Guest post by Greg Cox, CEO of Simpson Millar and part of the team that represented CILEX in the Court of Appeal
Cox: There has to be a better way
Lots of column inches will be written about the legal interpretation of the Mazur Court of Appeal decision (I will, most likely, write some myself).
In this piece, I wanted to pose two different questions:
- Should we have got here at all?
- If Mazur is a symptom, what does it mean for the underlying health of our civil justice system: the ‘finest legal system in the world’?
As someone who cares deeply about our system of civil justice, I will also seek to identify some medicine.
Recap: how did we get here?
The headline issue was: who has the right to conduct litigation?
This should have been a simple answer and a consistent one across all regulators/representative bodies. Instead, almost 20 years after the Legal Services Act 2007, we had:
- An unheralded High Court decision in September 2025;
- ‘Shock and awe’ across the professions: good for the legal press, less good for litigants, clients and those working in the sector.
- Most of the major regulators and representative bodies arguing their corner in a public in a public forum.
- Absurdly impractical positions taken (to the obvious frustration of the court).
- A whiff of vested interests.
- A history of contradictory and confusing ‘guidance’.
- CILEX having to go out on a limb to pursue an appeal as a non-party.
- No-one (with the exception of the Court of Appeal and Mrs Mazur/Mr Stuart) coming out of the case well.
What should have happened?
It was obvious (or ought to have been obvious), shortly after the High Court decision, that this was a big issue:
- There wasn’t a consistent simple answer to the question, ‘Who has the right to conduct litigation?’;
- The lack of clarity was likely to impact litigants/clients; and
- The lack of clarity materially impacted individuals who worked in the sector: people losing work and being at risk of having committed criminal offences.
I pose the rhetorical question: if CILEX (and the legal team supporting them) had not gone out on a limb to appeal as a non-party, where would we be?
If it wasn’t possible to work out a solution, then issues should have been narrowed to a few points of interpretation to be put in a considered manner either to the Court of Appeal for guidance or to government.
What should never have happened was a very public airing of differences in the Court of Appeal with all of the mainstream regulators and the Law Society taking positions which were rejected by the court (subject to any further appeal).
To be clear: this case was not run as seeking ‘guidance’ on interpretation of some (perhaps) inelegantly drafting statutory wording from 2007. It exposed deep fault lines.
Underlying health concerns?
In any complex system – and the legal system we work in is unduly complex – issues like this are going to crop up. There have been lots of examples over the years.
I would suggest that a healthy sector should be able to look issues like Mazur in the eye and have an established method (or methods) of resolving them quickly and effectively.
The fact that this was not possible here means, I suggest, that the sector has had a health scare. That scare is not related to the question of who can conduct litigation, important though that is.
The real health scare is, I suggest, that the sector itself could not resolve the issue for the benefit of those it serves.
Who does the sector serve?
Mazur was a complex case about detailed points of law. It is easy to lose sight of why the sector exists. I would suggest that it exists to serve:
- The rule of law and the proper administration of justice: not well served at all by the inability (until the Court of Appeal helped us) to answer the simple question of who can conduct litigation;
- The ultimate users of the system (clients and litigants in person): as Mr Stuart rightly said: litigants in person should be able to be clear about who is responsible for litigation. Public trust and confidence in the profession was impacted by the uncertainty in this case;
- Some of the most vulnerable in our society: the Law Centres Federation was put in a position where its members could not effectively function;
- Businesses that create value for the economy: both inside and outside the professions; and
- Those who work tirelessly to help clients: colleagues working across the sector should be able to come to work, focus on their clients, maybe earn a living and not be faced with potential criminal offences or, for some CILEX members and/or paralegals, losing work and being classed (entirely unfairly) as ‘second-class citizens’.
The custodians
One of the underlying health issues is that the legal services sector is governed by what is (currently) a complex patchwork quilt of custodians, none of whom are effectively able to look at the sector as a whole. This includes:
- The government/Ministry of Justice;
- The courts and judiciary;
- The regulators (including the regulator of regulators, the Legal Services Board);
- The representative bodies (Law Society, Bar Council, CILEX et al);
- The promulgators of procedural rules;
- The advisory bodies, such as the Civil Justice Council;
- The funders: the Legal Aid Agency, insurers, litigation funders;
- The service providers: law firms and those who invest in them, and the voluntary sector;
- The Legal Ombudsman; and
- The Financial Conduct Authority (for discrete issues soon to include anti-money laundering).
After 30 years as a solicitor, I know that each one of these bodies and the individuals engaged with them cares about the sector in their own way. I would, notwithstanding that, suggest that if we had a blank piece of paper, we wouldn’t start with the legal and regulatory framework described above.
I wanted to single out the service providers as, with the material erosion of legal aid (a different topic), a sector that is not ‘investable’ by lawyers, funders or investors cannot function.
But we got there in the end?
Before getting onto the medicine, I wanted to pay tribute to the Court of Appeal: for hearing the case in the first place; for cutting through the issues and for getting to a workable solution.
The court is, of course, only seized of the cases which come before it: I repeat the rhetorical question: if CILEX (and the legal team supporting them) had not gone out on a limb to appeal as a non-party, where would the system be?
My primary point is that Mazur should serve as an inflection point; all the stakeholders should reflect and find a forum to address the systemic questions posed by Mazur.
It would be wrong, I suggest, to breathe a collective sigh of relief (or sharpen pens in drafting an appeal to the Supreme Court) without reflecting on the system.
Just because we (in my opinion, and with the help of the Court of Appeal) got there in the end, shouldn’t mean we should be collectively happy. For my part, I believe the system I have worked in for 30 years is capable of much better than this.
What is the right medicine?
If it is accepted that there is an inflection point, I don’t profess to know all, or any of the answers but I am confident that the collective brains involved in the Mazur appeal on all sides can come together and help find solutions. So can the collective brains of those custodians not involved in Mazur.
For my part, in the shorter-term options might be:
If the courts are the vehicle of choice, there should be a ‘fast lane’ in the procedure rules to allow for ‘leapfrogging’ and interventions more easily (I believe one was created at the time of the Woolf reforms in 1999 but never used).
This would allow a party to seek a ‘declaratory’ determination. I appreciate that this is not without difficulties in an adversarial system.
If the court won’t always be the route, stakeholders need to find a better quicker and more effective forum. The Civil Justice Council played a more interventionist role during the costs war of the 2000s than it does now. The Legal Services Board (a topic for a different paper) may have a role to play.
In the medium term (hopefully not too far away), we need a new or updated Legal Services Act 2007 and Solicitors Act 1974. Reform of the costs provisions in the latter is in the pipeline but not the rest of it.
Looking forward
I do firmly believe that the civil justice sector has to solve the known issues and unknown issues ourselves.
We need to move quicker, more effectively and remember who we ultimately serve.
Where legislation is needed, clear, focused and ‘implementation ready’ recommendations to government are desirable.
It has proven difficult to ask for time from governments of whatever hue to dedicate to civil litigation when there are so many other priorities (and crime, then family, usually rank ahead of civil justice).
Finally, it seems to be obligatory to reference artificial intelligence. It is capable (for good or bad) of having a profound effect on the civil justice system and those it serves.
If it is accepted that Mazur was a health warning, the impact of AI, if not dealt with more effectively and quickly, will be much more serious.
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