The Recoverability of Inter-Fee Earner Discussions

Summary: The decision in Mazur has had a wide-ranging impact on the legal landscape, and made it critical that a regulated individual with rights to conduct litigation is in control of decision making in any legal claim.  With this in mind, Mazur reasserts the necessity of having Solicitor oversight of any delegated tasks to junior or unregulated fee earners, and only re-enforces the requirement for supervision of such tasks to be undertaken, and in turn the costs of doing so, often taken the form of “inter-fee earner discussions” or “case management discussions”.

What are Inter Fee Earner Discussions?

The recoverability of inter-fee earner discussions has long been a point of contention in legal costs, particularly on scrutinisation of such work in detailed assessments. When preparing a bill of costs, it is common to see paying parties challenge time spent by multiple fee earners discussing or conferring about the same matter.

Inter fee earner discussions, as they are most often referred to, are the costs of a senior file handler delegating a task to a more junior file handler or team, and engaging in discussions (whether in-person or in written form) as to how the said delegated task should be completed.

Traditionally, Courts have been cautious about allowing such costs, and Paying Parties more often than not challenge them, with the view taken/submitted that such costs form part of a firm’s internal management and overhead/administrative/training costs, rather than work properly chargeable to the opposing party.  Indeed, traditionally hourly rates have been calculated on an A & B factor basis, with the former relating to the overhead costs of running a law firm in a certain geographical area, and the B factor reflecting a profit uplift.  This is the reason that geographical guideline rates apply, with the main differences applying for London and Non-London based law firms.

However, recent developments, including the reasoning given in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) and previous guidance in TUI UK Ltd v Tickell & Others [2016] EWHC 2741 (QB), suggest that the position may be evolving, particularly where such time reflects the necessary supervision of tasks delegated by the Solicitor conducting litigation.

The Traditional Approach: R v Sandu and Re Radcliffe

The leading early authorities, R v Sandu [1984] Costs LR (Core) 451 and Re Radcliffe [2004] EWHC 90039 (Costs), established the long-standing principle that inter-fee earner discussions were generally not recoverable. In Sandu, the court held that internal discussions between fee earners, including solicitors, legal executives, and other staff, were considered part of a firm’s internal management structure rather than work done for the benefit of the client.

In Re Radcliffe, the court reaffirmed this approach, observing that routine time spent by junior fee earners discussing a file with their supervisor or other colleagues was not usually something the paying party should fund. Supervising solicitors, including partners, were expected to manage and delegate work within their teams efficiently, and the costs of doing so were deemed part of the firm’s overheads rather than a recoverable cost.

Both decisions created a clear boundary between necessary case preparation and internal administration, often resulting in the disallowance of substantial items on the grounds of duplication or inefficiency.

Greater Flexibility to Inter- Fee Earner Discussions Recoverability

The decision in TUI UK Ltd v Tickell & Others [2016] EWHC 2741 (QB) brought greater flexibility to this issue. Master Gordon-Saker recognised that in complex litigation, inter-fee earner work may be reasonable and necessary, especially where the matter involves multiple parties, significant disclosure, or strategic discussions requiring input from different grade fee earners.

Certainly it has been the writer’s experience from discussions with the ARC Costs team, that at the SCCO in large-scale commercial disputes where a team of fee earners have been involved, the costs of agreeing strategy and determining the way forward in regular inter-fee earner discussions has been considered recoverable.

In TUI in particular, the Court acknowledged that collaboration between fee earners specifically supervising solicitors and junior fee earners could, in fact, reduce costs overall by ensuring the right person carries out each task at the appropriate hourly rate. The key was whether the time spent added value to the conduct of the case and was proportionate to its complexity.

Accordingly, Master Gordon-Saker accepted that internal discussions could, in certain cases, be recoverable where it was shown that the senior fee earner was specifically ensuring compliance with procedural obligations, rather than merely managing staff.

What was the Decision Made in Mazur?

It would not be unreasonable to state the decision in Mazur has caused widespread concerns.  Whilst the decision did not necessarily state anything new with regards to wording of legislation, it went against a widely understood interpretation of the Legal Services Act 2007 (and the guidance of many regulators), that an employee of a regulated law firm could not “conduct litigation” despite being under the supervision of a Solicitor, unless they themselves were a qualified Solicitor.

This has understandably caused confusion and ambiguity in the legal sector, particularly for the CILEX profession who are widely regulated already, and its members had understood to date that they were able to conduct litigation so long as they were under the supervision of a Solicitor.  It also causes difficulties for the operating structures of many law firms, who when faced with a widening scope of fixed costs applying to their recoverable fees, have looked to delegate more and more to junior unqualified file handlers that may now be construed to be “conducting litigation”.

Unfortunately, Mazur has not provided any practical guidance as to what constitutes the “conduct of litigation”, and it’s impact is expected (and it is already taking place) to play out in the Courts over the ensuing months until some authoritative judicial guidance is given on the issue, most likely as a result of an appeal taking place in the High Court or Court of Appeal.

