Legal Practice Notes

The Freedom of Information Act 2000 ( FIA 2000) grants a general public right to access information held by public authorities, requiring each authority to confirm if the requested material is held and, where it is, to supply that information. This access right is not unrestricted, and FIA 2000 contains several exemptions reflecting circumstances where disclosure could harm the proper functioning of the public sector. Legal professional privilege Legal professional privilege is a legal rule safeguarding communications connected to securing legal advice. There are two forms of legal professional privilege—legal advice privilege and litigation privilege. Legal advice privilege covers communications between a client and their lawyer that form part of the process of providing legal advice. This privilege applies regardless of any actual or contemplated court proceedings. By contrast, litigation privilege only arises when litigation is a reality or reasonably in prospect, and it extends beyond...

E& W Brussels I (recast)—exclusive jurisdiction (art 24) [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. It outlines Article 24 of Regulation ( EU) 1215/2012 ( Brussels I (recast)), which allocates exclusive jurisdiction to the courts of an EU Member State, irrespective of the defendant’s domicile or any conflicting party agreement. It addresses claims relating to: immovable property ( Article 24(1)) a company’s constitution, corporate governance, and the validity of actions ( Article 24(2)) public registry entries ( Article 24(3)) intellectual property rights ( Article 24(4)) all proceedings concerning the enforcement of judgments ( Article 24(5)) The Note also considers how Article 24 applies to the UK as a non- EU Member State (a third state) following its departure from the EU, subject to transitional provisions in the Withdrawal Agreement. For general guidance on applying this...

This Practice Note sets out the principal obligations on experts and their instructing solicitors under the ‘ Guidance for the instruction of experts in civil claims’, effective from 1 December 2014. It provides direction on those key obligations while preserving the original intent and scope... This Practice Note should be considered in conjunction with: Practice Note: Instructing an expert Checklist—letter of instruction to expert precedent: Letter of instruction to own expert Note : ‘ Guidance’ means the Civil Justice Council’s Guidance for the instruction of experts in civil claims, which came into force on 1 December 2014... The focus of the Guidance is to ensure that: experts are engaged only when their evidence is necessary and required the appointed expert is the correct expert, suitably qualified to opine on the issues in dispute the expert is supplied with all...

Legal professional privilege ( LPP) This Practice Note examines legal professional privilege, which comprises legal advice privilege and litigation privilege. It sets out the criteria applicable to both categories, including the confidentiality of communications, the dominant purpose and legal context of the material over which privilege is claimed, and the identity of any recipients copied into the correspondence. It explains, for the purposes of asserting privilege, what is meant by client, legal adviser, legal advice and anticipated litigation. It also addresses recognised exceptions, notably the iniquity exception (where fraud or crime is in play), and situations where statute displaces privilege. The treatment of copy documents, and of documents that are collated, selected or extracted, together with translations, is considered. Practical pointers are provided. In this Note, legal professional privilege (often shortened to ‘privilege’) is used as a collective label for legal advice...

This Practice Note explores bringing proceedings for sums expressed in a foreign currency. It sets out the key case law on whether such claims are permissible and the method for advancing them, and also indicates how a defendant may contest a claim framed in a foreign currency. For guidance on: interest in foreign currency claims, see Practice Note—interest on damages claims and judgment debts costs in a foreign currency, see Practice Note: Cross-border disputes—costs considerations Why bring a claim in a foreign currency? Issuing a claim in a foreign currency can be advantageous to claimants, particularly where disputes involve complex international financial arrangements. Nevertheless, there are drawbacks to this approach, especially during periods of significant exchange-rate movement. The decision should therefore be weighed carefully in consultation with the client. in contractual claims where the contract denominates payments or accounts in a foreign...

This Practice Note considers the application of the ( FLPA 1984). This Practice Note explores how the ( FLPA 1984) is applied. It outlines the default position that English law is not automatically engaged when fixing limitation periods in proceedings with an international dimension, and examines when and in what manner the FLPA 1984 operates in practice. It reviews the ruling in the Iraqi Civilian litigation and identifies exceptions that may arise under the FLPA 1984, including public policy and undue hardship exemptions. It also addresses section 8, which enables sections 1, 2 and 4 of the Act to be disapplied. The regime the English courts use to decide the applicable law turns on whether the claim is contractual or tortious, and on either the date the contract was concluded or the date of the harmful event. This area has been...

