The Dekagram: 22nd September 2025

In this week’s travel law Dekagram, Anirudh Mandagere examines a case which is required reading for all solicitors and others who litigate claims, and Tom Collins considers the interface between employment and personal injury claims, including an assessment of the doctrine of state immunity. Meanwhile, members of the team are looking forward to the Pan European Organisation of Personal Injury Lawyers’ annual conference in Brussels – we hope to see many of our readers there.

If you work in litigation, you need to read this article: Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB)

This case is required reading for all who litigate claims. The High Court’s ruling in Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) puts it beyond doubt that only qualified solicitors can conduct litigation. This poses significant issues for those who supervise non-solicitor fee-earners, and in particular for firms dealing with high volume litigation. Firms run the risk of a regulatory investigation or a professional negligence claim should they fail to properly grapple with the implications of this judgment. Fortunately, this article examines the facts, the judgment, and the implications.

The Facts

The Respondent carried out work for the Appellants, who then failed to pay the bill of £54,263.50. This led to the Respondent instructing Goldsmith Bowers Solicitors (GBS) to recover those fees. The Claim Form was signed by GBS and the Particulars of Claim by PM (name abbreviated), the Head of Commercial Litigation at GBS.

The Appellant took issue with the fact that PM did not hold a current practising certificate. They made an application for directing, including an order directing the Respondent to replace PM with a qualified solicitor.

Acting of his own motion, Deputy District Judge Campbell ordered a stay of proceedings. He considered that there was evidence that PM was taking part in a “reserved activity” within the meaning of the Legal Services Act 2007 in that he appeared to be conducting litigation against the Appellants. Any application to lift the stay had to be supported by a statement from a partner giving a full explanation of the position. If no application was sought within three months, the claim would be struck out.

The County Court Proceedings

The matter was heard at first-instance by His Honour Judge Simpkiss. By the time of judgment, PM’s involvement with the proceeding had come to an end, and Mr. Ashall, a director of GBS, self-reported to the SRA in connection with PM’s employment and the conditions attached thereto. The SRA decided not to investigate GBS or PM.

Submissions

The Respondent contended at first-instance that PM was deemed to be an authorised person to conduct litigation as a result of Section 21(3)(b) of the Legal Services Act 2007, being an employee of GBS which was a “regulated body being duly authorised”. This was supported by a letter from the SRA which said the same. The Appellants (acting in person) submitted that the SRA and the Respondent had misconstrued Section 21(3) of the LSA. An employee of an authorised person was not entitled to carry out reserved legal activities (including the conduct of litigation) unless they were also authorised. Section 21 of the LSA dealt with the remit of regulation; subsection 3(b) simply defined the persons who can be regulated by the SRA but it did not give them the entitlement to conduct litigation.

Judgment

HHJ Simpkiss lifted the stay and decided that the Respondent should file an amended Claim Form and Particulars of Claim, verified with a statement of truth signed in the name of an individual at GBS who was duly authorised to do so. Further, that the claim would be allocated to the Intermediate Track, complexity band 4. The Appellants were also ordered to pay the Claimant’s costs of the application to lift the stay, summarily assessed in the sum of £10,653.

The nub of his judgment was that:

1. It was clear that there is no question of any breach of the LSA in the conduct of the litigation following the changes set out in the witness statement.
2. The SRA had confirmed that PM had authority to conduct litigation under the supervision of Mr. Ashall. Further, on 18^th May 2022, the SRA granted an application to vary the approval of PM’s employment as a Senior Litigation Executive subject to conditions, one of them being that his work would be directly supervised by Mr. Robert Ashall. This was long before the Defendants ever made this point. The decision said that there were no concerns about Mr. Ashall’s supervision.

The High Court

The Appellants appealed to the High Court on the grounds (in essence) that HHJ Simpkiss erred in:

1. Deciding that PM was authorised to conduct litigation under the supervision of Mr Ashall; and,
2. Making an award of costs, or making an award in the amount of £10,653, against the Appellants.

Submissions by the Law Society and the SRA

The matter was heard by Mr. Justice Sheldon. In light of the public importance of this case, he requested representations from the SRA and the Law Society. Notably, the SRA reversed its position and submitted that a non-authorised employee is not authorised to conduct litigation even when supervised and/or employed by an authorised person.

The Conduct of Litigation

Mr. Justice Sheldon held that PM was not entitled to conduct litigation under the supervision of Mr. Ashall.

