XX v GH (Legal Services Act 2007 Exemption), Re [2026] EWFC 51 (B)

[2026] EWFC 51 (B)FAMILY COURTSITTING AT BRIGHTONDate 27/02/2026
Before
HHJ FARQUHAR
Between
XXApplicantGHRespondent
Mr Matthew Withers (instructed by Family Law Partners) for Applicant for The Respondent did not appear but written submissions were provided.Hearing Hearing dates: 26 th January 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 10.00am on 27 TH February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

HHJ Farquhar :

[1]This is an application made within Financial Remedy proceedings by which it is sought on behalf of the Applicant’s solicitors, Family Law Partners, that Ms Burton-Durham, a Chartered Legal Executive, is granted an exemption to be permitted to carry on a ‘Reserved Legal Activity’ namely the conduct of this litigation. Further an order is sought for Ms Burton-Durham to be able to conduct litigation in other proceedings which have been issued and others which have yet to be issued.[2]This application is made following the decision of Sheldon J in Mazur v Charles Russel Speechlys [2025] EWHC 2341 in which it was held that a non-authorised individual may not conduct litigation even if acting under the supervision of an authorised person. Prior to that decision Ms Burton-Durham, in keeping with hundreds or thousands of other non-authorised individuals around the country, was undertaking steps which might be considered as amounting to conducting litigation on the understanding that being under the supervision of an authorised person was sufficient to permit her to conduct such litigation.[3]I am aware that Mazur is to be considered by the Court of Appeal in late February 2026, which will no doubt further clarify the position in due course. The Applicant wished to pursue this application notwithstanding the impending Court of Appeal hearing.[4]In hearing this matter, I have considered the application and supporting witness statement together with the position statement filed on behalf of the Applicant and oral submissions from counsel. The application is on notice, and the Respondent has filed a position statement objecting to the application, as far as it relates to these proceedings, although they did not attend the hearing, as permitted by the directions.[5]The Orders Sought.[6]Mr Withers on behalf of the Applicant sets out the 3 issues that he considers are to be determined within this application as follows:a. Whether the Court should grant Lisa Burton-Durham the right to conduct litigation in these proceedings (and the Children Act proceedings between the same parties) by granting an exemption.b. Whether the Court should grant Lisa Burton-Durham the right to conduct litigation in the proceedings issued and identified by her not between these parties.c. Whether the Court should direct that Lisa Burton-Durham be granted the right to conduct litigation in other proceedings when issued, not between these parties.

The Statutory Framework

[7]The Legal Services Act 2007 s.12 defines reserved legal activity as follows:
“In this Act “reserved legal activity” means- a. the exercise of a right of audience; b. the conduct of litigation;……” a. the exercise of a right of audience; b. the conduct of litigation;……”
[8]There is a definition in Schedule 2 of the Act at paragraph 4(1):
“The “conduct of litigation” means- a. the issuing of proceedings before any court in England and Wales, b. the commencement, the prosecution and defence of such proceedings, and c. the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)” a. the issuing of proceedings before any court in England and Wales, b. the commencement, the prosecution and defence of such proceedings, and c. the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions)”
[9]Section 13 of the Act includes the following:
“(1) the question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provision of this Act. (2) A person is entitled to carry on an activity (“the relevant activity”) which is a reserved legal activity where – a. the person is an authorised person in relation to the relevant activity, or b. the person is an exempt person in relation to that activity.” a. the person is an authorised person in relation to the relevant activity, or b. the person is an exempt person in relation to that activity.”
[10]Schedule 3 of the Act provides the following:
“Schedule 3 Exempt Persons. Conduct of Litigation (1) This paragraph applies to determine whether a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings (subject to paragraph 7). (3) the person is exempt if the person – a. is not an authorised person in relation to that activity, but b. has a right to conduct litigation granted by a court in relation to those proceedings.” a. is not an authorised person in relation to that activity, but b. has a right to conduct litigation granted by a court in relation to those proceedings.”
