he said: “Traditionally, costs draftsmen have been permitted to appear as agents of solicitors at assessments. Mazur reminds us that rights of audience are strictly reserved, and the boundary may come under greater scrutiny.
“I suspect courts will continue to make exceptions given the highly technical nature of costs disputes, but the risks are now higher.”
On supervision, he stressed that solicitors could not “simply rubber stamp work done by the costs draftsman. If the substance of litigation conduct lies with the draftsman, both the individual and firm risk falling foul of the Act”.
Mr Jones added that “clarity, responsibility and boundaries matter more than ever” – the line between supporting and conducting litigation “has never been sharper”.