Legal Practice Notes

At its very core, the defence of volenti non fit injuria (‘to a willing person, no injury is done’) rests on the claimant appreciating the hazard presented and voluntarily accepting the possibility of harm in that situation. In those conditions, if harm follows, the claimant has no basis to complain in law. The defence is commonly abbreviated simply to volenti. Once made out, volenti operates as a full and conclusive defence. The rationale is that consent cannot be sliced up to suggest the claimant accepted some dangers yet rejected others. Consequently, success with this plea is confined to cases that are plain. The volenti plea is seldom open in actions alleging breach of statutory duty in particular. Requirements for bringing the defence Three essential elements must exist in order to advance the defence: capacity knowledge and willingness agreement (express or...

This Practice Note explains what constitutes a detailed assessment, when it can be invoked and whether the proceedings need to have finished. It also sets out who may conduct a detailed assessment, the scope of an authorised court officer’s powers, and the process for objecting to an assessment being undertaken by an authorised court officer. What is detailed assessment? Detailed assessment is the post‑claim process by which the court fixes the amount of costs payable by the losing party (the paying party) to the successful party (the receiving party). Any assessment must follow CPR 47, with the companion practice direction, CPR PD 47, offering further guidance. Provisional assessment is a variant of detailed assessment in which the court assesses costs without a hearing, ie on paper. A district judge conducts the exercise and issues a provisional assessment stating the level of costs to which the...

This Practice Note outlines the points of dispute and reply required for the detailed assessment process. It clarifies what is meant by points of dispute and replies, how these documents can be varied where necessary, and what, if anything, the court may do. It also pinpoints the relevant service time limits and the issues that arise from any failure to comply. What are points of dispute? The receiving party prepares a bill of costs setting out the costs it seeks to recover under the detailed assessment procedure. The paying party must examine that bill and identify any items it contests. The paying party then records the challenged items in a document called the ‘points of dispute’ ( CPR 47.9(1)). Any other party to the detailed assessment proceedings may likewise object to items in their own ‘points of dispute’. Form of the points of...

This Practice Note sets out what a default costs certificate is, who may apply for one, the procedural steps they must follow, and the recovery of any associated costs. In addition, it explains how to apply for a default costs certificate to be set aside, or how to seek a stay of enforcement. The governing provisions are contained in CPR 47 and CPR PD 47. The default costs certificate route is not available in solicitor/client assessments ( CPR PD 46, para 6.8). What is a default costs certificate? A default costs certificate includes an order requiring payment of the costs to which it relates ( CPR 47.11(2)). It directs the full amount of the receiving party’s bill of costs to be paid, together with the sum prescribed by CPR PD 47 for the receiving party’s costs of commencing the detailed assessment. In effect, it brings the...

This Practice Note outlines the principal defences that may arise in road traffic accidents ( RTAs), with particular emphasis on contributory negligence. Examples include failing to wear seat belts or helmets, incidents involving children, and cases where alcohol has been consumed. The Note also addresses unavoidable accidents, involuntary acts, latent defects, and the defence of illegality (or ex turpi causa). Contributory negligence is routinely advanced in RTA claims and guidance should be taken from the relevant case law. Where a claimant’s injuries are made worse by not wearing a seat belt, a typical reduction for contributory negligence falls within the range of 15% to 25%... Unavoidable accident A defendant can escape liability if they demonstrate that the accident could not have been avoided......

The standard range of defences, including limitation, is also generally open to a defendant in such proceedings. A defendant might dispute being in occupation or having control of the premises, or otherwise contend that no duty of care whatsoever was owed to the claimant, or that any such duty was not breached. They may further assert that, for the purposes of the Occupiers’ Liability Act 1957 ( OLA 1957), the claimant was not a lawful visitor but a trespasser, such that only the narrower duty under the Occupiers’ Liability Act 1984 ( OLA 1984) applied. Alternatively, the defendant could entirely reject both visitor and trespasser status, alleging the claimant was on a public right of way, and thus no duty of care arose under either OLA 1957 or OLA 1984. An occupier might also raise the following potential defences where relevant and...

What duty is owed by a landlord under the Defective Premises Act 1972 ( DPA 1972)? This Practice Note explains the landlord’s obligations under the DPA 1972, the circumstances in which they arise, duties owed to others (including trespassers), whether disrepair is required, if awareness or notice of a defect is needed, and the effect of works during the tenancy. When the duty takes effect Obligations to third parties and trespassers The necessity for disrepair Whether knowledge or notification of a defect is required The position where works occur during the tenancy For guidance on duties under DPA 1972, sections 1(1) and 2A (the latter introduced by section 134 of the Building Safety Act 2022) for those undertaking work for or connected with providing a dwelling, or other work relating to a dwelling, how those obligations operate, and their...