[11]The importance of compliance with the terms of the Act are made clear by s.14 which states that it is an offence for a person to carry on an activity which is a reserved legal activity unless that person is entitled to carry on the relevant activity. A conviction on indictment can lead to a term of imprisonment not exceeding two years.[12]The Position of the Professional Bodies.[13]It is important to understand the position of the Professional Bodies in order to put this application in context.[14]Prior to the decision in Mazur it was possible for a Legal Executive to apply to be authorised for litigation and advocacy combined. There was no option to apply for authorisation to conduct litigation alone. As a response to the Mazur judgment the Legal Services Board approved a stand-alone litigation practice option and there are now 3 routes to obtain such authorisation:a. Training and Assessment Route. This involves a 24 week online course with an assessment at the end. The most recent course commenced in January 2026 but is now full. The cost is one of £2350.b. The Assessment only Route. This involves a question and answer assessment as well as a two-part skills assessment. It is considered likely to take 3 to 6 months to complete this route. The cost is £650.c. Portfolio Route. This involves providing portfolios and evidence from the applicant’s case load. It is stated that once the portfolio has been provided it should take a period of 6 to 10 weeks to be assessed. The cost is £450.[15]There are three categories of litigation rights being offered by Cilex Regulation Limited (CRL) namely: civil, family, and criminal.[16]In Mazur The Law Society made submissions in which they fully supported the decision that was eventually reached by Sheldon J. Their submissions were summarised at paragraph 35 of the judgement as follows:
“The Law Society concluded their submissions by saying that non-qualified staff play an important role in supporting the conduct of litigation by authorised solicitors. Their work, however, must not cross the boundary into conducting litigation which may only be done by authorised persons. The principle that authorised individuals should be in control of and have responsibility for litigation is in the public interest. An authorised entity which provided a platform for unauthorised staff to conduct and control litigation would not be in the public interest.”
[17]The Solicitors Regulation Authority also made submissions in Mazur in which they stated that “it was a matter of the highest public interest that those carrying out reserved legal activities are fit and proper persons who are appropriately qualified and regulated. This is necessary, among other things, to secure public confidence in the administration of justice, to protect the public and consumers of legal services, and to ensure high standards of competence and propriety in the profession.”[18]It is apparent that neither CILEX nor CRL provided submissions to Sheldon J as they were not party to the proceedings nor were they intervenors. However, it is noted that it is these bodies who have brought the appeal to be heard in the Court of Appeal.[19]Lisa Burton-Durham[20]Ms Burton-Durham became a Fellow of the Institute of Legal Executives in 2006. She works for Family Law Partners which is a ranked Band 1 firm in the South in the respected legal directories, Legal 500 and Chambers and Partners. CILEX is an approved regulator under the Legal Services Act and as such has delegated day-to-day regulatory activities to CILEX regulation limited. They act independently, but under the oversight framework of the Legal Services Act and the oversight regulator, the Legal Services Board.[21]As well as her CILEX qualification Ms Burton-Durham is also trained by Resolution as a collaborative lawyer and she is the secretary of East Sussex Resolution and has been for the last 10 years. She is one of two Group Directors at FLP, runs the Brighton office team which consists of six solicitors and two paralegals. In that role she provides supervision and support to her team and on occasions to others within FLP generally. There is no doubt that Ms Burton-Durham is a very experienced practitioner dealing with Financial Remedy cases and she regularly instructs both junior and senior counsel and has been involved in highly complex cases.[22]It is stated that FLP deal with a large number of cases which avoid court proceedings by way of NCDR and there is no restriction on Ms Burton-Durham in dealing with such cases as there is no litigation involved. It is stated that the complexity of such cases is no different to those which involve court litigation. There is general encouragement to all parties involved in such disputes to utilise all non-court options.[23]Ms Burton – Durham intends to apply to be authorised to conduct litigation via the Portfolio route. It is considered that due to her vast experience that this would be the appropriate course to take. The Application has not been submitted as it requires substantial work in order to supply the information concerning her previous work. This will then need to be assessed and if approved then Ms Burton-Durham would be able to conduct litigation in her own right. In the light of the Mazur decision, until Ms Burton-Durham is authorised or exempted it is stated that she will not be able to do any of the following within this case or any other proceedings:a. Issue proceedings;b. Sign statements of case or court documents;c. File documents with the court;d. Be a client’s main point of contact;e. Instruct counsel or expert on behalf of the client;f. Make substantive case management decisions; org. Exercise independent professional judgement on litigation strategy.