Legal Practice Notes

Costs determination and the ‘without prejudice’ rule A persistent question for practitioners is whether correspondence marked ‘without prejudice’ can be deployed against a party when the court determines liability for costs. In Walker v Wilsher (1889), the Court of Appeal held that ‘without prejudice’ letters or conversations must not be taken into account so as to deprive the successful litigant of their costs. The judge considered that it ‘would be a bad thing’ and produce serious consequences if communications sent on a ‘without prejudice’ basis could be adduced in evidence against that party or used as a foundation for denying them their costs. The general position on referring to ‘without prejudice’ exchanges when dealing with costs has later been reviewed and reaffirmed in two Court of Appeal cases: Unilever v Proctor & Gamble (2000) confirmed that the general rule is that ‘without...

This Practice Note offers guidance on subrogation in the insurance context. It sets out the legal basis, purpose and practical operation of subrogation, and indicates how to tell rights of subrogation apart from other mechanisms such as assignment or contribution. It also considers common situations, including subrogation against co-insureds, the use of express subrogation clauses and waivers of subrogation. In addition, it covers how recoveries are allocated and the insured’s duty to co-operate with insurers. What is the right of subrogation? In insurance and reinsurance, the right of subrogation allows an insurer or reinsurer, once it has indemnified the (re)insured, to step into that party’s position and bring proceedings in the (re)insured’s name. For this Practice Note, ‘insurer’ should be read as ‘(re)insurer’ and ‘insured’ as ‘(re)insured’. The insurer may then exercise any of the insured’s rights or remedies against third parties arising from the...

This Practice Note This Practice Note offers guidance on applying for specific disclosure or specific inspection under CPR 31.12. It explains why such an application might be pursued, when it should be made, and addresses bids for specific disclosure both before and after disclosure. It outlines what to include in the application notice, the supporting evidence, and any draft order. It also describes the court’s power to require a party to ask any person to produce, for disclosure and inspection, any document that may assist their case or negatively affect the case of any party to the proceedings. This Practice Note should be read alongside: Practice Notes: Specific disclosure—which gives guidance on what specific disclosure and specific inspection are and the circumstances in which they might be used, and Specific disclosure—the courts’ approach—which gives guidance on the attitude the courts take to...

Introduction In ship finance, the typical security package comprises a mortgage over the vessel—supplemented, in jurisdictions that rely on a short form statutory mortgage such as the UK, by a separate deed of covenant—and an assignment (often termed a 'general assignment') of the vessel’s insurances, earnings and any requisition compensation (for further details on the forms of security commonly used in shipping finance transactions, see Practice Note: Shipping finance—security and Precedent: Deed of covenant: for a ship mortgage). Taking discrete security over insurances and earnings is especially important in shipping finance because the borrower is commonly a single ship-owning company that generally has no material assets other than the vessel together with its insurances and income. In most jurisdictions, including the UK, a mortgagee of a vessel does not automatically obtain any security interest in the ship’s insurances......

Practice Note This Practice Note provides guidance for seeking security for costs, addressing both the initial letter of request and the court application where security is not forthcoming. It identifies the documents to be lodged, examines in considerable detail the evidential material to be provided in support, and records the typical terms of the court’s order. The Practice Note also considers whether an applicant may renew an application for security for costs, or if doing so would amount to an abuse of process. In addition, it explains how to oppose an application and sets out the respondent’s undertakings. Note that, on 6 April 2025, amendments to CPR 25 took effect, re-numbering the former CPR 25 provisions and revising parts of the wording relating to security for costs. Throughout, this Practice Note refers to the earlier version as ‘old rule 25’ and, where...

This Practice Note reviews the key provisions of the Civil Procedure Rules ( CPR) and Practice Directions that regulate recovery of costs by a litigant in person ( LIP). It outlines the mechanics of CPR 46.5: an LIP may recover, on summary or detailed assessment, the same categories of work and disbursements as a legally represented party, but recovery is limited to two-thirds of the reasonable sum that would be payable to a notional lawyer. It identifies the hourly rate available to LIPs where financial loss cannot be proved, and notes how the courts have been interpreting that position. It also considers circumstances involving ‘ Mc Kenzie Friends’ and the courts’ approach to any costs claimed for their assistance... Abbreviations used in this Practice Note: LIP—litigant in person SCCO— Senior Court Costs Office Civil Procedure Rules ( CPR)...

