Legal Practice Notes

Legislative changes effective from 1 October 2015 created a right to collective redress for those affected by anti-competitive behaviour. This includes an opt-out mechanism, enabling an appointed class representative to recover damages for all comparably placed individuals who have not expressly chosen to withdraw. For a general overview of the UK private actions landscape, see UK damages actions... Overview of the process The summary below outlines the collective procedure before the Competition Appeal Tribunal ( CAT) and highlights key distinctions from litigation in the High Court. Topics addressed include: sources of authority how claims are commenced issue of the collective proceedings order rights of class members, and distribution of awards Sources of authority The CAT does not directly apply the Civil Procedure Rules ( CPR) governing cases in the High Court and County Court. It operates under its own...

Claims for negligent misrepresentation are frequently pursued together with, or as an alternative to, claims for negligent misstatement. It is therefore helpful to grasp the key practical considerations relevant to both types of claim. Comments Negligent misrepresentation Key ingredients of claim the representee relied upon a statement made to them by, or on behalf of, the representor the representor intended that statement to prompt the representee to enter the contract the statement did in fact induce the representee to enter the contract the statement bore the character of a representation the representation was untrue Accordingly, a negligent misrepresentation claim inherently involves entry into a contract brought about by the misrepresentation. Negligent misstatement Key ingredients of claim an inaccurate statement made by the representor to the representee the claimant relied on that misstatement the claimant suffered loss as a consequence there is no need for a contract to have been concluded between claimant and...

This Practice Note provides overarching information on civil restraint orders ( CROs) that applies across all forms of CRO, and should be considered alongside the following Practice Notes: Limited civil restraint orders Extended civil restraint orders General civil restraint orders What is a civil restraint order ( CRO)? CROs restrict a party’s capacity to pursue specified claims or applications in identified proceedings unless the court’s permission is obtained first. They are made to stop a party from issuing claims or bringing applications that lack merit, where that party has shown a persistent pattern of such conduct......

NOTE With effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) have been retitled the Civil National Business Centre ( CNBC)—see: LNB News 14/08/2023 12— CCMCC issues name and performance update. This Practice Note explains how to seek a charging order under CPR 73 and CPR PD 73. It outlines the application steps, namely: which form to use, how to complete it, and where to submit your completed application form It also provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court dealing with your matter, further requirements may apply—see Court specific guidance below. This Practice Note is relevant whether your charging order application is made via the Civil National Business Centre ( CNBC) or in a non- CNBC case. Be aware that special provisions apply to charging orders over...

This Practice Note considers when a party may seek to substitute its Part 35 expert during the life of a claim. It sets out the circumstances in which such a change might be necessary, flags the predictable accusation from an opponent that the party is engaging in ‘expert shopping’, and indicates the means by which the court will probe whether that is in fact the real motivation for the proposed switch. It also addresses the possibility that permission will only be granted on terms, including a requirement to disclose materials prepared by the initial expert witness. The court’s approach to a proposal to change an expert Allowing expert opinion evidence at trial lies within the court’s discretion. A request to replace an expert part‑way through the case is a case management matter, likewise requiring the exercise of that discretion. In dealing with any such...

This Practice Note provides an introduction to the law of tort by addressing three questions: what does the concept of being liable in tort mean, and how does tort relate to contract and criminal law? how has the law of tort developed? what is the scope of tort, ie which interests does it protect, what conduct does it allow or punish, and what impact has the Human Rights Act 1998 had on tort law, particularly calls for a general tort of privacy? What is tort law? The word ‘tort’ stems, indirectly, from the Latin ‘tortus’, denoting crooked or twisted—in other words, a wrong. It follows that a tort is a civil wrong that arises where one person unfairly causes another to suffer loss or harm. A person who commits a tort is legally liable to the injured party, who is provided with a remedy in law, such as...

Third party debt order ( TPDO) This Practice Note sets out the nature of a third party debt order ( TPDO)—formerly termed a garnishee order—as a method for enforcing a judgment debt, with reference to CPR 72. Such an order compels a third party indebted to the judgment debtor to pay those funds to the judgment creditor instead. It examines when the court may make a TPDO, where appropriate, what such orders can cover, their scope, and their practical effect in practice. For procedural guidance, consult Practice Note: How to apply for a third party debt order ( TPDO). Historically, TPDOs, then known as ‘garnishee’ orders, have formed part of the court’s enforcement toolkit since the nineteenth century under successive procedural codes over time. While the terminology and provisions in CPR 72 are comparatively modern, many of the underlying principles are...

