Legal Practice Notes

This Practice Note examines the recovery of costs incurred pre-action. It outlines the provisions within the Senior Courts Act 1981 ( SCA 1981), CPR 44, the pre-action protocols and the court guides. It highlights the rules for civil matters falling under the fixed costs regime on or after 1 October 2023. It also records pertinent case law on the principles governing recovery of pre-action costs. Pre-action costs—what are they? Pre-action costs are the expenses a party incurs before the commencement of court proceedings. Such outlays can be substantial and may include, without limitation, the following: obtaining instructions from the client and keeping them informed about the progress and development and status of the case engaging in dialogue and correspondence with the other side, including without prejudice exchanges and potential settlement discussions and...

Practice Note This Practice Note examines pre-action behaviour in ordinary and commercial civil disputes in Scotland. For guidance on: pre-action steps in Scottish personal injury matters, see Practice Note: The Scottish Personal Injury Pre- Action Protocol other issues to weigh before raising a civil claim in a Scottish court, and how to commence and advance a claim, see Scottish DR: prescription and limitation—overview and Scottish DR: case management and evidence—overview respectively, which lead to more detailed guidance the closest comparable process in England and Wales, see Pre-action: general—overview and Pre-action protocols—overview, which in turn link to fuller guidance on various aspects of pre-action conduct in England and Wales Note: this Practice Note does not provide guidance on pre-action requirements in ordinary actions that are partly governed by statute; for example, where a lender seeks to enforce a qualifying standard security under the...

This Practice Note explores the procedure for summary assessment, the measures parties should take where such an assessment is undertaken, and the enforcement of costs orders made on a summary basis, outlining how parties should approach these stages. The application No formal application notice is needed for the court to carry out a summary assessment of costs. At the close of the application hearing, or the substantive hearing where summary assessment is appropriate, the successful party seeking to recover the hearing costs need only ask the judge orally to summarily assess the costs. The application can then be addressed by any of the following, or a combination, as the judge considers appropriate: the court allows the parties time to try to agree costs oral submissions written submissions Prior to the hearing To ensure the process of summary assessment at the hearing runs as...

This Practice Note sets out guidance on Part 36 offers where there are multiple parties or multiple proceedings. It highlights relevant authorities and gives practical direction on the key considerations to bear in mind in these kinds of cases. Multiple parties and proceedings complicate Part 36 Part 36 offers can be used in litigation involving numerous parties and/or more than one set of proceedings. Yet, when several parties are engaged, deciding whether to put forward such an offer, and in what terms, is more complex. For details of the specific points to address when making a Part 36 offer in a matter with multiple parties, see Practice Note: Part 36 offers—how to make a valid Part 36 offer— Making a Part 36 offer in cases involving multiple parties. In Zagora Management v Zurich Insurance (2019), the court determined the costs payable in a...

What is novation of a contract? At certain points, rather than transferring the benefit of a contract to a third party, the original counterparties may prefer to discharge their mutual obligations and, effectively, put the arrangement in place afresh, with the third party replacing one of them. This is the usual form of novation. When advising a client, you should understand the conditions for a valid novation and the implications for both the incoming party and the departing novation party once novation occurs, some of which might be avoided at the drafting stage. A Precedent: Novation agreement—long form is available. For a practical overview of novating commercial contracts with links to relevant precedents, see Practice Note: How to novate a contract. For this Practice Note, the parties to the novation are referred to as: remaining party—( A) outgoing party—( B) incoming party—( C) ......

This Practice Note explains how to craft an opening presentation for a mediation. It is designed for a complex dispute where the mediation is expected to last at least an entire day. If you are planning for a shorter mediation, you may prefer a far simpler presentation that lasts only a few minutes. The guidance in this note remains valuable and will help you prepare the presentation for maximum effect and impact. Opening statements will be delivered by each party in a joint meeting at the beginning of the mediation. For further detail of how a mediation may progress, see Practice Note: Stages of the mediation. Prior to the mediation Before the mediation, ensure you discuss thoroughly with your client: how the mediation will proceed through the different stages, including precisely when the opening presentation will be given—see Practice Note: Stages of the...

This Practice Note on the civil economic tort of lawful means conspiracy (conspiracy to injure) sets out the essential elements of the tort: a combination or co-ordinated course of action, a predominant intention to inflict loss upon the claimant, an overt step taken in furtherance of the arrangement, and consequent damage arising. For broader guidance on civil conspiracy claims more generally (including the distinction between lawful and unlawful means) and on pleading and evidencing such claims in practice, see the following key Practice Notes: Civil conspiracy claims (economic tort) Unlawful means conspiracy (civil action) Lawful means conspiracy is a civil cause of action—one of the economic torts—offering a potential remedy to those who suffer financial (economic) harm arising from the defendant’s conduct and behaviour. To make out the claim, the claimant must satisfy a set of key requirements in full. For general...

