Legal Practice Notes

This Practice Note explores the position on costs following an application for an interim injunction, the courts’ usual approach, and when the court may depart from that stance. It also addresses how the court deals with recovery of costs on freezing injunction applications and the making of costs orders on anti-suit injunctions. Costs orders following applications for interim injunctions An applicant who secures an interim injunction might reasonably expect the court to direct the respondent to pay the application costs. However, in Desquenne et Giral v Richardson (1999), the Court of Appeal determined that where relief is granted (or agreed by consent) on the balance of convenience, costs will ordinarily be reserved until trial of the substantive issues. The reason is that, at the interim stage, there is no clear successful or unsuccessful party, so the general rule that the losing party pays the winner’s costs ( CPR...

This Practice Note outlines the position on costs where proceedings are brought to an end against a defendant. It also highlights practical considerations for the parties, bearing in mind their likely competing interests in relation to costs. It is intended as a starting point and should be read alongside Practice Notes: Costs of discontinuing a claim—the general rule and Costs of discontinuing a claim—displacing the presumption. Discontinuance—what does it mean? Discontinuance refers to a claimant ending all or part of their claim against one or more defendants. This arises only where court proceedings have been issued. If no proceedings have been issued, there is no formal claim to discontinue. For example, where a claimant sends a letter before action but then elects not to take the matter further, that will not amount to discontinuance. The governing rules on...

This Practice Note surveys the core principles of the costs management regime. The principal documents within the regime are cost budgets and costs management orders ( CMO). It addresses: the purpose of costs management and how it operates through costs budgeting and CMOs the key sources governing the regime ( CPR 3 and CPR PD 3D) exceptions to the regime and the court’s discretion to apply (order) or disapply costs management what costs budgets are and why they are used electronic filing of bundles for costs management conferences Costs management—introduction The aim of costs management is for the court to control the parties’ future expenditure alongside the procedural steps to be taken (known as case management). In combination, these measures advance the overriding objective ( CPR 3.12(2)). CPR 3.12– CPR 3.18 and CPR PD 3D contain the principal rules and guidance for the costs management regime. The court’s costs...

Costs budgeting light In May 2023, the Civil Justice Council ( CJC) released a report on costs, identifying areas where the appropriate costs management regime might diverge from the norm and from one another across different contexts. Acting on that recommendation, a costs sub‑committee produced two new draft pilots for costs budgeting, adopting a streamlined ‘costs budgeting light’ approach. One pilot will concern Business and Property Court ( B& PC) cases, while the other will apply to ‘certain other cases’ outside the B& PC valued at under £1m. A new Precedent costs form, modelled on the existing Precedent H, has been drafted and was approved in principle at the Civil Procedure Rule Committee ( CPRC) meeting on 4 October 2024. For drafting purposes, this new Precedent is described as ‘ Precedent Z’. A proposed new Precedent RZ (budget discussion report) has also been created for use...

This Practice Note explains when courts may depart from the default position that the winning party recoups costs from the losing party. It gives illustrations of departures from the default and instances where the default has not been applied. It also highlights circumstances where that general position was considered inapplicable. For details on the default rule and the court's discretion, see Practice Notes: Costs orders—the general rule and Costs orders—the court's discretion. Departing from the general rule It was affirmed in Straker v Tudor Rose (2007) that the court should start with the default rule unless particular factors warrant a different outcome. A non-exhaustive set of potential factors was identified: failure to comply with a pre-action protocol whether a party has unreasonably advanced or opposed an allegation or issue the way in which an allegation or issue has been pursued whether the...

ARCHIVED: As at 1 December 2013, this Practice Note was archived and is retained solely for historical reference. It is helpful for readers seeking to understand the costs budgeting pilot schemes that operated before 1 April 2013. Purpose of the costs budgeting pilot schemes Two pilot initiatives were undertaken to test how costs budgeting functioned in real cases. Mercantile court pilot—this took place across all Mercantile and TCC courts as a voluntary programme. Monitoring was undertaken through questionnaires and telephone calls to assess its success in controlling expenditure and keeping clients apprised of the overall costs position. An interim review of its operation was issued in February 2012, albeit only a relatively small number of responses were received. A further report was produced by Fenwick Elliot in October 2012. Defamation pilot—this operated in the RCJ and the Birmingham District Registry and covered claims in...

ARCHIVED: This Practice Note is kept for historical reference only. CPR provisions As a consequence of the Jackson Reforms, the courts are required to conduct both case management and costs management. Costs control is implemented through costs budgeting, which is intended to secure proactive and proportionate management of proceedings. The requirements for costs budgeting are contained in section II of CPR 3 and in CPR PD 3E. As this replaced the earlier rules on costs estimates, we have dealt with it in the same location and retitled the subject: Costs estimates and budgeting. Note: the provisions on costs budgeting originally set out in SI 2013/262 were altered very quickly by SI 2013/515 so that: the Heads of the Chancery and Queen's Bench Divisions may determine classes of cases within their divisions to which costs budgeting will not apply......