Section 21 of the LSA is concerned with ‘regulatory arrangements”. It defines regulated for purposes such as the regulators “practice rules”, “conduct rules”, “discipline rules”. The persons who are subject to a regulator’s various rules will be those who are “authorised” by the regulator to carry out reserved legal activities and employees of such a person.

However, it does not extend the scope or definition of who is “authorised” to carry out reserved legal activities. It is saying that for the purpose of regulation there are two categories: persons who are authorised to carry out reserved legal activities and their employees. An employer, even if authorised to carry out a reserved legal activity, can commit a criminal offence if one of their employees carries on a reserved legal activity without being entitled to (and thereby commits an offence)_.

Accordingly, PM was not entitled to carry out the reserved legal activity of conducting litigation even under supervision. The SRA letter was “clearly wrong”.

Costs

The case had been allocated to the Intermediate Track. CPR 45.8 provides that a standard fee of £333.00 is recoverable for a claim which would normally be or is assigned to Complexity Band 4. The costs cap can only be removed in ‘exceptional circumstances’. There was no indication in the judgment that the learned judge considered that there were ‘exceptional circumstances’. The only costs award that could have been made would have been £333.00 plus the appropriate court fee of £303.00.

Comment

There are three implications from this judgment.

First, firms that let non-authorised fee-earners sign, issue and engage with litigation are going to have to change the way they operate. If they do not, then they face the prospect of (a) a regulatory investigation, (b) a potential strike-out of claims in which litigation has been conducted by a non-authorised fee earner, and (c) professional negligence claims.

Second, there remains debate about the precise boundaries between ‘supporting’ an authorised solicitor and conducting litigation. Helpful submissions were raised by the Law Society and SRA on this point:

In their submissions, the Law Society argued that whether or not a person supporting or assisting a solicitor to conduct litigation as conducting litigation themselves was a “question of fact and degree”. Indicators may include (a) the way that important decisions in the case are taken, (b) who drafts or specifically approves formal documents, (c) the degree of direction from the authorised person, (d) evidence as to who is taking specific responsibility for formal steps, (e) who is conducting the case. They also submitted that the service of process, preparing bundles and searches were “mechanical functions”, and have never been regarded as ancillary steps amounting to the conduct of litigation.

The SRA stated that the key question to ask was whether the person has assumed responsibility for the conduct of the litigation and exercises professional judgment in respect of it. The SRA submitted that a non-authorised employee who assists a solicitor with conduct of litigation, even to a significant degree, by drafting litigation documents and letters, proofing witnesses, or similar functions does not conduct litigation because it is the solicitor who exercises the final professional judgment about how the litigation is to be conducted and takes responsibility for that judgement. This would be different, however, if on analysis and focusing on substance not form the non-authorised person was the one responsible for the litigation and exercising professional judgement in respect of it.

Third, this is a useful judgment when defending costs budgets at CCMCs. A frequent argument that is levelled is that claims should be conducted at Grade D level. Such an argument is unlikely to get off the ground given the High Court’s ruling. Indeed, parties can go further and remind the judge of the importance of senior involvement from a qualified individual to justify their involvement.

About the Author

Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining Deka Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics. He is rightly listed by the Legal 500 as a Rising Star.

State Immunity to Claims by Employees: the Court of Appeal Signals a Shifting Frontier

Case note: Alhayali v Royal Embassy of Saudi Arabia (Cultural Bureau) [2025] EWCA Civ 1162

Whilst the recent Court of Appeal decision in Alhayali is primarily of interest to employment lawyers, it contains important guidance for PI and cross-border lawyers on the subject of state immunity. The decision reaffirms the Employment Tribunal’s (ET) role as the primary fact-finder in state immunity disputes under the State Immunity Act 1978 (“SIA”). But it also considers the authority of legal representatives to submit to the jurisdiction, and the limits to immunity in personal injury claims.

Factual and Procedural Background

Ms. Abir Alhayali worked for the Royal Embassy of Saudi Arabia’s Cultural Bureau in London between 2013 and 2018. Her duties included processing requests from Saudi students, providing reports on cultural projects, and proofreading articles for a cultural magazine. After her employment ended, she lodged a claim with the ET for unfair dismissal, breach of contract, and discrimination. The Embassy asserted state immunity, a defence that, if successful, would bar the ET from hearing her case.