Within the judgment, some helpful guidance was provided by the Law Society and SRA, though whether this stands up to judicial scrutiny in due course is another question entirely, particularly given that it was found that incorrect guidance had been provided previously:

• “The Law Society submitted that whether or not a person supporting or assisting a solicitor to conduct litigation is conducting litigation themselves is a question of fact and degree. Indicators may include the way that important decisions in the case are taken; who drafts or specifically approves formal documents; the degree of direction from the authorised person; evidence as to who is taking specific responsibility for formal steps or, in general terms, who is conducting the case.”
• “The SRA stated that the key question to ask was whether the person has assumed responsibility for the conduct of the litigation and exercises professional judgment in respect of it. The SRA submitted that a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses, or similar functions does not conduct litigation because it is the solicitor who exercises the final professional judgement about how the litigation is to be conducted and takes responsibility for that judgement.” 

In summary, a non-qualified individual (or a person without the relevant authorisation) cannot “conduct litigation” even under supervision.  However, the definition of what individual is conducting litigation will fall to be assessed on a case-by-case basis, and will turn on the general conclusion as to who is controlling the decisions in the litigation process.  It is important to note that in Mazur itself, the relevant unqualified individual about whom concerns were raised had been signing pleadings and making all the key decisions in the litigation, and was a Head of Department. 

Unfortunately the guidance is not definitive, with no specific bar given as to what does and does not constitute the conduct of litigation.  As such, legal teams will be need to be mindful that they ensure overarching control and decision making of litigation processes by a Solicitor, with clear delegation and checking records as to when a non-Solicitor individual is assisting on a case.

The Mazur Decision: Renewed Focus on Who Conducts Litigation

If Solicitors are professionally and legally responsible for the overall conduct of litigation, then regular discussions between fee earners, particularly the conducting Solicitors and junior fee earners, are arguably a necessary and proportionate feature of modern case management.

Denying recovery for such work risks placing Solicitors in a position where they must either breach their duty of conducting litigation or absorb costs that arise directly from fulfilling that duty.

From a practical standpoint, conducting Solicitors must review, delegate, and oversee fee earner work, particularly in firms employing Legal Executives, Trainee Solicitors or Paralegals. This work is integral to ensuring compliance with professional obligations and maintaining quality standards.  Previously referred to as “supervision”, “duplication” or “administrative” by Paying Parties, this work has actually transpired to be a mandatory requirement of conducting litigation.

With Paying Parties likely continuing to argue that “X work could have been delegated to a more junior file handler”, it follows that a Receiving Party can now reasonably rebut this assertion by stating that Mazur requires them to conduct the litigation and oversee any work undertaken by assisting staff.  It is likely not to take long for Paying Parties to highlight that matters could reasonably have been delegated to a Grade C, this being the default status of a newly qualified Solicitor.

One must question the potential fall out of the Mazur decision, and whilst perhaps not the first question that many ask, will it lead to significant increases in legal costs and reduce access to justice, given the inevitable increase in the cost of running a legal action, contrary to the overriding objective?

Recoverability and Reasonableness

In light of Mazur and TUI UK Ltd v Tickell, costs judges may adopt a more balanced and fact-specific approach. The bill of costs should clearly explain the necessity of internal communication and delegation, identifying which grade fee earners were involved and why the discussions were required.

For instance, time spent between a senior fee earner and a junior fee earner to discuss case strategy, procedural compliance, or client advice could be recoverable, provided it is proportionate and efficiently managed. However, repetitive or vaguely described items such as “team meeting” or “internal conference” without explanation remain vulnerable to challenge by paying parties.

Where recoverability is claimed, detailed file notes, descriptions, and contextual justification showing how the discussion advanced the case will be crucial. The court will also look at hourly rates, ensuring that higher-graded fee earners are not charging for work that could have been undertaken by a lower grade at a lower rate.  Mazur is not a free-pass for Grade A Solicitors to charge on every case, and this is likely to be part of the arguments settled in the fallout of Mazur in subsequent months/years.

How can ARC Costs Assist with Disputes on Inter Fee Earner Discussions and Issues as to Mazur?

Whether you are a receiving or paying party, the experienced costs team at ARC Costs can help you with any legal costs dispute. We are independent and have a balanced experience of acting for/against legal costs claims.

We regularly assist with preparing costs budgets, bills of costs and we can further assist in negotiations via budget discussion reports, points of dispute and replies to points of dispute. Our costs lawyers also represent parties at costs hearings when required.

If you would like more information on any of our services or wish to speak to a member of our expert costs team about your legal costs, then please do not hesitate to contact us. With regards to any potential challenge as to Mazur, don’t hesitate to ask for one of our regulated Costs Lawyers to assist, and please call one of our independent experts at 01204 397302, or email one of our costs experts direct on info@arccosts.co.uk.

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