This Practice Note explores the ideas behind joint privilege and common interest privilege, outlining when they matter, how they come about, their principal features, how they function, illustrations, and the ways they can be waived. The interest in privileged documents of more than one party Joint or common interest privilege may exist where multiple parties assert the right to claim privilege over the same material. The scope turns on their interest in the subject matter and the nature of their relationship, among other considerations. Joint privilege arises where legal advisers are jointly instructed, or where the parties share a joint interest in the advice. It can be invoked to secure access to privileged material held by another participant. Common interest privilege covers communications between parties with an aligned interest even without joint privilege—for instance, neighbours objecting to a nuisance that affects them equally, although only one...

This Practice Note It sets out guidance on applying the Protocol. It covers: when the Protocol operates its objectives and scope typical outcomes of non-compliance how it relates to limitation The Protocol replaced the Pre- Action Protocol for Defamation Claims. For how it differs from that earlier regime, see News Analysis: Pre- Action Protocol for Media and Communications Claims. In addition to defamation, the Protocol extends to a range of other media and communications claims which, before 2019, were not governed by a dedicated pre-action protocol. It formed part of broader reforms to media and communications procedure commencing on 1 October 2019, which also introduced a new CPR 53 and a new practice direction. For more on these changes, see News Analysis: New rules for media and communications claims from 1 October 2019......

The purpose of pre-action disclosure An applicant may invite the court to compel a would‑be defendant in civil proceedings to hand over, before any claim is issued and before proceedings have begun, documents probably within that party’s control which would, in due course, fall to be produced as part of standard disclosure in the action. It is, therefore, a mandatory, front‑loaded form of disclosure. The court’s authority to grant such relief derives from section 33(2) of the Senior Courts Act 1981 and CPR 31.16. The court must first be satisfied it has jurisdiction (the threshold conditions being met) and then determine, as a matter of discretion, whether to grant the order. In practice, a potential defendant can apply against a potential claimant, though that route is uncommon. While the prospective claim must be “more than a merely speculative punt” ( Moore‑ Bick LJ in Jet...

Types of set-off As explained in the Practice Notes, What is set-off and when is it available? and Types of set-off, there are several recognised categories of set-off that arise in different ways. Save for independent (legal) set-off (see Practice Note: Independent set-off and transaction set-off), a set-off can be asserted and implemented without issuing proceedings — for example, Y may retain sums it accepts it owes to X on the footing that Y is setting off amounts X owes Y. By comparison, independent set-off must be initiated through court proceedings and, in effect, takes effect upon judgment. In practical terms, once a claim reaches court, both independent and equitable set-off (frequently referred to as transaction set-off) are commonly pleaded within the defence......

This Practice Note sets out guidance on seeking permission to appeal ( PTA) under CPR Part 52 in both the lower court and the appellate court ( CPR 52.3(2)). It explains how to challenge decisions of lower courts and the steps for making PTA applications in the court below. It also addresses the need to apply at the conclusion of the hearing in the lower court, together with the deadlines for requesting PTA from the appellate court where no application was made below or where the lower court has refused PTA. The Note specifically considers applications for permission to the Court of Appeal where no oral hearing is directed, the respondent’s role (and potential costs) and the actions open to a respondent, as well as the procedure and particular provisions for the County Court, High Court and Court of Appeal, and how (and by whom) a PTA...

Practice Note This Practice Note examines the situations in which the usual Part 36 costs consequences may properly be found by the court to be unjust. It highlights the factors set out in CPR 36.17(5) that the court will take into account, and surveys the case law that has considered this question. Note that the fixed recoverable costs ( FRC) regime applies to most civil claims valued at no more than £100,000 which are issued on or after 1 October 2023, excluding personal injury and disease claims. For personal injury matters, the extended FRC regime applies where the cause of action accrued on or after 1 October 2023, and for disease claims it applies where no letter of claim has been sent before 1 October 2023. For civil cases that fall within the extended FRC regime, CPR 36.23 governs the costs...

This Practice Note outlines the required contents of a Part 36 offer, identifies to whom the offer must be directed, and highlights the additional stipulations for a defendant’s Part 36 proposal. It also explains how to make a Part 36 offer confined to part of the claim or focused on a specific issue within the claim. The Note addresses offers in proceedings with multiple parties, the need for a relevant period of at least 21 days, and the treatment of interest. It further considers situations involving a litigant in person, as well as the inclusion of a non-monetary element within a Part 36 offer... What a Part 36 offer must include A compliant Part 36 offer does not have to be presented in a letter; a party may instead use Form N242A ( CPR PD 36, para 1.1)......

