Legal Practice Notes

This Practice Note explores the nature and scope of an expert witness’s duties when preparing to give, and giving, evidence within their expertise, by reference to the Civil Procedure Rules and case law. It addresses the expert’s overriding obligation to the court and considers what may follow if an expert does not fulfil those duties. Key principles for experts CPR 35.3 states that an expert must assist the court on issues within their expertise, and that this obligation overrides any duty owed to the instructing party. The most commonly cited account of an expert’s responsibilities is found in the judgment of Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co (the Ikarian Reefer) [1993] 2 Lloyds Rep 68 (not reported by Lexis Nexis®): expert evidence should be, and be seen to be, the expert’s independent product,...

What is the function of an expert witness? This Practice Note offers an in-depth examination of the fundamental principles and broad considerations governing the use of expert evidence in Scottish civil litigation. For practical guidance on the applicable rules and procedural steps concerning expert witnesses and their evidence, see Practice Note: Leading expert evidence in Scottish civil litigation—rules and procedure. In Scotland, the term ‘skilled witness’ is frequently used as a synonym for ‘expert witness’. For consistency, this Practice Note adopts ‘expert witness’. Expert evidence arises where an individual applies their specialist knowledge and expertise to assist the court. An expert witness deploys that specialist learning to provide factual testimony and to express opinions on facts that are agreed or that others have presented to the court. This stands in clear contrast to a lay witness to fact, who is restricted to recounting matters they have...

This Practice Note explains when and by what means a Part 36 offer may be varied. It also identifies the ramifications of variation and supplies practical illustrations. CPR 36.9 and CPR 36.10 specify the occasions and mechanisms by which a Part 36 offer can be changed, together with the consequences of taking that course under the rules. Why vary a Part 36 offer? An offeror might be inclined to keep a Part 36 offer in the background for possible acceptance, poised to inflict adverse consequences if it is not accepted and then beaten at trial. Yet that approach—or lack of a considered approach—can prove expensive. This is especially true where the litigation develops in a way that increases the chance the offeree will accept at a point when the terms no longer suit the offeror. Accordingly, Part 36 offer(s) should be tracked carefully and kept under...

Practice Note This Practice Note explores the principles of costs recovery for money claims under Section II of CPR 45 when seeking costs after a summary judgment application. It addresses the claimant’s position, including whether the fixed costs regime in CPR 45 applies, if it can be disapplied, and the consequences where the claimant withdraws a summary judgment application. It also considers the defendant’s position when it successfully opposes summary judgment, offering guidance on the prospect of indemnity costs and the implications for costs budgeting. Note that this Practice Note relates to money claims under Section II of CPR 45. The current CPR 45.16(2) was previously rule 45.1(2)—both the present and former rules provide that fixed costs apply where the only claim is for a ‘specified sum of money’ and ‘summary judgment is given under Part 24’. For fixed costs money claims issued before 1...

This Practice Note outlines how to obtain an order for assessment and the steps to follow if one is made, including the necessary documents and evidence, the assessment hearing, and who bears the assessment costs. The provisions governing the assessment of solicitors’ costs are in CPR 46 and CPR PD 46 at para 6.1 onwards. Throughout, the Solicitors Act 1974 is abbreviated to SA 1974. For further information on: a client’s entitlement to seek an assessment—see Practice Note: Solicitor and client costs—rights to an assessment the High Court’s power to require a solicitor to deliver a bill of costs ( SA 1974, s 68)—see Practice Note: Solicitor and client costs—applications for delivery the features required of a statute bill—see Practice Note: Solicitor and client costs—statute bills the basis applied on a solicitor–client assessment—see Practice Note: Solicitor and client costs—basis of...

Note On 6 April 2025, changes to CPR 25 took effect, re-numbering the former CPR 25 provisions and revising some of the wording of its provisions on security for costs. This Practice Note labels the previous rule 25 as ‘old rule 25’ and, where relevant, points out any distinctions between the current CPR 25 and the old rule 25, where applicable and appropriate. As regards the conditions to be satisfied before the court is able to make a security for costs order, CPR 25.13 has been re-numbered as CPR 25.27 and certain elements of it have been altered. The old rule 25 can be accessed here: This Practice Note sets out what is required for making an application for security for costs and the conditions that need to be satisfied under CPR 27.13. This Practice Note forms part of a series that considers issues...

Unjust enrichment and restitution—overview As outlined in Unjust enrichment and restitution—overview, restitution seeks to reverse an unfair or unjust benefit obtained by one party at another’s expense. Practice Note: Unjust enrichment—elements of the claim identifies the core requirements for pursuing an unjust enrichment claim and explains how those elements interact in practice. A defendant’s wrongdoing is not a prerequisite; the question is whether it would be unjust for the defendant to keep a gain secured at the claimant’s expense. For example, the claimant might have paid the defendant by mistake, even though the defendant did nothing wrongful. Practice Note: Unjust enrichment—defences sets out available defences, including that the defendant has changed their position in consequence of the enrichment, or that the defendant is a bona fide purchaser for good value, having provided proper consideration for what was received, even where this came at the...

