Civil Procedure

22
CIVIL PROCEDURE
A. Introduction 22.01 H. Experts 22.71

(1) Civil Procedure Rules 1998 (CPR) 22.01 (1) Nature of Expert Opinion 22.71
(2) Sources of English Civil Procedure 22.03 (2) Assessors 22.73
B. Stages in the Course of a (3) Single, Joint Expert System 22.74
Civil Action 22.06 (4) Party-Appointed Experts 22.76
(1) Pre-Action Stage 22.06 (5) Discussions Between Experts and
(2) Commencement, Service, and ‘Concurrent’ Expert Evidence at Trial 22.81
Pleadings 22.08 (6) Witness Immunity 22.83
(3) Evidence Gathering and the I. Settlement and Mediation 22.87
Exchange of Information 22.09 (1) Importance of Settlement 22.87
(4) Trial, Appeal, and Enforcement 22.10 (2) Mediation Agreements 22.90
C. Commencement of Proceedings 22.11 (3) Privileges Protecting Mediation and
(1) Issue of Process and Allocation of Settlement Negotiations 22.91
Proceedings 22.11 (4) Settlement Offers and Costs
(2) Service of Process 22.12 Incentives to Compromise 22.92
(3) Pleadings 22.14 (5) Judicial Influence upon Settlement 22.93
(4) Limitation of Actions 22.15 J. Trial, Evidence, and Appeal 22.96
D. Accelerated and Interim Relief 22.20 (1) Trial 22.96
(1) Preservation of Assets: Freezing (2) Evidence at Trial 22.98
Injunctions 22.20 (3) Appeals 22.106
(2) Preservation of Evidence: Civil K. Costs 22.107
Search Orders 22.28 (1) The Jackson Reforms 22.107
(3) Security for Costs 22.30 (2) Protective Costs Orders, Costs
(4) Interim Payments 22.34 Budgets, and Costs Capping 22.109
(5) Interim Injunctions 22.35 (3) The Court’s Discretionary
(6) Preliminary Issues 22.38 Adjustment of Costs 22.111
(7) Summary Judgment 22.39 (4) Indemnity and Standard Basis Costs 22.113
(8) Striking Out Claims or Defences 22.41 (5) ‘Wasted Costs’ Orders Against
(9) Default Judgment 22.43 Lawyers and Experts 22.114
E. Case Management 22.46 (6) Costs Orders Against Non-Parties 22.115
(1) Case Management in General 22.46 (7) Conditional Fee and Damages-Based
(2) Case Management in the Agreements 22.116
Commercial Court 22.48 (8) Security for Costs 22.119
(3) Sanctions and Procedural Discipline 22.51 L. Res Judicata and the Principle
F. Disclosure 22.53 of Finality 22.120
(1) Pre-Action Orders 22.54 (1) Cause of Action and Issue
(2) Disclosure Against Non-Parties 22.55 Estoppels 22.120
(3) Disclosure of Documents During (2) The Rule in Henderson v
the Main Proceedings 22.56 Henderson (1843) 22.123
(3) Other Aspects of Finality 22.124
G. Legal Advice and Litigation Privileges 22.61
(1) Privileges in General 22.61 M. Enforcement 22.125
(2) Privilege and ‘Confidentiality’ 22.62 N. Proceedings under the
(3) Legal Advice Privilege 22.63 Arbitration Act  22.132
() Litigation Privilege 22.67
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English Private Law. Third Edition. Andrew Burrows.
© Oxford University Press 2013. Published 2013 by Oxford University Press.
Chapter 22: Civil Procedure
A. Introduction
(1) Civil Procedure Rules 1998 (CPR)1
22.01 The CPR, a ‘new procedural code’, took effect on 26 April 1999.2 Lord Woolf in his reports
(1995–96) stated that the overriding aims of this system are to:
() speed up civil justice;
() render civil procedure more accessible to ordinary people;
() promote swift settlement;
() simplify the language of civil procedure;
() make litigation more efficient; and
() less costly.
Aims (5) and (6) were to be promoted by avoiding excessive and disproportionate resort to
procedural devices.3 Of these, (1), (2), (3), and (5) have improved. But the success of (4) is