The dispute over immunity proceeded through a preliminary hearing, where the Embassy’s then-solicitors, Howard Kennedy LLP, conceded that the ET had jurisdiction over claims derived from EU law. This led Ms. Alhayali to withdraw her domestic law claims (unfair dismissal etc). For over two years, both parties actively progressed the case. However, in August 2021, the Embassy “reasserted” state immunity, claiming its solicitors’ previous actions had not been authorised by the head of mission as required by Section 2(7) of the SIA.

The ET, presided over by Employment Judge (EJ) Brown, found that the Embassy had validly submitted to the jurisdiction and also determined that Ms. Alhayali’s job functions were not “sufficiently close” to the Embassy’s governmental functions to warrant immunity under Section 4 of the SIA. On appeal, the Employment Appeal Tribunal (EAT) overturned the ET’s decision on both the submission and Section 4 issues, remitting the former for a new hearing and concluding the latter was an “error of law”.

The Court of Appeal’s Analysis

The Court of Appeal, comprising Sir Andrew McFarlane, Lord Justice Bean, and Lord Justice Coulson, restored EJ Brown’s original judgment. The central issue was whether the EAT was justified in overturning the ET’s conclusion on the Section 4 issue—namely, whether Ms. Alhayali’s work was “sufficiently close” to the Embassy’s sovereign functions. The EAT had held that while the ET’s findings of fact were unassailable, the ultimate conclusion was a matter of law, not fact.

Lord Justice Bean, delivering the lead judgment, took issue with this “bold proposition”. He considered that whether or not a middle-category employee’s functions were “sufficiently close” to sovereign activity is an “evaluative judgment by the fact-finder,” not a pure question of law. He rejected the suggestion that sovereign immunity cases were a “unique category of case where the party losing before the ET can appeal as of right on the grounds that the conclusion of the tribunal is always a question of law”. By treating the conclusion as a legal question, the EAT effectively substituted its own judgment for that of the trial judge. The Court of Appeal rejected this, finding that EJ Brown’s analysis was “carefully reasoned” and correctly applied the principles established in the Supreme Court’s decision in Benkharbouche v Embassy of Sudan [2017] ICR 1327.

Bean LJ noted that Lord Sumption’s examples in Benkharbouche of administrative staff whose roles might be “sufficiently close” to sovereign functions were very limited, citing cypher clerks and confidential secretaries. He concluded that the EAT’s broader interpretation, which suggested that any “outward-facing activity” like “discussing art exhibits with visitors” could attract immunity, cast the net “very widely indeed”.

Broader Implications of Alhayali

The decision provides guidance in two other areas of interest to PI and cross-border lawyers.

Waiver of State Immunity

The Court expressed significant concern over the precedent set by Republic of Yemen v Aziz [2005] ICR 1391, which held that a state is not bound by its solicitors’ concession as to jurisdiction if the concession was not factually authorized by the head of mission. While the Court was not required to decide the point, given its ruling on the Section 4 issue, the Court expressly disapproved of any rule of law that allows a state to “ostensibly… submit to the jurisdiction of the court, then change its mind either at or even during the trial” and regarded it as “contrary to the CPR, and particularly the overriding objective”. Coulson LJ considered that the Aziz decision failed adequately to distinguish between actual submission to jurisdiction (under Section 2(2) of the SIA) and “deemed” submission (under Section 2(3)) based on a state’s objective actions in the proceedings.

This criticism clears the way for a challenge to Aziz and suggests the Court will, in the near future, seek to narrow the circumstances in which a state may resile from submission to the court’s jurisdiction.

The Personal Injury Exception

Ms. Alhayali had also sought to rely on Section 5 of the SIA, which provides an exception to immunity for “death or personal injury,” arguing that her discrimination claims included psychiatric harm. The EAT followed an earlier decision of the EAT in Federal Republic of Nigeria v Ogbonna [2012] 1 WLR 139, which held that Section 5 was a “free-standing” exception that could be engaged even if the claims were otherwise barred by Sections 4 and 16 (the employment-related immunity provisions).

In an obiter comment, Bean LJ considered that Ogbonna was “wrong” on this point. He held that allowing an employee to proceed with an employment claim simply because it involved psychiatric injury would “drive a coach and horses through the careful scheme of exceptions created under ss 4 and 16”. He contrasted this with a case of a chandelier falling on an employee, which would be a clear, direct personal injury claim independent of the employment relationship. This marked difference of opinion between the EAT and Court of Appeal as to the scope of Section 5 in employment-related claims, again, suggests that further guidance may be needed shortly.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.