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Litigation Essay Competition 2026: Winners Announced

Chan Neill Solicitors LLP are delighted to announce the winners of this year’s Litigation Essay Competition!

With over 45 entries submitted from 26 universities across the UK, the standard of work was exceptionally high. The competition was fiercely contested, showcasing impressive analytical ability, originality, and written advocacy from all who participated.

[Winner]:

Katherine O'Toole:

• “Ignorance is not a Defence”: Traditional Principle and Modern Limits

[Her essay stood out for its clarity, depth of research, and compelling legal reasoning.]

[Runners‑Up]:

Danielle Bugden

• The “Mazur decision” has sent shockwaves throughout the litigation market. What areas within the litigation sphere have been most impacted, and what steps should be taken to ensure compliance?

Simon Raivid:

• Part 36 offers of settlement serve the purpose of ensuring parties to litigation seriously consider settlement. However, to what extent can Part 36 settlement offers be strategically misused and/or abused, and how?

A huge thank you to everyone who took part — the calibre of entries made this year’s competition truly remarkable.

Read more about the winning essays, our judging process, and future opportunities on our website: Litigation Essay Competition 2026 - Chan Neill Solicitors LLP

We look forward to seeing more brilliant work in future competition

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Litigation Essay Competition 2026: Part 36 Settlement Offers – Strategic Use and Misuse

This essay forms part of our Litigation Essay Competition 2026.

Simon Raivid examines the role of Part 36 offers in litigation, considering both their intended purpose and how they may be used strategically in practice.

Part 36 Settlement Offers – Strategic Use and Misuse

Part 36 of the Civil Procedure Rules 1998 rests on a simple premise, parties who face real costs consequences for rejecting a reasonable offer will settle more readily, and courts will be spared unnecessary trials.[1] Where a defendant fails to beat a claimant's offer at trial, the defendant bears post-relevant-period costs.[2] Where a claimant beats their own offer, they receive indemnity costs, enhanced interest, and an additional payment of up to £75,000.[3] The threat is real, and in countless cases it works.

The difficulty is structural. Part 36's consequences are largely automatic; once a compliant offer is made and not beaten, costs follow with minimal judicial intervention, subject only to a narrow discretion to disapply them where it would be 'unjust' to do so.[4] A procedural mechanism that operates irrespective of good faith is one that sophisticated parties can and do deploy in bad faith. This essay argues that Part 36 is susceptible to systematic misuse traceable to three structural features; the binary nature of its enhanced consequences, the freedom to withdraw offers without sanction, and its tension with the overriding objective of dealing with cases justly and at proportionate cost.[5] The courts' safeguards are real but insufficient. The regime requires structural reform.

1.  The Pressure Offer: Coercion Dressed as Settlement

The most common form of misuse is the pressure offer, a compliant offer made not in expectation of acceptance, but to create a costs risk rendering the opposing party's litigation economically unviable. Part 36 is applied strictly as a self-contained code[6], and the offeror's motive is irrelevant to whether the consequences follow. A defendant in a personal injury claims worth £18,000 who makes a Part 36 offer of £10,000 early in proceedings does not necessarily want acceptance. If the claimant recovers £17,500 at trial, the defendant recovers its post-relevant-period costs, which may well exceed the damages awarded. A claimant who wins their case is left out of pocket. The economics of proceeding become irrational, and Part 36 has coerced a settlement that the merits did not justify.

The Court of Appeal recognised this danger in Carver v BAA plc[7], where Smith LJ emphasised that the regime must not operate oppressively. That concern, however, produced no structural remedy. The 2015 amendments restored the strict approach and left the underlying incentive structure intact. The pressure offer remains entirely lawful, a point Briggs LJ acknowledged in Sugar Hut Group Ltd v AJ Insurance Service[8] when noting the 'well-recognised' risk of tactical Part 36 use in modest-value claims.

2. The Near-Miss Trap: a Cliff Edge, Not a Sliding Scale

The most acutely exploited structural feature is the binary nature of the enhanced consequences; beat an offer by any margin and the full package under r.36.17(4) follows regardless of how small the excess. The 'unjust' discretion is applied sparingly; in Huck v Robson[9] upheld full consequences on a small margin to preserve predictability. Broadhurst v Tan[10] confirmed proportionality plays no role even in low-value claims. This is not a nuanced incentive; it is a cliff edge.

Consider a claim both parties assess at between £90,000 and £110,000. A claimant's offer of £88,000 carries minimal risk; if the award falls below, she recovers standard costs as a successful party; if it exceeds £88,000, the full consequences trigger automatically. The offer serves no conciliatory purpose. As Sorabji has observed, this is Part 36 deployed to extract money by procedural means rather than to resolve disputes.[11] That observation captures something the courts have acknowledged but the legislature has not addressed.

