Legal Practice Notes

Precedent at common law Observance of precedent is a crucial feature of common law adjudication. When a precedent is binding, later courts should, in the ordinary course, follow and respect it. The binding effect operates in two ways: Vertical stare decisis: Decisions of higher courts must be honoured by courts below. In Cassell & Co Ltd v Broome, the Lord Chancellor underlined that, within this country’s court hierarchy, each lower tier must loyally accept the rulings of the higher tiers. In Willers v Joyce ( No 2), Lord Neuberger explained that, in a common law system where judges make the law in some areas and develop it in virtually all, the doctrine of precedent (stare decisis) is fundamental; determinations of law by more senior courts have to be accepted by more junior courts, otherwise the law becomes anarchic and forfeits...

This Practice Note explains how to prepare a costs budget and should be read alongside Practice Note: Costs budgeting—completing Precedent H (costs budget). It identifies which version of Precedent H is required, depending on when proceedings were issued, with links to the applicable forms. It also describes how to complete the document using a series of checklists. Further, it addresses matters arising in cases that call for costs budgets involving multiple parties, multiple sets of proceedings, or group litigation. Guidance is given on setting hourly rates for both incurred costs and projected future expenditure, including the use of composite or blended rates to forecast upcoming work. The Note also covers partial completion of a budget, avoiding double counting, who is permitted to sign the budget, the cost of producing the budget, the costs of costs management, and...

This Practice Note outlines the pre-action protocols, citing the Practice Direction Pre- Action Conduct and Protocols ( Practice Direction), and provides a summary of the particular pre-action protocols that may apply to your dispute. It gives guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which your matter is progressing, you may also need to consider further provisions—see below. For details on: the reforms proposed by the Civil Justice Council following its review of the pre-action protocols, and any related developments discussed at subsequent Civil Procedure Rule Committee and Online Procedure Rules Committee meetings—see: Pre-action protocols—overview the importance of alternative dispute resolution ( ADR)—see: ADR and dispute resolution clauses—overview and Mediation—overview developments concerning online dispute resolution—see: Starting and managing online claims—overview general guidance on commencing a claim—see: Starting a claim or...

Practice Note This Practice Note outlines the objectives of the Protocol, in force from 13 January 2020 and applying only to residential property in England. It sets out: the Protocol’s scope and the possible outcomes of non-compliance the duty on parties to consider ADR what a tenant’s letter of claim should contain and how a landlord should respond when to instruct experts issues of costs and limitation the tenant’s obligation to allow reasonable access for inspection and repair Formerly the Pre- Action Protocol for Housing Disrepair Cases, it has been revised to reflect claims based on a landlord’s implied covenants concerning fitness for human habitation under section 9A of the Landlord and Tenant Act 1985, as amended by section 1 of the Homes ( Fitness for Human Habitation) Act 2018. Before relying on the Protocol, a tenant should ensure the landlord is already aware of the substandard housing...

Archived : This Practice Note reflects rules that applied up to 5 October 2011 and is retained purely as a historical record. Why is the position pre 6 October 2011 relevant in my case? If you agreed retainers, funding arrangements, etc with clients on or after 6 October 2011, the client information you must provide is governed, at least in part, by the Solicitors Regulation Authority ( SRA) Code of Conduct that took effect on 6 October 2011 (the 2011 Code). The 2011 Code does not operate retrospectively. Consequently, where a retainer, fee arrangement, etc was entered into before 6 October 2011, the earlier SRA Code commencing on 1 July 2007 (the 2007 Code) and the Solicitors Information and Client Code 1999 (the 1999 Code) may be pertinent if there is a challenge about what you were required to tell your client under each code during the...

ARCHIVED: This Practice Note is archived and no longer maintained. It is supplied solely for historical reference purposes, as it sets out Part 36 of the CPR as it applied before 6 April 2015. If you have received, or are making, a Part 36 offer on or after 6 April 2015, you should refer to the CPR 36 that is currently in force and to our Practice Notes and Precedents that address this—see: Part 36 offers—overview. If you have made, or are in receipt of, a Part 36 offer predating 6 April 2015, then the Part 36 provisions in force before that date apply. You can obtain a copy of the pre‑6 April 2015 Part 36 rules here in full: If you have made, or are in receipt of, a Part 36 offer which predates 6 April 2015 but where a trial of any...

ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note is retained solely as an historical record and is not maintained; its content is preserved for reference only. It sets out Part 36 of the CPR as it applied before 6 April 2015. For any Part 36 offer made or received on or after 6 April 2015, you should look to the version of CPR 36 currently in force together with our associated Practice Notes and Precedents covering that topic; see: Part 36 offers—overview. Where a Part 36 offer was made, or received, before 6 April 2015, the Part 36 provisions that were in force prior to that date will apply. You can obtain a copy of the pre‑6 April 2015 Part 36 rules here: If a Part 36 offer predates 6 April 2015 but any trial of any part of the...

This Practice Note outlines the principal phases of the mediation process, spanning initial meetings with the client and mediator, joint sessions between all participants, opening statements, private caucuses during the day, the potential to reach a settlement at the mediation itself, and matters that may arise once the mediation has concluded. Before the mediation For guidance on practical arrangements—such as securing the venue, setting the timetable and confirming attendees—see Practice Note: Organising a mediation. Pre-mediation meetings—lawyer and client Good practice is to meet the client(s) beforehand—and, where appropriate, for counsel or experts to confer—to agree strategy and define the part each attendee will play at the mediation, while remaining flexible as the process develops. It can be advantageous for the client to assume a leading role and deliver the opening remarks, which may prove more persuasive than lawyer-led presentations and often feel more natural. It is also common for the...

This how-to guide explores how to source an expert witness capable of underpinning the case your client seeks to advance or resist. It also addresses how to gauge, in advance, the likely calibre of that expert in producing a persuasive report and performing under cross-examination about it. Identifying the need for an expert witness In some disputes it will be apparent from the beginning that independent opinion evidence from a specialist with no involvement in the underlying facts is required to establish a claimant’s affirmative case. This is typical where it is alleged the defendant fell short of the expected standard of competence in a defined discipline—construction and medical practice are obvious illustrations. Often an expert will already be retained to help the claimant frame and plead the allegations. In other matters, the necessity for the claimant to instruct an expert may only...

This Practice Note considers the use of bilateral treaties to obtain evidence in civil and commercial matters. Where it applies, the Hague Convention on the Taking of Evidence ( Hague Evidence Convention) overrides any bilateral arrangement. Accordingly, it is necessary to verify whether the state from which evidence is sought is a contracting party to the convention and, if it is, whether the convention operates between the UK and that state. For further guidance, see: Cross-border evidence—which evidence regime applies?—checklist. Bilateral treaties A bilateral treaty is an accord between two countries/states creating mutual legal obligations. Unlike multilateral conventions, it has effect solely between the two contracting states. In relation to evidence, such instruments govern the gathering of evidence in one jurisdiction for deployment in proceedings in the other. Bilateral treaties are commonly earlier instruments that predate contemporary multilateral conventions. Their drafting is often narrower and may fail to...

This Practice Note offers guidance on preparing witness statements for use in interim applications. It explains when a witness statement is needed to support an application and the elements such a statement should properly include. It also addresses witness statements resisting an application and witness statements served in reply. Do I need a witness statement in support of this application? Not every application requires a supporting witness statement in practice at all. It is sensible indeed to ask whether it is necessary to produce a witness statement each time you prepare an application. To determine whether one is required, you must understand the function of a witness statement within an application and the situations in which witness statements will genuinely assist an application. What is the purpose of a witness statement in an application? In an interim application, a witness statement supplies clear factual evidence on which the court is...

This Practice Note should be considered alongside: Practice Notes: Expert evidence—general considerations; Applying for permission to adduce expert evidence; Instructing an expert; Instructing an expert under the Guidance for the instruction of experts in civil claims; and Changing an expert witness Checklist—letter of instruction to expert Duty of the solicitor When appointing experts you should take into account: all applicable CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims (‘the Guidance’), which took effect on 1 December 2014, replacing the earlier protocol for instructing experts Practice Direction Pre- Action Conduct and Protocols Practical tip: consider supplying your expert with copies of these materials so they appreciate their obligations; this can be especially significant if they are later cross-examined on their understanding. Under the Guidance, an expert must state in their report that they...