Civil justice reform See our Practice Note: Civil justice reform in Scotland—virtual hearings and electronic submission of documents for up-to-date guidance on the position in the Scottish civil courts regarding remote hearings and the electronic signing, sending and lodging of documents. This Practice Note outlines the practical considerations when preparing for a proof or a proof before answer in Scottish civil proceedings. As procedures differ, they carry distinct procedural obligations and deadlines. Consult the specific rules to ensure all procedural requirements are fulfilled. For guidance on Specific procedures: Scottish DR: courts and civil procedure—overview Other aspects of commencing and advancing a civil claim in Scotland: Scottish DR: prescription and limitation—overview; Scottish DR: starting a claim—overview; and Scottish DR: case management and evidence—overview, each linking to more detailed guidance The equivalent in England and Wales: Trial—overview, which links to detailed guidance on preparing for...

The principal limitation periods The following table sets out the main categories of action and specifies how many years a claimant has to issue proceedings under the Limitation Act 1980 ( LA 1980), highlighting, where relevant, the applicable statutory provisions and authorities as appropriate. For help on identifying the applicable limitation period (ie the point at which time begins to run and when it ceases), refer to Practice Note: Limitation Act 1980—general application. Please note the table below is not comprehensive; it does not list every possible claim. It concentrates on those actions most likely to matter to a dispute resolution practitioner and omits certain highly specific causes of action, for instance, successive conversions of goods ( LA 1980, s 3), although these are contained within the LA 1980......

Applications in the King’s Bench Division If your case is before the King’s Bench Division ( KBD), the provisions of the King’s Bench Guide apply to any application you pursue. This Practice Note gives guidance on applications in the KBD, cross‑referring to the relevant sections of the King’s Bench Guide. Its focus is preparation for an application hearing in the KBD, particularly the documents that must be ready in advance, and the method and timing for lodging them with the court. For guidance on other aspects of the KBD applications process, see these Practice Notes: Making an application in the King’s Bench Division ( KBD) Determination of applications in the King’s Bench Division ( KBD) The following general points should be noted: The King’s Bench Guide provides practical detail on KBD procedure but does not replace the CPR and must be read in...

This Practice Note outlines the reasons, timing and process by which an offeror may withdraw a Part 36 offer. It also indicates when permission is necessary, the correct destination for any application, and the impact of withdrawing a Part 36 offer. Why withdraw a Part 36 offer? As set out below, once a Part 36 offer is withdrawn, the automatic Part 36 costs consequences do not apply ( CPR 36.17(7)(a)). At times, an offeror might opt to leave a Part 36 offer sitting open, hoping the offeree overlooks it and that, if the dispute reaches trial, the outcome betters that offer. There is, however, a tangible risk to that tactic. The offeree may not have forgotten the offer and could accept it unexpectedly, particularly if developments in the case mean its original terms are no longer favourable (or as favourable) to the offeror. Moreover, where a clear and...

This Practice Note outlines the main formats an offer to settle a dispute may take, including open offer letters, Calderbank (without prejudice save as to costs) ( WPSAC) letters and Part 36 offers; it assesses their respective pros and cons, the implications for costs exposure, and how to draft these offer letters. For wider guidance on without prejudice communications, including Calderbank ( WPSAC) letters, see Practice Notes: Without prejudice communications, Without prejudice explained and Without prejudice—exceptions to protection from admissibility... Although this Practice Note only summarises the core features of Part 36 settlement offers, comprehensive guidance on making, receiving, varying, accepting and rejecting a Part 36 offer, together with detailed precedents, is available at: Part 36 offers—overview... For advice on making an offer or recording a settlement, and on drafting settlement agreements, see Practice Notes: • Settling disputes—how to document a settlement • Settling...

Practice Note: Restitution for wrongful acts This note outlines the categories of civil wrongs that may attract a restitutionary response. Where the wrong consists of a fiduciary breach yielding a profit to the defendant, the court may, in its discretion, require the defendant to: account for the gains realised pay equitable compensation be treated as holding the profit on constructive trust, where it derives from the principal’s property or from an opportunity that ought to have been available to the principal It explains the range of remedies potentially available when a fiduciary has failed to comply with their fiduciary obligations. Fiduciaries and their duties A fiduciary is a person who agrees to act for, and on behalf of, another in a particular matter in circumstances creating a relationship of trust and confidence ( Boardman v Phipps). Breaches of fiduciary duty commonly arise in employment settings or where a company...

