Legal Practice Notes

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...

In most situations, practitioners will have little trouble pinpointing an individual or organisation that owed the claimant a duty of care and who, on the face of it, is amenable to suit. Where liability is contested, the dispute typically concerns not the presence of a duty, but whether the defendant has breached that duty. For further guidance, see Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims. There are, however, occasions when the practitioner must grapple with whether the proposed defendant owed any duty of care at all. This Practice Note seeks to draw out broad principles from the case law, while heeding Lady Hale’s caution in the Supreme Court in Woodland v Essex County Council: judges’ explanations for their decisions should not be read as if they were statutory wording, setting rules in...

This Practice Note provides guidance on the provisions set out in CPR PD 52C ( Appeals to the Court of Appeal). Those provisions concern appeals to the Civil Division of the Court of Appeal. They do not extend to: appeals in detailed assessment proceedings against a decision of an authorised court officer; appeals to the County Court, the High Court or the Supreme Court; situations where permission is sought to appeal a refusal to grant an interim injunction under section 41 of the Policing and Crime Act 2009. This Practice Note should be read alongside the general guidance in Practice Note: Starting an appeal—general provisions. Statutory right to appeal to the Court of Appeal The statutory right to appeal from any judgment or order of the High Court to the Court of Appeal is contained in section 16 of the Senior Courts Act 1981 ( SCA...

This Practice Note reviews the protection of identity, namely the anonymisation of a person, in civil litigation proceedings under CPR 39.2(4). It explains: when the court may depart from the general principle of open justice in the context of applications for anonymisation; the courts’ approach to such applications; and the form and structure typically adopted in anonymisation orders of the courts. This Practice Note should be read alongside Practice Note: —illustrative decisions, which provides examples of the courts’ treatment of applications for anonymity. Anonymisation of a person Under CPR 39.2(4), the court may order that a person’s identity must not be disclosed if, and only if, it considers that non-disclosure is necessary to secure the proper administration of justice and to protect that person’s interests. Before 6 April 2022, CPR 39.2(4) permitted the making of anonymisation orders only in respect of a party or a...

This Practice Note offers guidance on construing and applying the relevant provisions of the CPR. Depending on the court in which your case is advancing, you should also remain alert to any additional provisions that may apply—see further below. This Practice Note also outlines the courts’ typical approach to requests to adjourn an interim hearing. For examples showing how the principles set out below have been used by the courts in practice, see Practice Note: —illustrative decisions. Power to adjourn an interim hearing The court may adjourn a hearing under CPR 3.1(2)(b). Note that the definition of ‘hearing’ for interim applications appears in CPR 23.1. For further information on adjourning trial, see Practice Note: Adjourning trial. What factors will a court take into account on an application to adjourn an interim hearing? No specific direction is given in CPR 3.1(2)(b) as to the manner in which the power to...

This Practice Note sets out guidance on how to add, remove or replace parties before the expiry of the relevant limitation period under CPR 19. CPR 19.6 makes specific provision for adding or substituting parties once that period has ended—see Practice Note: Limitation—amending a party name and substituting or adding (joinder) of parties. Reasons for adding or substituting parties under CPR 19 Under CPR 19.1, a claim may include any number of claimants or defendants joined as parties. As a general principle, claimants may choose which defendants to pursue and cannot be compelled to add defendants they do not wish to sue ( Smith v Michelmores Trust Corporation Ltd, applying Dollfuss Mieg et Compagnie SA v Bank of England). That approach is, however, subject to particular situations where the law provides otherwise, including by procedural rules—for example, under CPR 64 ( Smith v...

Scope of this Practice Note This Practice Note on breach of contract claims delivers practical guidance and tips for advancing a claim. On receipt of papers or instructions, key steps include identifying the breach, the loss and the remedy sought; evaluating causation, quantum and duties to mitigate; verifying limitation; and preparing, issuing and pleading the claim. It also addresses evidential matters, including disclosure and the engagement of experts, together with practical requirements such as pre-action obligations and alternative dispute resolution ( ADR). To aid understanding, a hypothetical breach scenario appears below. Breach of contract claims encompass a wide range of disputes grounded in a contractual relationship between the parties, whether that relationship arises from a written agreement, is formed orally or by conduct, or results from a combination of these methods of creating contractual obligations. Disputes may arise, for example, from: an alleged failure to...