ARCHIVED: This Practice Note is archived and is not being maintained This annual round-up highlights major developments from 2017, including: The Ministry of Justice’s announcement that it would scrutinise the success of the Legal Aid Sentencing and Punishment of Offenders Act 2012 ( LASPO 2012). Supreme Court and Court of Appeal judgments concerning funding under LASPO 2012’s transitional provisions. A report on prospective fixed costs reforms published on 31 July 2017. Amendments to CPR 3.18 addressing the relationship between costs budgeting and detailed assessment. The round-up also signals what is expected in 2018 across costs and funding, notably consultations following Lord Justice Jackson’s 2017 fixed recoverable costs ( FRC) report and the implementation of a new electronic bill of costs. Reviewing 2017 The Ministry of Justice confirmed it would assess the effectiveness of LASPO 2012, which introduced the Jackson costs reforms; a series of...

This Practice Note explores the cost implications associated with group litigation claims. Such claims involve numerous parties and might proceed with or without a group litigation order ( GLO). Where a GLO is granted, distinct CPR rules govern. In the absence of such an order, authorities provide guidance on the courts’ approach to costs. This Practice Note considers both situations... GLOs—what are they? GLO proceedings bring together a cohort of parties within one action, with their claims entered on a group register. Any party whose claim appears on the register is a group litigant ( CPR 46.6(2)), whether they are a claimant or a defendant. The objective of a GLO is to determine issues common to many claims through a single set of proceedings in a cost effective manner. For wider guidance on GLOs, see Practice Notes: Group litigation...

This Practice Note explores tortious liability in the corporate sphere, covering the general approach to corporate liability in tort, the wrongful acts of company agents, and matters relating to group structures, including when a parent may owe a duty of care for the negligent acts or omissions of its subsidiary company or companies. It considers key Court of Appeal and Supreme Court rulings— Chandler v Cape, AAA v Unilever, Vedanta v Lungowe and Okpabi v Royal Dutch Shell—and flags particular issues for companies facing accessory liability in tort (common design). For wider guidance on types of tort claims and on establishing a duty of care in negligence, see Practice Notes: Vicarious liability and multi-party torts Procedural abuse torts and similar The different torts—property, people and animals Multiple...

This Practice Note pinpoints, from a practical standpoint, the first matters to assess when an intractable dispute arises between parties to a corporate joint venture (a joint venture company, or JVC), whether a 50-50 vehicle or one with majority and minority participants. Such disagreement can produce managerial deadlock within the JVC, activating the prescribed deadlock resolution procedures set out in the joint venture agreement ( JVA). In other instances, the issue may give rise to redress under the Companies Act 2006 ( CA 2006) or, potentially, a broader contractual remedy at common law. Scope of this Practice Note on corporate joint venture disputes Where the joint venture ( JV) relationship is constituted via a JVC, the primary documents to review when tackling any dispute or issue relating to the JVC are the JVA and the JVC’s articles of association. Although the substance of disputes may...

This Practice Note considers the torts of: trespass to land tort of conversion and trespass to goods trespass to the person (assault, battery and false imprisonment) privacy and defamation tortious product liability tortious liability for animals For guidance on other torts, see Practice Notes: Procedural abuse torts and similar Vicarious liability and multi-party torts For guidance on negligence claims, see Practice Note: Negligence—key elements to establish a negligence claim and related content. For practical guidance on negligence, nuisance and breach of statutory duty claims, see: Tort and negligence claims—overview. For guidance on bringing and defending claims against professionals, see: Professional negligence claims—overview. The tort of trespass to land This tort is committed where an individual ( D) carries out an act that brings about entry onto another’s land ( C) without consent or lawful...

Contractual set-off Set-off gives Party A, to whom Party B owes money, the means to secure payment by netting the sum due against Party A’s separate liability to Party B arising from another dealing. Where a creditor and debtor have mutual transactions, the creditor may deduct from the debt owed to them any amount they themselves owe to the debtor. See Practice Note: What is set-off and when is it available? Contractual set-off is one of the five principal types identified in Practice Note: Types of set-off. It arises where the parties have created a right of set-off by an express contractual term. Parties use it to widen or restrict the set-off rights available at general law; however, it cannot change the scope or operation of insolvency set-off, which applies mandatorily despite any contractual arrangement between the parties—see Practice Note: Types of set-off—...

