Legal Practice Notes

This Practice Note concisely sets out guidance on Sanderson and Bullock orders. It explains their nature and purpose, when such orders may properly be made, and the reasoning that underpins their use. Sanderson and Bullock orders—what are they? These orders typically arise where a claimant brings a claim (in contract or in tort) against two or more separate and distinct defendants, but ultimately achieves success against only one of those defendants. Their immediate origins lie in the following authorities: Sanderson v Blyth Theatre Company (1903)—the court required the losing defendant to meet the successful defendant’s costs (a Sanderson order) Bullock v London General Omnibus Co (1907)—the court directed the claimant to pay the successful defendant’s costs, but expressly allowed the claimant to include those sums within the costs to be ultimately recoverable from the losing defendant (a Bullock order) A Sanderson order is also on occasion simply described as a...

This Practice Note This Practice Note is intended for use when identifying the applicable law where the contract was concluded on or after 17 December 2009 and before 1 January 2021. For agreements made on other dates, the UK courts will apply a different applicable law regime. The regime engaged will turn on the date on which the contract was made. For guidance on the distinct regimes and how they interrelate, see Practice Note: Applicable law regimes. This Practice Note examines the rules in Article 5 of Regulation ( EC) 593/2008, Rome I, which sets out how the governing law is determined for contracts of carriage. Although the article deals with both the carriage of goods and the carriage of passengers, this Practice Note addresses only the carriage of goods. The rules in Article 5 of Regulation ( EC) 593/2008, Rome I operate solely to the...

There is some overlap between the doctrine of res judicata and the Henderson abuse principle, discussed below. Note too that these concepts intersect with the procedural basis for striking out a claim as an abuse of the court’s process under CPR 3.4(2)(b); see below and Practice Note: Strike out for abuse of process (civil) ( CPR 3.4(2)(b))— Abuse of process by second proceedings. What is res judicata? A res judicata is a determination made by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of the matter decided so that those bound by the judgment cannot re-litigate it, save on appeal. Those bound by the ruling remain so unless and until altered on appeal. For further guidance on the purpose of, and when you can establish, a res judicata, see Practice Notes: The doctrine of res...

This Practice Note This Practice Note outlines guidance on representative claims under CPR 19.8 where several people share the same interest in proceedings. It explains when it may be suitable for a representative party to issue or defend a claim for others with that common interest ( CPR 19.8(1)), and when the court may require that a representative not act for specified individuals ( CPR 19.8(2)). It also addresses who is bound by any judgment or order in a representative claim under CPR 19.8(4), liability for costs, opting out of a representative claim, and the particular provisions that apply where those to be represented are unascertainable, have died, are trust beneficiaries, and so on. Practical guidance on handling representative claims is included. The leading authority on the operation of CPR 19.8 is the Supreme Court’s ruling in Lloyd v Google. Note: with effect from 6 April...

This Practice Note outlines how to pursue or resist an application for relief from sanctions under CPR 3.9. It considers the evidence needed both to support and to oppose such applications, the potential costs consequences, and avenues to appeal where relief is granted or refused. It also includes practical tips and key points to bear in mind when bringing or challenging an application for relief from sanctions... Making an application for relief from sanctions An application for relief from sanctions is a request for a court order, so the core procedure is governed by CPR 23 and CPR PD 23A. Guidance on preparing a CPR-compliant application is set out in Practice Note: How to make an application for a court order ( CPR 23). You should be familiar with that guidance before issuing any application to the court, as it provides the...

Key cases considering relief from sanctions Mitchell v News Group Newspapers (2013) was the first Court of Appeal ruling to engage CPR 3.9 in its form revised by the April 2013 Jackson Reforms. In Mitchell, the simplified, general position was that: where the default was trivial and prompt corrective steps were taken, relief would ordinarily be granted where the default was not trivial, but there was a good reason and swift action followed, relief would usually be granted in other situations—namely where the default was not trivial and lacked a good reason—relief would generally be refused unless a compelling justification existed The way Mitchell was interpreted and applied resulted in decisions and sanctions labelled ‘unduly draconian’ and ‘manifestly unjust and disproportionate’. That was neither the ‘correct approach’ nor ‘mandated’ by the Court of Appeal in Mitchell (2013) ( Denton v TH White Ltd...

