The recent decision in Mazur has highlighted the importance of distinguishing between fee earners who are authorised, those who are regulated, and those who are qualified. The balance of this blog – by Ben Hodgson, Advocate at Your Legal Costs – is premised on the fact that Mazur is a High Court authority and is, until and unless overturned at appeal, binding on lower Courts. I am aware there is a tremendous amount of interest in the question of whether Mazur will be appealed and will follow any news regarding the same with rapt interest.

Prior to Mazur, it was commonly assumed that employees of solicitors who fall under the SRA’s regulatory regime, by virtue of Section 21(3)(b) of the Legal Services Act 2007, were automatically authorised to conduct litigation under the supervision of their employer. In other words, it was assumed that regulated meant authorised. Mazur has clarified that this is not the case: individuals can be subject to the SRA’s regulatory regime without being authorised to conduct litigation. Regulated is not the same as authorised.

Similarly, Fellows of the Chartered Institute of Legal Executives (FCILEX) hold a professional qualification that, for assessment of costs, allows their work to be treated similarly to a solicitor with equivalent post-qualification experience. However, following Mazur, CILEX has advised its members that, without an additional advocacy qualification, they are not authorised to conduct litigation. Qualified is not the same as authorised.

It has long been recognised, for example in Paturel v Marble Arch Services Ltd [2006] 4 Costs LR 556 and reflected in the Guide to Summary Assessment, that unqualified fee earners with equivalent experience to a newly qualified solicitor or FCILEX can command a Grade C or higher rate. Mazur does not change this principle. However, work performed by such fee earners must not include tasks that constitute the conduct of litigation, the exact boundaries of which are likely to be clarified through further litigation. Experienced is, of course, not the same as authorised.

In practice, a team of fee earners may therefore include:

Fee earners who are qualified and authorised (for example, a solicitor)
Fee earners who are qualified but not authorised (for example, a Fellow of CILEX)
Fee earners who are neither qualified nor authorised but are experienced enough to command a Grade C rate (for example, a non-qualified fee earner with 10 years of litigation experience)
Fee earners who are neither qualified, authorised, nor experienced, who are properly considered Grade D

All such fee earners, as employees of a firm of solicitors, would remain under the SRA’s regulatory authority and therefore be regulated, whether or not they are also authorised, qualified or experienced.

Solicitor’s firms will need to be aware of these crucial distinctions when managing the composition of teams of fee earners. Costs lawyers and costs draftsmen will need to be aware of these distinctions when presenting, challenging or defending Bills of Costs.

If you’d like to discuss what Mazur means for your firm’s costs management or litigation strategy, please get in touch with the Your Legal Costs team via E: management@yourlegalcosts.co.uk or T: 0151 449 0005.