[24]The Objections raised by the Respondent[25]The Respondent submitted written submissions in response to the Application. In that document they object to the application on the basis that the court should not exercise its discretion in favour of Ms Burton-Durham due to her conduct in this case. This relates to a letter that was sent by Ms Burton-Durham in November 2024 concerning the occupation of the former matrimonial home and a suggestion that the parties could settle matters amicably. It is suggested that this was inappropriate as there was subsequently personal allegations made against the Respondent which meant that it would not be appropriate for mediation to take place. It is suggested that the behaviour of Ms Burton-Durham was in breach of the CILEX code of conduct and Resolution’s Guide to Good Practice. As such it is submitted that the respondent’s solicitors could not be expected to deal with Miss Burton -Durham. The document does not refer to the detailed law on whether a Court should grant exemption in a particular case.[26]Test to be applied in considering application for exemption.[27]The wording of Schedule 3 Legal Services Act 2007 provides no guidance as to how to reach the conclusion as to whether an individual should be granted exemption. It simply states that an individual will have exemption if granted by the Court. Mr Withers stated that he had not found any authorities in which this issue had been considered. He was able to provide anecdotal evidence that it is something that has occurred in other courts but could take it no further. I have seen redacted orders made by a Circuit Judge and a Master in which Legal Executives have been granted exemption.[28]The same wording appears within the previous section of Schedule 3 LSA 2007 in relation to Rights of Audience. There have been many occasions on which there has been an application to have rights of audience before myself and many other judges. There is assistance provided in such applications by the Practice Guidance: McKenzie Friends. There is no such guidance when considering the application for exemption to conduct litigation in circumstances such as these.[29]There are a number of authorities dealing with the approach to how the court should consider the discretion to grant exemptions relating to Rights of Audience. In one such case, Graham v Eltham Conservative Club [2013] EWHC 979 Hickinbottom J set out the following in relation to such applications: “29. Under the 2007 act, the right to conduct litigation and the right to act as an advocate are limited to persons authorised under the statutory scheme; …. “30. Additionally, paragraph 1(2) of schedule 3 effectively reserves the inherent power of the superior courts to allow an individual other than a litigant himself to act as advocate before it, by exempting from the detailed procedural requirements “a person who has a right of audience granted by that court in relation to those proceedings…..”. “31. In exercising the discretion to grant a layperson the right of audience, the authorities stress the need for the court to respect the will of Parliament which is that, ordinarily, leaving aside litigants in person who have a right to represent themselves, advocates will be restricted to those who are subject to the statutory scheme of regulation….Section 1(1) of the 2007 Act sets out a series of “statutory objectives” which includes ensuring that those conducting advocacy adhere to various “professional principles”, maintained by the rigours of the regulatory scheme for which the Act provides, and without which it is considered lay individuals should not ordinarily be allowed to be advocates for others…..” “32. Consequently, it has been said by the higher courts that “the discretion to grant rights of audience to individuals who did not meet the stringent requirements of the Act should only be exercised in exceptional circumstances”, and in particular, “the court should pause long before granting rights to individuals who make a practice of seeking to represent otherwise unrepresented litigants….” “33. .. In line with the overriding objective of dealing with cases justly, the court will be more open to exercising its discretion and granting a right of audience in a particular case when it is persuaded it will be of assistance to the case as a whole if a litigant in person were to have someone who is not an authorised advocate to speak for him or her. …..” “34. However, even though the legal world has in many ways moved on since the time of the authorities to which I have referred, in my view, as those authorities and the Practice Guidance stress, due deference to the will of Parliament, and general caution, are still required.” “35. Therefore, as required by the Practice Guidance, without undue formality, when a litigant in person wishes to be heard by way of a lay advocate, he should make an appropriate application to the court at the first inter partes hearing. …” “36. The authorities and Practice Guidance provide little assistance with regard to how the court’s discretion should be exercised; and this is an area in respect of which the Head of Civil Justice may wish to consider giving further guidance in due course.” “38. As with the exercise of any power, whether a layperson is given the right to be an advocate in a particular case or for a particular hearing will depend upon all of the circumstances. However, as I have indicated, given the overriding objective, the court will take particular account of the extent to which allowing the individual to speak will assist the fair and just disposal of the case. The Practice Guidance stresses, at paragraph 22, that the burden of showing that it is in the interests of justice for a layperson to be granted the right to be an advocate at a hearing lies upon the litigant who wishes him to do so. It will only be granted in “special circumstances”.