Legal Practice Notes

This Practice Note explores how judges assess the credibility and genuine recollection of factual witnesses giving evidence at trial. The entirety of evidence To fulfil the court’s fact‑finding role, the various factors must be weighed together as a single, holistic exercise ( Tomlinson LJ in Synclair v East Lancashire Hospitals NHS Trust, drawing on Lord Pearce in the House of Lords case, Onasiss & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 (not reported by Lexis Nexis®)). In UK Insurance Ltd v Gentry, the court observed that, in claims alleging a staged road collision, one should step back and evaluate the evidence in the round. The judge also stressed the importance of contemporaneous documents. Illustrations of the court considering the totality of the material include: Yavuz v Tesco Stores Ltd — where tempers were high and witnesses had adopted entrenched positions in their written...

This Practice Note outlines how the common law doctrine of frustration may operate to terminate an agreement and the legal effects when a contract is frustrated, addressing issues of partial frustration, the position where a party is at fault (self‑induced frustration), and illustrations of types of frustrating event. See also the following Practice Notes: Frustration event analysis—a practical guide Frustration—key and illustrative decisions For detailed guidance on drafting a notice that asserts frustration of a contract, see Precedent: Contract frustration notice. Interest in the doctrine of frustration came sharply to the fore in light of global events such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, together with the attendant imposition of sanctions against Russian entities. Links to general guidance regarding contractual relations and these world events are also provided in the current world events section below....

This Practice Note offers guidance on the interpretation and application of the relevant CPR provisions. Depending on the court in which your case progresses, you should also be alert to any additional provisions—see: Court specific guidance. CPR PD 57AB covers both the shorter and flexible trials schemes and took effect on 1 October 2018, following a successful pilot run under CPR PD 51N in the Rolls Building only. It applies to claims issued on or after 1 October 2015 within the Business and Property Courts. This Practice Note addresses only the shorter trials scheme ( STS). For guidance on the flexible trials scheme, see Practice Note: Business and Property Courts—flexible trials scheme. For general guidance on the Business and Property Courts, see Practice Note: Business and Property Courts. Purpose of the shorter trials scheme The STS is designed to secure resolution of...

This Practice Note offers a Canada-specific Q& A on class actions, published within the Lexology Getting the Deal Through series by Law Business Research (law stated at: 23 September 2020). Authors: Lavery Lawyers— Myriam Brixi. 1. Outline the organisation of your court system as it relates to collective or representative actions (class actions). In which courts may class actions be brought? Canada is a federal state. Responsibility for private law and civil remedies primarily rests with each province and territory, each maintaining its own court structure. The superior courts in these jurisdictions possess inherent, and in most instances statutory, authority to hear collective or class proceedings on any topic, save where legislation assigns matters to another forum (for example, small claims courts, which deal with civil disputes below a prescribed monetary threshold). Consequently, almost all civil actions, including class proceedings, can be initiated in...

This Practice Note examines contempt proceedings under CPR 81 (often termed ‘committal proceedings’) in the context of County Courts Act offences and High Court certifications. It does not attempt to tackle the specific quirks of the numerous committal-type steps available where a defendant breaches the County Courts Act or a High Court certification. It should be read alongside the following Practice Notes, which provide a general overview: Civil contempt proceedings—nature and legal framework Civil contempt proceedings—sentencing and costs County Courts Act 1984 (quasi-contempts) The County Courts Act 1984 ( CCA 1984) contains several distinct, though similarly focused, offences. Until 1 October 2020, these were addressed within CPR 81. Following amendments effective from that date, they no longer fall within CPR 81. When faced with CCA 1984 offences, practitioners should consult the relevant statutory provisions, which include: assaulting a court officer ( CCA 1984, s 14) ...

This Practice Note This Practice Note addresses the alteration of statements of case under CPR 17, including changes to pleadings, particulars of claim, the claim form, the defence and any reply. It outlines when the court’s consent is necessary to amend a statement of case, and sets out the principles governing whether permission will be allowed or declined. In doing so, it highlights the principal considerations the court will weigh, such as the overriding objective in CPR 1.1, the requirement for a real prospect of success (mirroring the test applied on summary judgment), the stage at which the application is made, compliance with the Civil Procedure Rules ( CPR) when pleading, whether the proposed amendment constitutes an abuse of process, and the potential impact of illegality. The Practice Note further clarifies the circumstances in which permission to amend a pleading must be sought under CPR 17, and...

This Practice Note addresses the position in Scotland. For guidance on: other forms of diligence within Scottish civil procedure, see Practice Note: Enforcement in Scottish civil litigation, which in turn links to detailed guidance on the range of diligence available in Scotland the equivalent in England and Wales, see: Introduction to enforcement—overview, which provides an outline of the topic and links to fuller guidance on domestic enforcement in England and Wales cross-border enforcement, see Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners, which offers an overview and signposts more detailed guidance on cross-border enforcement In 2020, the Scottish Government commenced a policy review of diligence measures in Scotland, resulting in the Bankruptcy and Diligence ( Scotland) Act 2024, which received Royal Assent on 15 July 2024. See Practice Note: Enforcement in Scottish civil litigation— Methods of...

