Legal Practice Notes

This practice note examines property disputes arising from negligence and trespass. For statutory liability connected to property and the law of nuisance, see Practice Notes: Property disputes in Scotland (delictual and statutory) and Property disputes in Scotland—common law and statutory nuisance. Negligence Negligence claims in property contexts frequently stem from inadequate property advice given by a professional—such as an architect, surveyor or conveyancer—or from substandard construction work undertaken by a contractor, for example a builder, roofer or plumber. Negligence creates liability for loss or injury caused by carelessness or a failure to exercise reasonable competence by the relevant professional or contractor. What is the test for negligence? Negligence is assessed by a three-part test considering whether: a duty of care exists that duty has been breached the breach of duty brought about the loss or harm complained of See further: The rise of the concept of duty of...

This Practice Note examines the various categories of contractual damages available for non-financial (non-pecuniary) loss—namely punitive damages, damages for loss of enjoyment and loss of amenity, restitutionary damages, and negotiating damages (previously referred to as ‘ Wrotham Park damages’). For guidance on contractual damages in general, see Practice Note: Contractual damages—general principles. For damages addressing financial (pecuniary) loss for breach of contract, see Practice Note: Contractual damages—pecuniary losses. Contractual damages—categories of non-pecuniary loss Damages for non-pecuniary loss are granted only in exceptional circumstances, as such awards run counter to the basic principle that damages are strictly compensatory. They include: punitive damages damages for loss of enjoyment and loss of amenity restitutionary damages negotiating damages Non-pecuniary loss—punitive damages Punitive damages are awarded where the defaulting party’s conduct is so egregious that punishment is warranted. These awards are rare in tort and are almost...

ARCHIVED: This Practice Note is archived and not maintained. Court of Appeal—continuing breach and concurrent causes of action The Court of Appeal examined whether a continuing breach could operate as a concurrent cause of action when allocating loss under an indemnity in a share sale agreement that made the seller responsible for losses arising from services performed before the transfer date. The question was whether the pre-transfer negligence amounted to a breach of duty that persisted day by day after the transfer, so that a new cause of action accrued each day, creating a concurrent claim alongside the indemnified breach which, following EE Caledonia, would bar the appellant from relying on the indemnity. By a majority, and departing from the first instance decision, the court held there was no continuing breach, hence no concurrent cause of action, and the indemnity could be relied upon after the...

This Practice Note sets out guidance on witness summonses. It explains when a witness summons can be used, whether the court’s permission is needed and, if so, how to apply for it. It also addresses how to serve the summons, what to do if a witness does not comply, conduct money and payment for summoned witnesses. Depending on the court where your case is proceeding, further provisions may apply—see: Court specific guidance. What is a witness summons? A witness summons is issued by the court under CPR 34.2 requiring a witness to: attend court to give evidence on the date fixed for a hearing or a court directed date ( CPR 34.2(1)(a) and CPR PD 34A, para 1.1), or produce documents to the court either: on the date fixed for the hearing ( CPR...

ARCHIVED: This archived Practice Note explores service of witness statements, addressing when and how to file and serve factual witness evidence, including simultaneous exchange and methods of service. Timing is examined in detail, in particular including the sanction for non-compliance under CPR 32.10, how to seek an extension of time and the available steps you can take when you have breached your obligation (such as applying for permission to rely on a witness’s oral evidence where the statement was served late and/or seeking relief from sanctions). Practical steps on how to avoid default are also provided and explained. It is not maintained and is for background information only. For guidance on the court’s powers to make orders for the exchange of witness statements, see Practice Note: Courts’ power to manage factual evidence. Serving witness statements If you intend to rely on witness evidence, it must be...

This Practice Note provides guidance on the meaning, application and significance of frequently used expressions in exclusion and limitation of liability clauses in commercial agreements, including the following terms: abandonment wilful misconduct deliberate default It reviews how case law has interpreted these expressions and offers pointers for parties when drafting and negotiating commercial agreements. What is an exclusion or limitation of liability clause? An exclusion clause is a contractual provision that specifies what liability is excluded, sometimes described as an exemption clause. A limitation of liability clause is a contractual provision that sets boundaries on liability. Both types of clauses are controlled by statute and the common law. For an overview of those controls, see Practice Note: Exclusion and limitation of liability and for an example of a limitation provision, see Precedent: Limitation of liability clause. What do the terms used in these types of...

This Practice Note sets out what it means when a defendant submits there is no case to answer. It is only in the most exceptional instances that a defendant advancing such a submission will not be put to its election—the election being that it may proceed, but only on the footing that, if the submission fails, it cannot adduce any evidence of its own. The evidential tests that apply, whether or not the defendant is put to its election, are identified. A submission of ‘no case’ to answer At trial, a defendant may opt to submit ‘no case’ once the claimant confirms its case is closed, and before the defendant calls any evidence. This point is sometimes termed the ‘halfway stage’ of the trial. Such a course is taken only where the defendant is highly confident the claimant has not placed before the court...

