Hailsham Chambers
6 Experts
13 Contributions by Hailsham Chambers Experts
PRACTICE NOTES
Khan v Meadows
In Khan v Meadows, the Supreme Court outlined a framework for analysing the constituent parts needed to establish negligence, including the scope of duty and causation. For further guidance, including on the limits of the defendant’s duty of care, see Practice Note: Duty of care and breach in clinical negligence claims.
Causation has two elements that a claimant must demonstrate:
Is the loss a consequence of the defendant’s act or omission? (the factual causation question)
Is any part of the harm unrecoverable because it is too remote, because there is another effective cause (including an intervening act that broke the chain of causation), or because the claimant has mitigated their loss or failed to avoid loss they could reasonably have avoided?...
PI & Clinical Negligence
PRACTICE NOTES
For guidance on causation in clinical negligence matters, refer to Practice Note: Causation and material contribution in clinical negligence claims.
Did the breach cause the injury to the claimant?
The baseline for proving causation is the ‘but for’ test: but for the defendant’s breach of duty, would the claimant have suffered the harm in question?
In a personal injury claim alleging negligence or breach of statutory duty, the claimant must show the defendant owed and breached a duty, and that this breach resulted in loss or damage.
It is helpful to consider the claim in key components:
did a duty of care exist?
was that duty breached by the defendant?
is there a causal link between the breach and the loss or damage?
what is the nature and scope of the loss or damage?
The claimant bears the burden of proving the breach caused the
PI & Clinical Negligence
PRACTICE NOTES
This Practice Note explains how to make and respond to a Part 36 counter-offer, its impact on existing Part 36 offers, and its relevance to other settlement offers not advanced under Part 36.
Counter-offer in response to Part 36 offer
When a party receives a Part 36 offer, they may propose a counter-offer, either as a further Part 36 offer or by another route. The consequences of putting forward a counter-offer are outlined below.
Effect of counter-offer on Part 36 offer
Tabling a counter-offer does not undermine the validity of any extant Part 36 offer. Under CPR 36.11(2), a Part 36 offer already made stays open and capable of acceptance unless the offeror serves written notice withdrawing it, or it is automatically withdrawn in line with its terms where the acceptance deadline passes without the offeree serving notice of acceptance (CPR 36.9(4)(b)).
Dispute Resolution
PRACTICE NOTES
Practice Note
This Practice Note explores the interplay between Part 36 offers and the specific costs recovery mechanism in CPR 36, alongside the Part 45 fixed costs provisions that applied before 1 October 2023. It cites authorities concerning personal injury claims and assesses how CPR 36 aligns with the scale costs for cases in the Intellectual Property Enterprise Court (IPEC) (CPR 46, Section VII). For clarity, any references in this Practice Note to ‘rule’ and ‘part’ are to the pre-1 October 2023 rules, which govern matters that fell within the fixed costs regime before that date. The old Part 36 and the old Part 45 can be accessed here: In addition, the extended fixed costs regime applies to all civil proceedings (subject to exclusions) with a value of £100,000 or less. For civil cases other than personal injury and disease, the extended fixed costs regime
Dispute Resolution
PRACTICE NOTES
This Practice Note outlines the required contents of a Part 36 offer, identifies to whom the offer must be directed, and highlights the additional stipulations for a defendant’s Part 36 proposal. It also explains how to make a Part 36 offer confined to part of the claim or focused on a specific issue within the claim. The Note addresses offers in proceedings with multiple parties, the need for a relevant period of at least 21 days, and the treatment of interest. It further considers situations involving a litigant in person, as well as the inclusion of a non-monetary element within a Part 36 offer...
What a Part 36 offer must include
A compliant Part 36 offer does not have to be presented in a letter; a party may instead use Form N242A (CPR PD 36, para 1.1)...
Dispute Resolution
PRACTICE NOTES
This Practice Note explores the aim of Part 36, explains what constitutes a Part 36 offer, and outlines the motivations for proposing one. It further supplies guidance on requesting clarification of a Part 36 offer and sets out the costs repercussions for both claimants and defendants when making and accepting Part 36 offers. Note that this Practice Note addresses the rules currently in force after 1 October 2023. For details of specific provisions in place before 1 October 2023 for Part 36 offers in fixed costs matters, see Practice Note: Part 36 offers—fixed costs (position prior to 1 October 2023). For guidance on Part 36 offers in civil claims that fall within the fixed costs regime on or after 1 October 2023, see Practice Note: Part 36 offers—fixed costs (position on or after 1 October 2023).
The purpose of Part 36
Dispute Resolution
PRACTICE NOTES
This Practice Note considers the application of CPR 36 where Part 36 offers are made to settle detailed assessment proceedings commenced under CPR 47.