[30]Applying the test to this application relating to these proceedings alone.[31]It is argued that the Court should grant Ms Burton-Durham exemption within these proceedings because to do so would be “a fair, just and proportionate way of ensuring that the Applicant can continue to be represented by her chosen lawyer, without added delay or cost.” Once her legal experience is taken into account it is submitted that her regulated status provides sufficient safeguards in the exercise of the court power to grant the right so that it can be satisfied conduct of this litigation will continue to be appropriately and lawfully exercised. The regulatory status refers to both CILEX regulation and also SRA regulation as she works for an SRA regulated firm.[32]It is argued that such an order would be in keeping with the Overriding Objective set out in FPR r1(1) quoting the need to deal with cases justly, including expeditiously, keep the parties on equal footing and in a way that saves expense. It is argued that if exemption is not granted both in the financial remedy proceedings and the Children Act proceedings there would be both delay and added cost to the Applicant as there would be further involvement of other individuals in the case.[33]In terms of the objections raised by the Respondent it is said that they should not be taken into account as in effect they are attempting to decide who the Applicant can use as her lawyer. The allegation of unprofessional conduct is no more than that and has not been tested, there being no known application to any professional body even though the letter was written as long ago as November 2024. Further, the application concerns the conduct of litigation, and the letter was written at a time before any litigation had been commenced and as such should not impact this decision. In terms of the allegation itself it is denied and it is simply stated that when the letter was written it was considered appropriate for there to be mediation but once an arrest had taken place then that changes the factual scenario and there may well be bail conditions which would make such an approach inappropriate.[34]I am entirely satisfied that Ms Burton-Durham is an experienced Financial Remedy practitioner and is fully capable to conduct litigation. This is something in which she has been involved for many years prior to the decision having been reached in Mazur and I am told (and accept unreservedly) that there are no adverse findings made against her in any possible complaints nor have any orders been made against her specifically. There is no doubt that she runs a very busy and successful office dealing with a large number of financial remedy disputes many of which are resolved without recourse to court proceedings, save for the necessary approval of a Consent Order.[35]Further, I consider it highly likely that Ms Burton-Durham will have little difficulty in satisfying the criteria set out by CILEX to obtain authorisation to conduct litigation through the ‘Portfolio Route’ and that in a number of months’ time there will no further requirement to seek for an exemption. It is difficult to see that her experience and knowledge would not be sufficient to obtain authorisation in due course. This was not previously an option as Ms Burton-Durham does not appear in Court and consequently could not apply for the combined Advocacy/Litigation Conduct authorisation which was the only route available to her prior to the Mazur decision.[36]As was set out in Graham above in considering whether to grant an exemption in a Rights of Audience case, due deference must be given to the Will of Parliament and the power to exempt an individual should only be granted in exceptional circumstances. Mazur has made it clear as to how the Will of Parliament is to be interpreted. Ms Burton-Durham, in keeping with a large number of other Chartered Legal Executives, is not authorised to conduct litigation. There is now a route by which Ms Burton-Durham and others in her position can be granted such authorisation.[37]Is it appropriate to grant an exemption when there is now a clear path which may be followed in order to obtain authorisation and thus avoid the need to apply for an exemption? Surely such an approach would not be giving the Will of Parliament due deference as it is creating an alternative method to be able to carry on activities which are specifically not authorised under the Act. It must be correct that this can only occur in ‘exceptional circumstances’.[38]Is there anything in this specific case which makes it exceptional? It is said that the client would be prevented from having their choice of lawyer to represent them, that there will be additional costs and delay which is all inimical to the Overriding Objective. It is difficult to see how that would not be the position in every case in which a party is represented by a Chartered Legal Executive and as such there is nothing that would make this case exceptional. It is argued that whichever route Ms Burton-Durham follows to obtain authorisation will take considerable time due to an expected backlog and that this would prejudice the client who has built up a relationship with her. By definition, there would only be a backlog if there are many individuals in the same position as Ms Burton-Durham applying for authorisation and if there are many such applicants it is difficult to see how the situation that she (and her client) faces can be considered exceptional.