Legal Practice Notes

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...

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...

What is a private law claim for breach of statutory duty? A private law claim for breach of statutory duty arises where: the defendant was subject to a statutory obligation to take a specified action that action was not carried out and the breach caused damage to the claimant Such a cause of action can be pursued against any entity bound by the duty, whether a public authority or a private organisation. For instance, section 41 of the Highways Act 1980 enables highway users to bring proceedings for a failure to maintain the highway. Additionally, where a public authority acts in breach of a statutory obligation, an adversely affected individual may seek a public law remedy by applying for judicial review. However, many statutory duties do not confer a private right to sue. Consequently, most claims against public...

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...

Note: From 1 January 2026, the Financial List in the Chancery Division is running a pilot under CPR PD 51ZH under which specified documents deployed at public hearings (such as witness statements and skeleton arguments) will, by default, be accessible to the public at large. Practitioners issuing applications in this list should acquaint themselves with the pilot and ensure suitable measures are adopted to safeguard their clients, as necessary, when drafting any impacted documents. For guidance, see Practice Note: Non-party access to court documents and information in civil proceedings. Applications in the Chancery Division If your matter proceeds in the Chancery Division, the provisions of the Chancery Guide will govern any application you bring in that forum. This Practice Note offers guidance on Chancery Division applications, in particular closely cross-referring to the pertinent provisions of the Chancery Guide and the related regional guidance...

This Practice Note sets out when it may be suitable to seek pre-action disclosure under CPR 31.16. Drawing on leading authorities, it describes the courts’ two-stage analysis when considering an order under CPR 31.16(3): first, whether jurisdiction exists—namely that the four conditions in CPR 31.16(3)(a)–(d) are satisfied—and, if so, secondly, whether the court should exercise its discretion to grant the order. It also addresses disclosure before proceedings in the setting of split trials, the court’s jurisdiction to order pre-action disclosure after a claim form has been issued, pre-action disclosure where the dispute is to be determined by arbitration, and pre-action disclosure in procurement matters. This Practice Note should be read alongside Practice Note: Pre-action disclosure—making an application. The court’s power to order pre-action disclosure The courts’ authority to direct disclosure before proceedings commence—ie pre-action...

This Practice Note sets out an overview of a litigation process for a dispute in England and Wales. This Practice Note provides an outline of the litigation journey for disputes in England and Wales. It also offers a recap of the typical phases most civil cases will involve, spanning pre-action steps, issuing proceedings, trial, enforcement and any appeal, alongside related costs and funding considerations. It further addresses the court’s approach to case and costs management, lay and expert evidence, the obtaining of injunctions and the options for bringing proceedings to a close, including resolution by settlement. The Practice Note is arranged in a way that can be repurposed as a client letter to set out the principal stages of most civil disputes. It includes no outbound links to other Lexis+® UK materials. For links to content aligned to these key stages, refer to...

Basic principles The basic principles of mitigation are: damages are not recoverable for losses a claimant could have averted by taking reasonable steps where a claimant goes beyond what is reasonably required and thereby avoids loss, those avoided losses cannot be recovered the reasonable costs of taking steps to mitigate may themselves be claimed as damages A defendant who intends to argue that a claimant failed to mitigate must give notice well before the hearing, via the statements of case or otherwise, and advance a concrete case showing what the claimant might reasonably have done. Test to be applied The onus of proving a failure to mitigate lies with the defendant. Nonetheless, a claimant’s practitioner should anticipate mitigation arguments and gather evidence to meet them. The claimant’s reasons for particular decisions should be probed in depth. Expert evidence may also be required. Whether the claimant has mitigated their losses is a...

This Practice Note offers guidance on remote and hybrid hearings, conducted by video-conference or by telephone, in civil proceedings. It explains what amounts to a remote or hybrid hearing, identifies when a hearing may be held remotely, addresses telephone hearings, and outlines the electronic platforms available for remote hearings. It also gives direction on how non-parties may obtain remote access to hearings. Depending on the court hearing your matter, you may need to consider further provisions—see: Court specific guidance. What is a remote hearing? A remote hearing may proceed by video link or over the telephone. Some hearings run with a mixture of attendance, where certain participants join remotely while others appear in person at court; this is commonly described as a hybrid hearing. Hybrid arrangements can offer flexibility for legal teams, clients and witnesses, accommodating those able and willing to attend court and those who are not. In...

This Practice Note offers guidance on interpreting and applying the relevant provisions of the CPR. Depending on the court handling your case, you may need to consider additional requirements—see below. It clarifies when the Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) takes effect and outlines its aims and principles. It also covers what a claimant should include in a letter of claim and what is expected in the defendant’s reply, and briefly touches on ADR, limitation and experts. When does the Practice Direction on Pre- Action Conduct and Protocols apply? The Practice Direction sets out the conduct generally expected of parties before proceedings are issued. Its provisions apply across the board, but it is specifically stated to govern where none of the more detailed pre-action protocols is relevant to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For...