III.  Withdrawal, Inequality and the Information Problem

A subtler form of manipulation exploits the withdrawal provisions. After the relevant period, a Part 36 offer may be withdrawn without the court's permission.[12] This permits an offeror to make an attractive offer, induce the opponent to forego protective steps, then withdraw at a tactically opportune moment, leaving them exposed. In Flynn v Scougall[13], the Court of Appeal confirmed that withdrawal after the relevant period is generally permissible. Rix LJ's observation in Tibbles v SIG plc[14] that the court retains residual ability to consider whether 'apparent compliance is in substance a manipulation' is theoretically welcome, but the narrow 'unjust' discretion means tactical withdrawal is rarely sanctioned.

Information asymmetry compounds these difficulties. A well-resourced party can issue successive Part 36 offers at graduated levels across different procedural stages, forcing the opponent to evaluate each against a shifting litigation landscape. In PHI Group Ltd v Robert West Consulting Ltd[15], the Court of Appeal acknowledged the complexity without providing a workable framework. In multi-defendant cases, a global offer against defendants with divergent risk profiles places disproportionate pressure on the most risk-averse party, and CPR r.36.13 does not fully resolve this.[16] Nor must an offer follow adequate disclosure: a claimant may face full costs consequences from an offer they had no proper basis to evaluate. Courts have engaged the 'unjust' discretion on this basis,[17] but case-by-case intervention cannot remedy a structural gap.

3. The Safety Valves and the Case for Reform

The regime offers three principal responses to misuse. None is structurally adequate. The 'unjust' discretion is deliberately narrow, tactical motivation alone will not engage it, since a formally compliant offer is entitled to its consequences whatever the purpose behind it. Professional conduct obligations confirmed in Medcalf v Mardell[18] may sanction egregious cases, but every pressure offer can be framed as a genuine attempt to avoid trial. General costs discretion (Dunnett; Halsey[19]) supplements Part 36 but cannot correct its structural asymmetries.

Jackson LJ's 2010 Review flagged the risk of Part 36 becoming oppressive,[20] and LASPO 2012 removed success fees as a costs weapon.[21] The 2015 amendments tightened formalities without touching the core asymmetries. Three reforms would make a material difference. First, the enhanced consequences should be calibrated to the margin of success, not triggered in full at any excess; this would eliminate the cliff-edge incentive. Second, Part 36 consequences should not arise automatically from an offer made before standard disclosure is complete, absent a court finding of adequate information. Third, where withdrawal follows demonstrable induced reliance, the court should have a more readily accessible power to restore the offeree's costs position. Courts have scrutinised individual offers, as in Littleford v Birmingham City Council[22], but scrutiny without structural precision is insufficient.

Conclusion

Part 36 has changed how civil litigation behaves. But a mechanism that rational litigants routinely deploy not to settle disputes but to distort their economics is failing its purpose. The CPR's overriding objective requires cases to be dealt with justly and at proportionate cost.[23] A regime whose automaticity enables systematic coercion, whose withdrawal rules permit induced reliance to be exploited, and whose information requirements are silent stands in tension with that objective. Part 36 was conceived as a shield against the costs of unnecessary litigation. In skilled hands, it has become a sword. The question for reformers is not whether to blunt it, but whether they have the precision to do so without discarding the shield.

Bibliography

Primary Sources: Legislation

Civil Procedure Rules 1998 (SI 1998/3132), Part 36.

Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.44.

Primary Sources: Cases

Broadhurst v Tan [2016] EWCA Civ 94; [2016] 1 WLR 1928.

C v D [2011] EWCA Civ 646.

Carver v BAA plc [2008] EWCA Civ 412; [2009] 1 WLR 113.

Dunnett v Railtrack plc [2002] EWCA Civ 303; [2002] 1 WLR 2434.

Flynn v Scougall [2004] EWCA Civ 873; [2004] 3 All ER 609.

Gibbon v Manchester City Council [2010] EWCA Civ 726; [2010] 1 WLR 2081.

Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002.

Huck v Robson [2002] EWCA Civ 398; [2003] 1 WLR 1340.

Littleford v Birmingham City Council [2016] EWHC 2152 (Ch).

Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120.

National Westminster Bank plc v Feeney [2006] EWHC 90066 (Costs).

PHI Group Ltd v Robert West Consulting Ltd [2012] EWCA Civ 588.

Sugar Hut Group Ltd v AJ Insurance Service [2016] EWCA Civ 46.

Tibbles v SIG plc [2012] EWCA Civ 518; [2012] 1 WLR 2591.

Books and Reports

Jackson LJ, Review of Civil Litigation Costs: Final Report (TSO 2010).

Sime S and French D (eds), Blackstone's Civil Practice 2024 (Oxford University Press 2024).

Zuckerman A, Zuckerman on Civil Procedure: Principles of Practice (3rd edn, Sweet & Maxwell 2013).

Friston M, Civil Costs: Law and Practice (3rd edn, Jordan Publishing 2020).

Articles

Sorabji J, ‘Part 36: A Costs Regime Fit for Purpose?’ (2016) 35 Civil Justice Quarterly 135.

