Legal Practice Notes

Key legislation A contract-based defective product claim is often simpler than one founded in negligence. This is because the claimant need only demonstrate that the item is not of satisfactory quality or not fit for its intended purpose. There is no requirement for the claimant to establish fault on the part of the seller or any other person. That said, in general a claimant must be a party to the agreement to pursue a breach of an express or implied term of that agreement. The Consumer Rights Act 2015 ( CRA 2015) took effect on 1 October 2015. CRA 2015 defines consumer entitlements and remedies for the sale of goods and the supply of digital goods and services on or after 1 October 2015. For personal injury practitioners, the key provisions concern contracts for the sale of goods and contracts for the...

Practice Note This Practice Note reviews the overarching principles relevant to road traffic accident claims, touching on matters such as speed, overtaking and queue-jumping, pulling out from a minor road, misleading signals, braking and skidding, the responsibilities of a following driver, vehicle lighting, and collisions involving multiple vehicles. Such claims are usually pursued in negligence. When determining whether a motorist has fallen below the required standard of care, the court looks to the Highway Code; breach of the Code can be used as tending to show liability. Further, although a criminal conviction for a road traffic offence does not of itself prove negligence, it shifts the evidential burden, requiring the defendant to rebut liability in the civil proceedings. Most traffic cases are fact-sensitive. Hard and fast rules are scarce, and the courts have criticised excessive citation of authority in a number of...

Introduction The police force is a pure public authority, carrying out only public functions. Consequently, proceedings can be brought against it under the Human Rights Act 1998 ( HRA 1998) and for misfeasance in public office. For further detail, refer to the Practice Notes: Personal injury claims under the Human Rights Act 1998 and Misfeasance in public office. Nevertheless, negligence actions remain by far the most common claims made against the police. This Practice Note considers: negligence claims by members of the public negligence claims by members of the police force negligence claims involving self-harm claims under HRA 1998 Vicarious liability and the correct defendant: technically, police officers are office-holders rather than employees......

Remoteness and foreseeability An injury arising out of clinical negligence does not, by itself, ensure a claimant will be granted damages by the court. A tort gives rise to damages only where each constituent is established: duty of care breach of that duty causation, i.e. the breach caused loss injury Remoteness of loss and foreseeability are elusive notions that pervade every stage identified above. They are the judicial instruments through which common sense and policy are applied. Failure to treat/loss of chance Where, but for the clinical negligence, the claimant had a prospect of recovering from illness or injury without adverse consequences, or held a strong chance of a cure, how do the courts handle causation and what damages are awarded? These issues concern causation intertwined with remoteness. In Hotson v East Berkshire Area Health Authority, a 13-year-old fell from a tree,...

When guiding an older or at-risk person on any litigation matter, it is crucial to assess at the outset whether they possess the capacity to pursue and manage proceedings effectively. Under the Mental Capacity Act 2005 ( MCA 2005), anyone who lacks the ability to conduct the case falls within the statutory definition of lacking capacity and, since 1 October 2007, is referred to as a 'protected party'. Where a claim is issued by, on behalf of, or against a protected party, no settlement, compromise, or payment, and no acceptance of money paid into court, is effective or valid, insofar as it concerns the claim by, on behalf of, or against that person, unless and until the court approves it. Principles of capacity under MCA 2005 Before turning to the specific rules and case law concerning capacity to litigate, it is helpful to note the relevant general...

Scope of this Practice Note This Practice Note sets out practical guidance and pointers for pursuing a professional negligence action. It includes a hypothetical example to illustrate the issues. It addresses the first steps, from pinpointing the relevant duty (arising in contract, tort, or both) and the alleged breach, through to the loss sustained and the remedy sought, including causation, quantum and mitigation obligations, the operation of the Pre- Action Protocol for Professional Negligence, limitation, and the process for issuing and pleading the claim. It also covers evidence issues, such as disclosure and expert evidence, plus practical topics including alternative dispute resolution ( ADR) and cross-border aspects. Professional negligence disputes may arise across a wide spectrum of professional services, including claims against: the medical profession—refer to Practice Note: The pre-action protocol for the resolution of clinical disputes—6 April 2015 onwards and related...