severely open to question, certainly when one considers the complexity of the CPR system of
rules and practice directions. As for reducing the cost of litigation, aim number (6), this has
been shown to be ‘the Achilles heel’ of the CPR system (see further 22.107ff). Following Sir
Rupert Jackson’s report on the costs regime,4 consultation,5 and Governmental conclusions,6
various procedural changes, notably affecting costs, were introduced on 1 April 2013.7 These
are examined at relevant points in this chapter.
22.02 Until the enactment of the CPR, English procedure was based on the ‘adversarial princi-
ple’ or ‘principle of party control’ which permitted the parties and their lawyers to control
pre-trial development of the litigation. Since the CPR, however, the parties have much less
scope to control such development. Instead the courts now have extensive ‘case manage-
ment’ powers and duties.8 A related change is that the parties can no longer relax the rules
or directions governing the progress and timetabling of the action.9 Furthermore, the parties
1
Detailed account: Neil Andrews, Andrews on Civil Processes: Court Proceedings (vol 1) (2013) ch 2.
2
So described in CPR 1.1(1).
3 Lord Woolf, Access to Justice, Interim Report (1995) and Access to Justice, Final Report (1996); responses to
these reports: S Flanders, ‘Case Management: Failure in America? Success in England and Wales?’ (1998) 17
CJQ 308; M Zander, ‘The Government’s Plans on Civil Justice’ (1998) 61 MLR 383–389 and ‘The Woolf
Report: Forwards or Backwards for the New Lord Chancellor?’ (1997) 16 CJQ 208; AAS Zuckerman and
R Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (1995); AAS Zuckerman, ‘The Woolf
Report on Access to Justice’ (1997) 2 ZZP Int 31.
4 Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (2010).
5 Ministry of Justice, Consultation Paper 13/10, Proposals for Reform of Civil Litigation Funding and Costs
in England and Wales—Implementation of Lord Justice Jackson’s Recommendations (Cm 7947, 2010).
6
Reforming Civil Litigation Funding and Costs in England and Wales—Implementation of Lord Justice
Jackson’s Recommendations: The Government Response (Cm 8041, 2011).
7
Legal Aid, Sentencing, and Punishment of Offenders Act 2012; Damages-Based Agreements Regulations
2013, 2013/609; Offers to Settle in Civil Proceedings Order 2013, 2013/93; Conditional Fee Agreements
Order 2013, SI 2013/689 (abrogating the Conditional Fee Agreements Order 2000/823); Civil Procedure
(Amendment) Rules 2012, SI 2013/262; accompanied by amendments to relevant Practice Directions
(http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-60-update-pd-making-document.
pdf ); Civil Procedure (Amendment No 2) Rules 2013, SI 2013/515; accompanied by amendments to rel-
evant Practice Directions (http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-61-pd-
making-document.pdf ).
8
CPR 1.4(2) 3.1; NH Andrews, ‘A New Civil Procedural Code for England: Party-Control “Going,
Going, Gone”’(2000) 19 CJQ 19; Andrews on Civil Processes: Court Proceedings (vol 1) (2013) ch 1.
9 CPR 3.8(3); cf non-mandatory time provisions, CPR 2.11, eg the period for service of claim form:
Thomas v The Home Office [2006] EWCA Civ 1355, [2007] 1 WLR 230; noted J Sorabi [2007] CJQ 168.
1322
A. Introduction
and their lawyers are required to help the court to further ‘the Overriding Objective’ in CPR
Part 1.10
(2) Sources of English Civil Procedure11