Cook T, ‘Part 36 Offers: Strategic Use, Abuse and Reform’ (2019) 38 Civil Justice Quarterly 212.

[1]Civil Procedure Rules 1998 (SI 1998/3132), Part 36. The regime is described as a 'self-contained code' in Gibbon v Manchester City Council [2010] EWCA Civ 726, [2010] 1 WLR 2081, per Moore-Bick LJ at [4].

[2]CPR r.36.17(3).

[3]CPR r.36.17(4); r.36.17(4)(d): the additional amount is 10% of the first £500,000 and 5% above that, capped at £75,000.

[4]CPR r.36.17(5)(e); r.36.17(4)(d).

[5]CPR r.1.1(1)–(2): the court must deal with cases 'justly and at proportionate cost', having regard to the parties' respective financial positions.

[6]Gibbon v Manchester City Council [2010] EWCA Civ 726, per Moore-Bick LJ at [4]–[5].

[7]Carver v BAA plc [2008] EWCA Civ 412, [2009] 1 WLR 113, per Smith LJ at [30]–[32]. The decision was effectively reversed by the Civil Procedure (Amendment No 8) Rules 2014 (SI 2014/3299), which restored the strict approach.

[8]Sugar Hut Group Ltd v AJ Insurance Service [2016] EWCA Civ 46, per Briggs LJ at [29].

[9]Huck v Robson [2002] EWCA Civ 398, [2003] 1 WLR 1340, per Schiemann LJ at [72]: the 'unjust' discretion under r.36.17(5)(e) must be invoked sparingly to preserve the regime's deterrent effect.

[10]Broadhurst v Tan [2016] EWCA Civ 94, [2016] 1 WLR 1928, per Moore-Bick LJ at [17]–[19].

[11]J Sorabji, 'Part 36: A Costs Regime Fit for Purpose?' (2016) 35 Civil Justice Quarterly 135, 148; see also A Zuckerman, Zuckerman on Civil Procedure (3rd edn, Sweet & Maxwell 2013) para 26.70.

[12]CPR r.36.9(4): after the relevant period, an offer may be withdrawn by written notice without the court's permission.

[13]Flynn v Scougall [2004] EWCA Civ 873, [2004] 3 All ER 609, per Dyson LJ at [26].

[14]Tibbles v SIG plc [2012] EWCA Civ 518, [2012] 1 WLR 2591, per Rix LJ at [39].

[15]PHI Group Ltd v Robert West Consulting Ltd [2012] EWCA Civ 588. The Court of Appeal acknowledged the complexity of competing concurrent offers without providing a clear analytical framework.

[16]CPR r.36.13; Gibbon v Manchester City Council [2010] EWCA Civ 726, per Moore-Bick LJ at [4]–[5], reaffirming that Part 36 must be applied strictly even in complex party configurations.

[17]National Westminster Bank plc v Feeney [2006] EWHC 90066 (Costs), per Master Rogers; C v D [2011] EWCA Civ 646, per Arden LJ at [44].

[18]Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120, per Lord Bingham at [23].

[19]Dunnett v Railtrack plc [2002] EWCA Civ 303, [2002] 1 WLR 2434; Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002.

[20]Jackson LJ, Review of Civil Litigation Costs: Final Report (TSO 2010) ch 41, 455.

[21]Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.44.

[22]Littleford v Birmingham City Council [2016] EWHC 2152 (Ch).

Written by Simon Raivid

We would like to thank all participants for their submissions and congratulate this year’s winners.

This essay forms part of our Litigation Essay Competition 2026. Read more about the competition here:
https://www.cnsolicitors.com/litigation-essay-competition-2026/

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Litigation Essay Competition 2026: The Mazur Decision and Its Impact on Litigation Practice

This essay forms part of our Litigation Essay Competition 2026.

Danielle Bugden explores the impact of the Mazur decision on litigation practice, focusing on key areas of change and compliance considerations.

The Mazur Decision and Its Impact on Litigation Practice

The Mazur decision has sent genuine shockwaves through the UK litigation market. For many years, firms operated on the assumption that the conduct of litigation could be carried out by unqualified fee-earners, provided they worked within an authorised firm and were supervised by a solicitor. Entire business models developed on that understanding. In Mazur, however, Mr Justice Sheldon made clear that this assumption was wrong. Properly interpreted, s.21(3) of the Legal Services Act 2007 does not extend authorisation to employees of regulated firms; it merely subjects them to regulatory discipline. The statutory scheme draws a firm line: the conduct of litigation is a reserved legal activity that may only be exercised by an authorised person or someone falling within a specific statutory exemption. Supervision alone is not enough.

This clarification is more than a technical correction. It challenges the structure of modern litigation practice and raises serious questions about how cases are staffed, managed and costed. The decision has particularly significant implications for bulk litigation firms, costs recovery, and access to justice. This essay argues that Mazur exposes a structural tension between theory and litigation practice, and that meaningful compliance will require changes to case management systems, internal supervision models and professional accountability frameworks.

