District Judge Richard Lumb applies Mazur decision to reduce housing case legal costs
A regional costs judge has described how he applied the High Court’s Mazur ruling to reduce the legal costs claimed by a law firm in a housing possession case from around £3,000 to under £500.
District Judge Richard Lumb, who sits at Oxford Combined Court, discussed the impact of the Mazur decision during an address at the Claims Futures conference in Manchester last week.
He said that the ruling had “certainly scared a lot of people, and I think understandably so”, adding that it would likely lead to “a whole lot” of inconsistent decisions in the lower courts until senior judges provided definitive guidance.
The Mazur ruling, delivered by Mr Justice Sheldon last month, confirmed that non-authorised employees of law firms can assist authorised solicitors or individuals in conducting litigation, but cannot themselves conduct litigation under supervision.
Judge Lumb said he had recently applied the decision in a housing possession list of 25 cases, several involving private landlords with tenancy agreements requiring tenants to pay landlords’ reasonable legal costs in the event of court proceedings.
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“Schedules of costs were produced and in one case it was clear that the case had been conducted throughout by a grade D paralegal,” he explained.
“The reality of that, applying Mazur… is that the person was not authorised to be conducting litigation and there weren’t any other fee-earners doing the work, according to the schedule of costs.”
As a result, he said, the court reduced the firm’s recoverable costs:
“Applying Mazur – which is a case binding on me at my level – I disallowed those costs, which were claimed at about £3,000, but instead gave the solicitors fixed costs which were recoverable, which including the court issue fee were just less than £500. It made a significant difference.”
Judge Lumb predicted that the ruling would generate inconsistent decisions in similar cases until guidance was issued from higher courts:
“Judges at my level are going to make decisions and I’m afraid you’re going to end up with a whole lot of decisions which are inconsistent with each other. That’s what the appeal process is there for… until eventually we’ll get some very senior judges who will actually give us all the appropriate guidance that we need.”
He urged practitioners to rely on statutory provisions rather than commentary:
“I would urge caution in adopting any particular commentaries that have been made by legal commentators… Practitioners need to go back to what the Legal Services Act and the Civil Procedure Rules say. There’s a clear tension between them and, in such circumstances, the statute is going to prevail.”
Judge Lumb added that proceedings should be signed by an authorised person, typically a solicitor.
“I’m afraid that there are going to be a lot of cases out there where they’ve been signed by paralegals or [non-authorised] fee-earners, because it was always assumed that this was acceptable. I don’t think judges are likely to throw out the cases and say this is all completely unlawful, but… it may well have an impact in relation to costs.”
He described the situation following Mazur as “quite an unholy mess” that required clarification, and encouraged law firm leaders to review their practices “as quickly as possible” to correct any potential issues.
Concluding his remarks, Judge Lumb warned against excessive reliance on standardised processes in volume litigation:
“Process is no substitute for understanding. All too often… you’ve got fee-earners who really have no proper understanding of what they’re doing or why. They’re just following a template or a checklist. Often it’s not fine when it gets to court, and it creates problems for everybody.”