Legal Practice Notes

This Practice Note explains the default position that the losing party is generally ordered to meet the winning party’s costs. It considers situations of modest recovery and instances where a party succeeds on some, but not all, issues. It also confirms that costs are determined separately from the substantive relief sought, and addresses costs orders in closed material procedure proceedings. For guidance on when the court may depart from the default rule, and when it does not apply, see Practice Note: Costs orders—departing from the general rule and circumstances where it is not applicable. For the aims of costs orders, what they should contain and the range of forms, see Practice Note: Costs orders—purpose, what to include and different types. The general rule—unsuccessful party pays the successful party’s costs In Langer v Mc Keown (2021), the Court of Appeal emphasised that, in general, costs should follow the...

The doctrine of contractual estoppel has been employed in a number of varied commercial scenarios, but most notably and particularly in more recent times in disputes within the financial sector. This Practice Note identifies several key cases since the 2006 Court of Appeal decision in Peekay v ANZ Banking Group. It should be carefully read in conjunction with Practice Note: Contractual estoppel. Peekay v ANZ Banking Group (2006) The Court of Appeal’s ruling in Peekay v ANZ Banking Group is widely regarded as the foremost and controlling authority on contractual estoppel. The claimant executed a ‘ Risk Disclosure Statement’ for investments arranged through the defendant bank, recording an acknowledgement that the signatory fully appreciated the nature of the transaction and the contractual relationship then being entered into by it at the time. The Court of Appeal held that, in light of this, the claimant could not later...

For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...

The second edition of the Pre- Action Protocol for Construction and Engineering Disputes (the Protocol) also introduces a formal mechanism allowing the parties to appoint a ‘protocol referee’ to direct how the Protocol should be conducted or to resolve allegations of non-compliance with it. The Protocol Referee Procedure ( PRP) was devised and issued jointly by the Technology and Construction Solicitors’ Association ( Te CSA) and the Technology and Construction Bar Association ( TECBAR). A copy of the PRP is available here: The referee’s decision is binding upon the parties for the Protocol process—see The decision of the referee below. Until a decision is issued by the referee, however, the PRP does not affect the Protocol process; the time limits continue to run in accordance with the Protocol ( PRP para 1.6). How does a party start the...

What is a CFA? A conditional fee agreement ( CFA) is an arrangement with a professional providing advocacy or litigation services under which their fees and expenses, in whole or in part, are payable only when certain specified conditions arise. CFAs commonly include provision for a success fee. In short, a CFA is taken to provide for a success fee where, in defined circumstances, the amount of the applicable fees is increased above the figure that would have been due if payment were not restricted to those circumstances. For a fuller discussion of success fees, see the section ‘ Success fees’ below and the Practice Note: Conditional fee agreements—success fees. Note that particular provisions, including those relating to success fees, apply when a CFA is used in personal injury, clinical negligence and mesothelioma claims, and these are not covered in this Practice Note. For those...

This Practice Note offers guidance on completing Precedent T. It is the court form parties must use when obtaining party agreement and/or the court’s approval to alter their agreed or approved budgeted costs. Note that, before 1 October 2020, parties did not need to complete a costs precedent when seeking to vary a costs budget. This Practice Note should be read alongside Practice Note: Costs budgets—revision and variation. Accordingly, a costs precedent is now required when varying a budget. Which CPR provisions apply? The applicable rules sit in CPR 3.15A(1)–(6), and guidance in CPR PD 3D, para 11, also applies. These are the provisions governing both revisions and variations. What is Precedent T? Precedent T is the prescribed court form a party must use when revising, upwards or downwards, its budgeted costs ( CPR 3.15A(3)). The party proposing variations (the revising party) should try to agree those...

This Practice Note reviews how the common law decides which country’s laws govern a tort dispute, and how that choice is reached. It addresses the primary rule of double actionability alongside the flexible exception, setting out their roles. The court will, in addition, apply the substance test to the issues. The common law regime is confined to torts before 1 May 1996 (and to defamation claims before 2009). Terminology The choice of law for a tort claim assessed under the common law adopts the following terminology and concepts in this context: lex fori — the forum’s law (for High Court proceedings, the law of England and Wales) lex loci delicti — the law of the place where the tort occurred double actionability — the claim must be actionable under both the foreign law and English law flexible exception — a rare...