Context

The starting point is the statutory framework. Under s.12 of the Legal Services Act 2007, the conduct of litigation is a reserved legal activity[1]. Schedule 2 defines that to include issuing proceedings, performing ancillary functions in relation to proceedings, and any steps required in prosecuting or defending a claim[2]. A reserved legal activity may only be carried out by an authorised person such as a solicitor holding a current practising certificate, or by an exempt person within a defined statutory category[3].

The difficulty in Mazur arose from the interpretation of s.21(3) LSA 2007[4]. Many firms understood this provision to mean that employees of an authorised body were themselves entitled to carry out reserved activities, provided they did under supervision. On that reading, the regulatory status of the firm effectively extended to its staff. Mr Justice Sheldon rejected that construction[5]. Section 21(3), properly understood, ensures that employees of authorised bodies are subject to the same regulatory and disciplinary framework as the body itself; it does not confer authorisation to perform reserved legal activities. Authorisation is personal and statutory, not derivative[6].

The judgment reinforces that an individual is either entitled to conduct litigation or they are not. There is no legal supervised authorisation. While unqualified staff may assist with preparatory or administrative tasks, the moment an individual takes a step amounting to issuing proceedings, corresponding formally with the court, or exercising independent judgment, the question becomes one of fact and degree[7]. If that step amounts to the conduct of litigation and the individual are not authorised or exempt, the act is unlawful[8].

This is significant because modern litigation practice often blurs the line between support and conduct. Mazur forces that line back into sharp focus.

The Impacted Areas

The most immediate and significant impact of Mazur will be felt by firms operating high-volume litigation models. Bulk personal injury and conveyancing practices have structures in which large numbers of paralegals manage substantial caseloads under the supervision of a smaller cohort of solicitors. That model is only sustainable if supervision is sufficient to satisfy the statutory requirement. Mazur makes clear that it is not. If the conduct of litigation is a reserved legal activity,[9] then the individual performing that conduct must be personally authorised under s13.[10] Supervision cannot convert unauthorised into authorised.

This has structural implications. If paralegals are corresponding substantively with the court, issuing proceedings, signing statements of truth, or exercising independent procedural judgment, those steps may amount in substance to the conduct of litigation. If so, and the individual is not authorised or exempt, the act is unlawful.[11] For firms whose profitability depends on delegation at scale, compliance will require either a significant increase in authorised fee-earner involvement or a fundamental redesign of case allocation models. The decision therefore strikes at the economic foundations of commoditised litigation.

A second area of acute impact is costs recovery. Where a bill of costs reflects substantial time spent by unqualified fee-earners undertaking tasks that amount to the conduct of litigation, paying parties are likely to scrutinise those entries. If work was performed unlawfully, arguments may arise as to whether the costs are irrecoverable on grounds of illegality or lack of entitlement. The Court of Appeal has previously emphasised that the statutory prohibition on unauthorised practice is a matter of substance rather than form.[12] Mazur provides defendants and insurers with a framework to challenge whether tasks were properly chargeable as litigation work. Even where proceedings themselves are not struck out, the costs consequences may be significant.

There are also procedural risks. The Civil Procedure Rules require that statements of case be verified by a statement of truth,[13] and that certain documents be signed by a legal representative where one is instructed.[14] If a statement of case is issued or signed by an individual not entitled to conduct litigation, questions may arise as to the validity of the step taken. While the courts are reluctant to invalidate proceedings for procedural irregularity alone,[15] Mazur introduces the possibility that what appeared to be a mere irregularity may involve a breach of a statutory prohibition. That distinction matters. It increases the risk of satellite litigation concerning authority, wasted costs orders against firms,[16] and potential professional negligence exposure.

Beyond commercial firms, the decision has broader consequences. Legal aid providers, law centres and local authorities often rely on paralegals and CILEX practitioners progressing toward independent practice rights. Restricting the scope of work that may be undertaken risks increasing the cost-of-service delivery in already strained areas of practice. There is a tension between the regulatory clarity reinforced by Mazur and the realities of access to justice. However, that tension is inherent in the statutory scheme itself. The LSA deliberately reserves certain activities in the public interest.[17] Mazur does not create that restriction; it enforces it.

Taken together, these impacts demonstrate that the decision is not confined to regulatory compliance. It requires firms to reconsider who is conducting litigation on their files, and whether their current structures reflect the personal nature of statutory authorisation.

Steps for Compliance

Mazur confirms that authorisation to conduct litigation is personal and statutory under ss12 and 13 LSA 2007.[18] Compliance therefore requires structural change, not supervision.

First, firms should undertake a targeted audit of files to identify who has been conducting litigation. The relevant question is who has issued proceedings, corresponded formally with the court, signed statements of truth, or exercised independent procedural judgment? If steps were taken by unauthorised individuals, firms must consider corrective action and assess regulatory exposure. The SRA Code of Conduct for Firms requires effective governance, compliance systems and proper supervision.[19] A failure to identify systemic breaches risks compounding the problem.