This Practice Note This Practice Note offers guidance on construing and applying the relevant provisions of the CPR. Depending on the court where your case is proceeding, you must also be alert to additional provisions—see further: Court specific guidance below. It examines applications to stay execution of a judgment or an order to pay a sum of money (a money judgment). It also outlines the procedure for applications to stay enforcement of writs and warrants of control. Note that this Practice Note does not deal with stays of enforcement generally pending appeal—for guidance, see Practice Note: Grounds for appealing and preliminary considerations— Will the terms of the order or judgment under appeal be stayed? For guidance focused specifically on stays of enforcement of costs orders, see Practice Note: Costs orders—payment and enforcement— Courts powers to stay enforcement of a costs order or costs...

This Practice Note addresses the correction of accidental slips or omissions in judgments or orders under CPR 40.12, outlining when the rule can, and cannot, be invoked and the approach to making an application. What is the slip rule? The slip rule is the mechanism by which the court may amend an accidental slip or omission in a judgment or order (see CPR 40.12; CPR PD 40B, para 4.1 and CPR PD 40B, para 4.5). CPR 40.12 provides that the court may at any time correct an accidental slip or omission in a judgment or order. The phrase ‘any time’ needs no further gloss or explanation and means exactly what it says: the jurisdiction is not limited to orders that are still in existence ( IC v RC—while a family case, it considered an identical provision to CPR 40.12 in the Family Procedure...

This Practice Note explores what skeleton arguments are, the situations in which they are required, the deadlines by which they must be filed and served, and offers guidance on drafting skeleton arguments. This Practice Note does not address the requirements for skeleton arguments in appeals. For that guidance, see Practice Note: Skeleton Arguments in an appeal—general provisions. This Practice Note also provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may additionally need to be mindful of further provisions—see: Court specific guidance. What are skeleton arguments and when are they required? A skeleton argument is a written document supplied to the court ahead of a hearing that outlines the issues to be dealt with (both factual and legal), the principal arguments to be advanced on each issue, and the...

ARCHIVED: This Practice Note is archived and is no longer maintained. Similar facts evidence—meaning and the general position Material might be available about comparable conduct or the handling of a like issue in situations beyond the dispute, which a party may wish to rely upon as indicating that the same conduct or approach also took place in the dispute. In such circumstances, a party can apply to the court seeking permission to introduce evidence of similar, albeit unrelated, events or facts for consideration. Courts are generally reluctant to entertain such applications. The prevailing rule is that facts akin to a fact in issue are ordinarily inadmissible as proof of that fact in issue. Nonetheless, recognised exceptions exist and, it appears, courts will usually allow similar fact material where it has logical probative value, is not oppressive or unfair to the opponent, the opponent has adequate notice, and is in a...

As applications to set aside default judgment under CPR 13.3 require the court to exercise discretion, decisions on such applications are highly fact-sensitive. Nevertheless, reviewing examples that succeeded or failed on promptness or on relief from sanctions can illustrate how the court tackles these issues in practice. The tables below compile examples of applications to set aside default judgment that stood or fell on promptness or the application of relief from sanctions principles. For overarching guidance on the court’s approach to applications under CPR 13.3, see Practice Note: Setting aside default judgment—discretionary grounds ( CPR 13.3). Promptness For guidance on the meaning of promptness for CPR 13.3(2), see Practice Note: Setting aside default judgment—discretionary grounds ( CPR 13.3)— Promptly. Example cases where a default judgment was set aside despite delay Regera SARL v Cohen [2025] EWHC 2107 ( Comm) at paras...

This Practice Note reviews the framework governing service of documents issued by any foreign court or tribunal within England and Wales ( England). It calls for reference to the provisions of CPR 6... Key documents/definitions convention country—defined in CPR 6.49(a) as ‘a country in relation to which there is a Civil Procedure Convention’. A Civil Procedure Convention bears the same meaning as in CPR 6.31(c), ie any Convention (including the Hague Service Convention) entered into by the UK concerning service out of the jurisdiction foreign court or tribunal—a court or tribunal in a country outside of the UK ( CPR 6.49(b)), and process server—is defined in CPR 6.49(c) as: a process server appointed by the Lord Chancellor to serve documents to which Section V of CPR 6 applies, or the...

This Practice Note explains the circumstances and process by which an innocent party may unwind a contract for misrepresentation, the reasons they might take that step, and the occasions when rescission is not allowed. For guidance on when a party may recover damages for a misrepresentation, or seek to limit/exclude liability for misrepresentation, see the following Practice Notes: Misrepresentation—damages as a remedy Misrepresentations—excluding and limiting liability for them The remedy of rescission in misrepresentation claims Where a misrepresentation has persuaded a party to enter a contract, that party can elect to rescind. If that decision is disputed, the party may invite the court to assist in giving effect to the rescission. The consequence of rescission, where it is available, is to restore the parties to the position they occupied before the agreement was concluded. This is often termed rescission ab initio, to set it apart from...

