The recent Court of Appeal decision in Mazur has provided important clarification on the conduct of litigation, particularly in relation to delegation within law firms.

Following the judgment, the Law Society has issued guidance to assist firms in understanding how litigation tasks can be delegated while remaining compliant with regulatory requirements.

While much of the focus has been on regulatory compliance, the decision also has significant implications for legal costs, particularly in relation to recoverability, supervision, and hourly rates.

What is the conduct of litigation?

The conduct of litigation is a reserved legal activity under the Legal Services Act 2007.

Only an authorised person, such as a solicitor with a valid practising certificate, is authorised to pro conduct litigation. This includes key procedural steps such as providing legal advice, issuing proceedings, managing court filings, and progressing a case through the courts.

These steps have historically been viewed as having constituted the conduct of litigation and therefore required direct involvement from someone authorised to conduct litigation.

What did the Court of Appeal decide?

The Court of Appeal confirmed that while only an authorised person is entitled to conduct litigation, tasks forming part of that process can be carried out by unauthorised individuals.

However, this is subject to a critical condition; i.e. the authorised person must retain full responsibility for the work

This includes ensuring:

• Proper direction and supervision
• Ongoing management of the matter
• Compliance with professional obligations

The decision makes clear that delegation is permitted, but responsibility remains with the authorised person at all times.

The Law Society’s guidance following Mazur

In response, the Law Society has issued a practice note to help firms apply the judgment in practice.

The guidance emphasises the need for firms to clearly structure how litigation work is carried out. This includes ensuring that each matter is overseen by an authorised person who is appropriately qualified and experienced.

Firms are encouraged to document how work is delegated, how decisions are made, and how supervision is exercised. There is also a focus on ensuring that all staff involved in litigation understand their role within the wider process.

The main message is that delegation must be structured, controlled, and capable of being demonstrated.

Why this matters for legal costs

From a legal costs perspective, the decision has clear implications.

The way in which work is carried out, and by whom, is often scrutinised in inter partes costs disputes. Paying parties will frequently examine:

• Who carried out the work
• Whether it was appropriate for that level of fee earner
• Whether proper supervision was in place

Where delegation is unclear or poorly evidenced, it creates an opportunity for challenge.

This is particularly relevant at detailed assessment, where the court will consider not only whether work was reasonable, but whether it was carried out at the appropriate level.

How does this affect hourly rates?

The decision also has a direct impact on how hourly rates are justified in costs claims.

In practice, the level of fee earner undertaking the work is central to the rate that can be recovered. Where work is carried out by junior staff or individuals who are not authorised to conduct litigation, the expectation is that the rate charged reflects that level of experience.

However, firms may seek to justify higher rates on the basis that an authorised person has supervised the work and retains responsibility for it.

This is where the Mazur decision becomes particularly relevant.

If supervision is:

• Properly exercised
• Clearly documented
• Reflective of genuine involvement

then there may be scope to justify the role of more senior fee earners within the costs claim.

However, where supervision is minimal or not evidenced, paying parties are likely to argue that:

• The work should be valued at a lower rate
• The involvement of senior fee earners is overstated
• The hourly rate claimed is excessive

This is a common area of dispute and can have a significant impact on overall costs recovery.

The balance between delegation and efficiency

The decision reflects the reality of modern legal practice. Law firms rely on delegation to deliver legal services efficiently across a wide range of legal matters.

Junior team members, paralegals, and support staff play an important role in progressing cases. Delegation allows firms to manage workloads, control costs, and operate commercially.

However, the Mazur decision makes clear that efficiency must not come at the expense of compliance.

Firms must strike a balance between:

• Delegating work appropriately
• Maintaining proper supervision
• Ensuring that the authorised person remains actively involved

Where that balance is achieved, both compliance and cost efficiency can be maintained.

The risks in costs disputes

Where delegation and supervision are not clearly demonstrated, costs become vulnerable.

In disputes, paying parties may argue that:

• Work was not carried out by an appropriate level of fee earner
• Supervision was insufficient
• The costs claimed do not reflect the work actually undertaken

These arguments can lead to reductions at detailed assessment, particularly in high-value or complex matters.

The key issue is not simply who did the work, but whether the structure of the team and the role of the authorised person can be justified.

How ARC Costs can assist

At ARC Costs, we regularly advise on issues arising from the conduct of litigation, particularly where they impact costs recovery.

We assist law firms in ensuring that their costs claims accurately reflect how work was carried out, including the role of different fee earners and the level of supervision provided.

This includes advising on how to present claims in a way that supports the recovery of appropriate hourly rates, while addressing potential challenges from paying parties.

Where disputes arise, we provide support through negotiation and detailed assessment, ensuring that costs are properly justified and defensible.

To speak to a member of the team, feel free to give us a call on 01204 397302 or send an email to info@arccosts.co.uk.

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