This Practice Note explains which jurisdictional rules the English courts will use when deciding which court has authority to hear a dispute. Those rules derive from the Hague Convention on Choice of Court Agreements, Brussels I (recast), Brussels I, the Lugano Convention, the Brussels Convention, and from statute or the common law. In international litigation, parties may disagree about the proper forum—ie, the jurisdiction—in which their dispute should be tried. Accordingly, identifying the appropriate venue for issuing and hearing proceedings can itself become contested. It is therefore essential to appreciate that particular rules govern the allocation of jurisdiction to a court. These frameworks direct the court’s analysis when deciding jurisdiction. The UK’s exit from the EU also influences which jurisdictional rules will be applied by the courts of England and Wales when determining which courts have jurisdiction. For discussion of wider...

This Practice Note addresses considerations when appealing a decision on a jurisdictional challenge. It explores preliminary factors when contemplating an appeal, the timing for issuing an appeal application, and potential cost consequences. It also covers staying proceedings pending a jurisdictional appeal and serving a second acknowledgement of service while an appeal is on foot ( CPR 11(8)). For guidance on other aspects of contesting the court’s jurisdiction, see Practice Notes: Challenging court jurisdiction—general principles Challenging court jurisdiction—application under CPR 11 (general considerations) Challenging court jurisdiction—application under CPR 11 (timing and extensions of time) Challenging court jurisdiction—has a party submitted to a jurisdiction? A challenge to the court’s jurisdiction is brought by application under CPR 11. If that application fails and the court refuses to make the declaration sought, an appeal may follow. Typically, the appeal proceeds by seeking...

This Practice Note outlines examples of the different types of jurisdiction agreements (also known as choice of court agreements): exclusive, non-exclusive and asymmetric. In some instances, the jurisdiction clause includes a forum non conveniens waiver, meaning the parties agree not to contend the doctrine of forum non conveniens (i.e. which court is the proper forum for the dispute). For fuller guidance, see the following Practice Notes: Jurisdiction agreements—exclusive jurisdiction agreements Jurisdiction agreements—asymmetric jurisdiction agreements Forum non conveniens—principles Exclusive jurisdiction agreements Example: Exclusive jurisdiction clause In Cia Sud Americana de Vapores SA v Hin- Pro International Logistics Ltd (2015), the Court of Appeal treated a clause as exclusive even though the word ‘exclusive’ was missing. The clause provided that the Bill of Lading, and any claim or dispute arising under it, was to be governed by English law and fall within the jurisdiction of the English High Court of Justice in...

Practice Note This Practice Note sets out the principal practical factors to address when encountering a possible joint venture ( JV) dispute. It is applicable to every type of JV structure, with further points arising where the JV relationship is constituted through a joint venture company ( JVC). From the outset, indeed, recognise that embarking on a JV in the first instance ordinarily demands substantial planning and effort on the part of the JV participants, who have decided to partner with one another for mutual advantage, typically by pooling cost, resources and experience. When a dispute threatens, your client must reflect carefully and precisely on what it is trying to achieve and whether the ultimate objective is for the JV to continue, so as to capture the benefits of all the time and money invested in establishing it, or whether there are...

This Practice Note explores applicable law clauses—also called governing law clauses, proper law clauses or choice of law clauses. It explains why parties agree an applicable law clause and the key matters to weigh up. It also provides insight into circumstances in which parties may alter the applicable law clause in their contract, and considers whether floating applicable law clauses and stabilisation clauses are effective. For an introduction to applicable law, see Practice Note: Applicable law—a guide for dispute resolution practitioners. Contracts may include a single provision combining jurisdiction and applicable law. For guidance on jurisdiction clauses, see Practice Note: Jurisdiction agreements—introduction. What is an applicable law clause? An applicable law clause records the parties’ agreement, reached during contract negotiations, specifying which country’s laws the courts are to apply if a dispute arises between the contracting parties and proceedings are commenced that require a...

What is the status of the court guides? The court guides aim to give an overarching account of the functions and practices of different courts, with practical guidance to be read alongside the Civil Procedure Rules ( CPR), so proceedings in those courts are managed effectively and in accordance with the rules. They should not be treated as a replacement for the CPR, but as clarification of how the rules and the practice directions are implemented in those courts......

This Practice Note explains the process for seeking an order for sale to realise a charging order under CPR 73.10C, including the key steps. It offers detailed direction on reading and using the pertinent CPR provisions and on their practical operation in applications before the court. Requirements may vary by the court handling your case, and you should be alert to any extra rules—see further under: Court specific guidance below in practice. Amendments to the rules took effect on 6 April 2016. Nonetheless, where the charging order predates 6 April 2016 and you seek an order for sale to enforce it, you are advised to continue to use the framework set out in the (amended) CPR 73—see Practice Note: Pre-6 April 2016—charging orders—what are they and when to use them [ Archived]. For further help with obtaining a charging order, refer to Practice Notes: Charging...