Successful bids to strike out, or to secure summary judgment on, a claim, defence or discrete issue are, at core, about bringing that matter, or that identified point, in the proceedings to a close. A summary judgment application is frequently pursued alongside a strike out request. It is therefore helpful to explore where these applications overlap, as well as how they differ. Further, there are additional mechanisms by which parties can be stopped from pressing on with a claim, or a particular issue within it, and it is again helpful to assess how summary judgment and strike out interact with those other routes. For general guidance on strike out applications, see Practice Note: Strike out applications—what, who and when and related content. For general guidance on summary judgment applications, see Practice Note: Summary judgment...

This Practice Note outlines summary judgment under CPR 24, setting out in clear terms who may seek such an order, when an application can be brought, and the circumstances in which it is not permitted under the rules. For procedural guidance on issuing a summary judgment application, see Practice Note: Summary judgment—making an application. For the judiciary’s approach to determining these applications, see Practice Note: Summary judgment—general principles. Amendments to CPR Part 24 and CPR PD 24—1 October 2023 Practitioners should be aware that the Civil Procedure Rules ( CPR) on summary judgment changed with effect from 1 October 2023. CPR Part 24 was replaced and CPR PD 24 was withdrawn. The reforms aim to streamline the rules and do not significantly affect the substantive law or day-to-day practice. The numbering and placement of certain provisions have been altered accordingly....

This Practice Notice explains what ought to be taken into account when considering an appeal against a costs order—the starting position being that such appeals are generally discouraged. It outlines the preliminary factors and the foundation for a costs-only appeal, which falls under CPR 52. It also covers the time limits for appealing, obtaining permission to appeal, challenging a refusal of permission, the correct venue for the appeal, the documents required to initiate it, and the consequences of bringing an appeal. This Practice Note does not consider: an appeal against the decision of a costs officer, as these are governed by special provisions in CPR 47.21 to CPR 47.24. For information, see Practice Note: Detailed assessment—appeals recovering the costs incurred in an appeal. For guidance, see Practice Note: Appeals—costs recovery appeals generally. For guidance, see: Civil appeals: general and preliminary...

This Practice Note explains the steps available once a judgment is received, covering when you may seek to correct a judgment, have it revoked, pursue an appeal, or apply for it to be set aside because it was given without jurisdiction or procured by fraud. For broader guidance on the aftermath of a judgment or order, refer to Practice Note: Judgments and orders—service, compliance, interpretation. The need carefully to review all draft judgments and orders of the court As noted in Practice Note: Reserved judgments—purpose and restrictions, it is usual for the judge to reserve judgment and issue a draft version before it is handed down. Accordingly careful review of any draft judgment or order is essential also......

This Practice Note examines the usual defences that can be advanced before the courts of England and Wales (the English courts) when seeking recognition and enforcement of a foreign judgment. For the principles governing common law enforcement, consult Practice Note: Enforcing foreign judgments—common law principles. To assess whether common law governs enforcement of a particular foreign judgment, see: Which regime applies to enforce a foreign judgment?—checklist. The common defences to enforcement of a foreign judgment A judgment that is prima facie enforceable in the English courts may still be refused if the judgment debtor shows that one or more enforcement defences applies. These (often overlapping) defences include: recognition in England would offend natural justice. See: Breach of natural justice defence below the foreign judgment was procured by fraud on the part of the judgment creditor or the foreign court. See: Fraud defence below ...

This Practice Note explores how to commence proceedings in the Technology and Construction Court ( TCC). It focuses on the principles drawn from West Country Renovations v Mc Dowell—reflected in the Technology and Construction Court Guide, para 1.3.2—on deciding whether to issue in the High Court in London, the High Court outside London, or the County Court. It should be read alongside Practice Note: Where to start a civil claim, which provides general guidance on the appropriate venue for civil claims. What types of claims are suitable for the TCC? The kinds of disputes managed by the TCC are described in the Technology and Construction Court Guide, para 1.3. High Court or County Court? Both the High Court and the County Court handle TCC work. As the TCC sits within the Business and Property Courts ( B& PCs), any relevant guidance issued for the B& PCs must also be...

This Practice Note examines the service of particulars of claim. It sets out the prescribed periods for service under CPR 7.4, together with the alternative deadlines that may apply in particular courts or to particular kinds of claim. It also considers practical issues and includes some illustrative cases. Contained within the claim form Where the particulars of claim are included within the claim form itself, they are treated as served at the moment the claim form is served. Distinct factors apply when fixing the date on which service of the claim form occurs. For guidance, see Practice Note: Service of the claim form—time periods for service. Questions can arise about whether the particulars have, in truth, been incorporated into the claim form. That situation arose in Al- Hasani v Nettler (2019), where it was argued that the claimant had not served the...