(a) Civil Procedure Rules and Practice Directions
The CPR is by far the largest source of procedural rules. Until April 1999 there were two sets 22.03
of rules, the Rules of the Supreme Court (RSC) dealing with matters in the High Court and
Court of Appeal, and the County Court Rules (CCR) with county court litigation.12 But
since 26 April 1999 a unified set of rules applies to both the High Court and county courts,
as well as the Court of Appeal.13 These rules have been drafted by the Rule Committee,
which replaced the former separate rules committees responsible for the RSC and CCR.14
The Heads of Divisions of the High Court have power to issue practice directions governing
matters of procedure.15
(b) Judicial decisions

This source of procedural law concerns the case law of the High Court and higher appellate 22.04
courts.16 Judges in these courts apply the procedural rules authoritatively and develop new
principles or doctrines. Many decisions have provided guidance or commentary upon the
CPR.17 The creativity of these courts must be admired.18 European case law is also impor-
tant, notably the Strasbourg court’s jurisprudence concerning Article 6(1) of the European
Convention on Human Rights.19 Article 6(1) creates the following guarantees: access to
justice (a right which has been implied by the European Court of Human Rights);20 ‘a fair
hearing’, which includes various rights (to be present at an adversarial hearing, to equality
of arms, to fair presentation of the evidence, to cross examine, to a reasoned judgment);21 ‘a
public hearing’; ‘a hearing within a reasonable time’;22 and ‘a hearing before an independent
and impartial tribunal established by law’.
10 CPR 1.3; eg Hertsmere Primary Care Trust v Rabindra-Anandh [2005] EWHC 320, [2005] CP Rep 41;
and the court’s ‘active’ case-management responsibility includes ‘encouraging the parties to co-operate with
each other in the conduct of the proceedings’: CPR 1.4(2)(a).
11 Detailed account: Andrews on Civil Processes: Court Proceedings (vol 1) (2013) ch 2.
12 On the history of the RSC, M Dockray (1997) 113 LQR 120, notably fnn 32–33.
13 CPR 2.1 defines the scope of the new rules.
14 Civil Procedure Act 1997, ss 2–4; its full title is ‘the Civil Procedure Rule Committee’.
15
Civil Procedure Act 1997, s 5.
16
Sir Jack Jacob, The Fabric of English Justice (1987) 57ff.
17
eg Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, CA (range of court’s disciplinary powers); Daniels v
Walker [2000] 1 WLR 1382 CA (discussion of single, joint experts).
18
On judicial procedural innovations, Neil Andrews, ‘Development in English Civil Procedure’ (1997)
2 ZZPInt 7.
19
For a review of Art 6(1) Brown v Stott [2000] UKPC D3, [2003] 1 AC 681, PC, esp Lords Bingham
and Steyn; the other European court is the European Court of Justice (Luxembourg), especially applying the
Jurisdiction Regulation: (EC) No 44/2001 of 22 December 2000 on ‘jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters’: [2001] OJ L 12/1.
20
Golder v UK (1975) 1 EHRR 524, ECtHR, at [35].
21
On the duty to give reasons, English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1
WLR 2409, CA; Andrews on Civil Processes: Court Proceedings (vol 1) (2013) ch 29.
22
Proceedings which lasted nearly 10 years, from complaint to prospective defendant to conclusion of
final appeal; violation of Art 6(1): Blake v UK (68890/01) [2006] ECHR 805.
1323
(c) Other sources

22.05 The main procedural guides are: the Chancery Guide, Queen’s Bench Guide and the Admiralty
and Commercial Court Guide.23 Authoritative literature can have ‘persuasive’ force.24
B. Stages in the Course of a Civil Action

(1) Pre-Action Stage
22.06 The CPR (1998) system introduced ‘pre-action protocols’.25 As has been explained,26 a lead-
ing aim of the English scheme of pre-action protocols is to promote early and informed set-
tlement, avoiding the expense and inconvenience of formal litigation. This is rooted in the
philosophy that formal litigation, notably trial, is a form of dispute resolution which should
be treated as a matter of ‘last resort’. All civil disputes which are headed for the English courts
must comply with this elaborate system of pre-action protocols. They govern the prospective
parties’ steps in preparing for commencement of proceedings. This pre-action regime requires
prospective parties, in particular: (1) to communicate among themselves the nature of the
claim and defence in advance of commencement of proceedings; (2) consider opportuni-
ties for settlement and resort to Alternative Dispute Resolution (‘ADR’), notably mediation
(although the latter is not compulsory); and (3) to make appropriate exchanges of relevant
information, including central documents relevant to the case. It follows that in a large and
complicated dispute the parties will be engaged in compliance with these requirements for
many months. However, the pre-action protocol system can contribute to complex litigation.
For example, Sir Rupert Jackson, in his 22 March 2012 speech on ‘The Reform of Clinical
Negligence Litigation’, commented on the need for the clinical negligence pre-action pro-
tocol to be shortened, on the unfortunate resistance to mediation in this field, and on the
systemic phenomenon of late settlements.27
22.07 If a dispute does proceed to formal civil proceedings, the court can make an appropriate costs
order to indicate disapproval of a person’s failure to comply with a protocol. Thus the court
can modify the normal costs order (see 22.107ff), with the result that the victorious party will
not receive his costs, or at least these will be reduced.28 This aspect of pre-action protocols
applies to all categories of civil litigation.29 But it would go against the whole spirit of the
pre-action protocol system to issue a costs sanction against a party who has conscientiously
abandoned issues during the pre-action action phase.30 Another aspect of the pre-action
phase is referral fees, which are now prohibited in respect of personal injury claims,31 the ban
to be monitored by relevant regulators.32
23
These Guides are accessible at <http://www.dca.gov.uk/civil/procrules_fin/menus/rules.htm>.
24
eg Dicey, Morris and Collins on the Conflict of Laws (15th edn, 2012) (LA Collins, general editor); and
G Spencer Bower, P Turner and KR Handley, The Doctrine of Res Judicata (4th edn, 2009).
25
Practice Direction-Pre-Action Conduct.
26
See NH Andrews, ‘general report’ (examining nearly 20 jurisdictions) in A Pellegrini Grinover and R
Calmon (eds), Direito Processual Comparado: XIII World Congress of Procedural Law (2007) 201–242; Andrews
on Civil Processes: Court Proceedings (vol 1) (2013) 4.03ff.
27
< http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-twelfth-lecture-
implementation-programme-22032012.pdf>.
28
CPR 44.3(5)(a); PD (Protocols) 2.3.
29
Ford v GKR Construction Ltd [2000] 1 WLR 1397, 1403, CA.
30
McGlinn v Waltham Contractors Ltd [2005] EWHC 1419 (TCC), [2005] 3 All ER 1126, at [14].
31
Legal Aid, Sentencing, and Punishment of Offenders Act 2012, ss 56 to 60; Legal Aid, Sentencing, and
Punishment of Offenders Act (Commencement No 6) Order 2013, 2013/453; see the Explanatory Notes to
the 2012 Act, at [326] ff (http://www.legislation.gov.uk/ukpga/2012/10/notes/division/5/2/3/1).
32
V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112, 113.
1324
B. Stages in the Course of a Civil Action
(2) Commencement, Service, and Pleadings