This Practice Note sets out the requirements for the list of common ground and issues in the Commercial Court at a case management conference ( CMC), by reference to the Commercial Court Guide, paras D5.1– D5.5. It should be read alongside the following Practice Notes: Commercial Court—case management Commercial Court—case management conference ( CMC) Purpose of the list of common ground and issues The list of common ground and issues functions as a case management aid for the parties and the court as the matter advances, assisting with decisions on, among other things: the ambit of disclosure and the scope of factual and expert evidence ( Commercial Court Guide, paras D2.1(c), D5.4 and E1.2) whether any issues are suitable for summary determination ( Commercial Court Guide, paras D5.4 and D7.10) whether preliminary issues ought to be directed (...

Order of play in the multi-track, intermediate track and fast track The judge will typically have read the papers and may prefer to dispense with an opening address. When acting for the claimant, a sensible course is for the advocate to ask whether the judge has had an opportunity to consider the papers (and, where relevant, any skeleton arguments) and whether they would like the advocate to open the case. The sequence can depend on the track and/or the venue, but a usual order of play for a trial, subject to the trial judge’s direction, is: claimant’s opening defendant’s or other parties’ opening claimant’s evidence defendant’s evidence claimant’s closing submissions defendant’s closing submissions claimant’s reply judgment costs and consequential orders In more complex trials, the court may require the parties to provide written closing...

This Practice Note outlines CE- File electronic working/electronic filing (also referred to as e-working/e-filing) in the courts under CPR PD 5C. CPR PD 5C applies from 1 October 2025—for guidance on CE- File before that date, see Practice Note: Electronic working and CE- File—when and where is CE- File applicable? [ Archived]. It explains which courts use electronic working and the proceedings to which it applies. Read this Practice Note together with: How to use CE- File—from 1 October 2025—for guidance on using CE- File Electronic communication and filing of documents by email— CPR PD 5B—for guidance on electronic filing under CPR PD 5B Which courts use CE- File? The courts using CE- File are listed in CPR PD 5C, para 1.3 and include: the following Rolls Building jurisdictions at the Royal Courts of Justice in London (the Rolls Building...

Cause of action estoppel is a sub-category of the doctrine of res judicata (see Practice Note: The doctrine of res judicata). Alongside the general key requirements for proving res judicata (see Practice Note: Key requirements to establish a res judicata), this Practice Note addresses the particular criteria for establishing a cause of action estoppel. For guidance on issue estoppel, see Practice Note: Issue estoppel. What is cause of action estoppel? the same parties, or those in privity with them; and the dispute concerns the same subject matter, and a second claim advances a cause of action identical to that pursued in the first claim ( Arnold v National Westminster) ......

This Practice Note examines the management of civil claims within the CPR, addressing the overriding objective in CPR 1—ensuring the court deals with matters justly and at proportionate cost—and the court’s particular case management powers under CPR 3.1. For further detail on managing civil claims, including other powers available to the court, see: Court's case management powers—overview. This Practice Note offers guidance on interpreting and applying the relevant provisions of the CPR. Depending on the court in which your case is progressing, you should also be alert to additional provisions—see: Court specific guidance. Case management and the overriding objective ( CPR 1) The CPR comprise a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost, in line with the criteria in CPR 1.1(2) ( CPR 1.1(1))......

This Practice Note considers the following matters as they arise under the Disclosure Scheme in operation in the Business & Property Courts ( B& PCs) set out in CPR PD 57AD: adjusting an order for Extended Disclosure requesting disclosure of particular documents disclosure of documents referred to in statements of case and evidence These matters are considered below and overlap significantly in practice, not least because CPR PD 57AD, para 18 (variation of Extended Disclosure) expressly allows the court, on such an application, to order disclosure of specific documents or classes of documents. Applications under para 18 are frequently paired, in the alternative, with an application under para 17 for failure adequately to comply with Extended Disclosure; see Practice Note: Disclosure Scheme—how to comply with disclosure orders and obligations. Note that seeking particular documents within the Disclosure Scheme is distinct from pursuing...

This Practice Note outlines the role of the B& PCs, which determine specialist business matters and other international dispute resolution and business cases in England and Wales. Procedural guidance applicable in the B& PCs is contained in CPR 57A and CPR PD 57AA. It explains which courts sit within the B& PCs, the steps for starting proceedings in a B& PC—including electronic issue—and how to frame the claim title. It also addresses moving cases to or from a B& PC. This Practice Note should be read alongside Practice Note: Dispute Resolution—judicial practice notes and guidance, which links to further guidance issued by the judiciary from time to time and which is relevant to the B& PCs... What are the ? The B& PCs hear specialist business and other international dispute resolution and business cases in England and Wales, whether domestic or...