ARCHIVED: This Practice Note is archived and for historical reference only. What we have learnt—detailed assessment Some of the most notable rulings are those where the courts have grappled with how separate CPR provisions operate together. They underline the importance of looking beyond the rule that appears obvious and checking others that may bear upon it. This approach featured in Baker, which examined how CPR 47.9(3), CPR PD 47, para 8.1, CPR 3.1(2)(a), CPR 2.11 and CPR 3.9 interrelate. The theme is a reminder to practitioners to survey the procedural landscape rather than focus narrowly on a single rule. Context within the CPR can alter outcomes quite markedly. Under CPR 47.9, points of dispute must be served within 21 days of service of the notice commencing detailed assessment. CPR PD 47, para 8.1 states that this 21‑day window can be extended or curtailed by...

This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...

ARCHIVED : This archived Practice Note examined the consequences of the UK's withdrawal from the EU at the close of the implementation period on 31 December 2020. It sets out the position for proceedings in the sphere of civil and commercial matters. It reviews the operation in the UK of EU law and international conventions, and signposts core considerations when dealing with: applicable law jurisdiction service of documents taking of evidence mediation cross-border process recognition and enforcement of judgments It is also essential to recognise that the ramifications are not confined to EU Member States. They extend to the other contracting states to the Lugano Convention 2007 ( Iceland, Norway and Switzerland) and, in certain situations, to contracting states to the Hague Convention on Choice of Court Agreements ( Mexico, Montenegro and...

This Practice Note reflects the position as at 1 October 2020. For background on amendments made before that date, see Practice Note: Tracker—costs management and costs budgeting review and future changes— Significant changes to costs budget rules (1 October 2020). It explains the actions a party must take once a judge has approved a cost budget and also considers whether an approved costs budget can be challenged on appeal. After a budget is approved Once the costs budgets have been approved, the following steps should be taken: re-filing and re-serving the costs budget—if the court revises the figures during a costs management conference, the party is required to re-file and re-serve the costs budget in the approved form showing the amended figures, which must be annexed to the approving court order ( CPR 3.15(7)) inform the client—the client should be notified of the...

This Practice Note summarises the following information for different types of claim funded by way of a conditional fee agreement: the highest success uplift you may levy, expressed as a percentage of base costs whether a damages-based ceiling, if any, applies to the success fee whether the success fee is recoverable from the opposing party and, if so, any cap on inter partes recovery whether any costs insurance premium is recoverable The tabulated material has been fully in force since 1 April 2013 under the Conditional Fee Agreements Order 2013, SI 2013/689. It also takes account of the removal......

This Practice Note This Practice Note offers a summary of the categories of parties that may take part in litigation in England and Wales, whether as claimants or defendants, together with the principal procedural matters and practical points their legal advisers should consider. It outlines who may sue or be sued and the implications for case management and strategy. Corporations Partnerships Sole traders Unincorporated associations Children Insolvent individuals or companies Groups The estate of a deceased party Litigants in person It is crucial that party status aligns with the issues to be determined. In Haque (representative/member of Muttahida Quami Movement Pakistan unincorporated association) v Hussain, the defendants were sued as trustees but advanced a defence which the court held could be pursued only in their capacity as members of an...

ARCHIVED: This Practice Note is archived and is not being maintained any longer. It serves purely as a historical record, outlining the changes to Part 36 that occurred in 2013. Those changes were later replaced by further Part 36 amendments that took effect on 6 April 2015. What are the reforms? A Part 36 working party, led by David Di Mambro, formally introduced revisions to Part 36 in April 2013. Their scope was confined only to measures necessary to mesh with the costs reforms commencing on 1 April 2013. The new rules address the 10% enhancement where general damages are awarded after 1 April 2013. The CPR Committee duly agreed: that the new provisions would only apply to offers made on or after 1 April 2013......

ARCHIVED: This Practice Note is archived and not maintained. It outlines how the April 2015 re-write of CPR 36 impacts the acceptance and disclosure of Part 36 offers in split trial cases. It forms part of a series produced for the joint Lexis Nexis and St Philips Commercial seminars on the CPR 36 revisions held in Leeds, Birmingham and London in January 2015. To access all materials and the recorded London Part 36 event, please visit our Lexis Nexis Dispute Resolution blog and sign-up. For other Practice Notes in this revised CPR 36 series, see the related content links on the right. The new split trial provisions The rules had not previously addressed the interaction between Part 36 and split trials. Here we consider how the new CPR 36 provisions work in practice. Split trials are covered in: CPR 36.3:...