This Practice Note explores the practicalities of making alterations to statements of case—covering amendments to pleadings, particulars of claim, the claim form, the defence, and any reply—under CPR 17 in practice. It addresses how to indicate the changes that have been made, and in particular stresses the requirement to verify any amended statement of case with a statement of truth (noting the risk of contempt of court where a statement of truth is untrue), and highlights the need to re-seal an amended claim form. This Practice Note should be read alongside the following Practice Notes: Amending a statement of case—introduction Amending a statement of case—permission to amend Amending a statement of case—cost implications This Practice Note provides guidance on the interpretation and application of the relevant provisions of the Civil Procedure Rules ( CPR) as they apply. Depending on the court in which your matter is...

Strike out for abuse of process–basis of application Under CPR 3.4(2)(b), the court has power to strike out a statement of case where it considers the pleading to be an abuse of the court’s process, or where it is otherwise likely to impede the just disposal of the proceedings. It follows that an application to strike out on this basis can properly be advanced by any party against the relevant statement of case, namely: a claimant, in respect of a defence or a counterclaim a defendant, in relation to a claim a third party defendant ( Part 20 defendant), concerning a claim brought against it As noted in Practice Note: Strike out—court’s inherent jurisdiction and discretion, the court may equally choose to strike out a statement of case on its own initiative. For comprehensive guidance on the approach to strike out and...

NOTE : Amendments to the CPR took effect on 1 October 2023, extending the reach of fixed costs. They apply where the cause of action arises on or after 1 October 2023 (typically, the accrual date is the date of the accident). In this Practice Note, the version of CPR 45 that applied before 1 October 2023 is referred to as ‘ Rule’ or ‘ Part’. For a copy of Part 45 in force prior to 1 October 2023, see: NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents ( RTA SCP) covers accidents occurring on or after 31 May 2021. The small claims track threshold for personal injury claims arising from a road traffic accident has been increased to £5,000 for general damages for pain, suffering and loss of amenity (subject to...

NOTE : From 1 October 2023, the CPR were revised to broaden the reach of fixed costs. These revisions apply in cases where: the cause of action accrues on or after 1 October 2023 (the accrual date will usually be the date of the accident), or in disease claims, no letter of claim has been sent before 1 October 2023 In this Practice Note, the version of CPR 45 in force before 1 October 2023 is described as ‘ Rule’ or ‘ Part’......

Note The broadened fixed costs regime took effect on 1 October 2023. For all civil cases other than personal injury and disease, the extended fixed costs regime applies (save where a case is specifically excluded) where proceedings were issued on or after 1 October 2023. In personal injury matters, it applies where the cause of action arose on or after 1 October 2023, and in disease cases it applies if the letter of claim was sent to the defendant on or after 1 October 2023. This Practice Note addresses and covers fixed trial costs in the fast track for fixed costs cases issued prior to 1 October 2023. These are the costs the court may award as the advocate’s costs of preparing for and appearing at trial. The amount depends on the value of the claim ( Table 9 (rule 45.38(1)) and on whether the case is a...

This Practice Note sets out the principal legal and practical considerations involved in deploying survey evidence and witness evidence in UK trade mark and passing off matters, in both the High Court and the UK Intellectual Property Office ( IPO). It provides targeted guidance on: factors to weigh when deciding whether a survey ought to be undertaken selecting the survey type most suited to the circumstances fundamental requirements to satisfy when running a survey points to address when drafting survey questions and designing methodology using surveys as exercises to collect witnesses and the effect of the Jackson reforms what must be disclosed to the opposing party formalities for expert reports supporting surveys and the expert’s role obtaining permission to carry out a survey use of unsolicited consumer...

ARCHIVED : This archived Practice Note sets out destination and derivation tables for the amendments to CPR 24 and CPR PD 24 that took effect on 1 October 2023. It is not maintained and is provided for background information only. From 1 October 2023, the CPR provisions on summary judgment were revised: CPR 24 was replaced and CPR PD 24 was withdrawn. The former Practice Direction mostly replicated Part 24 and other rules, save for certain elements that were folded into CPR 24. These changes were designed to make the rules clearer, rather than to change the substantive law or practice in a material way. The numbering and placement of some provisions was altered. Accordingly, authorities predating the 1 October 2023 amendments may refer to the previous......

This Practice Note examines how to pursue a breach of warranty claim where warranties are given in a share sale and purchase agreement ( SPA), also referred to as a share sale agreement. For these purposes, we speak throughout about claims under an SPA, although the same broad considerations can be applied to a warranty claim arising from an asset purchase agreement ( APA). It draws out some of the most typical features of such claims, but it is not a replacement for carefully reviewing the contractual documents relevant to your dispute. For an outline of the steps to take, see: Starting a breach of warranty claim—checklist. Diligent analysis of the contract remains essential before progressing any claim further. What is a breach of warranty claim? A warranty is a contractual statement or assurance made by a seller to a buyer that a...