This Practice Note offers guidance on preparing the bill of costs that the receiving party must complete before the start of detailed assessment proceedings, prior to the commencement of detailed assessment. Template bills of costs are provided in CPR PD 47, paragraph 5.1, and vary according to the type of recovery sought (base costs, success fees, LSC costs). The Note also identifies and links through to the relevant costs precedents and to Precedent F, which contains the certificates that must appear within the bill of costs itself. It further includes guidance on how to complete a bill of costs and provides information on using a costs draftsman. Any detailed assessment proceedings should be brought under the provisions within CPR 47 and CPR PD 47, and pursued accordingly. Importance of providing a clear and accurate bill of costs The receiving party should produce a clear,...

This Practice Note is intended for judgment creditors thinking about seeking an attachment of earnings order. It sets out what an attachment of earnings order is, when you can seek one, how to make the application, and what follows after it is lodged. What is an attachment of earnings order? To enforce a judgment debt, a creditor may apply for an attachment of earnings order ( AEO). This directs the judgment debtor’s employer to send a specified portion of the debtor’s pay to a central collecting office for transfer to the judgment creditor. The statutory basis for AEOs is the Attachment of Earnings Act 1971 ( At EA 1971), and the procedural framework appears in CPR 89. Under At EA 1971, s 6(1), an AEO is a direction to the judgment debtor’s employer to: make periodical deductions from the debtor’s earnings at such times as the...

This Practice Note explores the use of After the Event insurance ( ATE insurance) as a form of security for costs. It sits within a suite of Practice Notes addressing matters concerning security for costs under CPR 25. The other Practice Notes are listed in: Security for costs—overview. There are also CPR routes that allow for orders mirroring a security for costs order; for further detail, see Practice Note: Security for costs—equivalent orders. From 6 April 2025, amendments to CPR 25 took effect, renumbering the former CPR 25 provisions and revising some of the wording dealing with security for costs. Where relevant, this Practice Note refers to the prior version as ‘old rule 25’ and draws attention to any distinctions between the current CPR 25 and the old rule 25. As to the preconditions for the court to make a security for costs order, CPR 25.13 was...

This Practice Note looks at the general recovery of liability expenses insurance premiums. For an overview of before the event ( BTE) insurance and after the event ( ATE) insurance (often called costs insurance), refer to Practice Note: Costs insurance. Rules concerning the recoupment of ATE premiums in mesothelioma and clinical negligence matters fall outside the scope of this Practice Note. Recoverability of the cost of liability expenses insurance premiums Whether premiums can be recovered as costs from the opposing party turns on the nature of the policy and the date it was taken out. BTE insurance Premiums payable for BTE cover (policies arranged prior to the incident giving rise to a claim) are never recoverable. ATE insurance Where insurance is purchased to guard against the risk of adverse liability in proceedings, the position is: for ATE policies incepted before 1 April 2013, the premium is...

Note: with effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) were renamed the Civil National Business Centre ( CNBC); see LNB News 14/08/2023 12— CCMCC issues name and performance update. This Practice Note explains the process for seeking to vary or discharge a charging order under CPR 73.10B. Can you apply to discharge or vary a final charging order? Section 3(5) of the Charging Order Act 1979 ( COA 1979) states that the court which made the charging order may, at any time, on the application of the debtor or any person with an interest in property to which the order relates, make an order discharging or altering the charging order. The procedural route for such an application is set out in CPR 73.10B. In Parr v Tiuta...

ARCHIVED: This Practice Note has been archived and is not maintained. The UK is no longer bound by the Rome Convention in international law after leaving the EU. Even so, its substantive rules still apply in limited instances, ie where a contract was concluded between 1 April 1991 and 16 December 2009 and meets the act’s criteria. As a result, those rules are preserved in C( AL) A 1990, subject to amendments in The Law Applicable to Contractual Obligations and Non– Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834. For the current position, see Practice Note: Contracts ( Applicable Law) Act 1990—parties fail to choose the applicable law. It covers: the basic rule where no choice is made—the governing law is that of the country most closely connected, determined by the contract’s characteristic performance the presumptions used to identify the closest...