[39]I am not assisted by the fact that other judges in other cases have granted exemptions to individuals. I am unaware of the situation in those cases, whether there was full argument, and I have not seen any judgment in support of the decisions that were reached. There is no doubt that there is a power to grant an exemption as it is set out within the statute, the only issue is as to how it should be exercised.[40]I am satisfied that a refusal to grant an exemption in this case will cause difficulties for Ms Burton-Durham and her client but that cannot be the test to apply as otherwise the exemption would be granted in every such case. The default position, following Mazur, is that Ms Burton-Durham is not authorised to conduct litigation. There is a clear path which can be followed for Ms Burton-Durham to obtain that authorisation and I have little doubt that this will occur in due course. The sole issue for me to consider is whether there is any basis upon which I should state that an exemption should be granted in this case. I can see no basis upon which I can grant such an exemption as there are no elements of the case that take it out of the ordinary. The application for exemption is refused.[41]Should this Court grant Exemption in Other Cases?[42]A list of cases which are presently before the Courts in Surrey and Sussex, in which Ms Burton-Durham is the main point of contact has been provided. The statement in support of the applications states:
“To avoid unnecessary costs and having regard to the overriding objective and particularly proportionality, I would invite the Court to make orders exempting Ms Burton-Durham in relation to each of those matters on the basis that an order is filed in each case with the appropriate court fee and the written consent of the client….I would invite the court to direct it should apply in any proceedings where an application has been made pursuant to divorce and/or the dissolution of a civil partnership and/or private law children cases.”
[43]A draft order is included with the application and permission is sought to submit such orders “without a formal application being made upon payment of the relevant court fee as to do so would be meeting the overriding objective and addressing proportionality. This would be particularly appropriate once the court was satisfied that Ms Burton-Durham has the necessary experience to conduct litigation and achieve the exempt status such as to satisfy the court for the purposes of schedule 3.”[44]The effect of granting the orders sought would be the same as stating that Ms Burton-Durham is ‘authorised’ to conduct litigation as it would not require any further consideration in the subsequent cases. It is noted that Schedule 3 provides the Court with the jurisdiction to grant an exemption “in those proceedings” which does not indicate that orders could be made in relation to cases which are not specifically before the Court and as such it does not appear that I would have the authority to make decisions in other cases without those matters being before me.[45]The more fundamental issue is that if a general exemption was to be permitted then it would have the effect of ‘authorising’ Ms Burton-Durham to conduct litigation and this would not be in keeping with the decision of Mazur or the Will of Parliament. There is now a route which can be followed to obtain authorisation and it is not for this Court to provide a short cut remedy to permit Ms Burton-Durham to conduct litigation prior to being authorised by her Professional Body. It is not appropriate for this Court to make orders in any other cases.[46]In reaching these conclusions I make no criticism of Ms Burton-Durham whatsoever. As stated above I have little doubt that she will obtain authorisation in due course, whichever route that she decides to follow.[47]I appreciate that the main issue before the Court of Appeal in Mazur is that which relates to authorisation and not exemption. However, it is to be hoped that they may provide some assistance on the test to be applied in applications for exemption as there may be many such cases if there are particular delays in Chartered Legal Executives being able to obtain authorisation.[48]Permission to Appeal[49]The Applicant seeks for permission to appeal on the basis that the incorrect test for exemption has been applied and that this Court does have jurisdiction to grant exemptions in other issued cases. There is little doubt that this is an issue which affects many legal practices in the Country and as such I am satisfied that there is “some other compelling reason why the appeal should be heard” as per FPR r 30.3(7)(b). This is a matter that should be considered at High Court level or above.[50]The Applicant has indicated that they would wish to appeal dependent upon the outcome in Mazur in the Court of Appeal and as such I grant permission to appeal and extend the time for filing an Appellant’s Notice to 21 days after the publication of the Court of Appeal’s decision in Mazur. His Honour Judge Farquhar 27th February 2026