Mazur v Charles Russell Speechlys – Wrongly decided? – Part 3

With the latest news being that CILEX has applied for permission to appeal to the Court of Appeal in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB), it is worth continuing to explore the arguments that might be advanced as to why Mazur was wrong.

One of the first to question the correctness of the decision was Ben Williams KC. Anything he has to say about anything is worth paying attention to. The first comment I have seen was posted on Twitter shortly after the judgment was handed down:

“I am a long way from getting to the bottom of this, but it seems odd that there is no reference to the apparent saving provision in paragraph 4(2) of Schedule 2’s definition of ‘the conduct of litigation’.”

Paragraph 4 of the Legal Services Act 2007 states:

“(1) The “conduct of litigation” means—

• • the issuing of proceedings before any court in England and Wales,
  • the commencement, prosecution and defence of such proceedings, and
  • the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

(2) But the “conduct of litigation” does not include any activity within paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court or in relation to any particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity.”

The point here is that if unauthorised employees of solicitors were permitted to conduct litigation before the Legal Services Act 2007 came into force, then paragraph 4(2) preserves that right. Mazur focused on paragraph 4(1) and completely ignored paragraph 4(2).

Ben Williams KC posted a more detailed discussion of Mazur in a comment to one of the earlier posts on this blog and it is worth repeating for those who missed it:

“The legal profession has a short memory. I suppose the typical career is about 30 years long, but a lot of people will drift from one area of practice to another, so even an old-timer may well only have 10 or 20 years of memory of a particular practice area. This may mean that even once famous cases, household names to lawyers in a specific field, can be forgotten within a couple of decades.

One such is Hollins v Russell. Once cited dozens of times a day, it became largely historical with the LASPO reforms of 2013. The second half of the judgment, which deals with the Accident Group, was largely forgotten even before that. TAG went into administration in 2003, and I suppose its run-off cases were done by 2007. Who has looked at the second part of Hollins v Russell since then?

People should look at it now. Paragraphs 155 onwards contain a lengthy discussion, in a historical context, of solicitors’ entitlement to delegate their work to supervised but unadmitted staff. The court was quite clear in finding that the Courts and Legal Services Act 1990 was not intended to interfere with this. The question now is: was the Legal Services Act 2007 nonetheless intended to? If it was, that intention found no mention in any of the reports or consultations that led to it; nor in its White Paper, nor in its notes, nor in Parliamentary statements. The Act itself was intended to liberalise the legal services market, not to constrict it.

None of this was considered in Mazur. It should have been. The decision might be right; might be wrong (I think the latter). Whichever it is, it is surely not the last word.”