This Practice Note examines the redaction of information or data in disclosure within civil proceedings. It covers the grounds for redacting documents—maintaining confidentiality/privilege and excluding irrelevance—the categories of material capable of redaction, the courts’ stance on redactions, and practicalities. Redaction is the act of obscuring or masking parts of a document’s text, data, or graphics (here, ‘information’ is used to capture all of these). It can be used to preserve confidentiality, most often by concealing a name—of an individual, entity, process, and so on. Redacted documents may feature in any litigation. Disclosure scheme in the Business and Property Courts Consider whether the proceedings fall under the disclosure scheme operating in the Business and Property Courts. For guidance, see: Disclosure Scheme ( Business & Property Courts)—overview; and, for provisions on redaction within that scheme, see Practice Note: Disclosure Scheme—how to comply with disclosure orders and...

Quantification of costs claimable by Litigants in Person ( Li Ps) This Practice Note outlines the provisions and authorities governing assessment of costs recoverable by litigants in person. It covers the two-thirds rule for compensating proved losses, what a Li P must establish to obtain more than the fixed Li P hourly rate (ie proof of financial loss), and how claimed time will be evaluated, including decisions in which the court has addressed quantifying financial loss in Li P matters. It also considers the alternative time measure, namely time spent, and the hourly rates that apply on this basis. Under CPR 46.5(4), costs are calculated either by reference to: proved financial loss, or the amount for the time reasonably spent doing the work at a fixed rate, currently £24 per hour ( CPR PD 46, para 3.4) Note that, before 1 October 2025, the rate was £19 per hour. The £24 per...

This Practice Note reviews proprietary claims and remedies, explaining the processes of following and tracing assets at common law and in equity to reclaim property held by another—most often encountered in complex fraud matters or where the immediate defendant is insolvent. It also addresses exceptions to tracing and the potential for a right of subrogation to recover a proprietary interest, including: good faith purchaser for value chains of transactions backwards tracing Quistclose trusts What are proprietary remedies? General principles A proprietary remedy (or proprietary claim) attaches to identified property, rather than creating a personal remedy such as a claim for damages. This does not exclude money or a debt owed from being the relevant property; both can be the subject of a proprietary claim, as illustrated by the decision in Lipkin Gorman v Karpnale (see below)......

This Practice Note examines the standard of care in professional negligence, rooted in Bolam v Friern Hospital as the touchstone of ‘reasonable skill and care’, and how that test is applied in practice; it also addresses the Montgomery v Lanarkshire Health ‘material risk’ inquiry, the duty to warn, and the role of industry opinion. It surveys practical illustrations across sectors and notes the position of trade unions. Given the wealth of case law in this area, the standard expected of solicitors and barristers is considered separately in Practice Note: Standard of care—solicitors and barristers. The discussion explains how Bolam operates in real‑world settings and where Montgomery informs the scope of warning obligations and the significance of prevailing professional views. Practical application of these principles is shown through sector‑specific examples. Construction Financial services Accountancy Trade unions...

This Practice Note outlines the position under the Pre- Action Protocol for Professional Negligence claims currently in force. Scope of this Practice Note It reviews the Pre- Action Protocol for Professional Negligence claims (the Protocol), covering its use, objectives, the general implications of non-compliance, and how limitation interacts with Protocol compliance. It sets out the principal steps mandated by the Protocol, namely the preliminary notice, the letter of claim, the acknowledgement, the letter of response, and the subsequent commencement of proceedings. The Note also addresses the exchange of information between the parties, the role of experts, alternative dispute resolution ( ADR), and the Protocol’s stocktake provision. For focused guidance on the Protocol from the standpoint of a prospective party to such a claim, see: Practice Note: Professional negligence claims—pre-action protocol—claimant issues Checklist: Professional negligence claims—claimant...

This Practice Note examines when a failure to follow a pre-action protocol or the Practice Direction Pre- Action Conduct and Protocols may lead to a party being penalised, as well as the types of sanctions that could be imposed. For broader guidance on the potential recovery of costs incurred before proceedings, see Practice Note: Pre-action—costs recovery. Compliance with pre-action protocols The Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) outlines the behaviour ordinarily expected of parties prior to commencing proceedings. Its provisions apply in every case, and are expressly stated to govern where none of the more detailed, subject-specific protocols are applicable to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For further detail, consult Practice Note: Pre-action behaviour in non-protocol cases— Practice Direction Pre- Action Conduct and Protocols. If your claim is caught by one of the dispute...