Legal Practice Notes

This Practice Note Addresses defamation in the sphere of social media. It considers when individuals, internet service providers ( ISPs), website operators and employers could incur liability for defamatory material, and outlines defences available under the Defamation Act 1996 ( De A 1996), the Electronic Commerce ( EC Directive) Regulations 2002 ( E- Commerce Regulations 2002), SI 2002/2013, the Defamation Act 2013 ( DA 2013) and the Defamation ( Operators of Websites) Regulations 2013 ( DOW Regulations 2013), SI 2013/3028. The internet, and social media in particular, is a high-risk arena for defamation disputes. Posts on blogs, internet forums, online newspaper comment areas and well-known social networking platforms such as Facebook and X (formerly Twitter) can be inaccurate and malicious in nature. Anonymity prompts some people to abandon the normal cautions they would apply to other forms of publication. For a...

This Practice Note It sets out what a smart legal contract (often called a smart contract) is, both as a technological tool and as a binding legal device, and summarises the Law Commission’s guidance to the UK government, which found that the existing UK legal framework can enable and underpin the use of smart legal contracts. It outlines the legal concepts relevant to contract formation, form, formalities and interpretation under UK law, and contrasts their conventional application with how, according to the Law Commission, they might apply to the principal categories of smart legal contract. The Practice Note covers: • What is a smart legal contract? • Distributed ledger technology ( DLT) • Enforceability under UK law • The formation of smart legal contracts • Agreement (including offer and acceptance) • Consideration • Certainty and completeness • Intention to create legal relations •...

This Practice Note considers costs in the small claims track ( SCT) Handled under Part 27 of the CPR, this Practice Note reviews how costs operate on the SCT. It explains the scope of CPR 27.14(2) and provides guidance on the way the courts have interpreted those provisions. It also addresses rare scenarios in which a successful claimant may recover costs by relying on a contractual entitlement. Note, this Practice Note considers: The transitional CPR provisions for proceedings issued before 1 October 2023 (excluding personal injury and disease cases). The position under the current rules for proceedings issued on or after 1 October 2023 (excluding personal injury and disease cases). For personal injury, the transitional regime where the cause of action accrued prior to 1 October 2023. For disease claims, the transitional regime where the letter of claim was sent to the...

This Practice Note sets out circumstances in which you may opt to, or be directed to, appoint a single joint expert ( SJE) pursuant to CPR 35.1 and CPR 35.2(2). It surveys issues of selection, appointment, instruction, conduct, fees, and any track- or court-specific guidance. It also offers guidance on contesting an SJE’s conclusions. The Note further addresses the manner in which an SJE’s evidence is provided to, and relied upon by, the court, including through written questions and cross-examination. Experts and those instructing them should have regard to: all relevant CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims ('the Guidance') Practice Direction Pre- Action Conduct and Protocols, para 7 This Practice Note should be read alongside: Instructing an expert under the Guidance for the instruction of experts in civil claims ...

This Practice Note explores when and for what reasons you ought to pursue settlement of disputes, and the implications of failing to try to settle when directed to do so. For direction on who should participate in settlement discussions, the form a settlement might take, how it should be recorded, and the means of enforcement, consult the materials in this subtopic, including the following Practice Notes: Settling disputes—who, confidentiality and subject to contract Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling disputes—drafting the settlement agreement Resolving disputes concerning settlement agreements What is settlement? A settlement is the product of agreement between the disputing parties to compromise and/or conclude the litigation, or to resolve matters where no proceedings have yet started. It comes about when one party makes an offer that is accepted by the other or others. Not all parties to the...

This Practice Note examines the impact of a settlement agreement on ongoing litigation, whether settlements can bar further litigation (and the exceptions to that), safeguarding future claims by carving them out of the settlement agreement, when a settlement can bind third parties, passing on settlements to other parties, and when a settlement agreement can release fraud-based claims. For guidance on interpreting settlement agreements, see Practice Note: Settlement agreements—interpretation. The estoppel and release In the setting of proposed or ongoing proceedings, the release clause in a settlement agreement operates to discharge one party from liability arising out of the subject matter of the dispute. There are numerous formulations of a release clause, some markedly longer than others, and many achieving the same effect with different wording in practice. In essence it covers: a full and final resolution an agreement not to sue a waiver and release of the claim (and...

Where a claimant has obtained judgment because a defendant failed to lodge an acknowledgment of service or a defence (a default judgment or judgment in default), the defendant may invite the court to exercise its discretion to set aside that judgment, even though it was properly entered. For detailed guidance, consult the following Practice Notes: Practice Note: Setting aside default judgment—mandatory grounds ( CPR 13.2) Practice Note: Setting aside default judgment—making the application Practice Note: Obtaining default judgment—general principles This Practice Note offers direction on interpreting and applying the relevant CPR provisions. Depending on the court dealing with your case, further requirements may apply—see the section Court specific guidance below. The court’s discretionary power to set aside default judgment Under CPR 13.3, the court has a discretionary power to set aside or vary a default judgment......

