Are the days of “cheap” litigation over?

First published on LinkedIn, December 2025.

Headlines telling us that the annualised Claimant legal costs for medical negligence claims is over £620 million — or individual case examples such as Wagatha Christie where Rebecca Vardy was ordered to pay Coleen Rooney’s legal costs in excess of £1.4m — give us the impression that litigation is anything but cheap. However, the implications of the recent judgment in Mazur -v- Charles Russell Speechlys could mean that in future years we look back and remember fondly how cheap litigation was in the mid 2020s.

The details of the Mazur case are now well known. In brief the case made clear that litigation in England & Wales can only be conducted by a “qualified” individual. This is not new law but a re-statement of the position in the Legal Services Act 2007 (LSA). Importantly, the case clarified that simply being an employee of a regulated practice does not qualify that individual.

The reason why Mazur is important is because the qualified status of an individual working for a regulated firm of solicitors was rarely if ever raised before the Courts to defeat a claim for costs.

At the same time, recent decades have seen a reduction in the number of firms as they rely more on entirely competent and experienced but “unqualified” members of staff to undertake an increasing number of tasks in litigation. Whilst there have been a number of reasons for this, the Courts have actively encouraged it. Where legal costs are contested it is frequently argued that tasks should have been undertaken by more junior individuals and the amount of input by more senior (i.e. qualified) individuals was unreasonably high.

Mazur has created uncertainty about the extent to which a qualified individual must be involved in order to satisfy a Court that it has met the criteria for “conducting” litigation. The consequences of getting this wrong are not trivial: not only do the costs of the whole case become unrecoverable but it is a regulatory issue both at an individual and practice level.

The natural consequence is that all litigation practices, both Defendant and Claimant will have to, or are already undertaking a review to ensure that they can adequately evidence that litigation is being conducted by qualified individuals. In a period where there is uncertainty this will inevitably increase the involvement of qualified individuals either in undertaking more tasks themselves or in having greater oversight. It will be a brave costs judge who, in the face of suitable evidence, takes a position that the use of qualified individuals was wholly excessive.

The period of uncertainty is unlikely to resolve itself quickly. CILEX have been successful in obtaining permission to appeal the decision but there is speculation that an appeal decision will not be available until 2027. If CILEX are unsuccessful any change will only be achieved through legislative amendment and that will inevitably take a number of more years if indeed there is Government appetite for this to be a legislative priority.

The guideline hourly rates for recoverable costs refer to both qualification status and experience. The definition of being “qualified” or “unqualified” in the LSA does not relate to experience. The likelihood is that where costs are argued before a Judge, greater input from qualified (more expensive) individuals will be allowed and consequently the overall costs of litigation will increase.

Some might say that in a world of fixed costs this is an internal issue for firms of solicitors and the increased costs will simply have to be absorbed by those firms. However, fixed costs should at least bear some resemblance to the cost of the work undertaken, even if that is on an average basis. There is a good argument that fixed costs need to increase and the litigation costs of lower value cases are then not necessarily immune to the impacts of Mazur. During what is likely to be a multi-year period of uncertainty, it is prudent to re-evaluate the role of litigation and expand appropriate ADR to mitigate the effects of Mazur and reduce overall claims-resolution costs.

Members of the judiciary have for a long time argued that litigation should be a last resort. Of course, not all cases that are issued through the Court and settle prior to trial fail this “last resort” test. However, the proportion of cases that are issued and then settled without trial suggests that some parties are not focussed sufficiently on resolution at an early enough stage. This is perhaps a moment in time when parties and their lawyers can refocus on opportunities for resolution, which will reduce the amount of litigation and the associated Mazur risks.

Alternative Dispute Resolution (ADR) has been available for decades but its widespread adoption has only recently started to pick up pace as parties recognise the benefits. There are various types of ADR and not all models fit all scenarios. Mediation has been used successfully in higher value claims. Arbitration models can be very successful for claims such as personal injury. With arbitration both sides agree to be bound by the arbitrator’s decision and that is sometimes a blocker to its adoption. However, where the parties are able to have confidence in the arbitrator this can provide a fast and relatively cheap route to deciding issues of both liability and quantum. The fact that in arbitration neither party risks falling foul of Mazur may now encourage more widespread adoption.

Proper consideration of ADR by both parties can also protect them before the Court where litigation is ultimately pursued. Failure to properly consider ADR and to rely solely on the Court process creates another risk beyond Mazur. Those parties thinking more widely about how they react to Mazur will perhaps more actively explore the available opportunities for arbitrated solutions both to ensure they can take advantage of the benefit of speed and reduced cost as well as mitigating Mazur risks.

The more widespread adoption of ADR solutions will not reduce the cost of cases that are appropriately brought before the Courts. The individual costs of those cases will almost certainly continue to increase. Use of ADR will however reduce the overall cost of claims resolution.