In the ordinary case, an action begins by the claimant issuing a claim form. The case is later 22.08
allocated to the appropriate ‘track’: small claims litigation, fast-track litigation, or multi-
track (from 1 April 2013, the upper limit of the small claims track was raised from £5,000
to £10,000, but there was no change to the £1,000 limit for personal injury and housing
disrepair claims).33 In addition, multi-track litigation must be further allocated to a county
court or the High Court, and within the latter court to the appropriate division (the three
divisions are Queen’s Bench, Chancery, and Family) and even to a specific constituent ‘court’,
eg, the Commercial Court (see further 22.48) or Technology and Construction Court, which
are parts of the Queen’s Bench Division. If the case is to be defended, both the claimant and
defendant must produce a sworn ‘statement of case’ (formerly known as ‘pleadings’) setting
out the main aspects of the claim or defence. There is no need to include in a ‘statement of
case’ any detailed evidence or details of legal argument. The claimant should also specify the
relief he is seeking.
(3) Evidence Gathering and the Exchange of Information

Under the common law system, the parties present for the court’s consideration rival ver- 22.09
sions of the evidence relevant to the controversy or issue. The CPR system has not altered the
court’s essentially ‘responsive’ role with respect to evidence, although the judge must control
proceedings in the interests of efficiency and prevent them becoming unduly prolonged or
complicated (see 22.46, 22.71 and 22.103). Thus the decision to call particular factual wit-
nesses and to use particular documents lies with each party. The court does not compel a
party to produce particular witnesses or documents. Each party must normally produce a
witness statement in respect of each factual witness, including the party’s own intended fac-
tual evidence. No witness can be heard unless such a statement has been made and exchanged
before trial. The court can now exercise more control over the parties’ evidential prepara-
tion. Thus the court can now issue directions ‘(a) identifying or limiting the issues to which
factual evidence may be directed; (b) identifying the witnesses who may be called or whose
evidence may be read; or (c) limiting the length or format of witness statements.’34 The judge
will be expected to have read the witness statements before trial. At trial this evidence can
be supplemented by oral examination. Disclosure of Documents35 and Expert Evidence are
considered in detail at sections F (22.53ff ) and H (22.71ff ); and the topic of privileges at
section G (22.61ff ).
(4) Trial, Appeal, and Enforcement

