Legal Practice Notes

Nature of rights under the Consumer Protection Act 1987 It is essential for practitioners to grasp the difference between the rights granted by the Consumer Protection Act 1987 ( CPA 1987) and those arising under the Consumer Rights Act 2015 ( CRA 2015). Whereas CRA 2015 regulates the contractual relationship between seller and consumer, CPA 1987 affords recourse against ‘producers’. CPA 1987 does not curtail a claimant’s scope to pursue alternative remedies against that producer (or any other relevant person in the supply chain), for example in negligence or by alleging breach of contract. Accordingly, in practice a claimant may, where appropriate, advance multiple causes of action. It is therefore common for overlapping routes to be pleaded together within the same proceedings, often. See Practice Notes: Product liability—claims in negligence and Product liability—claims in contract. For further guidance on CRA 2015, see Practice Note:...

A child means any person under 18. Practitioners must heed crucial procedural points in matters involving children, with CPR 21 setting out the core provisions. Where a child features in a claim, they are most often the claimant pursuing the case, though proceedings can, on occasion, be issued against children... Litigation friends Requirement for a litigation friend In civil proceedings, a child must conduct the case through a litigation friend, unless the court directs otherwise. Before a litigation friend is appointed, and without needing the court’s permission, the only steps permitted are: issuing and serving a claim form applying for the appointment of a litigation friend Unless the court orders otherwise, a person may not, without permission, make an application against a child before proceedings have begun, or take any step in the proceedings—other than issuing and serving a claim form or applying for the...

Court directions for investment Where damages are secured for a child, whether after settlement or at trial, funds are not released straightaway to the child or their legal advisers; instead, they are managed in line with directions issued by the court. The core rule is that the court determines, by order, how the funds are to be handled and precisely what is to happen to them ultimately. The court enjoys broad discretion. It may direct that some or all of the money be paid into court for investment, or be managed in another appropriate way......

This Practice Note provides overarching information on civil restraint orders ( CROs) that applies across all forms of CRO, and should be considered alongside the following Practice Notes: Limited civil restraint orders Extended civil restraint orders General civil restraint orders What is a civil restraint order ( CRO)? CROs restrict a party’s capacity to pursue specified claims or applications in identified proceedings unless the court’s permission is obtained first. They are made to stop a party from issuing claims or bringing applications that lack merit, where that party has shown a persistent pattern of such conduct......

This Practice Note considers when a party may seek to substitute its Part 35 expert during the life of a claim. It sets out the circumstances in which such a change might be necessary, flags the predictable accusation from an opponent that the party is engaging in ‘expert shopping’, and indicates the means by which the court will probe whether that is in fact the real motivation for the proposed switch. It also addresses the possibility that permission will only be granted on terms, including a requirement to disclose materials prepared by the initial expert witness. The court’s approach to a proposal to change an expert Allowing expert opinion evidence at trial lies within the court’s discretion. A request to replace an expert part‑way through the case is a case management matter, likewise requiring the exercise of that discretion. In dealing with any such...

This Practice Note explores how the material contribution principle functions where there are several defendants or concurrent causes of injury, the distinct stance adopted by the courts on causation in disease claims, and whether the material contribution test may extend to other personal injury matters when the ‘but for’ test fails. It also offers practical guidance on assembling evidence to prove material contribution. The orthodox test for deciding whether the defendant’s breach caused the claimant’s loss is the ‘but for’ test. That test asks the court to consider: but for the defendant’s breach of duty, would the claimant have suffered the damage? For further guidance, see Practice Note: Causation in personal injury claims. For guidance on causation in clinical negligence, see Practice Note: Causation and material contribution in clinical negligence claims. Only when the ‘but for’ test fails should ‘material...

Khan v Meadows In Khan v Meadows, the Supreme Court outlined a framework for analysing the constituent parts needed to establish negligence, including the scope of duty and causation. For further guidance, including on the limits of the defendant’s duty of care, see Practice Note: Duty of care and breach in clinical negligence claims. Causation has two elements that a claimant must demonstrate: Is the loss a consequence of the defendant’s act or omission? (the factual causation question) Is any part of the harm unrecoverable because it is too remote, because there is another effective cause (including an intervening act that broke the chain of causation), or because the claimant has mitigated their loss or failed to avoid loss they could reasonably have avoided?......

NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) This protocol applies to accidents occurring on or after 31 May 2021 where the injury element of the claim does not exceed £5,000 and the total value is capped at £10,000. The small claims track limit for personal injury arising from road traffic accidents has been raised to £5,000 for damages for pain, suffering and loss of amenity ( PSLA), subject to specified exceptions. For more about the RTA Small Claims Protocol, including when it is disapplied, see: The RTA small claims protocol—key features checklist. Whiplash claims, often described as soft tissue injury claims, arise from an impact to a vehicle that causes sudden acceleration and a forceful overextension of the claimant’s neck. While the body remains...

The concept of foreseeability and remoteness in negligence claims The defendant bears responsibility for loss only where it represents a foreseeable result of breaching a common law duty. It is unnecessary to establish that the defendant anticipated the exact sequence of events. It suffices that the harm is of a foreseeable kind, even if it occurred through an unusual mechanism. The focus is on the category of injury rather than the specific manner of its occurrence. See the Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims. Nevertheless, even where the claimant establishes: that the defendant was negligent (ie in breach of duty), and that such negligence actually caused the injury or loss, the defendant is not automatically liable for every consequence. To recover damages in a claim founded in...

This Practice Note explores the ideas behind joint privilege and common interest privilege, outlining when they matter, how they come about, their principal features, how they function, illustrations, and the ways they can be waived. The interest in privileged documents of more than one party Joint or common interest privilege may exist where multiple parties assert the right to claim privilege over the same material. The scope turns on their interest in the subject matter and the nature of their relationship, among other considerations. Joint privilege arises where legal advisers are jointly instructed, or where the parties share a joint interest in the advice. It can be invoked to secure access to privileged material held by another participant. Common interest privilege covers communications between parties with an aligned interest even without joint privilege—for instance, neighbours objecting to a nuisance that affects them equally, although only one...

The purpose of pre-action disclosure An applicant may invite the court to compel a would‑be defendant in civil proceedings to hand over, before any claim is issued and before proceedings have begun, documents probably within that party’s control which would, in due course, fall to be produced as part of standard disclosure in the action. It is, therefore, a mandatory, front‑loaded form of disclosure. The court’s authority to grant such relief derives from section 33(2) of the Senior Courts Act 1981 and CPR 31.16. The court must first be satisfied it has jurisdiction (the threshold conditions being met) and then determine, as a matter of discretion, whether to grant the order. In practice, a potential defendant can apply against a potential claimant, though that route is uncommon. While the prospective claim must be “more than a merely speculative punt” ( Moore‑ Bick LJ in Jet...

Types of set-off As explained in the Practice Notes, What is set-off and when is it available? and Types of set-off, there are several recognised categories of set-off that arise in different ways. Save for independent (legal) set-off (see Practice Note: Independent set-off and transaction set-off), a set-off can be asserted and implemented without issuing proceedings — for example, Y may retain sums it accepts it owes to X on the footing that Y is setting off amounts X owes Y. By comparison, independent set-off must be initiated through court proceedings and, in effect, takes effect upon judgment. In practical terms, once a claim reaches court, both independent and equitable set-off (frequently referred to as transaction set-off) are commonly pleaded within the defence......

Introduction In personal injury cases, expert witnesses offer specialist opinions on medical matters and on technical, non-medical issues falling within the scope of their qualifications. Their overriding duty is to assist the court on matters within their expertise, and that duty to the court takes precedence over any allegiance to the party instructing or funding them. Medical evidence is supplied to the court as a written report. Medical experts are the principal specialists in a personal injury claim, and such evidence is vital in helping the court identify the diagnosis of injury caused by an accident and assess the extent of damage and loss suffered. Non-medical experts can give evidence on liability, causation, and non-medical losses. The applicable provisions governing expert evidence are contained in CPR 35, CPR PD 35, and the Guidance for the Instruction of Experts in Civil Claims 2014. See also Practice Note: Expert...

This Practice Note sets out guidance on seeking permission to appeal ( PTA) under CPR Part 52 in both the lower court and the appellate court ( CPR 52.3(2)). It explains how to challenge decisions of lower courts and the steps for making PTA applications in the court below. It also addresses the need to apply at the conclusion of the hearing in the lower court, together with the deadlines for requesting PTA from the appellate court where no application was made below or where the lower court has refused PTA. The Note specifically considers applications for permission to the Court of Appeal where no oral hearing is directed, the respondent’s role (and potential costs) and the actions open to a respondent, as well as the procedure and particular provisions for the County Court, High Court and Court of Appeal, and how (and by whom) a PTA...