If a default judgment has been entered against a defendant in error, the court is required to set it aside. CPR 13.2 specifies mandatory grounds; where these apply, the court has no discretion and must set aside the default judgment, regardless of the strength of any proposed defence. This Practice Note clarifies when the court is compelled to act and considers frequent arguments raised by defendants asserting that a default judgment must be set aside on mandatory grounds. For alternative, discretionary bases, see Practice Note: Setting aside default judgment—discretionary grounds ( CPR 13.3). For the procedure to apply, see Practice Note: Setting aside default judgment—making the application. For an overview of what constitutes a default judgment, see Practice Note: Obtaining default judgment—general principles. What are the mandatory grounds for setting aside default judgment? CPR 13.2 provides that the court must set aside a default judgment if the...

Actual or constructive Date of knowledge As set out in section 14 of the Limitation Act 1980 ( LA 1980), it is deceptive for the purposes of limitation. It captures situations where a claimant knows the essential components of the tort, and also where they are deemed to know them, even if in fact they do not, because the court imputes that knowledge. The test is partly subjective and partly objective. Put differently, it combines personal awareness with knowledge the court attributes to the claimant for limitation purposes. The date of knowledge may arise although the claimant was unaware of having suffered injury, or of any link between that injury and the defendant’s conduct. If the date of knowledge post-dates the injury, the limitation clock does not begin to run until that later date. The onus rests on the claimant to establish that the...

Defendant insurers frequently challenge matters going to the quantum of hire charge claims. The usual areas in dispute are: need/type period rate For further guidance on credit hire claims, see Practice Notes: Credit hire—an introduction, which includes the Supreme Court case of Armstead (recovery of contractual liabilities owed by the claimant to the hire company for damage to the hire car caused by the defendant), and Credit hire—common liability issues. Need/type of replacement Where the claimant had no alternative vehicle, was too injured to drive after the accident, or was on holiday during the hire period, it is typically straightforward to show a replacement was needed. Disagreement can arise if the claimant hires, in place of their own car, an expensive or prestige model. The necessity for such a high-cost vehicle rather than a standard model may be questioned. The same approach applies to the...

Enforceability of contracts Certain credit hire contracts have been open to challenge as unenforceable when the hire company has not adhered to specific rules, whether relating to the contract’s terms or required formal steps. If a contract is unenforceable against the hirer, the consequence is that the hirer is treated as having sustained no loss and cannot recover. Consumer Credit Act and exempt agreements The House of Lords in Dimond v Lovell confirmed that these hire arrangements amount to credit agreements and fall within the Consumer Credit Act 1974 ( CCA 1974), as modified by the Consumer Credit Act 2006, unless their terms satisfy the criteria for exemption. Where an agreement is not exempt and so is regulated, it will probably be classed as improperly executed under CCA 1974, s 61(1)(a), because it omits the ‘total cash price for the services’ at that point. However, the Court of...

This Practice Note outlines the indemnity principle as it applies to the recovery of costs in litigation. The principle defines the scope of a winning party’s right to reclaim their legal expenses, marking the outer limit of any recovery. It must be distinguished from the court’s evaluation of costs on the indemnity basis, which is addressed in Practice Note: Indemnity costs orders—principles. What is the indemnity principle? When parties seek repayment of expenditure incurred during proceedings, the sum recoverable will usually be lower than the amount actually spent. Consequently, the degree of recovery can be uncertain from case to case. This typically stems from the operation of the costs rules and the requirement that costs be proportionate. In practice, claims for costs are tempered by these limits before a figure is allowed. Accordingly, recoverable sums seldom mirror the actual outlay. For further...

This Practice Note explores the particular distinct issues that arise with multi-party costs orders. It explains what constitutes a multi-party costs order and the circumstances in which it may feature in costs recovery. This Practice Note addresses severability of liabilities for costs, the formulation of costs orders, common costs orders in cases with several parties, contribution where one party has satisfied a joint or several costs order, Bullock and Sanderson orders, and the assessment of costs in multi-party litigation, including how liabilities are apportioned or shared between the paying parties concerned in the matter as appropriate. What is a multi-party costs order? A multi-party costs order is an order made in proceedings involving more than one claimant and/or more than one defendant. It may arise, for example: a claim that includes Part 20 proceedings (see Practice Note: Counterclaims and additional claims under CPR...

