Legal Practice Notes

Part 36 From 1 October 2023, the CPR were revised to broaden the scope of fixed recoverable costs. As a consequence, Part 36 now extends to claims on the fast track and the intermediate track, and to noise‑induced hearing loss claims allocated to the fast track, with fixed costs applying where: the cause of action arises on or after 1 October 2023; or in disease claims, no letter of claim was sent before 1 October 2023 The pre‑1 October 2023 iteration of CPR 36 (no longer maintained within the CPR) can be accessed here: For guidance on the particular rules applicable to claims falling within the fixed costs regime—including cases pursued under the Pre‑ Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, the Pre‑ Action Protocol for Low Value Personal Injury ( Employers’ Liability and Public Liability) Claims, or the Pre‑ Action Protocol for...

This Practice Note explains how to make and respond to a Part 36 counter-offer, its impact on existing Part 36 offers, and its relevance to other settlement offers not advanced under Part 36. Counter-offer in response to Part 36 offer When a party receives a Part 36 offer, they may propose a counter-offer, either as a further Part 36 offer or by another route. The consequences of putting forward a counter-offer are outlined below. Effect of counter-offer on Part 36 offer Tabling a counter-offer does not undermine the validity of any extant Part 36 offer. Under CPR 36.11(2), a Part 36 offer already made stays open and capable of acceptance unless the offeror serves written notice withdrawing it, or it is automatically withdrawn in line with its terms where the acceptance deadline passes without the offeree serving notice of acceptance ( CPR...

This Practice Note sets out advice on CPR 31.16 pre-action disclosure applications, where the applicant and respondent are expected to be parties to any likely later proceedings. It explains how to pursue such a request for disclosure before a claim has begun, including the application notice, evidence supporting the pre-action bid, and the draft order, in sequence. It also addresses the respondent’s stance when resisting the application, and typical objections. The costs implications of seeking pre-action disclosure are reviewed in outline. For detailed guidance on when it may be suitable to seek pre-action disclosure, the approach the courts adopt in deciding whether to allow such requests, and targeted discussion of pre-action disclosure in varying contexts, see Practice Note: Pre-action disclosure—requirements and the courts' approach. For further guidance on the principal aspects of the court’s jurisdiction under CPR 31.16, see in particular Practice Note:...

This Practice Note reviews automatic stays of civil proceedings under CPR 15.11 and explains how to apply to lift a stay. For other court powers to stay claims, see Practice Note: Stay of civil proceedings—when can you apply to stay a claim? Automatic stays under CPR 15.11 CPR 15.11(1) provides that a claim is automatically stayed where: (a) at least six months have passed since the end of the CPR 15.4 period for filing a defence (b) no defendant has served or filed an admission, defence or counterclaim (c) no party has entered or applied for default judgment or summary judgment (d) no defendant has applied to strike out all or part of the claim form or particulars of claim Note: With effect from 1 October 2022, CPR 15.11(1) was amended as follows: CPR 15.11(1)(c) was widened to cover...

Some categories of proceedings in the Court of Session must begin by lodging a petition. This Practice Note explains the procedure applicable to petitions. For information on: other procedural routes in the Court of Session and the sheriff courts in Scotland, see Scottish DR: courts and civil procedure—overview, which links to detailed guidance other aspects of Scottish civil litigation, see the following Overviews, which link to more detailed guidance: Scottish DR: prescription and limitation—overview Scottish DR: starting a claim—overview Scottish DR: case management and evidence—overview Scottish DR: expenses and funding—overview Scottish DR: civil appeals and judicial review—overview Scottish DR: claims and...

This Practice Note explains when a litigation friend, an accredited legal representative ( ALR), or another representative (collectively known as Rule 1.2 representatives) is required in Court of Protection proceedings, and sets out who may act as a litigation friend or as a Rule 1.2 representative. It also details the respective rules governing the appointment and removal of litigation friends and Rule 1.2 representatives in the Court of Protection. Throughout, it refers to the relevant provisions of the Court of Protection Rules 2017 ( COPR 2017) and to the Court of Protection Practice Direction 17A— Litigation friend ( PD 17A) and Practice Direction 17B— Rule 1.2 representatives ( PD 17B). For proceedings in the county court and High Court, reference should be made to the Civil Procedure Rules 1998, Pt 21— Children and Protected...

Scope of this Practice Note This Practice Note provides guidance on the provisions set out in CPR 52 and CPR PD 52C. These provisions apply to appeals made to the Civil Division of the Court of Appeal. They do not extend to the following: appeals arising from detailed assessment proceedings against a decision of an authorised court officer; appeals to the County Court, the High Court, or the Supreme Court; appeals where the notice was lodged, or permission to appeal was granted, before 1 October 2012 (unless the court has ordered otherwise); situations where permission is sought to appeal a decision refusing to grant an interim injunction under section 41 of the Policing and Crime Act 2009. For guidance on appeal bundles when appealing to the County Court or the High Court, see Practice Note: Appeals to the County Court or the High...