This Practice Note offers direction on applying for a Norwich Pharmacal order ( NPO) to obtain disclosure of documents within civil proceedings where necessary. It details matters to consider before issuing and describes the alternative routes for bringing the application, namely by a Part 8 or Part 7 claim, or by a Part 23 application. This Practice Note gives assistance on construing and applying the pertinent provisions contained in the CPR properly. According to the court where the case is progressing, you may have to take account of further provisions—see: Court specific guidance below. This Practice Note explains the process for issuing an NPO application seeking disclosure of documents within the context of civil proceedings properly. The following resources may likewise prove helpful: for guidance on the nature of an NPO and circumstances for its use, see Practice Note: Norwich Pharmacal orders ( NPOs) for insight into the key...

The nature of the award Where an injured person faces a handicap in the labour market because of a lingering disability caused by their injury, they can seek a head of loss commonly known as a Smith v Manchester award, taking its name from the case that popularised the claim. A Smith v Manchester award is sometimes characterised as compensation for reduced earning capacity. Following an injury, a claimant might resume their previous role on identical pay, or comparable employment on equal or higher wages. In such situations there may appear to be no immediate deficit, yet the claimant could, in fact, still be disadvantaged later; for instance, if they lose their current job, they may struggle to secure employment. A conspicuous eye or hand impairment may invite discrimination, or they may require absences for a painful back or forthcoming surgery. A Smith v...

This Practice Note sets out how to conduct a reasonable search for standard disclosure under CPR 31.7. It tackles core questions under the Civil Procedure Rules ( CPR): ‘ What is standard disclosure?’, ‘ What counts as a document?’ and ‘ What constitutes a reasonable search?’, addressing meaning, relevance, reasonableness and control by reference to the overriding principles. It also considers practical issues with back-up data, keyword searches and metadata. Business and Property Court claims This Practice Note does not cover the disclosure scheme operating in the Business and Property Courts. For guidance on that regime, see: Disclosure Scheme ( Business & Property Courts)—overview. Claims issued on or after 1 October 2015 in the Business and Property Courts may fall within, and/or be governed by, one or both schemes under CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For more on these, see...

NOTE : On 2 December 2024, the Lord Chancellor confirmed a shift in the discount rate to positive 0.5%. That +0.5% rate takes effect from 11 January 2025. The positive discount rate is fixed at 0.5%. Schedule A1 to the Damages Act 1996, inserted pursuant to section 10 of the Civil Liability Act 2018, states that later reviews are to occur within five years of the conclusion of the previous review; accordingly, the next review must commence on or before 2 December 2029. Where is it likely to arise? In cases where the claimant is an employee and brings a claim for future loss of earnings, there will commonly also be a claim for loss of pension. In many instances, such pension loss accompanies the earnings claim. For the reasons outlined below, a claim for pension loss is less likely to be available to a...

Practice Note This Practice Note aims to draw attention to the variety of issues that emerge in personal injury claims when either the claimant or the defendant becomes insolvent. At the outset, it is crucial to separate two connected but different concepts. A company is insolvent if it cannot meet its debts as they fall due, or if the value of its assets is lower than its liabilities. Although the Insolvency Act 1986 ( IA 1986) is less explicit for individuals, the same tests would generally determine whether a person is insolvent. The state of insolvency should be distinguished from the factual question of whether an individual or a company is subject to an insolvency process. For a company, the principal processes are liquidation and administration. For an individual, the principal process is bankruptcy. The consequences of a party to a personal injury claim...

This Practice Note examines appeals arising from case management rulings, for which the court may take into account additional, proportionality-based factors when deciding whether to grant permission to appeal. For wider guidance on permission to appeal, see the following Practice Notes: Permission to appeal—preliminary considerations Permission to appeal—the application Permission to appeal—hearing and next steps What are case management decisions? The Practice Directions to Part 52 of the Civil Procedure Rules ( CPR 52) define case management decisions. Under CPR PD 52A, paragraph 4.6, they include decisions concerning: disclosure—this extends to orders for specific disclosure (see Hankin v Barrington, noted in News Analysis: Specific disclosure and permission to appeal case management decisions ( Hankin v Barrington)) the lodging of witness statements or experts’ reports directions governing the claim’s timetable adding a party to the claim security for costs, and use of...

This Practice Note outlines the principal points and considerations to bear in mind when seeking damages for losses arising from food poisoning under the: Package Travel, Package Holidays and Package Tours Regulations 1992 (1992 Package Travel Regs), SI 1992/3288 (covering package holidays sold or offered for sale on or after 31 December 1992 up to 30 June 2018), or Package Travel and Linked Travel Arrangements Regulations 2018 (2018 Package Travel Regs), SI 2018/634 (applying to packages sold on or after 1 July 2018) A copy of the 1992 Package Travel Regs can be accessed here for reference if required: For general guidance on package holiday claims, also see Practice Note: Package holiday claims for context. Proving breach of contract Although the claim is brought against the tour operator under the 1992 Package Travel Regs, SI 1992/3288, reg 15, or the 2018 Package Travel Regs, SI...