Introductory observations Claims for knowing receipt (sometimes termed ‘unconscionable receipt’) and dishonest assistance are often grouped as ‘accessory liability’ because they target a defendant implicated in causing the claimant’s loss in an ancillary or secondary capacity. Liability may arise by dishonestly helping another to breach a trust or fiduciary obligation owed to the claimant, or by receiving trust property with knowledge that it follows a breach of trust or fiduciary duty. In this way, the defendant’s potential responsibility is secondary to the principal wrongdoing of the breach. That said, Lord Burrows in Byers v Saudi National Bank considered that a personal claim in knowing receipt is materially different from the accessory nature of a dishonest assistance claim ( Byers is discussed further below). Dishonest assistance and knowing receipt claims frequently emerge where there has been some fraudulent or wrongful conduct in which the...

Once a duty of care is confirmed (see Practice Note: Negligence—when does a duty of care arise?), the next step is to assess whether that duty has been breached. The answer turns on several factors outlined below and is judged against the objective baseline of reasonableness, taken from an impersonal standpoint and the general background against which reasonableness is assessed. Breach of duty of care—reasonableness To decide if there has been a breach, the law applies the artificial, objective measure of the ‘reasonable person’, setting aside the realities of the defendant’s position insofar as their abilities diverge from that norm, notwithstanding any inexperience or personal shortcomings ( Glasgow Corpn v Muir, per Lord Macmillan). Breach of duty of care—objectivity This objective demand for a reasonable level of competence covers skills attainable only through training and effort, as well as ordinary attributes most people are expected to have....

This Practice Note explores why experts meet and the range of possible approaches available in practice. It clarifies the standing of expert-to-expert discussions and any joint statement, and examines how far any consensus between experts may bind the parties to the litigation. It offers guidance on reading and applying the pertinent CPR provisions, and on how they should be understood in context and applied appropriately. For further provisions, see the Court specific guidance below. Expert witnesses and those instructing them are expected to comply with the following: the Guidance for the instruction of experts in civil claims ('the Guidance') Practice Direction Pre- Action Conduct and Protocols, para 7 Conventional directions for experts’ meetings and joint statements The court may require an exchange of experts’ initial reports and, frequently under CPR 35.12, will order a subsequent, without prejudice, joint discussion between the experts in each...

This Practice Note explains the differences between the assessment of costs on the standard basis compared to the indemnity basis. It further addresses costs payable under a contract, noting that the court does not have to assess those sums ( CPR PD 44, para 7.1). Guidance is also included on the selection of legal representatives and how that choice influences the reasonableness of the costs claimed. When attempting to recover expenditure arising in the proceedings, the recoverable sum will usually be lower than the total actually incurred. Where the parties cannot reach agreement, the court will frequently carry out an assessment. For direction on the available assessment routes, see: Summary assessment—overview Practice Note: Provisional assessment Detailed assessment—overview Note that costs are only recoverable to the extent they do not breach the indemnity principle; see Practice Note: Costs and the indemnity...

Rome II (transitional) Use this Practice Note to identify the applicable law before the courts of England and Wales for harmful events that took place between 11 January 2009 and 31 December 2020. It applies to events giving rise to damage within that period. Where matters occurred outside those dates, the UK courts will apply a different applicable law regime. For other dates, an alternative conflicts framework will instead be used there. The governing regime turns on the date of the precipitating event. For guidance on the various regimes and how they relate, see Practice Note: Applicable law regimes. This Practice Note addresses Regulation ( EC) 864/2007 on the law governing non-contractual obligations, Rome II (transitional). In identifying the applicable law, Article 4(1) sets the default rule. However, a different system will apply if a derogation under Articles 4(2) or 4(3) is...

This Practice Note outlines when and how an offeree may ask for clarification of a Part 36 offer, as well as the potential consequences if the offeror refuses to clarify... When to seek clarification of a Part 36 offer Before deciding whether to accept a Part 36 offer, the offeree may need its terms clarified. CPR 36.8 sets out the process by which an offeree can request clarification... Instances where the offeree might seek clarification of a Part 36 offer include where: they do not fully understand what is being proposed, eg the offer is inelegantly drafted the offer is unclear or capable of more than one reading the offer is defective, ie it does not strictly comply with Part 36, eg it fails to state a relevant period of at least 21 days Note: in Seeff v Ho, the court...

When a company or an individual is served with a statutory demand, alarm bells should ring, because not dealing with that demand within 21 days (for debtors situated within the jurisdiction of England and Wales) can trigger winding-up and bankruptcy proceedings being brought against the company or the individual, respectively. Where a debt is genuinely owed by the debtor to the creditor, steps ought to be taken to pay the liability, or to reach arrangements with the creditor to settle it, failing which insolvency proceedings might be commenced. However, there are occasions when a statutory demand is served on a debtor when it should not have been—for instance, where the debt is not due, or the debtor has a counter or cross-claim that equals or exceeds the creditor’s claims, or there is some other substantial reason. When that situation arises, the debtor must...