Secondly, case management processes must ensure that reserved activities are demonstrably carried out by authorised persons. This may include restricting court-filing access, requiring documented solicitor sign-off before issuing proceedings, and clearly recording the exercise of independent judgment by an authorised fee-earner. Such measures provide evidence that the requirement in s13 has been met[20] and reduce disputes concerning the validity of statements of truth under CPR r22.[21]

Thirdly, supervision models must be reassessed. The SRA Principles require solicitors and firms to uphold the rule of law and maintain public trust.[22] Where unauthorised staff effectively conduct litigation autonomously, the issue is not merely procedural but regulatory. In high-volume environments, this may require lower supervision ratios or greater authorised involvement in strategic decisions and pleadings.

Finally, firms should consider reporting and insurance obligations. Where past conduct may breach s14 LSA 2007,[23] managers must evaluate whether a serious breach is reportable to the SRA.[24] Early remediation is likely to carry less regulatory risk than disclosure.

Mazur does not prohibit delegation; It requires that delegation stops short of reserved activity unless the individual is authorised. Firms that realign their structures accordingly will be best placed to withstand judicial and regulatory scrutiny.

Conclusion

The Mazur decision is a definitive reminder that the conduct of litigation is a personal statutory entitlement, not a delegable function. Firms can no longer rely on supervision or employment within an authorised body to validate unauthorised practice. The ruling has immediate implications for high-volume litigation models, costs recovery, and access to justice, and exposes structural vulnerabilities in case management and supervision.

Compliance will require deliberate changes: audit of files, documented sign-off for all reserved activities, reassessment of supervision models, and proactive engagement with the SRA where breaches are identified.[25] Firms that embed these measures into their governance structures, rather than treating them as a one-off response, will mitigate regulatory and procedural risk and preserve both client and public confidence in the profession. Mazur is not just a challenge; it is an opportunity to strengthen the integrity and professionalism of litigation practice in the UK.

[1] Legal Sevices Act 2007, s 12(1).

[2] Legal Services Act 2007, sch 2 para 4.

[3] Legal Services Act 2007, s 13.

[4] Legal Services Act 2007, s 21(3).

[5] Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB)

[6] Agassi v Robinson (Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 WLR 2126.

[7] Baxter v Doble [2023] EWHC 486 (KB).

[8] Legal Services Act 2007, s 14.

[9] Legal service Act 2007, s 12(1), sch 2 para 4.

[10] Legal Service Act 2007, s 13.

[11] Legal Services Act 2007, s 14.

[12] Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ 2865.

[13] Civil Procedure Rules 1998, r 22.1.

[14] Civil Procedure Rules 1998, r 22.1(6).

[15] Civil Procedure Rules 1998, r 3.10.

[16]Civil Procedure Rules 1998, r 46.8.

[17] Legal Services Act 2007, s 1.

[18] Legal Service Act 2007, ss 12-13.

[19] Solicitors Regulation Authority, Code of Conduct for Firms (2019) paras 2.1, 3.2–3.5.

[20] Legal Services Act 2007, s 13.

[21] Civil Procedure Rules 1998, r 22.1.

[22] Solicitors Regulation Authority, SRA Principles (2019) Principles 1–2.

[23] Legal Services Act 2007, s 14.

[24] Solicitors Regulation Authority, Code of Conduct for Firms (2019) para 7.7.

[25] Legal Services Act 2007, ss 12–14; Solicitors Regulation Authority, Code of Conduct for Firms (2019) paras 2.1, 3.2–3.5, 7.7.

Written by Danielle Bugden

We would like to thank all participants for their submissions and congratulate this year’s winners.

This essay forms part of our Litigation Essay Competition 2026. Read more about the competition here:
https://www.cnsolicitors.com/litigation-essay-competition-2026/

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Litigation Essay Competition 2026 Winner: “Ignorance is not a Defence” – Traditional Principle and Modern Limits

This essay was awarded first place in our Litigation Essay Competition 2026.

Katherine O'Toole’s work stood out for its clarity, depth of research, and compelling legal reasoning.

"Ignorance is not a Defence": Traditional Principle and Modern Limits

The Latin maxim ignorantia juris non excusat ("ignorance of the law is no excuse") is a bedrock of English law. Every person is presumed to know the law, so they cannot escape liability by pleading ignorance. This promotes predictability and uniformity: if identical conduct could be lawful for one but punishable for another based on knowledge, the rule of law collapses. It also spares proving a defendant's state of mind about obscure rules and encourages citizens to inform themselves of their duties. In short, a strict rule deters wilful non-compliance with basic social norms.