This Practice Note considers when a solicitor–own client assessment can be sought. The principal mechanism is the statutory scheme in Part III of the Solicitors Act 1974 ( SA 1974). Under SA 1974, the ‘party chargeable’ and certain third parties have rights to ask for an assessment. This Note outlines the applicable tests and the various deadlines that may ultimately curb the opportunity to seek one. It also identifies the relevant context. For ease, the Solicitors Act 1974 is abbreviated to SA 1974 throughout. This usage is maintained for consistency within this Note. Where a solicitor issues a claim to recover their statute bill, the defendant may alternatively be able to invoke a ‘common law’ entitlement to an assessment. This Note sets out the main distinctions between that common law entitlement and the statutory rights available under SA 1974. CPR provisions governing the...

ARCHIVED: This archived Practice Note related to a pilot scheme that ran from 1 June 2022 until 31 October 2025 in certain County Court hearing centres, allowing the judge to direct that a small claim be determined without a hearing without requiring the agreement of all parties. The pilot was not extended beyond 31 October 2025. The version of CPR PD 51ZC available as at 31 October 2025 is here: What is the pilot scheme? This Practice Note concerns a pilot testing a procedure enabling specified County Court hearing centres to direct that a small claim will be determined without a hearing, dispensing with the agreement of all parties that CPR 27.10 would otherwise require. The scheme operates under CPR PD 51ZC and runs from 1 June 2022 until 31 October 2025. Its progress has been considered at several Civil Procedure Rule Committee ( CPRC)...

This Practice Note sets out two straightforward examples showing how a damages-based agreement ( DBA) functions in practice by reference to the Damages- Based Agreements Regulations 2013 ( DBA Regulations 2013), SI 2013/609. The purpose of these examples is to help you grasp the operation of a DBA and the scope for disagreement that can emerge between you and a client depending on whether the dispute concludes early or proceeds all the way to trial. Example 1 Scenario A solicitor advises their claimant client that the claim against the defendant has a damages value of £150,000. The solicitor and client agree a DBA under which, if the client succeeds, the sum payable by the client to the solicitor is fixed at 50% of any damages recovered. The claimant’s solicitor sends a pre-action protocol letter to the defendant and the matter settles for £90,000 without...

This Practice Note sets out how to build a negotiation approach, offering tips on organising facts, aligning with client goals (including identifying the best alternative to a settlement), appraising the other side’s stance, selecting negotiation techniques, and deciding whether to open with a settlement proposal or a preliminary discussion. For direction on who should participate in settlement talks, and on confidentiality and the effect of ‘subject to contract’, see Practice Note: Settling disputes—who, confidentiality and subject to contract. For assisted routes to settlement, see Practice Note: What is ADR? and related material. For guidance on making offers and recording a deal, see Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement and related content Settling disputes—an early strategy for settlement A stage of litigation involves exchanging information under an applicable pre-action protocol or, if none governs the...

Practice Note This Practice Note assists with applications seeking the courts’ permission to serve a claim form outside the jurisdiction of the courts of England and Wales (referred to in this Note as the English courts). Such applications are usually determined without notice and on the papers. The Note addresses when the application should be made, the documents that must accompany it, and the matters to consider when completing the papers. It also explains the steps to take if permission is granted. In practice, permission is almost invariably given unless there is a clear and obvious defect in the application......

This Practice Note examines service of a claim form issued by the courts of England and Wales on a defendant domiciled in Scotland or Northern Ireland. Where service is effected on a defendant’s solicitor, permission is not required provided the conditions in CPR 6.7(2) are met. If serving the defendant directly, permission is likewise unnecessary where there is compliance with CPR 6.32. Where those requirements are not satisfied, the claimant must seek the court’s permission to serve the claim form out of the jurisdiction under CPR 6.37. Court permission is not required—service on the defendant’s solicitor The court’s permission is not needed to serve a claim form on a defendant’s solicitor if the criteria in CPR 6.7(2) are fulfilled. CPR 6.7(2) applies where service is on a defendant’s solicitor whose business address is in Scotland or Northern Ireland. This is subject to Section IV of Part 6 and any...