It reviews leading authorities on the 10% enhancement for a receiving party’s costs under CPR 36.17(4)(d), and explores how CPR 36 aligns and interfaces with the statutory cap on the recoverable costs of provisional assessment set out in CPR 47.15(5). It also surveys case law on these issues and their consequences too. For solicitor/own client assessments, the consequences in CPR 36.17(4)(d) do not apply after a successful Part 36 offer, as this has been held inconsistent with section 70(9) of the Solicitors Act 1974, which imposes the one-fifth rule unless special circumstances arise under SA 1974, s 70(10). Nonetheless, a successful Part 36 offer in solicitor/own client assessment proceedings can still be treated as an admissible offer within the court’s
Dispute Resolution
PRACTICE NOTES
This Practice Note sets out guidance on Part 36 offers where there are multiple parties or multiple proceedings. It highlights relevant authorities and gives practical direction on the key considerations to bear in mind in these kinds of cases.
Multiple parties and proceedings complicate Part 36
Part 36 offers can be used in litigation involving numerous parties and/or more than one set of proceedings. Yet, when several parties are engaged, deciding whether to put forward such an offer, and in what terms, is more complex. For details of the specific points to address when making a Part 36 offer in a matter with multiple parties, see Practice Note: Part 36 offers—how to make a valid Part 36 offer—Making a Part 36 offer in cases involving multiple parties. In Zagora Management v Zurich Insurance (2019), the court determined the costs payable in a
Dispute Resolution
PRACTICE NOTES
This Practice Note sets out guidance on recovering pre-action costs under Part 36, outlining the circumstances in which such costs are available and the position where a Part 36 offer is made and accepted before any claim is issued...
Can pre-action costs be recovered under Part 36?
Yes. On 6 April 2015 the CPR were amended to codify earlier authority confirming that pre-action costs fall within Part 36 (see the Court of Appeal in Solomon v Cromwell Group (2011)). The rules now make clear that Part 36 costs recovery encompasses ‘recoverable pre-action costs’ (subject to the extent of what counts as ‘recoverable’, addressed below). The principal provisions are:
CPR 36.7(1)—which provides that a Part 36 offer can be made at any stage, including prior to the commencement of proceedings
CPR 36.13(1)—concerning a claimant’s recovery of costs where a Part 36 offer is
Dispute Resolution
PRACTICE NOTES
Overview
Within civil litigation, defendants in personal injury matters most often rely on surveillance material. Its purpose is to expose any gap between the claimant’s asserted impairments following the index accident and reality. The Civil Procedure Rules (CPR) contain no standalone rules for such material; a recording is treated as a document, so CPR 31 applies. There are three particular features of surveillance evidence that prompt specific considerations:
surprise—its value lies in capturing the claimant carrying out activities when they have no expectation of being observed by, or for, the defendant; advance warning must accordingly be avoided
secrecy—it is likewise crucial the claimant is not made aware that they are being watched; however, there are bounds to how far a defendant ought to go to obtain such material
timing—its forensic force is in weakening the claimant’s case, so the
PI & Clinical Negligence
PRECEDENTS
Note:
This template is a claimant Part 36 offer letter; it does not deal with CPR 36 provisions that apply specifically to fixed costs matters. For guidance on Part 36 offers in fixed costs cases, see Practice Notes: Part 36 offers—fixed costs (position prior to 1 October 2023) and Part 36 offers—fixed costs (position on or after 1 October 2023).
[ insert name and address of the defendant or their legal representative ]
[ insert date ]
Without prejudice—save as to costs
Dear [ insert organisation name ]
[ Pre-action ] Part 36 offer
[ Claimant v Defendant—Case number ]
We write in relation to the above [ potential ] matter, in which we represent [ insert name of your client ].
[ Our client remains confident that it is entitled to [ insert brief nature/details of dispute ], but as [ insert explanation as
Dispute Resolution
PRECEDENTS
Please note that this Precedent and the accompanying drafting guidance do not address the CPR 36 rules that apply exclusively to fixed costs matters. For guidance on Part 36 offers in fixed costs cases, see Practice Notes: Part 36 offers—fixed costs (position prior to 1 October 2023) and Part 36 offers—fixed costs (position on or after 1 October 2023).
Private & confidential
[ insert name and address of client ]
[ insert date ]
Dear [ insert name of client ]
[ insert case heading/description of the case if pre-action ]
Settlement offers under Part 36
We have been exploring the possibility of resolving this matter and the various routes by which that might be achieved. [ You will recall that ] [ one OR One ] of those options was a Part 36 offer. This letter aims to explain in greater detail how such an offer operates, and the
Dispute Resolution
PRECEDENTS
Note
This precedent is a defendant Part 36 offer letter and does not encompass CPR 36 provisions directed at fixed costs cases. For details on Part 36 offers in fixed costs matters, see Practice Notes: Part 36 offers—fixed costs (position prior to 1 October 2023) and Part 36 offers—fixed costs (position on or after 1 October 2023).
[ insert name and address of claimant or claimant’s legal representative ]
[ insert date ]
Without prejudice—save as to costs
Dear [ insert organisation name ]
[ Pre-action ] Part 36 offer
[ Claimant v Defendant—Case number ]
We refer to the above [ potential ] matter and confirm we act for [ insert name of your client ].
Our client considers your client’s case to be without merit, but because [ insert explanation as appropriate ] we are instructed to advance an offer under Part 36 of the CPR (the ‘Offer’). For
Dispute Resolution
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