In depth: CILEX bids to erase the memory of Mazur

Ever since the Mazur judgment in September, one question has dominated the aftermath: could it be appealed? While regulators must abide by the ruling (if not necessarily welcoming its consequences) and legislators observe that the Legal Services Act cannot be amended any time soon, overturning the original decision emerged as a potential quick-fix – a Men In Black-style memory eraser to forget that any of this ever happened.

But who would mount a challenge? The parties were unlikely to seek a rematch over a relatively small sum, and the Law Society and Solicitors Regulation Authority, which both intervened in the High Court, had little to gain from a further intervention. 

Step forward the Chartered Institute of Legal Executives, which this week applied for permission to challenge Mazur. After so many of its members were threatened with sidelining or even dismissal as they could no longer conduct litigation, it had little option.

Although not a party to the original case, CILEX will ask the court to exercise its discretion to allow an appeal by a person negatively affected by an outcome. It will argue that courts have been hamstrung while judges establish the authority of litigation lawyers, and satellite litigation is already popping up. Chief executive Jennifer Coupland said: ‘CILEX was not invited to be heard as part of the original proceedings, but we would like to be heard now. We believe that the issues, uncertainties and real-world impacts triggered by the judgment need to be fully ventilated through this appeal process.’

The application has garnered widespread support from members and the wider profession. Phillip Coburn, a consultant with Taylor Rose who took the legal executive route into law, said: ‘Some of the best lawyers I’ve been trained by have been so-called “non-qualified”, and much case law has been instigated and driven by persons who apparently never had any right to bring those cases. If Mazur is “right”, then many leading authorities are “wrong”. Hopefully, common sense prevails.’

'There’s a lot of discussion right now about regulatory compliance, risk and firm processes – but far less about the people behind those conversations'

Kimberley Emmett, Marsden Rawsthorn

The appeal would face difficulties, not least whether it is already out of time. The court may also ask what exactly was wrong with Mr Justice Sheldon’s ruling, based as it was on the precise wording of the Legal Services Act. Michael Stacey, a partner with Russell-Cooke LLP who acted for the Law Society as intervenor in Mazur, wrote that the decision had been ‘entirely unsurprising’ and consistent with previous authority.

The government is highly unlikely to make reform of the LSA a priority, even if justice minister Sarah Sackman struck a sympathetic note when she spoke at the CILEX conference last week. ‘I take the issue incredibly seriously,’ she said. ‘We’ll do all that we can to move past it so that you can continue to thrive.’ 

In the absence of action, the best advice for paralegals or legal executives still appears to be to apply for higher practising rights. But applicants are already reporting being met with silence from regulators or facing delays caused by the inevitable logjam of submissions.

Meanwhile, a Law Society practice note update published this week showed few signs of a softening towards Mazur or that the decision was considered wrong. The note gives examples of where unauthorised staff can work on elements of litigation – such as drafting pleadings – but adds: ‘If you are involved in a case and are concerned that an unauthorised person in your organisation has conducted litigation on it, you will need to consider your duties as an officer of the court and what, if any, steps you need to take to rectify the position.’

In the meantime, the human impact of Mazur continues to be felt in firms across England and Wales.

Kimberley Emmett, a senior paralegal from Preston firm Marsden Rawsthorn with 18 years’ experience in family law, wrote on LinkedIn this week that the past few weeks have knocked people’s confidence and diminished the status of those who worked hard to get into the profession. ‘There’s a lot of discussion right now about regulatory compliance, risk and firm processes – but far less about the people behind those conversations,’ said Emmett. These are ‘experienced legal professionals who have dedicated careers to supporting families, resolving conflict, and keeping cases moving with care and competence.

‘My hope is that this moment pushes the profession to recognise the value and expertise of non-qualified but highly capable legal professionals, and to create clearer, fairer pathways that reflect the reality of the work we do.’