Rowley: Question of evidence
The Senior Costs Judge has revealed that the Mazur case has already been cited before him and suggested that legal professional privilege could be a problem when dealing with the argument.
This month’s High Court decision [1] continues to cause considerable concern about business models, established ways of practising and how would-be lawyers obtain required experience.
Mr Justice Sheldon held that non-authorised employees of law firms can support a solicitor in conducting litigation but cannot conduct litigation themselves under the supervision of a solicitor.
Speaking at the Costs Law Reports conference in London, Senior Costs Judge Jason Rowley said it was going to be a question of evidence.
“If you are the person alleging something about the other side, clearly you’re going to have to have some evidence that will probably be on the court documents or something along those lines to point to…
“If you are the person being challenged, obviously you need to have rather more in the way of evidence. And it seems to me there’s quite the possibility that privilege is going to get in the way here in the same way that it does with wasted costs applications as to whether or not you can show documents that might otherwise be privileged.”
He said it reminded him of the pre-Legal Services Act case of Pearless De Rougemont & Co v Pilbrow [2] in 1999, where the Court of Appeal held that “a firm of solicitors which is asked for a solicitor and, without telling the client that the advisor is not a solicitor, provides an advisor who is not a solicitor should not be entitled to recover anything”.
Judge Rowley, who did not have to make a ruling on the point, said solicitors “have always” been held to a higher standard and he recalled how “we spent ages doing ethics and professional conduct” while at law school “and it stays with you”.
He continued: “If you haven’t had the benefit of it, maybe it doesn’t stay with you.”
The judge explained how his “ultimate test” was the document that damaged a client’s case. “Are you going to say you have to disclose this to the other side? You certainly should be doing that. I’m not sure that people will do that if they are conducting cases without the relevant training.”
The debate about the impact of Mazur continues to rage online.
Compliance consultancy Infolegal described the decision [3] as “a watershed moment for litigation practice in England and Wales”, saying it “requires a fundamental redesign of workflows, supervision models, and costs recording”.
It continued: The message for senior management is clear. Reserved activities must be conducted – demonstrably and defensibly – by authorised individuals.
“Support staff remain vital, but only in roles that stop short of conducting litigation. Firms that adapt swiftly will not only stay compliant but also protect their costs recovery, regulatory standing, and professional reputation.”
The plight of chartered legal executives has been of particular focus for many; though the CILEX Professional Qualification – which was introduced in 2021 – comes with the rights to conduct litigation and advocacy, chartered legal executives who came through under the old regime have to top up their qualification to gain them.
One Fellow, Sally Green, a senior associate in the catastrophic injury team of Midlands firm Higgs, wrote on LinkedIn that she found the decision “frustrating and insulting”.
She explained: “We are qualified lawyers. We are rigorously trained, examined, and tested in the practical skills needed to do our full jobs, from start to finish.
“I think that is what is most frustrating; the judgment doesn’t question our abilities or the quality of the work we deliver. Our competence has never been in doubt – Mazur is not about that…
“But amongst all of this negativity, it’s been a reminder that true values are revealed under pressure. I’m fortunate to work for an employer who has never made me feel ‘less than’ anyone else and continues to support its employees whilst we muddle through the uncertainty together.”
In a statement, her regulator, CILEx Regulation, said the decision was consistent with its “longstanding stance”.
It said it was readying guidance for chartered legal executives on the conduct of litigation and supervision and would soon submit an application to the Legal Services Board so that chartered legal executives could apply for standalone litigation rights – at the moment, they come together with advocacy rights.
CILEX, which issued guidance [4] last week, said in a statement that it had pressed CILEx Regulation for “urgent clarification and further guidance, which we are told is imminent”.
It added: “This matter extends beyond CILEX and affects the wider legal profession. We will therefore be advocating for an urgent, coordinated response across all professional bodies and regulators to ensure consistency.”
Jamie Magill, owner of North London firm JCLM Solicitors, argued on LinkedIn that some of the claims about the ruling were overblown.
“It’s perfectly acceptable for juniors, paralegals, legal assistants, trainees to help prepare a draft claim form and particulars of claim or counterclaim or defence (it happens all the time) but the review, approval & signing of that document (the actual conducting of litigation piece) must be done by a solicitor or such other person authorised under the Legal Services Act 2007.
“It’s pretty straightforward really and works as above in the real world.
“To think there might be much more unnecessary and expensive satellite litigation around what is essentially a non-point is a little frustrating and certainly not good optics for the profession.”
Ben Dougal, head of legal practice at specialist debt recovery firm TM Legal, questioned the impact too.
“Leaving aside the entirely unacceptable position this judgment has left those with CILEX qualifications, does the judgment really change anything for paralegals or trainee solicitors?” he wrote on LinkedIn.
“Has supervision not always ensured that ‘a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree… does not conduct litigation because it is the solicitor who exercises the final professional judgement… and takes responsibility for that judgment’ [as stated in the ruling]?
“Sure, claimant and defendant firms have long since relied upon banks of paralegals – our rules and successive edicts demand as such – but are they really solely conducting the litigation themselves, or are they utilising templates drafted and approved by an authorised person, getting supervisor sign-off for all court documents and following a set, and often very tightly prescribed, strategy?”
Luke Newton, who is set to qualify as a chartered legal executive in six months’ time and works at Barnsley firm MKB Solicitors, argued on LinkedIn that clients benefitted from “cost-effective, high-quality work carried out by paralegals under appropriate supervision. To impose further restrictions risks stifling access to justice and hampering the efficiency of litigation teams”.
He added: “As a profession we must grapple with how to balance regulation with the reality of modern legal practice. Supervision is undoubtedly necessary, but it must not come at the cost of paralysing the contributions of skilled professionals who have proved their worth time and time again.
“The Mazur judgment should spark a wider discussion about how we define, regulate, and value the work of paralegals in the future of the legal sector.”