ARCHIVED : This Practice Note has been archived and is not maintained. This table centres on case management compliance and relief from sanctions ( RFS) rulings from, and including, the Court of Appeal’s ‘joint’ decision in Denton v White; Decadent Vapours Limited v Bevan; Utilise TDS Limited v Cranstoun Davies. For commentary on Denton, see: News Analyses: Court of Appeal: ‘ Mitchell Appeals’ unanimously allowed ( Denton, Decadent and Utilise) Relief from sanction—how the courts are applying Mitchell In Denton, the Court of Appeal indicated it hoped there would be no requirement to revisit earlier authorities. Nonetheless, for outcomes determined under the earlier ruling in Mitchell v News Group Newspapers, see: Practice Notes: Relief from sanctions decisions—pre- Denton [ Archived] Relief from sanctions (pre- Denton) [ Archived] Please note that guidance in those Practice Notes is largely of historical interest and has...

This Practice Note examines the applicable Civil Procedure Rules ( CPR) governing the court’s discretion on costs and the consequences where a party has not complied with a mediation order or another alternative dispute resolution ( ADR) process, or has unreasonably refused to participate in ADR. It should be read alongside Practice Note: —illustrative decisions, which summarises key and leading rulings demonstrating the court’s approach in this regard. For guidance on the parties’ obligations to consider ADR, and the courts’ powers to order or encourage the parties to consider ADR, both before and during litigation, see Practice Notes: Court powers to order or encourage ADR in civil proceedings and Court powers to order or encourage ADR in civil proceedings—key and illustrative decisions. Changes to the CPR With effect from 1 October 2024, the CPR were amended to provide additional powers for the court to require parties to use ADR,...

This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...

ARCHIVED: This Practice Note has been archived and is no longer maintained. It examines restitutionary claims for quantum meruit (value of services) and quantum valebat (value of goods): the relevant principles, the situations in which such claims may arise, and how to assess the value of any benefit conferred in those cases. When is quantum meruit and quantum valebat relevant? Claims in quantum meruit (value of services) and quantum valebat (value of goods) may emerge in a wide range of circumstances, from gaps in contractual terms on payment to the absence of any contract at all ( Serck v Drake & Scull). For specific guidance on the interplay between quantum meruit/valebat claims and claims for unjust enrichment in the context of contractual relationships, see Practice Note: Unjust enrichment and contracts—failure of basis claims [...

This Practice Note explores circumstances in which parties can resist disclosure and/or inspection of sensitive material on the basis of public interest immunity ( PII). It outlines the steps for advancing a PII claim and securing the court’s leave to withhold documents. Waiver of PII is also addressed here. This Practice Note should be read alongside Practice Note: Closed Material Procedure. What is public interest immunity ( PII)? A party may oppose the disclosure and/or inspection of a document where producing it would prejudice the public interest. That objection is characterised as reliance on PII, the ‘immunity’ describing the capacity to decline disclosure or to refuse permission for inspection of the material. It was formerly referred to as ‘crown privilege’. PII operates in both civil and criminal law settings. The ‘proper approach’ to PII, which deploys a three-stage test, is discussed in the...

Relationship between causes of action for reputational damage claims which may provide alternatives to a defamation claim This Practice Note explores how other causes of action connected to reputational harm may operate as alternatives to a defamation claim. It examines malicious falsehood, misuse of private information, breach of confidence, contraventions of data protection legislation, harassment and negligent misstatement. Defamation remains the core route for safeguarding reputation. In essence, such a claim arises where material is communicated to third parties that diminishes the claimant in the eyes of reasonable members of the public, carrying an allegation capable of causing serious harm to their reputation, and where no defence in law applies. For further detail, see Practice Note: Defamation. In certain situations, it can be appropriate—and sometimes necessary—to pursue a different cause of action, potentially against a person other than the original publisher. Care is...

This Practice Note examines the extent to which, and the ways in which, a party’s sensitive information and the documents that contain it can be protected even though documents fall within disclosure obligations in a civil action. Its primary focus is creating and running a so‑called 'confidentiality club', together with editing out confidential yet immaterial portions of documents that directly bear on the dispute. It also surveys other protective tools, including undertakings and injunctions as available options. Understanding the limits on confidentiality of documents in disclosure Telling a party with no prior experience of litigation in England and Wales that they may inspect their opponent’s confidential material, and should anticipate having to disclose their own in exchange, is frequently received with astonishment by many clients. The concern is sharper where the party is located in a civil law jurisdiction that does not employ...

This Practice Note explores costs proportionality. It addresses the thinking and development behind proportionality, when it ought to be considered, the relevant CPR provisions, and the core principles that have emerged from litigation. It should be read alongside Practice Note: Costs proportionality—illustrative decisions, which identifies case law where the proportionality of costs has been examined. Rationale for the proportionality provisions The Jackson Final Report set out the principal justification: access to justice is achievable only where litigation costs are proportionate; if parties elect to advance claims or defences at disproportionate expense, they must expect to shoulder, at least in part, that cost themselves. The introduction of proportionality was addressed by Lord Neuberger of Abbotsbury, the Master of the Rolls. Although it was expected to be a significant factor across a variety of court applications, before it came into force many expressed concern about the limited...