Adjudication at trial is nearly always by a single judge, without a jury.36 The processes of trial 22.10
and appeal are examined at section J (at 22.96ff). Enforcement is considered at section M
(at 22.125).
33
CPR 27.1(2); PD (27).
34
CPR 32.2(3).
35
Detailed account: Andrews on Civil Processes: Court Proceedings (vol 1) (2013) ch 11.
36
Jury trial in civil actions is confined to the torts of defamation, malicious prosecution, and false impris-
onment: Andrews on Civil Processes: Court Proceedings (vol 1) (2013) 3.13: Senior Courts Act 1981, s 69;
County Courts Act 1984, s 66.
1325
C. Commencement of Proceedings
(1) Issue of Process and Allocation of Proceedings
22.11 The main form of commencement is by claim form.37 An alternative ‘Part 8 procedure’ is
used where the claimant seeks ‘the court’s decision on a question which is unlikely to involve
a substantial dispute of fact’.38 The claimant can choose whether to include in the claim
form the particulars of claim or to serve these later.39 Accompanying the particulars of claim,
the claimant must serve forms enabling the defendant to defend the claim, or to admit
the claim, and to acknowledge service.40 The time of commencement of civil proceedings
is when the court enters the date on the claim form.41 The same date governs the lis alibi
pendens rules under the Brussels jurisdictional regime.42 Allocation of cases to different types
of first instance court (County Court or High Court) and to different systems of procedure
(known as ‘tracks’) under the CPR (1998) is founded on the principle of jurisdictional pro-
portionality: that litigation must be tailored to the size and nature of the dispute. There are
three tracks (ie types of first instance procedure to which a case can be allocated): the small
claims jurisdiction (from 1 April 2013, the upper limit of the small claims track was raised
from £5,000 to £10,000, but the £1,000 limit remains for personal injury and housing
disrepair claims);43 the fast-track; and the multi-track. High Court litigation is concerned
only with the multi-track. The county courts, which are the inferior first instance jurisdic-
tion, are concerned with all three tracks. A case might be allocated to a lower or higher band,
depending on the special features of the case. Thus, irrespective of the amount at stake, the
multi-track might be the suitable venue for the following matters: a case which raises issues
of public importance, or which is a test case;44 cases where oral evidence might be exten-
sive, or where there is a heavy amount of documentary material; or cases where trial might
last more than one day. From 1 April 2013,45 Allocation Questionnaires were replaced by
Directions Questionnaires.46 After a defence is received, the court will notify47 the parties of
its decision on allocation.48 All parties must then serve a copy of the completed Directions
Questionnaire and any other documents required by the notice on all other parties.49 In
cases likely to be allocated to the fast-track or multi-track, parties must file proposed or
agreed directions.50
37
CPR 7.2; PD (7) 3, 4.
38
CPR 8.1(6).
39
CPR 7.4.
40
CPR 7.8(1).
41
CPR 7.2(2); for limitation purposes, the date can be earlier: when the claim form was received in
the court office: PD (7) 5.1; Barnes v St Helens MBC [2006] EWCA Civ 1372, [2007] 1 WLR 879 (noted
J Sorabi [2007] CJQ 166).
42
(EC) No 44/2001 of 22 December 2000 on ‘jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters’: [2001] OJ L 12/1.
43
CPR 27.1(2); PD (27).
44
cf the small amount litigated in Bowerman v ABTA (1995) New LJ 1815, CA.
45
CPR 26.2A, CPR 26.3; PD (5A); PD (5C); PD (15); PD (26); PD (27); PD (28); PD (29).
46
PD (5A); PD (5C); PD (15); PD (26); PD (27); PD (28); PD (29).
47
CPR 26.3(1)(a)(ii).
48
CPR 26.3(1)(a).
49
CPR 26.3(1)(b)(ii).
50
CPR 26.3(1)(b)(v).
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(2) Service of Process