This Practice Note examines how a party’s behaviour shapes both the kind of costs order a court will issue and the level of costs to be awarded. It considers how such behaviour informs judicial discretion on costs throughout the lifecycle of the dispute, from pre-action conduct to final orders. Several core CPR provisions are relevant: CPR 44.2 confirms that the parties’ conduct is a factor the court may weigh. Under CPR 44.2(5), examples of conduct the court can consider when exercising its discretion include behaviour before action, as well as during the case, plus steps taken to resolve or settle the dispute and any failure to make a genuine attempt to compromise. CPR 44.4(3) addresses how conduct affects the amount of costs. See: Parties' conduct ( CPR 44.2)—principles below CPR 44.11 sets out the court’s powers where there has been...

This Practice Note outlines costs capping orders, setting out when the court may impose one and the range of matters it may encompass. It highlights the key points arising from Barr v Biffa Waste Services. Guidance is provided on the timing and method for making an application, together with how to fix the cap and the process for seeking a variation where appropriate. The Note also stresses that costs capping orders are distinct from protective costs orders, and that separate provisions govern their treatment on appeal... In judicial review cases, Sections 88 to 90 of the Criminal Justice and Courts Act 2015 establish a statutory framework for costs capping in such proceedings, including a dedicated judicial review costs capping order. For further detail, see Practice Note: Costs for judicial review—protective costs orders ( PCOs), judicial review costs capping orders ( JRCCOs) and...

This Practice Note examines the review and revision/variation of a costs budget. It outlines the applicable rules, the criteria governing revisions, the expectation that parties attempt to agree any amendments before seeking the court’s approval, and the necessity for prompt action in both respects. It further considers how the court approaches changes to costs budgets that have been agreed or approved, the consequences where agreement/approval is not obtained, and the effect of sanctions under CPR 3.14 as well as the impact of discontinuance when pursuing a variation. This Practice Note addresses reviewing and revision/variation under the regime in force from 1 October 2020, with references to the former Practice Direction 3E that applied prior to that date. It should also be noted that, from 1 December 2022, CPR PD 3E was renumbered as CPR PD 3D. When must a party revise their costs...

This Practice Note examines the consequences of missing the deadline to serve a costs budget (or failing to serve one at all), and the routes available if that occurs, including the likely need to apply for relief from sanctions. What happens if I am late providing the costs budget? CPR 3.13 states that all parties, save for litigants in person, must file and exchange costs budgets either with their directions questionnaires where the value stated on the claim form is less than £50,000 or, in any other case, no later than 21 days before the first case management conference ( CMC). This is subject to the court making an order that sets different timescales. It is important to note that CPR 3.14 concerning failure to file a costs budget captures not only a complete failure to provide a costs budget but also any failure to comply with the...

Major changes to the Highway Code came into force on 29 January 2022. The new framework introduced a ‘hierarchy of road users’, designed to make it clearer for vulnerable users who should have rights of way at junctions. Further information can also be found in The Highway Code and The Highway Code—8 key changes from 29th January 2022. To succeed with a personal injury claim, a claimant must first show that the defendant owed them a common law duty of care, that this duty was breached, and that the breach caused their injuries. In short, three points must be shown: a duty, a breach, and resulting injury. For more guidance, see: Proving negligence or breach of statutory duty—overview. There may then be an issue of contribution by the claimant, because individuals also owe themselves a duty to take care to protect themselves from harm, and their own...

This Practice Note examines success fees, a type of charge that may become payable when a claim succeeds and has been funded by a conditional fee agreement ( CFA). It considers: what is meant by the term ‘success fee’? are success fees recoverable? what constitutes a 'success' to trigger payment of the success fee? what requirements must be satisfied when including a success fee in a CFA? what is an appropriate success fee percentage? appeals against decisions concerning success fee percentages whether the success fee under the funding agreement is payable by the other side as costs transitional arrangements or exceptions applying post-1 April 2013 For further guidance on dealing with CFAs, see Practice Notes: Conditional fee agreements—definition and requirements Types of conditional fee agreements Conditional fee...

Legislative changes effective from 1 October 2015 created a right to collective redress for those affected by anti-competitive behaviour. This includes an opt-out mechanism, enabling an appointed class representative to recover damages for all comparably placed individuals who have not expressly chosen to withdraw. For a general overview of the UK private actions landscape, see UK damages actions... Overview of the process The summary below outlines the collective procedure before the Competition Appeal Tribunal ( CAT) and highlights key distinctions from litigation in the High Court. Topics addressed include: sources of authority how claims are commenced issue of the collective proceedings order rights of class members, and distribution of awards Sources of authority The CAT does not directly apply the Civil Procedure Rules ( CPR) governing cases in the High Court and County Court. It operates under its own...