Set-off remains a nuanced but significant doctrine across litigation and a wide range of transactions. Both independent set-off and transaction set-off may serve as defences in legal proceedings. For further detail, see Practice Notes: Independent set-off and transaction set-off and Pleading set-off. In commercial contexts, transaction set-off is a key entitlement for a party asserting breach of contract to resist a demand for payment under that contract. Parties to a contract can also make express provision for set-off in their written terms, either widening or curbing the extent of mutual rights to set off. For more information, see Practice Note: Contractual set-off. Within finance deals, contractual set-off, insolvency set-off and banker's set-off are often central. For more information, see Practice Note: Set-off in finance transactions. The construction industry also relies on set-off to help regulate cash flow. For more...

Practice Note This Practice Note outlines the core principles to bear in mind when seeking to invoke jurisdictional service gateways. It explains the nature of a jurisdictional service gateway, identifies the date by reference to which the gateway must apply, and describes how the gateway is satisfied. Indicates where the jurisdictional gateways are located and supplies a compiled list of them, setting out their source. Includes links to the relevant provisions of CPR PD 6B, para 3.1 for each gateway. Records the dates on which gateways came into force, were substituted, or were deleted. Provides links to guidance focused on each specific gateway. The Practice Note also addresses what must be shown to establish that a jurisdictional gateway applies, together with guidance on interpreting and construing a jurisdictional gateway. It should be read alongside Practice Note: Determining whether the courts of...

This Practice Note examines the defendant’s ability to require the claimant to serve the claim form, as governed by CPR 7.7. CPR 7.7 notice Where a claim form has been issued but not yet served on the defendant, CPR 7.7(1) permits the defendant to give the claimant a notice requiring them to either: serve the claim form, or discontinue the claim within the period stated in the notice There is no obligation on a defendant to invoke CPR 7.7 to compel service; it is a matter of choice, as recognised in Bourlakova v Bourlakova (2022). When deciding whether to serve a CPR 7.7 notice, note that: the period specified in the notice must be at least 14 days after the notice is served ( CPR 7.7(2)) the notice can only be used to request service; the rule does not allow the...

This Practice Note outlines the options open to a claimant who is facing problems serving the claim form within time, and to a defendant who wishes to insist on service, contest the court’s jurisdiction because service was invalid, or pursue discontinuance of the claim. Claimant—potential difficulties with service Unable to serve within the time required A claim form is only effective if served within the relevant period prescribed by the CPR or any applicable statutory limit; the deadlines for service vary according to whether service takes place in England and Wales or in another jurisdiction. For further guidance, see Practice Note: Service of the claim form—time periods for service. The authorities demonstrate that the courts show scant indulgence to claimants who miss the deadline for service. This approach applies equally to litigants in person, as confirmed by the Supreme Court in Barton v Wright Hassall (2018). Without a good...

This Practice Note explains who must serve the claim form on the defendant—the court or the claimant. Who is to serve the claim form? As a default, the court serves the claim form unless one of the three situations in CPR 6.4(1) applies: the claimant is required to serve it under the CPR or a practice direction the claimant has told the court it intends to serve it the court makes an order or direction to the contrary In certain specialist courts, service is by the claimant rather than the court. These are jurisdictions within the Rolls Building. The position may arise from CPR provisions, guidance in the relevant court guide, or established practice: Admiralty Court—see CPR 61.1(3) and CPR PD 58, para 9 Commercial Court—see CPR PD 58, para 9 and Court specific guidance below. Note, this does not apply in the...

This Tracker sets out instances where the courts have examined their jurisdiction to cure an ‘error of procedure’ under CPR 3.10 in the context of serving documents. The sample decisions relate to both the claim form and other paperwork. As regards the claim form, the authorities should be approached with particular care. The contemporary view is that CPR 3.10 will seldom help where the flaw concerns service of the claim form, and it cannot be invoked to sidestep the specific regime for service, time extensions, alternative service or dispensing with service. CPR 3.10 confers on the court a general power to put right an ‘error of procedure’ committed by a party to the proceedings. When assessing whether CPR 3.10 can offer relief, it is important to grasp what is meant by ‘error of procedure’. This is addressed in Practice Note:...