In analysing the causation and remoteness aspects of a professional negligence claim When evaluating causation and remoteness in professional negligence, a sensible point of departure is the pair of 2021 Supreme Court authorities, Manchester Building Society v Grant Thornton (accountants’ negligence) and Khan v Meadows (clinical negligence). In both, heard by the same constitution, the court indicated that adopting the analysis set out below provides a structured way to examine the scope‑of‑duty principle, “but for” causation, and the foreseeability of harm within clinical negligence claims. The result of that exercise informs the proper extent of the claimant’s damages, consistent with the compensatory principle that the law, so far as money can, seeks to place the claimant in the position he or she would have occupied had the defendant not been negligent ( Khan at para [58]). The analysis (at para [6] of...

This Practice Note sets out the core principles, meaning and rationale for privilege. It identifies the main categories and explains how they operate: legal advice privilege and litigation privilege (together, ‘legal professional privilege’ ( LPP)) common interest privilege joint privilege public interest immunity ( PII) closed material procedures ( CMP) It examines the effect of privilege on disclosure and inspection, distinguishes confidential documents from privileged material, and considers who owns the right, how long it lasts, and its impact on case management. Practical tips on handling privilege are also provided. What is privilege? In English law, privilege is a fundamental right enabling a party, or its successors in title, to refuse production of certain documents (see the Court of Appeal decision in Addlesee v Dentons Europe). Where privilege applies, it generally does not remove the duty to disclose that a...

This Practice Note considers privilege and confidential information where the client–solicitor relationship has ended. It explores who holds privilege in general and in later litigation, and whether a former client can restrain their previous solicitor from acting for another party on the basis of privilege or breach of confidence. Who does privilege belong to in any subsequent litigation? Legal professional privilege belongs to the client—see further: Privilege—general principles— Who does privilege belong to? Moreover, once a communication is privileged, it will usually remain so—see further: Privilege—general principles— How long does privilege last? This was illustrated in Kousouros v O’ Halloran, where it was decided that a party retained legal advice privilege over a document disclosed to an opponent by a former solicitor, even after the retainer had concluded. The underlying dispute involved a brother and sister who were each given equal shares in their...

This Practice Note outlines the duties under Practice Direction 31B, para 7, triggered when litigation is in prospect, regarding the preservation of documents, together with the implications and factors to weigh for particular aspects of disclosure, including the handling of back-up tapes, computers, notebooks, laptops, portable storage media and handheld devices, as well as social media accounts. It also considers the potential repercussions of failing to retain disclosable material, and the practical issues that may arise. Note: this Practice Note does not address the disclosure scheme in the Business and Property Courts, where preservation obligations equally apply. For that guidance, see: Disclosure Scheme ( Business & Property Courts)—overview. Obligations CPR PD 31B, which governs disclosure of electronic documents, expressly requires a legal adviser, as soon as they are instructed to deal with a dispute likely to be, or already, allocated to the...

In preparation for the mediation, it is usual for the parties to compile a bundle of documents to be provided to the mediator (and to one another) before the meeting, in accordance with the timetable they have agreed. It is common to produce a concise case summary to guide the mediator and sharpen the focus of the mediation. Where the mediation agreement requires it, this can be accompanied by supporting documents. For information about the mediation agreement, see Practice Note: Organising a mediation. Case summary for mediation Each party should prepare its own case summary in advance of the mediation. This summary should: give the mediator an overview of the issues in dispute and the current status of any negotiations present your position in the most favourable terms for the other side to consider be drafted to assist the...

This Practice Note offers direction on interpreting and applying the relevant CPR provisions. Depending on the forum in which your case is running, further requirements may apply—see the section Court specific guidance below. Preparing for application hearings in the digital age Traditionally, application hearings meant attending a physical courtroom and relying on paper bundles. Since the coronavirus ( COVID-19) pandemic, there has been a marked move towards technology-led disposal of applications. Shorter application hearings are, in many courts, now conducted remotely by default. For detailed guidance, see Practice Note: Remote and hybrid hearings in civil proceedings. Court documents are also increasingly filed electronically, particularly in the High Court. For further guidance, see Practice Notes: When and where is CE- File applicable?—from 1 October 2025 How to use CE- File—from 1 October 2025 Electronic bundles in civil proceedings Electronic...