This Practice Note explores when a party or their legal representative may communicate directly with the court under CPR 39.8, and on what terms. It also covers filing documents with the court, including by email. What are the rules regarding parties communicating with the court pursuant to CPR 39.8? Under CPR 39.8(1), any communication between a party and the court on matters of substance or procedure must be disclosed to, and if in writing (paper or electronic) copied to, the other party/parties or their representatives, unless: there is a compelling reason not to do so, which is set out in the communication ( CPR 39.8(3)), or another rule or practice direction permits it ( CPR 39.8(7)). If this requirement is not met, the court may impose sanctions or otherwise exercise its case management powers under CPR 3 ( CPR 39.8(6)). For details of the...

Recovery of counsel’s fees from the other side in proceedings This Practice Note explains when counsel’s fees can be recovered from an opponent. It addresses who is liable for counsel’s fees, how those fees are assessed, and the position where two or more counsel are retained. It also touches on the consequences of adjournment or settlement, and outlines the concept of devilling and its effect on costs recovery. It is established that counsel’s fees are recoverable as disbursements, regardless of whether the instructing solicitor might have undertaken the work—an approach confirmed by the Court of Appeal in Crane v Canons Leisure Centre (2007). In principle, such fees are recoverable from the opposing party in litigation. For broader guidance on disbursements, see Practice Note: Disbursements—costs recovery. On summary assessment there is no conventional requirement to produce a fee note to evidence counsel’s fees ( Mc Givern v MBR Acres Ltd...

Case details and analysis Issues considered MJS Projects ( March) Ltd v RPS Consulting Where a party unreasonably declines to mediate or to attempt another form of alternative dispute resolution ( ADR), the court may impose adverse costs consequences on that party, even if they ultimately win the case. This Practice Note collates examples illustrating how the courts approach the question of what, if any, costs order should be made where a litigant has disobeyed an order to undertake mediation or another ADR mechanism, or has acted unreasonably in declining ADR. It should be read alongside Practice Note: Costs consequences of refusing to consider ADR in civil proceedings, which explains the principles the court will apply and identifies the relevant CPR provisions governing the court’s powers to make such costs orders. For guidance on the parties’ duties to consider ADR, and on the courts’ powers to...

This Practice Note outlines how payment obligations under costs orders are addressed, distinguishes scenarios where the order specifies a deadline for payment, and offers guidance on phrasing and calculating such time limits. It also examines when a costs order becomes enforceable, whether enforcement can be stayed or deferred, and if a stay of execution can be lifted. The Note further considers whether additional time can be secured to meet a costs order. For advice on the court’s approach to parties who do not comply with interim costs orders, see Practice Note: Costs orders—debarring orders where there has been a failure to pay... Payment of a costs order—if the court order includes a time limit CPR 44.2(1) grants the court a general discretion in relation to costs. For commentary, see Practice Notes: Costs orders—the general rule and Costs orders—the court’s discretion. In addition to deciding whether one party...

This Practice Note sets out how the defence may seek to recover costs from the prosecutor after an unsuccessful criminal prosecution, relying on section 19 of the Prosecution of Offences Act 1985 ( POA 1985). If, in criminal proceedings, one party incurs costs because another has acted or failed to act in an unnecessary or improper way, the criminal courts can direct that those costs are borne by the party whose conduct was unnecessary or improper. An acquitted defendant may advance a claim on this footing; however, given the very high bar that applies, success is exceptionally uncommon. A costs award on this footing is distinct from a defendant’s costs order under POA 1985, s 16, and from a wasted costs order against legal representatives under POA 1985, s 19A. See Practice Notes: Recovering acquitted defendants’ costs in criminal...

This Practice Note examines the costs ramifications of altering a statement of case and the court’s latitude when determining a costs order where a party elects to amend their statement of case. For information on amending a statement of case, also see the following Practice Notes: Amending a statement of case—introduction Amending a statement of case—permission to amend Amending a statement of case—logistics of effecting an amendment Amending a statement of case—illustrative decisions Late amendments to statements of case—the court's approach Late amendments to statements of case—illustrative decisions Limitation—amendments to statements of case, set-offs and counterclaims Cost implications of amending a statement of case When dealing with an application to revise a statement of case, practitioners should consistently keep in mind the costs impact of the proposed change. The court retains a discretion as to whether to make a costs...