This Practice Note explores the matters that may emerge after the court has made an order for security. It considers: what occurs if a party fails to make the payment required by the order, i.e. non-compliance with a security for costs order; whether a security for costs order can be altered once it has been made; whether proceedings are stayed until the security for costs is paid; and whether there is a right of appeal against the security for costs order. Note that, on 6 April 2025, changes to CPR 25 came into effect which re-numbered the former CPR 25 provisions and amended some of the wording of its security for costs rules. This Practice Note refers to the prior rule 25 as ‘old rule 25’ and, where applicable, points out any differences between the current CPR 25 and the old rule 25. The old rule 25...

This Practice Note explores the circumstances in which the court may order security for costs in matters where counterclaims are involved. It considers both the claimant’s ability to obtain security for costs from a counterclaiming defendant, and whether that counterclaiming defendant can, in turn, seek security for costs against the claimant. Note that, on 6 April 2025, amendments to CPR 25 came into force, re-numbering the earlier provisions of CPR 25 and adjusting aspects of the wording concerning security for costs. Where appropriate, this Practice Note refers to the previous rule 25 as the ‘old rule 25’ and points out any differences between the current CPR 25 and the old rule 25. The old rule 25 can be accessed here: This Practice Note is one of a series considering issues relating to security for costs under CPR 25. The other Practice Notes are set out in...

This Practice Note examines the condition in CPR 25.27(b)(i) for ordering security for costs where the claimant is resident outside the jurisdiction, ie England and Wales. The rule has been altered in both numbering and wording. For further insight, see: Changes to CPR 25. For guidance on the other conditions under CPR 25.27(b), see Practice Note: Security for costs—requirements and conditions ( CPR 25.27). The underlying rationale is that enforcing an order in certain jurisdictions may prove more difficult or more expensive. The Court of Appeal clarified this in Nasser v United Bank of Kuwait (2001), indicating that enforcing security for costs abroad can be harder or costlier than in other places, with reference to Sir Jeffery Bowman’s 1997 Review at paragraphs 33–37. Summary of the court’s approach The Court of Appeal summarised the relevant principles in Danilina v Chernukhin (2018),...

This Practice Note reviews the alternative three-year limitation period in section 14A of the Limitation Act 1980 ( LA 1980), which extends the timeframe for commencing a claim by reference to the claimant’s knowledge of the material facts It identifies: the circumstances in which the provision is engaged the nature of the requisite knowledge the principle that the claimant is fixed with constructive knowledge of specified matters It also outlines the 15-year long-stop under LA 1980, s 14B for negligence actions that do not concern personal injuries. For detailed guidance on considerations relevant to construction disputes and building-defect matters, see: Defects in construction projects—overview. For wider guidance on LA 1980 and links to related practical materials, see:...

This Practice Note briefly outlines the nature of a search order (often referred to as an Anton Piller order, after Anton Piller v Manufacturing Processes (1976)), the underlying jurisdictional footing empowering the courts to issue one, and the tests the court will apply before agreeing to grant such relief, among others. It further describes the emergence of ‘imaging orders’, under which a respondent must allow an IT specialist to create an ‘image’ of their electronic device(s) or account(s), how these sit alongside search orders, and other options requiring delivery up or safeguarding of evidence. For related guidance on search and imaging orders, see the Practice Notes set out below: Search and imaging orders—making an application The model search and imaging order Search and imaging orders—execution of the order and next steps 6 April 2025 changes The CPR provisions that govern interim injunctive relief, which include search and imaging...

This Practice Note explores the regime for judicial expenses and taxation in general civil litigation across Scotland. For guidance on: How civil claims are funded in Scotland, see Practice Note: Funding Scottish civil litigation The closest equivalent procedure in England and Wales, see, for example: Principles of costs recovery—overview Costs budgeting and costs management—overview Fixed costs—overview Costs orders—overview Security for costs—overview Summary assessment—overview Detailed assessment—overview Discontinuance and costs—overview which, in turn, link through to more detailed guidance on various aspects of civil litigation costs in England and Wales Note: this...

This Practice Note examines property disputes in Scotland arising: in delict under the Occupiers’ Liability ( Scotland) Act 1960 ( OL( S) A 1960) under consumer rights legislation concerning defective premises and the time limits for claims under the Prescription and Limitation ( Scotland) Act 1973 ( PL( S) A 1973) It does not address statutory repair duties for agricultural or residential tenancies. Broadly, obligations connected to property may arise: by force of law (statutory—see further: Obligations arising by force of law: Stair Memorial Encyclopaedia [2]) from a wrongful act (delictual—see further: Obligations arising from a wrongful act: Stair Memorial Encyclopaedia [3]) voluntarily (eg unilateral and contractual undertakings—see further: Voluntary obligations: Stair Memorial Encyclopaedia [4]) Delictual obligations arising from a wrongful act Delict governs legal wrongs. It is the counterpart of ‘ Tort law’ in England; see: Differences between Scots and English law: Stair Memorial Encyclopaedia [166] and Practice Note: What is a tort? In...