Fundamental dishonesty This Practice Note explores fundamental dishonesty in two settings: section 57 of the Criminal Justice and Courts Act 2015 ( CJCA 2015) and the circumstances in which qualified one-way costs shifting ( QOCS) protection falls away under CPR 44.16 The expression ‘fundamental dishonesty’ appears in both CJCA 2015, s 57 and CPR 44.16(1): CJCA 2015, s 57 empowers the court to strike out a whole personal injury claim, even any truthful parts, where the claimant has been fundamentally dishonest about the main claim or a connected claim CPR 44.16(1) carves out an exception to QOCS, permitting costs orders to be enforced in full where fundamental dishonesty is established As neither the CJCA 2015 nor the CPR defines ‘fundamental dishonesty’, its meaning and reach have been shaped by case law in personal injury and clinical negligence claims. For the developing...

Causes of action Where a claimant in a personal injury or clinical negligence matter has died before trial, two principal claims are available. for the benefit of the deceased’s estate under the Law Reform ( Miscellaneous Provisions) Act 1934 ( LR( MP) A 1934) on behalf of the deceased’s dependants under the Fatal Accidents Act 1976 ( FAA 1976) These claims can be pursued separately, yet they are frequently brought in tandem. A claim advanced for the estate is grounded in the continuation of the very cause of action that belonged to the deceased at the moment immediately before death. By contrast, a claim pursued for the dependants creates a fresh cause of action, but it will only succeed if it can be demonstrated that the deceased would have recovered damages had they remained alive. Who can bring a claim under the Law Reform (...

Liability Liability means the total deprivation of liberty without any lawful foundation. Such claims are commonly brought against public authorities wielding powers of detention—typically a local police force, the Secretary of State for the Home Department, or the Secretary of State for Justice. The confinement may arise through policing, immigration control, or imprisonment (including where a sentence or parole period has been miscalculated, leading to detention that is unlawful). As Lord Bridge explained in R v Deputy Governor of Parkhurst Prison, Ex p Hague, false imprisonment comprises two elements: actual confinement and the lack of lawful authority to justify it. In Jalloh, the Supreme Court adopted a broad conception of ‘imprisonment’: being compelled by a particular person to remain in a specific place, whether by physical barriers, guards, or threats of force or legal process. In that case, curfew conditions imposed on a person facing...

This Practice Note This Practice Note examines the admissibility of expert evidence under CPR Part 35 and the Civil Evidence Act 1972 ( CEA 1972). In particular, it addresses whether such evidence is admissible, the courts’ assessment of whether expert opinion is ‘reasonably required to resolve the proceedings’ so as to justify permission to adduce it under CPR 35.1, and the difficulties that can arise where the trial is split. When instructing experts, you are expected to have regard to: all relevant CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims (the Guidance). The Guidance superseded the ' Protocol for the Instruction of Experts to give Evidence in Civil Claims', formerly annexed to CPR PD 35, with effect from 1 December 2014 Practice Direction Pre- Action Conduct and Protocols, para 7, and the...

This Practice Note outlines how the High Court and the County Court differ when enforcing a judgment or an order to pay a sum of money (a money judgment). It also describes the process for enforcing a County Court money judgment in the High Court and, conversely, enforcing a High Court money judgment in the County Court. It offers guidance on construing and applying the relevant CPR provisions. Depending on the court in which your case is progressing, you should also be alert to any additional requirements—see the section Court specific guidance below... The differences in enforcement jurisdiction and procedure between High Court and County Court As discussed further below, once you have obtained a judgment or an order for payment, it is possible to move enforcement between the High Court and the County Court. That naturally raises the issue—why opt for one court over the other for...

Court judgments and orders do not always require one party to pay money to another; they can also direct a party to perform an act, rather than provide a monetary remedy. Where the person obliged to carry out a specified step does not comply, the court may step in to see the required act is achieved by appropriate judicial measures where necessary. CPR 70.2A serves this purpose and ought to be read with, though distinct from, the contempt provisions for non-compliance with a court order (see: Tapecrown). Which court orders are covered by CPR 70.2A CPR 70.2A applies when a party has secured any of these: a mandatory order—eg party A obtains an order that party B destroy......

This Practice Note should be read alongside Practice Note: Electronic Documents Questionnaire ( EDQ)—frequently asked questions. It does not address the provisions of the disclosure scheme operating in the Business and Property Courts. For guidance, see: Disclosure Scheme ( Business & Property Courts)—overview. What is the Electronic Documents Questionnaire ( EDQ)? The Electronic Documents Questionnaire ( EDQ) is intended to be exchanged by the parties to share information about the scope, extent, and most appropriate format for e‑disclosure. While completion is not mandatory, CPR PD 31B, para 15 empowers the court to require parties to complete and exchange it where agreement cannot be reached. It is appended to CPR PD 31B. For an indication of the court’s approach when deciding whether an EDQ should be ordered, see Versi v Husain. In any case, it can be a helpful tool when assessing disclosure generally and...