The police possess broad authority to obtain non-intimate samples under the Police and Criminal Evidence Act 1984 ( PACE 1984). Non-intimate samples are defined to include: hair samples other than pubic hair material taken from a nail or from beneath a nail a swab from any part of the body except where taking a swab would be an intimate sample saliva samples a skin impression (not a fingerprint) For details regarding intimate samples, see Practice Note: Intimate samples. Consent to non-intimate samples As a general rule, such samples cannot be taken from an individual without their agreement. Any consent given must be provided in writing. Power to take non-intimate samples without consent Under PACE 1984, non-intimate samples may be taken without consent from those who have been arrested, charged or convicted in the UK, convicted of a serious offence overseas, or held in...

Under the Town and Country Planning Act 1990 ( TCPA 1990), a breach of planning control is subject to enforcement action TCPA 1990, s 171A explains what constitutes a breach of planning control: undertaking development without the necessary planning permission—this presumes that unauthorised operational works or a material change of use (each being ‘development’ under s 55) has occurred, that such development requires permission, and none has been secured. When deciding if a breach has arisen in this way, the guidance and case law on the meaning of ‘development’ must be applied—see Practice Notes: Operational development and Material change of use failing to comply with any condition or limitation attached to a planning permission—this also covers limits or conditions applied to individual permitted development rights in the Town and County Planning ( General Permitted Development) ( England) Order 2015, SI 2015/596 and the Town and Country...

The role and functions of a liquidator A liquidator must be a licensed insolvency practitioner, authorised by a recognised professional body, and must hold appropriate authorisation. Put simply, the liquidator’s role is to safeguard the company’s assets, ensure they are realised into value, and distribute the proceeds to the company’s creditors and, where any balance remains, to the company’s contributories. The liquidator must carry out this role strictly in line with the duties imposed and powers conferred by the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Liquidators owe a duty to promote the interests of creditors and contributories generally, as a whole, and are required to exercise a high level of care and skill. They must at all times act impartially and independently. A liquidator acts as the company’s agent, albeit in a way...

Costs of judicial review proceedings The issue of who bears the expense of court proceedings, and the potential size of that liability, will inevitably be central when deciding whether to issue a claim and, likewise, whether and in what manner to resist one. As a starting point, the costs of judicial review are within the court’s discretion, pursuant to section 51(1)–(3) of the Senior Courts Act 1981 ( SCA 1981). That overarching position is shaped by the Civil Procedure Rules, relevant authority, and the specific facts and circumstances of the case at hand. Customarily (though not invariably) costs follow the event; in other words, the successful party will ordinarily recover its costs from the unsuccessful party. The costs in question are those ‘of and incidental to’ the proceedings. In most judicial review claims, the defendant is the public authority whose decision, act, or...

This Practice Note This Practice Note outlines the overarching principles of compensation, sharing and equality, alongside needs, and explains how the court applies them when exercising discretion in financial order proceedings. It reviews the leading authorities of White v White, Miller v Miller; Mc Farlane v Mc Farlane, later decisions, and Standish v Standish. In White v White, the House of Lords charted the course for the principles governing financial orders. Prior to White, outcomes in high‑net‑worth cases were capped by the financially weaker party’s ‘reasonable requirements’; once those needs were satisfied, the wealthier spouse often retained a markedly larger portion of the resources. White repositioned fairness as the guiding aim in financial cases, assessed by what the House of Lords termed ‘the yardstick of equality’. After White, a move away from equality requires sound justification. The judicial discretion is exercised with fairness as the...

This Practice Note This Practice Note addresses the criteria governing an employer’s vicarious liability in tort, arising from particular legal relationships and specified conduct, including wrongful acts. It further reviews liability within ‘relationships akin to employment’ and the circumstances in which more than one employer may share responsibility (dual vicarious liability). It analyses, in particular, the ‘close connection test’, which identifies the necessary link between the relationship and the wrongdoing, as re-examined by the Supreme Court in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB. It sets out the stance regarding liability for the acts of independent contractors, and proceeds to outline when an employer might be answerable for torts committed by someone else’s employees, and where liability to third parties in contract (express and ostensible agency) can arise in practice. This Practice Note also details liability for breaches of...

Enterprise management incentives ( EMI) rollover criteria The rules governing an enterprise management incentives ( EMI) rollover are intricate. This Practice Note considers: what is an EMI rollover? the reasons for adopting an EMI rollover the situations in which an EMI rollover may be used the eligibility conditions that must be satisfied, including: requirements concerning the acquiring company requirements concerning the employees requirements concerning the options the timing of an EMI rollover the consequences of granting replacement options typical misunderstandings and errors relating to EMI rollovers For a checklist to determine whether EMI options over shares in a company undergoing a change of control can be exchanged for options on the same terms over...

