This article isn’t entirely about Chartered Institute of Legal Executive (CILEX) & Ors v Mazur & Ors [2026] EWCA Civ 369, it’s more about what people in the legal industry should do following the Court of Appeal decision.
I’ve seen some commentary about how it has gone back to ‘as it was’ and others saying it has not, or at least not in the same way that some have suggested. I have seen CILEX Fellows saying that they are considering whether to abandon their pursut of litigation rights and I think realistically, it would be sensible to speak about the practical realities.
I shouldn’t assume, but if you’re reading this and unaware, before I became a Barrister, I was a CILEX Higher Rights Advocate and Litigator in Civil Proceedings (technically, I still am, thanks to a waiver from the BSB). I’ve been through the process myself, so I speak from experience.
What has the Court of Appeal decision of Mazur actually done?
Prior to Mazur, the main position (at least imposed by Sheldon J’s decision) was that unauthorised individuals could provide assistance but were not permitted to conduct or carry out litigation, even with supervision. Going against what the legal industry had taken to be an acceptable practice for decades. As I said in a recent post on Linkedin, it was very likely that most if not all authorised individuals had been in breach of Legal Services Act 2007 when following Sheldon J’s interpretation.
This meant that unauthorised fee earners, from paralegals to CILEX Fellows (who did not have practice rights) were left in a position where they were limited in how they could carry out work, especially when there was significant ambiguity as to what was deemed to be ‘assisting’ litigation and what was ‘conducting’ or ‘carrying out’ litigation.
Hence the scramble for so many CILEX Fellows to acquire the right to conduct litigation, something that was simply not availble to those who were not a Fellow of CILEX.
The Court of Appeal clarified the issue. The main question is not whether an unauthorised individual performs tasks related to litigation. It is about who, legally, is responsible for those activities. The authorised individual is the person who is conducting the litigation. The unauthorised individual can undertake tasks, even if they amount to conducting litigation, but ultimately they do so on behalf of and under the supervision of the authorised individual.
I think this is best expressed at paragraph 187:-
vii) The judge was wrong to distinguish between (a) supporting or assisting an authorised solicitor in conducting litigation, and (b) conducting litigation under the supervision of an authorised solicitor. Both activities are lawful in the circumstances I have explained. It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.
[emphasis added]
In my view, given how many have conducted litigation as fee earners, with the conduct of the matter supervised, I think the Court of Appeal’s decision will most certainly (from a materially regulatory perspective) imply that when an unauthorised individual conducts litigation, they do so without autonomy. After all, if the authorised individual is the person who takes the responsibility and liability if something goes wrong, they have every right to dictate everything that happens.
For many, this wouldn’t be a problem. They would simply be very happy to continue their work on the High Court decision. For many, regulatory red tape is just something they have to accept.
There is still a juxtaposition. A CILEX Fellow can be a partner of a law firm, without the right to conduct litigation, but they do not have the right to run a case as if it is their own, they have to do so on behalf of a regulated individual.
So why is obtaining practice right still important?
I still believe that CILEX Fellows should acquire their practice rights.
Previously, those who did not pursue practice rights before the High Court decision in Mazur chose not to do so, understandably because they had no need. It wasn’t as if they planned to start their own law firm or run a department without anyone above them to oversee.
The position has shifted somewhat following the Court of Appeal’s clarification. While most issues have been resolved, including arguments about costs incurred by unauthorised individuals, a CILEX Fellow will still be cautious, wondering if they are truly compliant with regulations. The SRA clarified that anyone who might have breached the Legal Services Act 2007 would have a valid defence against a s14 allegation. During the hearing, the Court of Appeal emphasised that once their decision was issued, everyone involved needed to carefully review it to ensure they were in compliance.
Therefore, having the right to conduct litigation would remove that uncertainty or stress. It comes with additional security in their employment and future career prospects.
I know many were insulted by the fact that they were expected to undertake an example or prepare a portfolio when they had been doing the job, sometimes even decades. That’s an understandable frustration. However, that is a regulatory complaince that the delegated regulator approved everyone by the same standard. It cannot simply be a rub stamp process, otherwise it would completely undermine the entire purpose of regulation and standing of an authorised person.
Although steps have been taken to make the process more streamlined and easier to complete, it ultimately depends on the concessions granted by the LSB, who control the process for authorisation.
What about non-CILEX Fellows fee earners?
It is not straightforward for those who have been in the industry for some time, doing the job exceptionally well, but have not acquired any formal legal qualifications, such as CILEX Fellows. Whilst the process has been incredibly demanding, stressful and at times demeaning to CILEX Fellows, at the very least they had an Ave that they could utilise to get practice rights.
Fortunately, the legal industry does have a relatively broad range of regulated lawyers all with various qualification process is and, more importantly specialism in certain areas.
For example, someone who has been working in the costs industry would be better suited to qualify as a cost lawyer rather than a CILEX lawyer or Solicitor. Someone who is working in trade mark disputes might be better suited qualifying through the trademark attorney regime.
I previously wrote an article titled “It’s ok Legal Cheek, I’ve got this“, which discusses all types of regulated lawyers, their rights available to them and the broad qualification process. This provides greater flexibility in choosing a path that is better suited to the individual and the practice they intend to undertake.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