This Practice Note explores whether permission is needed to obtain a writ or warrant, how long such writs and warrants stay valid, and the ranking of issued writs and warrants. For guidance on specific writs and warrants, see Practice Notes: How to obtain a writ of control How to obtain a warrant of control How to obtain a writ of delivery How to obtain a warrant of delivery Writs of sequestration to enforce a judgment or order Enforcing a judgment or order for possession of land Do I need the court's permission to issue a writ or warrant? In general, you only require the court’s permission to issue a writ or warrant if one of the CPR 83.2(3) criteria is met, namely: six years or more have passed since the date of the judgment or order—for a summary of the...

This Practice Note offers guidance on how to interpret and apply the relevant provisions of the CPR. Depending on the court in which your case is proceeding, you should also be alert to any additional provisions—see further: Court specific guidance below. What is a writ of control? A writ of control is a High Court document directing a High Court Enforcement Officer ( HCEO) to use the Taking Control of Goods ( TCG) procedure. It authorises the HCEO to take control of a judgment debtor’s goods, sell them, and apply the sale proceeds towards any outstanding sum due under a money judgment. The Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007) is the primary legislation introducing the TCG regime—for guidance, see Practice Note: Finding your way through the Taking Control of Goods legislation. Writs of control are the modern counterpart to the former writs of fieri...

This Practice Note explores what liquidated damages provisions are and, in brief, when they are used and in what manner. It then concentrates, in particular, on the judiciary’s method when assessing whether an alleged liquidated damages term is in truth a penalty and thus unenforceable; following the authorities through to the approach now taken after the Supreme Court’s 2015 Makdessi/ Parking Eye ruling and examining, specifically, matters such as when terms for accelerated payment, default interest, or positive inducements may amount to a penalty. Consideration is also given to whether liquidated damages endure following termination and to their connection with partial performance. What is a liquidated damages clause? A liquidated damages clause is a contractual term by which the parties to an agreement fix, in advance, a specified sum of money to be paid by the defaulting party to the innocent party upon breach of...

This Practice Note examines matters arising from the settlement of disputes within the framework of arbitration proceedings. The discussion draws on common practice in international arbitration and the pertinent provisions of the Arbitration Act 1996 ( AA 1996) as applicable in England, Wales and Northern Ireland, and also on certain selected arbitration rules. Settlement negotiations and arbitration As a rule, it serves a party’s best interests to assess every bona fide chance to settle, in light of the time, expense, uncertainty of outcome, reputation, relationship, and other possible consequences that flow from engaging in any form of dispute. Parties may enter into settlement talks or pursue an alternative dispute resolution ( ADR) route, such as mediation, at a pre-arbitration stage, before any proceedings have been envisaged or formally initiated by either side. Where an early attempt to settle succeeds, they will ordinarily set out their shared...

This Practice Note offers a concise guide to the evolution of the doctrine of forum non conveniens; the principle engaged when asking the court to stay proceedings in favour of litigation in another jurisdiction. For a summary of how the doctrine operates today, see: Determining court jurisdiction—overview. In English law, the concept was absent until 1984, although it was acknowledged in Scots law. The doctrine can be said to have been adopted into English law only after the House of Lords judgment in The Abidin Daver (1984). Authority and citation Sim v Robinow (1892) 19 R 665 (not available in Lexis®Library) Issue: Forum non conveniens. Test: Whether the foreign proceedings are better suited to resolve the parties’ interests and to achieve the ends of justice. ...

ARCHIVED: This Practice Note has been archived and will not be updated. CPR provisions The rules governing detailed assessment appear in CPR 47 and practice direction 47. Following the Jackson Reforms, the principal alteration in Part 47 is the launch of Provisional Assessment—a paper-based form of detailed assessment—set out at CPR 47.15 and CPR PD 47, para 14.1 onwards. As this is a wholly new procedure, we cover it in Lexis+® UK DR under Costs as ‘provisional assessment’, rather than within the detailed assessment topic. Additional revisions to Part 47 and practice direction 47 include: revised paragraph numbering, reflecting a practice direction tailored to Part 47, replacing the former Costs Practice Direction a new rule allowing the court, on its own initiative, to order the venue for the detailed assessment; previously, parties were invited to make representations......

