Mackenzie: Mazur will mean a bigger role for costs lawyers
The Solicitors Regulation Authority (SRA) has broken its silence on the Mazur case to stress that it has not changed the existing legal position.
Meanwhile, a costs lawyer has spoken about how he used the decision to defend a bill in the Senior Courts Costs Office (SCCO).
We have been reporting extensively [1] over the last week about the fall-out from Mr Justice Sheldon’s decision that non-authorised employees of law firms can support a solicitor or other authorised person in conducting litigation – but cannot conduct litigation under their supervision.
The SRA said its existing guidance on effective supervision [2], published in November 2022, reflected this – although it was incorrect advice from on the issue from the SRA that was central to Mazur.
The regulator acknowledged that the boundary between conducting and supporting litigation would depend on the facts.
“Being engaged (whether as an employee or other contractor) by an authorised person who is permitted to conduct reserved activities does not automatically confer a right to conduct litigation on an employee or contractor who is not authorised. They are permitted to support litigation under appropriate supervision, not to conduct it.
“Our guidance addresses many aspects to consider when assessing appropriate supervision arrangements.
“The onus is on firms to satisfy themselves that they are complying with the LSA, and only authorised individuals are conducting litigation. We recommend you should be recording your decision-making around the approach you are taking.”
In separate news, William Mackenzie, who heads Mackenzie Costs, told Legal Futures how he had used Mazur at a hearing last week.
“When the other side argued a grade D should have done a task, I used Mazur to back up my argument that the work required a qualified fee-earner with conduct of the litigation and it would have been impractical to supervise some of this work; it would have created an additional layer of work – instructing the junior, checking and approving – that almost certainly would have been disputed.”
He added that, for the first time, the judge had asked him who he was regulated by: “I suspect that had I not been qualified, we might have had a problem and the hearing vacated or not able to proceed.”
Costs lawyers are authorised persons with independent rights to conduct litigation and advocacy, regulated by the Costs Lawyer Standards Board. The judge’s question indicates a greater awareness in the courts of the need for the right to conduct advocacy as well as litigation.
Mr Mackenzie said: “My view is the days of costs draftsmen just turning up at the SCCO are likely over, and that probably goes for the in-house draftsmen at law firms too – we will probably have a bit of a rush now for experienced costs professionals to get qualified.
“For years, draftsmen have worked under the solicitor’s umbrella, almost like a temporary employee for the day, which gave them the ability to appear. If I were an unqualified costs draftsman, I would certainly be looking to get qualified asap.”
Mr Mackenzie predicted that the case would mean “a bigger role for costs lawyers: firms will have to use properly regulated costs lawyers for any contentious work and hearings”.
It would also change how in-house teams operated. “Law firms are going to have to be really careful about what their unregulated staff are doing. Their role may have to be strictly supportive, not actually running the case. It could lead to more supervision, but that will add an unnecessary layer of costs which surely is avoidable – so firms won’t get paid for it.”
The ruling is also seen as a new ground for challenging costs. Mr Mackenzie agreed: “We’ll probably see paying parties getting savvy and challenging fees for any work done by people who weren’t authorised.”
We reported on Monday [3] that the Senior Costs Judge has already had the case cited before him as well.