Yet this absolutist rationale faces challenges in a modern state awash with complex regulation. A recent case, R (Good Law Project Ltd & Ors) v Commission for Equality and Human Rights [2026] EWHC 279 (Admin)^[1], shows how courts reconcile the old maxim with today's realities. The Good Law Project and three individual claimants (an intersex person, a trans woman holding a Gender Recognition Certificate, and a trans man with a pending GRC application) brought judicial review proceedings against the Equality and Human Rights Commission (EHRC), arguing that the EHRC's interim guidance on single-sex facilities (published 25 April 2025, after For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16^[2]) misrepresented the law and thereby induced employers to restrict their access to facilities corresponding with their gender identity, in breach of the EHRC's statutory duties under the Equality Act 2006 and the claimants' Article 8 rights. The High Court (Swift J) refused the Good Law Project permission for lack of standing and dismissed the individual claimants' substantive challenges on all three grounds, holding that the guidance accurately stated the law.

1. The Traditional Justification

The traditional justification is threefold: legal certainty (the law must bind uniformly), evidential practicality (proving a defendant knew a specific rule would be unworkable), and deterrence (motivating citizens to learn their obligations). In Good Law Project, Swift J accepted these premises. After For Women Scotland, in which the Supreme Court unanimously held that "woman", "man", and "sex" in the Equality Act (EA) 2010 refer to biological sex rather than "certificated sex" as modified by a GRC, it would be unlawful for an employer to continue a policy premised on the contrary assumption and then plead ignorance. The Court found that the EA 2010 constitutes provision within section 9(3) of the Gender Recognition Act 2004^[3], displacing the general rule in section 9(1) that a GRC changes gender "for all purposes"^[4]; trans persons retain protections through the separate protected characteristic of gender reassignment (EA 2010, s 7)^[5].

2. The Problem of Legal Complexity

However, Good Law Project spotlights a tension: what if even specialists find the law bewildering? For Women Scotland clarified the definition of sex but left many details unsettled: the interplay between that biological definition and existing protections for gender reassignment, or the exceptions for single-sex services (Schedule 3, Part 7, paragraphs 26 to 28^[6]), are far from self-evident. Meanwhile, the Workplace (Health, Safety and Welfare) Regulations 1992, Regulation 20(2)(c)^[7], separately requires that "separate rooms containing conveniences are provided for men and women" in the employment context. These are distinct legislative regimes: the 1992 Regulations are health-and-safety provisions under the Health and Safety at Work etc. Act 1974, not implementations of the Equality Act's exceptions. In other words, the law is so intricate that reasonable people must seek guidance to navigate it.

3. Official Guidance as a Qualified Safe Harbour

The court's reasoning creates a qualified protection for those who follow official advice in good faith. Under section 13(1)(d) of the Equality Act 2006, the EHRC may give advice or guidance on the effect or operation of any enactment^[8]. Swift J held that this power implies a duty to provide accurate statements of law. At paragraph 40, he observed that an employer who "in good faith adopted and applied a policy that the female lavatories were available only to biological women" would satisfy the requirements of Regulation 20^[9].

However, Swift J immediately qualified this at paragraph 42: compliance with Regulation 20 does not exhaust the employer's legal obligations^[10]. The employer must also comply with Part 5 of the EA 2010, including the prohibition on direct and indirect discrimination by reason of gender reassignment^[11]. The consequence of the judgment is not that trans persons must use lavatories corresponding to their biological sex. Rather, the employer faces two coexisting duties: a health and safety obligation to provide sex-separated facilities, and an anti-discrimination obligation under the EA 2010. How these duties are reconciled in practice remains unresolved.

The EHRC's interim update, revised on 24 June 2025 and withdrawn on 15 October 2025, was not retracted on substantive grounds: the EHRC maintained throughout the litigation that the guidance was legally accurate. It withdrew the document to pressure the Minister for Women and Equalities to approve the revised Services Code of Practice. Swift J described this process as "very unsatisfactory." This engages the doctrine of legitimate expectation (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213^[12]), though its application requires qualification. In public law, the doctrine protects reliance on clear representations by public authorities. But it does not straightforwardly operate as a defence in private law proceedings: an employer sued for gender reassignment discrimination cannot simply plead "the EHRC told me to do it." What reasonable reliance may do is inform the proportionality assessment in determining justification for indirect discrimination.

4. Proportionality and Contextual Enforcement

The Equality Act 2010 (Schedule 3, Part 7) allows single-sex services only if providing them is a "proportionate means of achieving a legitimate aim"^[13]. Separately, Regulation 20 mandates sex-separated rooms as a health-and-safety requirement^[14]. These are parallel obligations from different legislative families. Swift J emphasised that any exclusion of trans persons from a facility would be lawful only if objectively justified under the applicable standard. In practice, this means compliance is assessed on reasonableness. At paragraph 40, Swift J rejected any notion that businesses could be expected to "police" toilet usage on a "person by person and day by day" basis, calling such strict logic "divorced from reality and from any sensible model of human behaviour"^[15]. The standard is good faith, not perfection.