Appeals in contempt proceedings Appeals arising from contempt are subject to distinct rules. Read this Practice Note alongside Practice Note: Civil contempt proceedings—appeals, purges and discharge. Determining an application for permission to appeal ( PTA) Decision on the papers or oral hearing? Whether a first or second appeal, permission to appeal is at first determined on the papers (see CPR 52.4(1) and CPR 52.5(1)). An oral hearing of the permission application will occur only in these circumstances: In the County Court and High Court—where the applicant seeks to have a paper refusal of permission reconsidered at an oral hearing, unless the judge who refused permission without an oral hearing has ordered that the applicant may not request such reconsideration ( CPR 52.4(2) and CPR 52.4(3)) In the Court of Appeal—where the judge dealing with the paper application directs that it be decided at an oral hearing ( CPR...

Fixed recoverable costs ( FRC) Fixed recoverable costs ( FRC) set out the sums recoverable from the paying party in litigation, introduced to promote clarity and proportionality in legal spend and process. The intention is that would-be litigants are not deterred by the risk of adverse costs exposure. FRC are now routine across several litigation spheres, though they are not universally applicable in every claim. As the landscape continues to change, this tracker seeks to chart the major milestones in the reform of FRC and offer granular guidance on particular stages and phases. CPR provisions on fixed costs For an overview of the present fixed costs rules and a pathway to related materials and analysis, see: Fixed costs (position on or after 1 October 2023)—checklist. Timeline of key events in fixed recoverable costs reform October 2025 (consultation closes on 5 January 2026) — The Civil...

This Practice Note explains the rules used to assess the amount of fixed enforcement costs in practice. It addresses calculating the fixed sums, what extra costs are recoverable, and the expense of entering judgment where relevant. Note that this Practice Note refers to the current provisions on enforcement costs. From 1 October 2023, the earlier provisions and relevant Tables on enforcement costs were renumbered within CPR 45 or relocated to CPR PD 45 as appropriate. However, the substance of the provisions and Tables has not changed in terms of content at all. For more on the different enforcement methods that are available, see Practice Note: Court fees in civil proceedings. For guidance on fees payable when enforcing a judgment or order, see Practice Note: Court fees in civil proceedings— Enforcement—writs and warrants (fees 7 and 8). Also note the potential to recover the...

E& W Brussels I (recast)—related proceedings (art 30) [ Archived] ARCHIVED: This Practice Note is archived and not maintained. It reviews the position where related proceedings are commenced in different jurisdictions within the EU, and the manner in which the courts of EU Member States will handle such situations. Related proceedings are those in which multiple actions are so closely connected that it is expedient to hear and determine them together, so as to avoid the risk of irreconcilable judgments that might arise if separate proceedings were pursued. The Note sets out the meaning of ‘related proceedings’ as contained in Article 30 of Regulation ( EU) 1215/2012, Brussels I (recast), and considers the range of issues a court may take into account when exercising its discretion to stay proceedings. Another variety of multiple proceedings is ‘parallel proceedings’ or ‘lis pendens’, which are addressed in Article 29 of...

ARCHIVED: this archived Practice Note is unmaintained and is supplied solely for background reference. In addition, certain links might not take you to the provisions as they stood on the date the guidance in this Practice Note was issued......

Termination—contractual and common law rights As commercial solicitors, we are commonly engaged to advise on setting up a commercial relationship. While we, much like family practitioners preparing pre-nuptial agreements, often consider the consequences of a relationship ending, only in more recent economic conditions are we more frequently asked how to unwind the relationship in the first place. It is vital to remember that a right to terminate may arise at common law (for example, for repudiatory breach) as well as under the contract’s express terms. Where an agreement is silent on termination, the courts will, in any dispute, apply common law principles. To minimise uncertainty, parties typically include clear contractual provisions dealing with termination. As a general rule, contractual termination rights are additional to, and not a substitute for, common law rights. In the absence of wording to the contrary, the default...

This Practice Note outlines directions for managing cases involving claims that are currently before the Commercial Court...

ARCHIVED: This Practice Note is archived and not kept under review. NOTE: THIS PRACTICE NOTE IS FOR HISTORIC PURPOSES ONLY. Introduction—the nature of the changes and transitional arrangements The principal aim behind creating the Supreme Court was to disentangle the judicial role of the House of Lords from its parliamentary function. A further objective was to improve openness and ease of use of the appellate process at the nation’s highest court. These reforms did not amount to a complete overhaul of access. The avenues for appealing to the Supreme Court mirror those that previously led to the House of Lords. In the main, the reforms are not far-reaching, save, arguably, for bringing within the Supreme Court’s jurisdiction the determination of devolution issues (formerly heard by the Privy Council). Beyond that, the alterations are largely presentational: refreshed terminology, a different procedural style and tone, and a more modern...