This Practice Note examines how a claimant may serve court documents outside England and Wales, other than the claim form (which has its own bespoke rules). It addresses service by a claimant on a defendant, and by one defendant on another defendant, where the intended recipient is outside the jurisdiction. It also covers service on non-parties in such circumstances. Practical consideration Confirm whether the person to be served has complied with CPR 6.23 by supplying an address for service for documents relating to the proceedings. The rule applies once proceedings have been commenced and requires each party to give a UK service address for the solicitor acting for them or, if no solicitor is acting, the address at which they either reside or conduct business. If a defendant has no address in the jurisdiction and is unrepresented, the defendant must still provide a UK address for...

Replacement vehicles and hire generally Where a motorist’s car has been harmed in a collision to such an extent that it demands repair or outright replacement, they will quite possibly need a stand‑in vehicle for day‑to‑day use. Some motorists may, perhaps through their own insurance policy, have access to a courtesy car for the spell when their vehicle is unavailable to them. However, many drivers will not enjoy that facility and will instead consider hiring an alternative vehicle to bridge the gap. This is especially so where no courtesy car is offered. Conventional vehicle hire will, as a rule, require the hirer to settle the full rental charges when the hire period ends, commonly after paying a sizeable deposit up front in practice. If the substitute car is required for a prolonged period, the cumulative hire charges can become...

Applications for court orders are a fundamental part of civil litigation. It is feasible to reach trial without issuing any application, yet in practice parties will usually need to invite the court to make an order at some juncture, even if this occurs on an informal basis. The framework for applications is chiefly set by CPR 23 and CPR PD 23A, but those provisions must not be treated alone; to lodge a CPR‑compliant application, one must consult several other Parts of the CPR. The position is made more intricate because distinct courts and the divisions of the High Court operate their own application rules contained in the various court guides. This Practice Note maps the route for bringing an application and provides links to fuller guidance on each step. Accordingly, these materials should be read together, with guidance dispersed across the CPR and court...

This Practice Note examines the scope to recover costs where a court order is silent on costs. While parties are not entitled to any costs linked to that particular order, it is important to recognise that in certain situations a costs order may be treated as having been made. In those circumstances, costs can be recovered. The general rule—no costs recovery The starting point is that if an order includes no provision about costs, the parties cannot recover their costs associated with that order ( CPR 44.10(1)). In such instances, a party also cannot seek an order under section 194(3) of the Legal Services Act 2007 ( LSA 2007) for payments relating to pro bono representation. The analysis in Kapoor v Johal (2024) confirms the meaning and effect of CPR 44.10(1)(a)(i), consistent with the pre‑ CPR 44.10 decision in Griffiths v...

This Practice Note explains when a costs budget must be filed at court and exchanged with other parties under CPR 3.13. It also sets out when the parties may agree to extend the deadline for filing and exchange in accordance with CPR 3.8(4). Note that costs budgeting does not apply to cases within the fixed costs regime. For details on fixed costs, see: Fixed costs—overview. This Practice Note offers guidance on the interpretation and practical application of the relevant CPR provisions. Depending on the court in which the proceedings are issued, specific considerations may apply; see: Court specific guidance. Requirement to file and exchange a cost budget Filing requirement in cases subject to the costs budgeting regime Each party, unless acting as a litigant in person, is required to file and exchange a costs budget in line with the timetable in CPR 3.13(1) or as...

This Practice Note examines the courts’ overall approach to costs budgeting, the court’s function in supervising costs, and the distinct treatment of incurred costs as against budgeted costs. It further addresses the court’s position on hourly rates and contingencies, together with the situation where the parties have, or have not, reached accord on their respective costs budgets. Costs budgeting—general approach Costs budgeting is not a granular assessment; instead, it is the exercise by which the court sets a sum that is reasonable and proportionate, on the standard basis, for each party’s budgeted (future) costs. In essence, its purpose is to inform parties of the potential liability they may face to the other side if they are unsuccessful and/or if a costs order is made in the opponent’s favour. At this stage, the court commonly adopts a broad‑brush stance. Nevertheless, in exceptional matters it can be...