5. Comparative Perspectives

England's approach sits within a broader comparative trajectory, though the position of other systems is more nuanced than commonly assumed. Major civil law jurisdictions maintain ignorantia juris as the default rule but have adopted narrow statutory exceptions for unavoidable error: Germany's section 17 of the Strafgesetzbuch recognises unavoidable mistake of law (Verbotsirrtum) as a complete defence^[16], while France's Article 122-3 of the Code pénal provides a defence of invincible error of law^[17]. Under the ECHR, Article 7 incorporates qualitative requirements that laws be "accessible and foreseeable," a principle originally developed under Article 10's "prescribed by law" test (Sunday Times v United Kingdom (1979) 2 EHRR 245^[18]) and imported into Article 7 by Kokkinakis v Greece (1993)^[19] and the Grand Chamber in Del Río Prada v Spain (2013)^[20]. Good Law Project aligns England within these broader trends.

Conclusion

Good Law Project shows that the maxim "ignorance of the law is no defence" remains intact, but its application has been qualified by a multi-layered framework. Today it is a starting point, not an absolute rule. The State is obligated to make the law accessible through guidance issued under specific statutory powers, and good-faith reliance on such guidance is a strong mitigating factor, at least in regulatory contexts. However, the judgment also reveals the limits of this softening: compliance with one statutory obligation does not exhaust an employer's duties under anti-discrimination law. The modern framework generates not only safe harbours but potential collisions between coexisting legal regimes.

In short, English law still says you cannot plead ignorance, but it measures knowledge by a reasonable person standard. It punishes wilful blindness, not reasonable mistakes. The comparative picture confirms this trajectory: both continental codified exceptions for unavoidable error and the ECHR's Article 7 foreseeability requirements reflect a shared recognition that the modern regulatory state cannot demand omniscience from its citizens. The maxim still holds, but tempered by reasonableness, proportionality, and the honest confrontation of competing obligations that remains unresolved.

[1] R (Good Law Project Ltd & Ors) v Commission for Equality and Human Rights [2026] EWHC 279 (Admin).

[2] For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16.

[3] Gender Recognition Act 2004, s 9(3).

[4] Gender Recognition Act 2004, s 9(1).

[5] Equality Act 2010, s 7.

[6] Equality Act 2010, sch 3 pt 7.

[7] Workplace (Health, Safety and Welfare) Regulations 1992, SI 1992/3004, reg 20(2)(c).

[8] Equality Act 2006, s 13(1)(d).

[9] Good Law Project (n 1) [40].

[10] Good Law Project (n 1) [42].

[11] Equality Act 2010, pt 5.

[12] R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.

[13] Equality Act 2010, sch 3 pt 7.

[14] Workplace Regulations (n 7) reg 20(2)(c).

[15] Good Law Project (n 1) [40].

[16] Strafgesetzbuch (German Criminal Code) s 17.

[17] Code pénal (French Penal Code) art 122-3.

[18] Sunday Times v UK (1979) 2 EHRR 245.

[19] Kokkinakis v Greece (1993) 17 EHRR 397.

[20] Del Río Prada v Spain (2013) 58 EHRR 37.

Written by Katherine O'Toole’s 

We would like to thank all participants for their submissions and congratulate this year’s winners.

This essay forms part of our Litigation Essay Competition 2026. Read more about the competition here:
https://www.cnsolicitors.com/litigation-essay-competition-2026/

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Pre-Action Stage: Why It Matters

Before issuing court proceedings in England and Wales, parties are expected to follow the pre-action framework under the Civil Procedure Rules.

This stage is often overlooked, but it can have a direct impact on the outcome of a dispute, including costs, timing, and strategy.

What is the Pre-Action Protocol?

The pre-action framework sets out the steps parties should take before starting formal litigation.

Depending on the type of dispute, this may involve:

• following a specific Pre-Action Protocol, or
• complying with the general Practice Direction on Pre-Action Conduct

These rules are designed to ensure that both parties understand the dispute at an early stage and have a fair opportunity to resolve it.

What are the aims of the pre-action stage?

The court expects parties to:

• exchange sufficient information to understand each other’s position
• make reasonable efforts to resolve the dispute without proceedings
• narrow the issues in dispute
• consider alternative dispute resolution (ADR) where appropriate

Litigation should be a last resort, not the starting point.

The Letter of Claim (Letter Before Action)

A key step in the pre-action process is the Letter of Claim.

Before issuing proceedings, the claimant is expected to write to the intended defendant setting out:

• the basis of the claim
• the core facts relied on
• what remedy is sought

This gives the defendant a fair opportunity to:

• understand the claim
• respond meaningfully
• settle the dispute if appropriate

Why is this stage so important?

The pre action stage is not just procedural, it is strategic.

Proper compliance can:

• strengthen your position if proceedings are issued
• reduce legal costs and delays
• increase the likelihood of early settlement

What happens if you do not comply?

If a dispute proceeds to litigation, the court will expect parties to have complied with the relevant pre-action requirements.