Background and framework In the great majority of personal injury and clinical negligence claims, when the court grants damages, the sum is usually paid at once as a lump sum straight to the claimant. That said, in any such claim where the award concerns future pecuniary loss, the court may direct that compensation be paid by way of periodical instalments, in full or in part. In fact, in these circumstances the court is required to consider whether to make such an order. The Damages Act 1996 ( DA 1996) authorises the court, in personal injury proceedings, to make a periodical payments order ( PPO), to award a lump sum, or to provide a mixture of both. For the purposes of DA 1996, s 7(1), 'personal injury' extends to any disease or any impairment of the claimant’s physical or mental condition, and a personal injury claim...

Common issues Claims for loss of earnings arise regularly in personal injury cases and are frequently the biggest head of damages. For guidance on future losses, see Practice Note: Future loss of earnings—personal injury claims. Although many valuations are straightforward, recurring complications include: financial complexity, for instance a member of a partnership pursuing lost profits uncertainty, such as where the claimant’s career path was unclear or income was variable evidential difficulty, for example where earnings were undeclared Calculating the net loss of earnings 13-week approach For those in stable employment, pre-accident net pay is usually assessed by averaging earnings from the three months, or 13 weeks, immediately before the accident. The figures can be drawn from payslips, though the employer will generally supply the data. If the level of pay is disputed, obtain bank statements as proof of wages,...

Practice Note This Practice Note examines the situations in which the usual Part 36 costs consequences may properly be found by the court to be unjust. It highlights the factors set out in CPR 36.17(5) that the court will take into account, and surveys the case law that has considered this question. Note that the fixed recoverable costs ( FRC) regime applies to most civil claims valued at no more than £100,000 which are issued on or after 1 October 2023, excluding personal injury and disease claims. For personal injury matters, the extended FRC regime applies where the cause of action accrued on or after 1 October 2023, and for disease claims it applies where no letter of claim has been sent before 1 October 2023. For civil cases that fall within the extended FRC regime, CPR 36.23 governs the costs...

This Practice Note outlines the required contents of a Part 36 offer, identifies to whom the offer must be directed, and highlights the additional stipulations for a defendant’s Part 36 proposal. It also explains how to make a Part 36 offer confined to part of the claim or focused on a specific issue within the claim. The Note addresses offers in proceedings with multiple parties, the need for a relevant period of at least 21 days, and the treatment of interest. It further considers situations involving a litigant in person, as well as the inclusion of a non-monetary element within a Part 36 offer... What a Part 36 offer must include A compliant Part 36 offer does not have to be presented in a letter; a party may instead use Form N242A ( CPR PD 36, para 1.1)......

Practice Note This Practice Note reviews the additional CPR 36 rules that apply to civil claims within the fixed costs regime from 1 October 2023. It explains the specific costs outcomes when a Part 36 offer is accepted, and the costs consequences after judgment in fixed costs matters. It also gives guidance on the 35% uplift awarded where a claimant obtains a judgment that is at least as favourable as their own Part 36 offer, and notes the applicability of the other awards under CPR 36.17(4). Please note, this Practice Note does not address the particular CPR 36 provisions relevant to personal injury claims (road traffic accidents, employers’ liability and public liability). For details on Part 36 offers in fixed costs cases before 1 October 2023, see: Practice Note: Part 36 offers—fixed costs (position prior to 1 October 2023). For general guidance on CPR 36, refer to:...

Practice Note This Practice Note explores the interplay between Part 36 offers and the specific costs recovery mechanism in CPR 36, alongside the Part 45 fixed costs provisions that applied before 1 October 2023. It cites authorities concerning personal injury claims and assesses how CPR 36 aligns with the scale costs for cases in the Intellectual Property Enterprise Court ( IPEC) ( CPR 46, Section VII). For clarity, any references in this Practice Note to ‘rule’ and ‘part’ are to the pre-1 October 2023 rules, which govern matters that fell within the fixed costs regime before that date. The old Part 36 and the old Part 45 can be accessed here: In addition, the extended fixed costs regime applies to all civil proceedings (subject to exclusions) with a value of £100,000 or less. For civil cases other than personal injury and disease, the...