Practice Note This Practice Note reviews the additional CPR 36 rules that apply to civil claims within the fixed costs regime from 1 October 2023. It explains the specific costs outcomes when a Part 36 offer is accepted, and the costs consequences after judgment in fixed costs matters. It also gives guidance on the 35% uplift awarded where a claimant obtains a judgment that is at least as favourable as their own Part 36 offer, and notes the applicability of the other awards under CPR 36.17(4). Please note, this Practice Note does not address the particular CPR 36 provisions relevant to personal injury claims (road traffic accidents, employers’ liability and public liability). For details on Part 36 offers in fixed costs cases before 1 October 2023, see: Practice Note: Part 36 offers—fixed costs (position prior to 1 October 2023). For general guidance on CPR 36, refer to:...

Practice Note This Practice Note explores the interplay between Part 36 offers and the specific costs recovery mechanism in CPR 36, alongside the Part 45 fixed costs provisions that applied before 1 October 2023. It cites authorities concerning personal injury claims and assesses how CPR 36 aligns with the scale costs for cases in the Intellectual Property Enterprise Court ( IPEC) ( CPR 46, Section VII). For clarity, any references in this Practice Note to ‘rule’ and ‘part’ are to the pre-1 October 2023 rules, which govern matters that fell within the fixed costs regime before that date. The old Part 36 and the old Part 45 can be accessed here: In addition, the extended fixed costs regime applies to all civil proceedings (subject to exclusions) with a value of £100,000 or less. For civil cases other than personal injury and disease, the...

This Practice Note considers the application of CPR 36 where Part 36 offers are made to settle detailed assessment proceedings commenced under CPR 47. It reviews leading authorities on the 10% enhancement for a receiving party’s costs under CPR 36.17(4)(d), and explores how CPR 36 aligns and interfaces with the statutory cap on the recoverable costs of provisional assessment set out in CPR 47.15(5). It also surveys case law on these issues and their consequences too. For solicitor/own client assessments, the consequences in CPR 36.17(4)(d) do not apply after a successful Part 36 offer, as this has been held inconsistent with section 70(9) of the Solicitors Act 1974, which imposes the one-fifth rule unless special circumstances arise under SA 1974, s 70(10). Nonetheless, a successful Part 36 offer in solicitor/own client assessment proceedings can still be treated as an admissible offer within the court’s...

A judgment creditor can ask the court for a charging order to secure what is owed, provided the judgment debtor holds chargeable assets ( CPR 73). Once a charging order is in place, the creditor may then seek an order for sale from the court, with a view to realising and recovering the amount due under the judgment. This Practice Note highlights key points to weigh up when deciding whether this enforcement route is appropriate, or whether it would be better not to pursue it. For broader guidance on charging orders, including what they are and the procedural steps required to obtain them, see the following Practice Notes: Charging orders—what are they and when to use them— CPR 73 Charging orders—how and where to apply Charging...

The volume of claims brought against banks continues to grow. This Practice Note considers particular issues concerning the tortious duty of care owed by banks to their customers, namely the so‑called ‘ Quincecare duty of care’, assumption of responsibility, and the giving of volunteered advice. For direction on the role of banks in financial mis‑selling claims, see Practice Note: Standard of care in professional negligence claims— Negligent financial mis‑selling claims. For general guidance on tortious claims, see: Tort and negligence claims—overview; and for negligence specifically, consult the following Practice Notes: Negligence—key elements for establishing a negligence claim Negligence—when does a duty of care arise? Negligence—when is the duty of care breached? For guidance on professional negligence more broadly, see: Professional negligence claims—overview. Framing a bank’s duty to its customer Before exploring the potential ambit of a bank’s tortious duty to its customer, it should be borne in mind that—as in...

This Practice Note This Practice Note provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which your matter proceeds, you should also be mindful of any additional provisions—see: Court specific guidance. In particular, be aware that CPR 26 (which addresses, among other matters, the allocation of claims to a case management track and the requirement to file a directions questionnaire), and substantial parts of CPR 29/ CPR PD 29 (dealing with case management in the multi-track), do not apply in the Commercial Court (see CPR 58.13 and CPR PD 58, para 10.1), the Circuit Commercial Courts (see CPR 59.11 and CPR PD 59, para 7.1) and the Technology and Construction Court (see CPR 60.6 and CPR PD 60, para 10). For information on case management in the Commercial Court and the Technology and Construction Court, see the following Practice...