This Practice Note examines costs management orders ( CMOs). It outlines what they are, their purpose, and how extensively the courts employ them. It explains when a CMO will be made—most often at or shortly after the first case management conference ( CMC), though one can be ordered at any time. It also addresses what a CMO must contain, whether it can be overtaken or cancelled, and how to contest a CMO under CPR 3.1(7)... What are the CPR provisions for CMO? The provisions concerning CMOs are set out in CPR 3.15 and CPR PD 3D, para 12 (section F). Before 1 October 2020, these rules appeared in the former CPR PD 3E. Rule or practice direction Contents of rule or practice direction Comment CPR 3.15(5) Except in exceptional circumstances, the following costs are recoverable: The recoverable cost of initially completing Precedent H must not exceed the...

This Practice Note considers the costs position where parties have reached a settlement as to the underlying substantive dispute but have been unable to reach an agreement as to costs. It addresses scenarios where compromise is reached before proceedings begin yet costs remain unresolved; in those circumstances, and where specified requirements are satisfied, a costs-only Part 8 claim can be issued to seek recovery. By contrast, if settlement is achieved after proceedings have started, a Part 8 route cannot be used. The Practice Note explains how parties may invite the court to make a costs order in the absence of agreement, and whether the court might insist on a full trial to determine the dispute over costs. It also looks at cases where an application is settled but with no deal on the recovery of costs. This Practice Note does not cover the costs...

This Practice Note explains the default position that the losing party is generally ordered to meet the winning party’s costs. It considers situations of modest recovery and instances where a party succeeds on some, but not all, issues. It also confirms that costs are determined separately from the substantive relief sought, and addresses costs orders in closed material procedure proceedings. For guidance on when the court may depart from the default rule, and when it does not apply, see Practice Note: Costs orders—departing from the general rule and circumstances where it is not applicable. For the aims of costs orders, what they should contain and the range of forms, see Practice Note: Costs orders—purpose, what to include and different types. The general rule—unsuccessful party pays the successful party’s costs In Langer v Mc Keown (2021), the Court of Appeal emphasised that, in general, costs should follow the...

This Practice Note This Practice Note brings together leading convictions for corporate manslaughter under section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007), offering succinct case summaries. It serves as a tracker to support practitioners in keeping abreast of the penalties handed down for this offence and the manner in which the relevant sentencing guidelines for corporate manslaughter are being applied in England and Wales. For the steps the Crown Court must take when sentencing corporate manslaughter offences in England and Wales, see Practice Note: Sentencing for corporate manslaughter. For guidance on the offence, see Practice Notes: Corporate manslaughter—an introductory guide, Corporate manslaughter—the offence and Corporate manslaughter—enforcement and prosecution. Corporate manslaughter—convictions Fairytales Day Nursery Limited Plea entered/verdict reached: Guilty pleas to breaches of CMCHA 2007, s 1 and HSWA...

Varying priority between security interests Competing security interests arise where multiple creditors hold security over the same asset or pool of assets. Establishing the order of priority between those interests dictates the sequence in which each secured creditor may claim against the charged property on enforcement or in an insolvency. If the enforcement proceeds are insufficient to discharge all secured debts in full, priority becomes crucial, as one or more creditors may not recover everything owed if the company cannot meet any shortfall from other assets. In such scenarios, occupying a higher-ranking position plainly offers significant benefits... Priority between security interests is set by general law, but the parties can alter that ranking by agreeing a contractual priority regime in a deed of priority or an intercreditor deed... What are the advantages of entering into a contractual priority...

The doctrine of contractual estoppel has been employed in a number of varied commercial scenarios, but most notably and particularly in more recent times in disputes within the financial sector. This Practice Note identifies several key cases since the 2006 Court of Appeal decision in Peekay v ANZ Banking Group. It should be carefully read in conjunction with Practice Note: Contractual estoppel. Peekay v ANZ Banking Group (2006) The Court of Appeal’s ruling in Peekay v ANZ Banking Group is widely regarded as the foremost and controlling authority on contractual estoppel. The claimant executed a ‘ Risk Disclosure Statement’ for investments arranged through the defendant bank, recording an acknowledgement that the signatory fully appreciated the nature of the transaction and the contractual relationship then being entered into by it at the time. The Court of Appeal held that, in light of this, the claimant could not later...

This Practice Note examines the requirements of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) for putting in place a valid contract for the sale, or any other disposition, of an interest in land. It offers direction on the execution and exchange of land sale contracts, sets out what is needed to vary a property contract, and highlights the choices available where an agreement fails to satisfy the statutory conditions for a valid contract. Introduction A contract for the sale, or other disposition, of an interest in land is of no effect unless it complies with LP( MP) A 1989, s 2......