This Practice Note outlines the nature and core characteristics of easements. It considers the need for both a dominant and a servient tenement, and for those to be held in separate ownership; the requirement that the easement must accommodate the dominant tenement; and the necessity for it to be capable of constituting the subject matter of a grant. Nature of an easement An easement is an incorporeal right enjoyed by the holder of a legal estate (the dominant tenement) over land belonging to another (the servient tenement), which binds successors in title. Most easements are positive, permitting the dominant owner to enter upon or use the servient land in some fashion (eg a right of way). They can also be negative, stopping something from being done on the servient land and thereby giving the dominant owner the right to receive something from that land (eg a right to...

This Practice Note sets out when and in which venues the Disclosure Scheme within the Business and Property Courts ( B& PCs) ( CPR PD 57AD) operates. It identifies the courts that use the Scheme (including any tailored variants) and those that deliberately disapply it. It also addresses the categories of claims to which the Scheme is engaged, and those from which it is expressly excluded. The Scheme took effect on 1 October 2022, following a disclosure pilot. Decisions made under the pilot remain instructive and are referenced below. For the background and context of the Scheme and its overarching themes, see Practice Note: Business and Property Courts Disclosure Scheme—early developments and themes [ Archived]. When does the Disclosure Scheme apply? See: Which disclosure rules apply to my claim—flowchart? for a step-by-step route through the questions that determine whether your claim falls within CPR PD 57AD’s...

What is an interim costs certificate? An interim costs certificate is a certificate made by the court once the receiving party has lodged a request for a detailed assessment hearing ( CPR 47.16(1)). The prescribed template is Form N257 ( CPR PD 47, para 16.10). Unless the court directs otherwise, the interim certificate will ordinarily contain an order to pay the related costs. The court retains full discretion to grant an interim certificate for a suitable amount, and there is no need for any costs to be assessed or agreed in advance. Application for an interim costs certificate You may apply for an interim costs certificate after filing a request for a detailed assessment hearing with the court ( CPR 47.16(1)). Applications must comply with CPR 23 ( CPR PD 47, para 15). For general guidance on applications, see Practice Note: How to make an...

This Practice Note outlines guidance on the costs of abandoning a claim, the general presumption and circumstances in which it is displaced, in practice. It further addresses the costs position when a claim is withdrawn before service, when only part of a claim is given up, and when proceedings are ended against some, but not all, defendants, as applicable in each of those circumstances. It also considers how to properly commence a detailed assessment of costs, together with the default approach that a discontinuance costs order provides for costs to be assessed on the standard basis. What is discontinuance? Discontinuance is the mechanism by which a claimant may terminate all or part of the proceedings it has begun by serving a notice of discontinuance, which must be in Form N279 unless the court permits otherwise ( CPR 38.3(5)). Ending the claim, or parts, carries defined costs...

This Practice Note examines conditions, pre-conditions and standard terms that commonly feature in public company takeover bids. It highlights the key categories—such as the acceptance condition, scheme-related conditions, and commercial and financial conditions—and sets out the constraints in the City Code on Takeovers and Mergers ( Code) on setting, triggering or waiving those conditions. It also outlines additional terms usually found in the offer document, including whether accepting shareholders may withdraw their acceptances. The Practice Note further provides a high-level overview of how the Code addresses competition references and regulatory clearances, while directing readers to Practice Note: Merger control and the Takeover Code for fuller guidance. Introduction A voluntary offer is ordinarily made subject to a customary suite of conditions, all of which must appear in the firm offer announcement. Each such condition should be clearly and fully stated in that...

Prepared in collaboration with 4 Pump Court, this Practice Note examines an adjudicator’s power to award interest, and the different grounds on which a party may pursue interest in an adjudication. General principles Unlike court proceedings, there is no statutory discretion given to an adjudicator to grant interest on damages or debt, so the referring party must establish a basis for any interest claim. Interest should be expressly sought (and the foundation for the interest claim identified) in the Notice of Adjudication and the Referral Notice, to ensure the claim is properly made and within the adjudicator’s jurisdiction to decide. The claim should set out a rate of interest and confirm whether the interest sought is simple or compound and, if compound, the appropriate rests......

On turning 18, a person must formally submit any British citizenship application as an adult, even if the basis is time spent as a child. Only adults may lawfully make applications to naturalise as British citizens. Children are limited to applying solely for registration as British citizens only. While naturalisation is the principal route by which adults obtain British citizenship, there still remain certain limited circumstances in which adults may instead apply for registration as British citizens. For more details about applications to naturalise as a British citizen, see Practice Note: Applying to naturalise as a British citizen: eligibility, and for guidance on registering a child as a British citizen, see Practice Note: Routes for applying to register a minor child as a British citizen. Certain registration applications are made by entitlement, whereas others are determined at the discretion of the...