In addition to the guiding principles on contract interpretation articulated by Lord Hoffmann in ICS (refer to Practice Note: Contract interpretation—the guiding principles), further interpretative rules have been developed to assist with construing contracts. The starting point is the parol evidence rule, which limits the admissibility of extrinsic material as a means of adding to, altering or contradicting a written bargain. For related guidance on questions of admissibility, refer to the following Practice Notes: Contract interpretation—admissibility of surrounding documents Contract interpretation—admissibility of pre-contractual negotiations and statements Parol evidence rule—what is it? The parol evidence rule provides that, where the parties have executed a signed agreement, it is generally not permissible to introduce external evidence to: demonstrate what the parties intended when entering into that agreement ( Prenn v Simmonds) contradict, vary or add to the terms of the written...

This Practice Note examines the service of documents under the Companies Act 2006 ( CA 2006) as an alternative to serving under Part 6 of the Civil Procedure Rules ( CPR 6). It outlines what qualifies as a service address and explains how the Act’s provisions operate for service on a company ( CA 2006, s 1139) and on directors, the company secretary and others ( CA 2006, s 1140). It also addresses service on overseas companies, and on limited liability partnerships via the Limited Liability Partnerships ( Application of Companies Act 2006) Regulations 2009, SI 2009/1804, which modify CA 2006. Practical consideration: the CA 2006 service provisions apply regardless of the purpose of the document—that is, whether it relates to the director’s office or to the associated company—as confirmed in Key Homes Bradford v Patel...

This Practice Note offers guidance on interpreting and applying the relevant CPR provisions. Depending on the forum, you may need to consider additional requirements—see: Court specific guidance. It addresses the transfer of civil proceedings under CPR 30, including the factors the court will consider when deciding to move a case. Wherever possible, proceedings should start in the appropriate court. For details on the correct forum for issuing a civil claim, and the applicable monetary thresholds, see Practice Note: Where to start a civil claim. Nonetheless, there are occasions when a claim should be moved to another court after issue. Rules governing transfer CPR 30 and the associated practice direction, CPR PD 30, set out the procedure for transferring civil proceedings. A transfer may occur automatically, on application by a party, or on the court’s own initiative. The court may direct a transfer between: County Court...

Guide to Judicial Conduct The Guide to Judicial Conduct (the Guide) addresses the bias or impartiality of judicial office holders. It is intended to assist such office holders with matters of conduct, but is not a code and, save where stated, does not set rules. Rather, it sets out core principles to help judicial office holders reach their own decisions. As explained in the Guide, the decision in Locabail ( UK) Ltd v Bayfield Properties Ltd gives authoritative guidance on impartiality and is frequently cited in cases considering bias. The Guide also provides that, where circumstances could prompt an allegation of bias, or an appearance of bias, they should, if possible, be disclosed to the parties well before the hearing. Legal test and principles applicable to recusal Parties are entitled to expect their dispute will be decided by a fair and independent court or...

The most frequent delicts arising in property disputes are negligence, nuisance and trespass; see Practice Notes: Property disputes in Scotland (delictual and statutory) and Property disputes in Scotland—negligence and trespass. Nuisance describes any use of land that interferes with a neighbour’s enjoyment of their property. Situations where a nuisance remedy may apply include uses that: generate offensive smells or odours produce noise cause flooding to a neighbour’s property In Scotland, nuisance is classified as either common law or statutory nuisance. Common law nuisance—invasion of interest in the use and enjoyment of private land At common law, nuisance is broadly characterised as ‘an invasion of an interest in land’. Liability is assessed by the ‘reasonable tolerability’ test, which is context‑dependent and may vary with factors such as locality, impact, frequency, and the utility of the conduct in question; see The nature of the test for determining liability for...

This Practice Note explains funding of Scottish civil litigation under the Civil Litigation ( Expenses and Group Proceedings) ( Scotland) Act 2018 ( CL( EGP)( S) A 2018). For guidance on: judicial expenses and taxation in Scotland—see Practice Note: Judicial expenses and taxation in Scottish civil litigation group proceedings in Scotland—see Practice Notes: Group procedure in Scottish civil litigation—authorisation and permission; and Group procedure in Scottish civil litigation—procedure after permission granted the closest equivalent provisions in England and Wales—see Funding arrangements—overview, which in turn links to detailed guidance on various aspects, including Practice Notes on LASPO: Recovery of costs insurance premiums, Damages-based agreements ( DBAs) and Conditional fee agreements—success fees Key: CL( EGP)( S) A 2018— Civil Litigation ( Expenses and Group Proceedings) ( Scotland) Act 2018 (also referred to as the ‘ Civil Litigation, etc Act 2018’) CR( S) A 2014—...