Categories of contractual damages—pecuniary loss This Practice Note examines the principal categories of contractual damages available for financial (pecuniary) loss: expectation-based damages, reliance-based damages and gains-based damages. For help with recovering wasted expenditure arising from a breach, see Practice Note: Contractual damages—damages for wasted expenditure and management time. For overarching guidance on contractual damages, consult Practice Note: Contractual damages—general principles, which cites Baron Parke in Robinson v Harman on the compensatory aim of damages for breach, namely that a party who has suffered loss through breach is entitled ‘to be placed in the same situation, with respect to damages, as if the contract had been performed.’ For advice on claiming damages for non-financial loss following breach of contract, see Practice Note: Contractual damages—non-pecuniary losses. Be aware that contracts frequently attempt to limit or exclude the losses recoverable for a given breach, a source of...

Debt Protocol or Practice This Practice Note explains how to interpret and apply the pertinent CPR provisions. Depending on the forum hearing your case, you may need to account for extra requirements—details appear below. It also outlines the pre-action steps a court would ordinarily expect before starting a contractual debt claim. Specifically, it summarises the approach envisaged by the Pre- Action Protocol for Debt Claims ( Debt Protocol), potentially relevant to debts pursued by a business (including a sole trader or public body) against an individual (including a sole trader), and the Practice Direction— Pre- Action Conduct and Protocols ( Practice Direction), which covers most other debt claims. For further guidance on debt claims, see: Practice Note: Starting a contractual debt claim—a practical guide Practice Note: Debt claims Practice Note: Discharging a contractual debt Starting a contractual debt...

This Practice Note This Practice Note sets out a hands-on framework for dealing with disagreements about the proper construction of a contract. It draws on the principles of contractual construction contained in the following Practice Notes and should be considered alongside that guidance: Contract interpretation—the guiding principles Contract interpretation—rules of contract interpretation The situations in which such disagreements emerge are endlessly diverse. Yet, whether it surfaces as a client approaching you about an unforeseen demand from a contracting counterparty, or as the reply from a third party on whom you have served such a demand, the core refrain is the same—‘that’s not what was agreed’. Once that contention is made, practitioners will typically seek to conclude the dispute promptly and without resort to costly proceedings. A firm understanding of how a court would tackle the construction of the disputed term(s) will allow you to make...

An agreement on the terms of a contractual proposal only crystallises into a binding and enforceable contract once that proposal has been accepted. This Practice Note explores what can amount to contractual acceptance, the ways it may be communicated, and the circumstances in which it can be withdrawn. For guidance on identifying when an offer, capable of acceptance, has been made, see Practice Note: Forming enforceable contracts—offer. Note: Part 36 settlement offers under CPR 36 sit outside the ordinary principles of contract law and are governed by the distinct regime in CPR 36. For guidance on accepting a CPR 36 offer, see Practice Note: Part 36 offers—how and when to accept a Part 36 offer. What do we mean by an acceptance of an offer? Acceptance is the final, unconditional manifestation of assent to the terms of a contractual offer. Note: it is not...

Note: this Practice Note deals solely with the creation of binding legal relations by contract (whether written or oral) and does not address arrangements that must be made by deed to be valid; see Practice Note: Deeds. While many will recognise the usual requirements for a contractually binding agreement—such as offer, acceptance, consideration and certainty (see: Forming enforceable contracts—overview)—it is helpful to grasp the courts’ overall approach and how those elements fit together. The essential ingredients of an enforceable contract offer and acceptance consideration (unless the contract is executed by deed) an intention to create legal relations (that is, an intention to be legally bound) certainty These broad principles have greater depth, as explored in the following Practice Notes: Forming enforceable contracts—offer Forming enforceable contracts—acceptance Forming enforceable...

This Practice Note reviews the jurisdictional service gateway, or ground of service, in CPR PD 6B, para 3.1(24) concerning contempt applications. It explains gateway 24 and offers guidance on how the courts are likely to construe it. This Practice Note should be read alongside the service Practice Notes: Cross-border service—jurisdictional gateways (principles) Cross-border service—documents other than the claim form—contempt application to be served outside the UK For guidance on contempt and committal, see: Contempt and committal—overview Gateway 24 Gateway 24 (contempt applications) is designed to address the problems faced when serving contempt applications outside England and Wales. Gateway 24 ( CPR PD 6B, para 3.1(24)) states: ‘(24) A contempt application is made, whether or not, apart from this paragraph, a claim form or application notice containing such an application can be served out of the...

This Practice Note This Practice Note sets out the principal points for solicitors arising from the Consumer Contracts ( Information, Cancellation and Additional Charges) Regulations 2013 ( CCR 2013), SI 2013/3134, insofar as they relate to costs and funding. Its purpose is to draw attention to the main issues for solicitors stemming from these regulations in respect of costs and funding, rather than to offer a wider review of the regulations. It does not attempt a general overview of CCR 2013 beyond these focused points only. It addresses three categories of contract—distance, off-premises and on-premises—and the matters that should be taken into account. Before CCR 2013 took effect, the following regimes applied: Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 ( Cancellation Regulations 2008), SI 2008/1816, and the Consumer Protections ( Distance Selling) Regulations 2000, SI...