This Practice Note This Practice Note sets out details on CPR PD 31B concerning electronic disclosure, commonly termed e‑disclosure. It outlines the aim of CPR PD 31B, emphasises co‑operation between the parties at an early stage, and identifies the issues that should be addressed and discussed. It further offers guidance on the ambit and delivery of e‑disclosure, including what may fall within scope and how provision should be made. Beyond its application to disclosure undertaken under CPR 31, CPR PD 31B guides how electronic documents ought to be approached for disclosure where the disclosure scheme applies to claims in the Business and Property Courts. Where a claim falls within the disclosure scheme, you must refer to the scheme’s particular provisions; for additional guidance, see: Disclosure Scheme ( Business & Property Courts)—overview......

Witness statements of fact under CPR 32 This Practice Note sets out broad guidance on preparing factual witness statements in civil proceedings under CPR 32. It explains what the statement should contain, how the courts approach such evidence, the importance of using the witness’s own words, keeping accounts consistent across different witnesses, and the method for referencing documents exhibited to statements. It also considers the presence of expert opinion within factual statements and whether such material is admissible. The Note assists with interpreting and applying the relevant CPR provisions. For information tailored to a particular court, see Court specific guidance below. It should be read alongside the following Practice Notes: Planning, interviewing and assisting witnesses Drafting witness statements—formalities and dealing with problematic witnesses—which covers formatting, prescribed wording, and the statement of truth Exhibits to witness statements and...

Dispute resolution clauses—what and why Drawing on Practice Note: Dispute resolution clauses—what and why, including a dispute resolution clause in an agreement is widely regarded as beneficial. When well drafted, it can reduce future ambiguity and offer a clear, non-contentious pathway for parties to attempt settlement without immediately resorting to litigation. Many contracts feature such provisions. In some cases they are straightforward, calling simply for litigation or arbitration (and at times also addressing jurisdiction and applicable law). Alternatively, a dispute resolution clause can prescribe other forms of alternative dispute resolution ( ADR) to be used if a disagreement arises; the intention being that ADR steps occur before litigation (or arbitration) begins. These are sometimes labelled ‘ ADR clauses’ or ‘ Dispute resolution clauses’. For guidance on example wording, see Practice Note: Types of dispute resolution...

This Tracker summarises a series of decisions where the courts have considered how the CPR provisions on dispensing with service of documents should be interpreted, including whether they extend to defendants outside the jurisdiction. The relevant rules are CPR 6.16 and CPR 6.28. Note that the service rules in Part 6 were extensively revised in 2008; cases before that date are not covered in this tracker. The court will only dispense with serving the claim form in exceptional situations, depending on the particular facts of the case... Order made to dispense with service The judgments below illustrate circumstances in which the court has exercised its power to dispense with service of documents: Judgment citation and news analysis Almeqham v Al- Sanea [2025] EWHC 322 ( Ch) at para [146] Facts One defendant was imprisoned in Saudi Arabia. The claimant attempted to serve court papers, but the...

This Practice Note offers guidance on satisfying a contractual debt. It sets out how to identify when a sum falls due, what amounts to a discharge, and the implications of part payment (including the rule in Pinnel’s case, payment by instalments, compromise agreements and promissory estoppel). It also covers the involvement of third parties, the appropriation of payments to multiple debts, the defence of tender before claim, and the impact of illegality on paying a debt. For clarity on what a debt claim comprises, see Practice Note: Debt claims. For practical guidance on bringing debt claims, consult: Practice Note: Starting a contractual debt claim—a practical guide Practice Note: Pleading debt claims—worked hypothetical examples Starting a contractual debt claim—checklist Responding to a contractual debt claim—checklist See also Precedents: Letter of...

This Practice Note considers directions questionnaires for civil claims that are issued on or after 1 October 2023 (except personal injury claims). It explains the timing and process for preparing, lodging and serving the directions questionnaire, as well as the repercussions if one is not filed. Directions questionnaires use Form N180 or N181, selected according to the case management track to which the claim is assigned. The rules governing directions questionnaires differ, contingent on whether the proceedings were issued before or after 1 October 2023. This Practice Note addresses directions questionnaires for civil claims brought on or after 1 October 2023. For guidance on directions questionnaires in civil claims begun before 1 October 2023, see Practice Note: Directions questionnaires—position before 1 October 2023. Do note, however, that for personal injury claims the applicable rules hinge on when the cause of action accrues, and for...