The costs war has begun. That is what Andrew Hogan, one of the best-known costs barristers, pronounced last week in relation to the fallout from last month’s seismic ruling in Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB).
Paying parties have wasted no time in citing Mazur in their points of dispute. They are already arguing either for bills of costs to be struck out or for the costs claimed in them to be disallowed on a wholesale basis, because the litigation in question was conducted ‘illegally’ by fee-earners who lacked the appropriate qualification.
How long before it goes a step further and a new industry springs up, bringing Mazur-based claims on behalf of former clients? We only need to turn our minds back to the feeding frenzy over solicitors’ success fees, eventually snuffed out by the Court of Appeal’s 2022 ruling in Belsner, to see how willing the solicitors’ profession is to eat itself. Indeed, the Gazette reported earlier this week that one firm has already been criticised by other lawyers for appearing to exploit the Mazur uncertainty in a bid to drum up claims.
Before we get too carried away, however, it is worth remembering a few crucial points.
First, Mazur applies to the conduct of litigation but not to claims that settle without proceedings being issued, so a substantial chunk of work will remain unaffected. Indeed, an unqualified member of staff can negotiate and settle an unissued claim of many millions of pounds, since the giving of legal advice is not a reserved activity in itself. However, if that same individual issues proceedings in a small claim, they could be at risk of criminal prosecution.
Second, fixed costs cases will probably be out of range of the Mazur firing squad. Fixed costs are awarded whether the case is conducted by the firm’s senior partner or, as Hogan puts it, by ‘the office cat’; and irrespective of whether or not there is an enforceable conditional fee agreement. So if fixed costs cases are unaffected, that will be another significant limit on the effect of Mazur.
Third, it is by no means clear at this stage what attitude a judge will take in any particular case. For instance, where a claim form was issued by an unauthorised member of staff, will the judge disallow all the costs of the case? Or will they decide to disallow any fees relating to the issue of the claim form, but still allow other work that they do not regard as forming part of the conduct of proceedings (for example, work done in preparing witness statements or instructing experts)?
A final point is the small matter of evidence. Will paying parties, or former clients, have access to the evidence they need to show the litigation was conducted by an unauthorised member of staff?
Lawyers are understandably scrambling to make sense of Mazur and protect themselves from future disputes. With no real clarity over precisely what work can be safely performed by unauthorised staff, firms are bound to err on the side of caution. An obvious first step will be to ensure that all ‘formal’ parts of the claims process – issuing the claim form, signing key documents, perhaps even completing directions questionnaires – are seen to have been done by authorised individuals. The role of many highly competent people holding CILEX and other qualifications will inevitably diminish in the panic to avoid falling foul of Mazur, and the cost of legal services will rise for consumers as a result.
Last week, more than 1,000 viewers logged on to a free Mazur seminar run by costs barristers at Kings Chambers – as many as the chambers’ Zoom account limit would allow. It is clear that solicitors are moving swiftly to learn what processes they must put in place to avoid Mazur becoming a major disaster for the profession. There is no other choice.
Rachel Rothwell is editor of Gazette sister magazine Litigation Funding, the essential guide to finance and costs.
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