Mazur v Charles Russell Speechlys – what does this mean for costs draftsmen?

What does Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) mean for unauthorised costs draftsmen? I would suggest very little.

(Separately, authorised Costs Lawyers have the right to conduct litigation (so far as it relates to costs matters).)

Steps such as drafting Bills of Costs, Points of Dispute, Replies and Costs Budgets alone might, arguably, not amount to the “conduct of litigation” and would therefore not be treated as reserved legal activities (although such steps might help a court form the view that the overall package of services being provided does amount to conduct of the litigation). Mazur held that unauthorised individuals cannot conduct litigation even if supervised by an authorised individual. However, Mazur recognised that unauthorised individuals are entitled to assist an authorised person in the conduct of litigation under their supervision.

As such, there should be no problem with an authorised person (e.g. a solicitor) who retains overall conduct of the matter instructing an unauthorised costs draftsman to undertake specific tasks such as drafting costs pleadings, subject to such work being supervised.

The important consideration, as with all things related to the conduct of litigation, is that there is an authorised person with overall control of the case. Where the instructions come from a solicitor (or a Chartered Legal Executive with their own right to conduct litigation), this should not be a problem. Difficulties will emerge if the solicitors hand control of the costs litigation to an unauthorised costs draftsman and thereby relinquish control of the matter. At that point, it would then be the unauthorised costs draftsman conducting the litigation, which is not permitted. Similar caution is needed at the end of substantive litigation where some fee earners then delegate the job of instructing a costs draftsman to deal with costs recovery (or disputing costs). If the job is delegated to, for example, a trainee solicitor or paralegal, with the original fee earner then dropping out of the picture, this would create the situation of an unauthorised individual instructing another unauthorised individual, which is, again, not permitted.

To ensure there can be no question over who has conduct of the costs litigation, it is essential that the relevant documents are properly checked and approved by the authorised fee earner.

There is certainly no doubt that issuing Part 8 costs-only proceedings or commencing detailed assessment proceedings by serving a Notice of Commencement would amount to the conduct of litigation.

It should always be the case that key steps such as the service or filing of documents is undertaken by the authorised fee earner with conduct, not an unauthorised costs draftsman. This should always have been the case. As a reminder, the Cost Lawyer Standards Board does not regulate entities, only individual Costs Lawyers. A costs firm (where not a firm of solicitors), even if made up entirely of Costs Lawyers, cannot undertake steps in costs proceedings such as serving Points of Dispute. Only an individual authorised Costs Lawyer can do this. Even where a costs firm is a regulated firm of solicitors, Mazur makes it clear that there still needs to be an authorised individual with conduct of the claim who is making the decisions about key steps in the costs litigation.

Unauthorised costs draftsmen cannot have their own case load where there is not an authorised fee earner making the decisions. The exception to this is in relation to pre-issue work. As looked at in a previous post, no step taken prior to the issue or commencement of proceedings can amount to the conduct of litigation. Therefore, unauthorised costs draftsmen can have their own case load dealing with (pre-issue) portal claims or costs in cases that settled pre-issue. However, that ends once it becomes necessary to issue costs-only proceedings.

What is absolutely clear, and should always have been the case, is that a firm of solicitors at the conclusion of a case cannot simply outsource costs recovery/disputes to unauthorised costs draftsmen and wash their hands of the matter until the costs are resolved.

Advising on costs matters, even if litigated, falls outside the meaning of the conduct of litigation (see paragraph 56 of Agassi v HM Inspector of Taxes [2005] EWCA Civ 1507). It also seems unlikely that the act of trying to negotiate settlement of costs, even if a litigated matter, would amount to the conduct of litigation.

What about advocacy? The position is unaltered from what it has always been. As examined in more detail in an earlier post, Schedule 3 of the Legal Services Act 2007 allows unauthorised fee earners to attend hearings in chambers where that fee earner is assisting in the conduct of litigation and is instructed by and acting under the supervision of an authorised individual. Detailed assessment hearings and costs management hearings are heard in chambers. There is no problem in principle instructing an unauthorised costs draftsman to attend a detailed assessment hearing.

Legal Futures recently quoted a Costs Lawyer commenting on the implications of Mazur:

“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.

[There will be] a bigger role for costs lawyers: firms will have to use properly regulated costs lawyers for any contentious work and hearings.”

This analysis is, in my view, wrong.

For the reasons given above, there is no reason to suppose that unauthorised costs draftsmen, whether in-house or external, cannot continue to draft costs pleadings, advise and negotiate (subject to the qualifications mentioned earlier).

So far as advocacy is concerned, Mazur has nothing to say of this point. The above comments entirely overlook Schedule 3 of the LSA. It was never (at least in recent decades) the case that costs draftsmen appeared at detailed assessment because they were treated as temporary employees. They were previously permitted to attend under section 27 of the Court and Legal Services Act 1990 under the exemption for hearings in chambers and that exemption has been expressly preserved by the LSA. (To the extent to which the Senior Courts Costs Office Guide continues to refer to the myth of independent costs draftsmen being treated as being in the employ of the solicitors, it is wrong, although this simply highlights the level of confusion surrounding the LSA.)