Failure to do so may result in serious consequences, including:

• adverse costs orders
• interest penalties
• procedural disadvantages in the case

The court may find non-compliance where a party has, for example:

• failed to provide sufficient information about the claim
• not acted within a reasonable timeframe
• unreasonably refused to engage in ADR
• failed to respond to correspondence altogether

Why seek legal advice early?

While it is possible to approach the pre action stage without legal representation, mistakes at this stage can be difficult and costly to correct later.

Early legal advice can help to:

• ensure the correct protocol is followed
• present the claim clearly and effectively
• avoid unnecessary risks and cost exposure

Final considerations

The pre-action stage is not simply a formality, it is a critical part of dispute resolution in England and Wales.

It can shape the direction of a dispute from the outset and, in some cases, avoid the need for court proceedings altogether.

At Chan Neill Solicitors LLP, our experienced litigation team can guide you through each stage with clarity and strategic insight. Contact us today to discuss your position.

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Mazur Appeal: Clarification for Litigation Practice 

The decision in Mazur v Charles Russell Speechlys LLP has attracted significant attention across the profession, and for good reason. It addresses an issue at the heart of modern litigation practice: how far non-authorised staff can be involved in litigation work, and where the line is drawn between delegated tasks and the conduct of litigation itself. 

For law firms, the Court of Appeal’s ruling is an important reminder that litigation is often delivered through teams, not individuals acting in isolation. The judgment provides welcome clarity on how that team-based model fits within the statutory framework, while also reinforcing the importance of supervision, accountability and proper delegation. 

The background 

At the centre of the case was a question that many firms will recognise in practice: can legal executives, paralegals or other non-authorised staff carry out litigation work as part of their day-to-day roles within an authorised firm? 

The High Court took a more restrictive approach, holding that the right to conduct litigation attaches to authorised individuals rather than to firms as a whole, and cannot be conferred simply by employment. On that view, non-authorised staff could assist with litigation, but the formal conduct of litigation had to be carried out by someone personally authorised. 

That interpretation caused understandable concern, particularly for firms that rely on supervised teams to manage litigation efficiently and effectively. 

What the Court of Appeal clarified 

The Court of Appeal has now provided greater clarity on how the statutory framework should be understood in practice. Its judgment draws an important distinction between the tasks involved in litigation and the carrying on of the conduct of litigation. 

In practical terms, the Court recognised that litigation work is frequently carried out by teams, with authorised individuals directing and supervising work that may be performed by non-authorised colleagues. The key point is not that every task must be done personally by an authorised person, but that the authorised person must retain responsibility for the conduct of the litigation and ensure appropriate oversight. 

That is a significant clarification for firms. It confirms that properly supervised delegation remains part of legitimate legal practice, and that the use of support staff in litigation teams is not, in itself, contrary to the statutory scheme. 

Delegation and supervision 

The practical message from the judgment is clear: delegation is permitted, but it must be done properly. 

Non-authorised individuals may carry out litigation-related tasks on behalf of an authorised person, provided those tasks are undertaken within a suitable supervisory structure. The authorised person remains responsible, and the firm must ensure that direction, control and accountability are clearly maintained. 

This does not dilute the importance of regulatory compliance. On the contrary, it reinforces the need for firms to be able to show that supervision is real, not merely nominal. Clear internal processes, defined responsibilities and appropriate oversight will remain essential. 

What this means for firms 

For most firms, the judgment should be reassuring. It confirms that team-based working models can continue, and that legal executives, trainees and paralegals can continue to make a meaningful contribution to litigation work under proper supervision. 

At the same time, the decision is a prompt for firms to review how they structure litigation teams and document supervision arrangements. In particular, firms may wish to consider: 

• how responsibility for litigation matters is allocated. 

• whether supervision arrangements are clearly recorded. 

• how delegated tasks are monitored and reviewed. 

• whether staff understand the limits of their role. 

• whether file management systems reflect the realities of supervision and oversight. 

Those steps are not simply about risk management. They also support efficient, scalable and client-focused service delivery. 

Why the case matters 

Although the decision resolves an important point of principle, Mazur remains significant because it has brought renewed focus to the boundaries of reserved legal activities and the practical operation of litigation teams. It is a reminder that legal work must be structured not only around service delivery, but also around the regulatory framework that governs who is entitled to do what. 

For firms, that means this is a good moment to take stock. The judgment offers reassurance, but it also underlines the value of clear governance, robust supervision and careful allocation of responsibilities within litigation teams. 

Looking ahead 

The immediate uncertainty created by the earlier High Court decision has now been eased, but the wider conversation about supervision and reserved activities is likely to continue. Firms that take the time to review their processes now will be better placed to adapt confidently and demonstrate compliance. 

In a profession that increasingly relies on collaborative working, the Court of Appeal’s judgment is a timely reminder that proper delegation and proper supervision do not compete with effective litigation practice; they are an essential part of it. 

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