Legal Practice Notes

Recovery of counsel’s fees from the other side in proceedings This Practice Note explains when counsel’s fees can be recovered from an opponent. It addresses who is liable for counsel’s fees, how those fees are assessed, and the position where two or more counsel are retained. It also touches on the consequences of adjournment or settlement, and outlines the concept of devilling and its effect on costs recovery. It is established that counsel’s fees are recoverable as disbursements, regardless of whether the instructing solicitor might have undertaken the work—an approach confirmed by the Court of Appeal in Crane v Canons Leisure Centre (2007). In principle, such fees are recoverable from the opposing party in litigation. For broader guidance on disbursements, see Practice Note: Disbursements—costs recovery. On summary assessment there is no conventional requirement to produce a fee note to evidence counsel’s fees ( Mc Givern v MBR Acres Ltd...

Case details and analysis Issues considered MJS Projects ( March) Ltd v RPS Consulting Where a party unreasonably declines to mediate or to attempt another form of alternative dispute resolution ( ADR), the court may impose adverse costs consequences on that party, even if they ultimately win the case. This Practice Note collates examples illustrating how the courts approach the question of what, if any, costs order should be made where a litigant has disobeyed an order to undertake mediation or another ADR mechanism, or has acted unreasonably in declining ADR. It should be read alongside Practice Note: Costs consequences of refusing to consider ADR in civil proceedings, which explains the principles the court will apply and identifies the relevant CPR provisions governing the court’s powers to make such costs orders. For guidance on the parties’ duties to consider ADR, and on the courts’ powers to...

This Practice Note outlines how payment obligations under costs orders are addressed, distinguishes scenarios where the order specifies a deadline for payment, and offers guidance on phrasing and calculating such time limits. It also examines when a costs order becomes enforceable, whether enforcement can be stayed or deferred, and if a stay of execution can be lifted. The Note further considers whether additional time can be secured to meet a costs order. For advice on the court’s approach to parties who do not comply with interim costs orders, see Practice Note: Costs orders—debarring orders where there has been a failure to pay... Payment of a costs order—if the court order includes a time limit CPR 44.2(1) grants the court a general discretion in relation to costs. For commentary, see Practice Notes: Costs orders—the general rule and Costs orders—the court’s discretion. In addition to deciding whether one party...

This Practice Note examines the costs ramifications of altering a statement of case and the court’s latitude when determining a costs order where a party elects to amend their statement of case. For information on amending a statement of case, also see the following Practice Notes: Amending a statement of case—introduction Amending a statement of case—permission to amend Amending a statement of case—logistics of effecting an amendment Amending a statement of case—illustrative decisions Late amendments to statements of case—the court's approach Late amendments to statements of case—illustrative decisions Limitation—amendments to statements of case, set-offs and counterclaims Cost implications of amending a statement of case When dealing with an application to revise a statement of case, practitioners should consistently keep in mind the costs impact of the proposed change. The court retains a discretion as to whether to make a costs...

This Practice Note examines costs management orders ( CMOs). It outlines what they are, their purpose, and how extensively the courts employ them. It explains when a CMO will be made—most often at or shortly after the first case management conference ( CMC), though one can be ordered at any time. It also addresses what a CMO must contain, whether it can be overtaken or cancelled, and how to contest a CMO under CPR 3.1(7)... What are the CPR provisions for CMO? The provisions concerning CMOs are set out in CPR 3.15 and CPR PD 3D, para 12 (section F). Before 1 October 2020, these rules appeared in the former CPR PD 3E. Rule or practice direction Contents of rule or practice direction Comment CPR 3.15(5) Except in exceptional circumstances, the following costs are recoverable: The recoverable cost of initially completing Precedent H must not exceed the...

This Practice Note considers the costs position where parties have reached a settlement as to the underlying substantive dispute but have been unable to reach an agreement as to costs. It addresses scenarios where compromise is reached before proceedings begin yet costs remain unresolved; in those circumstances, and where specified requirements are satisfied, a costs-only Part 8 claim can be issued to seek recovery. By contrast, if settlement is achieved after proceedings have started, a Part 8 route cannot be used. The Practice Note explains how parties may invite the court to make a costs order in the absence of agreement, and whether the court might insist on a full trial to determine the dispute over costs. It also looks at cases where an application is settled but with no deal on the recovery of costs. This Practice Note does not cover the costs...

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...

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 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 (...

Introduction The duty of care expected of doctors and other clinicians is widely recognised. Yet claims alleging delayed diagnosis or treatment are often made harder by issues of causation. Almost every clinical negligence claimant arrives with existing health risks. The core question in this field is whether, and exactly which, further harm and loss were brought about by the supposed medical negligence... Types of claim Cases involving delay in treatment or diagnosis arise across the NHS. The most substantial claims tend to occur in acute and emergency settings—an unwell patient moves through many steps in a large hospital, and each stage offers scope for delay. Typical instances include: late ambulance attendance at the scene or slow transport to hospital patients being incorrectly triaged in A& E postponed referral for investigations investigations being misinterpreted delay or failure in obtaining senior or...

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...

Case tracker Beyond the circumstances surrounding the incident, a child claimant’s age and level of maturity are pertinent in any road traffic accident claim. In deciding if a child was contributorily negligent, their conduct must be judged in light of their years. This case tracker reviews authorities addressing children’s contributory negligence in road traffic accident matters. The decisions offer practical direction on the courts’ interpretation and application of the Law Reform ( Contributory Negligence) Act 1945 where injured children are involved in road traffic accidents. While precedents can assist to a degree, it must be recognised that every claim turns on its particular facts and outcomes will vary accordingly. Case law remains a guide rather than a rule......

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...

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))......

NOTE : On 2 December 2024, the Lord Chancellor publicly confirmed a positive discount rate of +0.5%. This +0.5% rate takes effect from 11 January 2025. Under Schedule A1 to the Damages Act 1996, later reviews must occur within five years of the end of the previous review, meaning the next review has to begin on or before 2 December 2029. Establishing the claimant’s care requirements The Pre- Action Protocol for Personal Injury Claims stipulates that the Rehabilitation Code should be considered in every personal injury claim. Therefore, in accordance with the Rehabilitation Code, an insurer-funded immediate needs assessment responding to the claim may have been commissioned. In line with recommendations from an independent nurse or another rehabilitation specialist, a care plan—or at least certain case management and care provisions—may already be in place pursuant to those...

NOTE : On 2 December 2024, the Lord Chancellor confirmed a formal move to a positive 0.5% discount rate, which comes into effect from 11 January 2025. Schedule A1 to the Damages Act 1996 ( DA 1996) stipulates that later reviews must occur within five years of the conclusion of the previous review, meaning the next review must start on or before 2 December 2029. This Practice Note sets out the standard method for translating ongoing losses into a single lump sum by applying a multiplier to the annual loss assessed at the point of settlement or a court award. This is the multiplier/multiplicand method and it is widely used in the great majority of claims for future losses. The Practice Note also looks in more depth at how the multiplicand is derived and explains how the Ogden Tables are used to identify the...

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 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...