Service of the claim form must normally be made within four months from the date of issue.51 22.12
Where the claim form is to be served outside the jurisdiction, the period is six months.52 The
parties can agree in writing an extension.53 The claimant can seek an extension of this period
for service either before the period for service has elapsed54 or after.55 In the former situation,
the courts have glossed a bare discretion by deciding that a ‘very good reason’ is enough, but
not a ‘weak’ reason, such as sheer forgetfulness.56 But if the four month period has already
elapsed at the time the application for an extension is made, the rules prescribe the follow-
ing restrictive criteria: ‘the court has been unable to serve the claim form or the court has
been unable to serve the claim form and, in either case, the claimant has acted promptly in
making the application’.57 The Court of Appeal in Cecil v Bayat 58 examined the extensive
case law concerning the power to extend the period for service. The court will serve the claim
form (provided the defendant’s address for service is specified in the claim form)59 unless the
claimant tells it that he wishes to do so, or there is rule, practice direction, or order releasing
the court from itself serving the process.60
The court will serve the claim form (at the address specified by the claimant),61 unless the 22.13
claimant informs the court that he wishes to do so, or there is a rule, practice direction or
order releasing the court from itself serving the process.62 As for the address for service,
the CPR prescribes where a claim form should be sent or ‘left’ in order to effect proper
service.63 The rules qualify the operation of these address rules in the case of categories (1)
to (3)—mentioned in the list below—and reference must be made to these detailed pro-
visions.64 In essence, the claimant must take reasonable steps to locate the defendant at a
new address or place if the claimant ‘has reason to believe that the address of the defendant
referred to’ under the presumptive rules mentioned above no longer applies. The modes of
service are:
() Service can be made in accordance with a contract and ‘in relation to a contract’.65
() ‘Personal service’ upon the defendant.66 The rules refer separately to ‘personal service’ on
individuals, companies or other corporations, and on partnerships.67
() Non-electronic transmission in hard copy: Service can be effected by first class post, docu-
ment exchange, or ‘other service which provides for delivery on the next business day, in
51
CPR 7.5(2).
52
CPR 7.5 (3)
53 Thomas v The Home Office [2006] EWCA Civ 1355, [2007] 1 WLR 230, considering CPR 2.11; noted
J Sorabi [2007] CJQ 168.

54 CPR 7.6(2).
55 Thomas v The Home Office [2006] EWCA Civ 1355, [2007] 1 WLR 230.
56
Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206, [19], [20].
57
CPR 7.6(3).
58
[2011] EWCA Civ 135, [2011] 1 WLR 3086, at [90]; Imperial Cancer Research Fund and Cancer Research
UK v Ove Arup & Partners Ltd [2009] EWHC 1453 (TCC), [2009] BLR 458, at [9], per Ramsey J.
59
CPR 6.13.
60
CPR 6.3.
61
CPR 6.6(2).
62
CPR 6.4.
63
Table at CPR 6.9(2).
64
CPR 6.9(3) to (6).
65
CPR 6.11; Society of Lloyd’s v Tropp [2004] EWHC 33 (Comm), Gross J; permission to appeal refused,
[2006] EWCA Civ 88.
66
CPR 6.3; 6.5.
67
Respectively, CPR 6.5(3)(a) to (c); Brooks v AH Brooks & Co [2010] EWHC 2720 (Ch), [2011] 3
All ER 982.
1327
accordance with [PD (A)]’.68 This will be the normal method when service is made by
the court.69
() Physically ‘leaving’ the claim form at a specified place: Such service involves ‘leaving [the
claim form] at a place specified’ by the defendant or specified under the rules.70 This
category encompasses these three situations: (i) service upon a solicitor nominated by
the defendant;71 or (ii) service at or to an address within the jurisdiction given by the
defendant for the purpose of service;72 or (iii) service at or to an address not specified by
the defendant but ascertainable in accordance with the table at CPR .().
() Electronic transmission: Service can be made by fax ‘or other means of electronic com-
munication . . . ’;73 PD (A) contains details.74
() The court can order service by some alternative method:75 under the pre-CPR system, this
mode was known as ‘substituted service’.76
() The court can also dispense with service.77
() There are specific provisions governing service on the Crown and government departments.78
(3) Pleadings
22.14 Matters in dispute are ascertained from the ‘statement of case’, a portmanteau phrase embrac-
ing the claim form, particulars of claim (if separate from the claim form),79 the defence,
a possible reply to defence, as well as ‘further information’80 (formerly ‘further and better
particulars’) and a counterclaim or third party proceeding (now both known as ‘a Part 20
claim’).81 The scope of the dispute, including the range of matters open for determination at
trial, is determined by pleadings. Rimer LJ said in Lombard North Central plc v Automobile
World (UK) Ltd )82 that pleadings are not mere formalism but ‘essential to the conduct of
a fair trial that each side should know in advance what case the other is making’. The claim
form must contain a concise statement of the nature of the claim and specify the remedy
sought.83 But the court can grant a remedy even if it is unspecified in the claim form.84 The
particulars of claim must include ‘a concise statement of the facts on which the claimant
relies’ and include any claim for interest.85 The claimant is not required to adduce at this
early stage details of his intended evidence. The defendant can respond in any of three ways:
(i) by stating which allegations in the particular of claim he denies or (ii) requires to be proved
68
CPR 6.3(1)(b); PD (6A), para 2.1 (concerning Document Exchanges).
69
PD (6A) 8.1.
70
CPR 6.3(1)(c).
71 CPR 6.7.
72 CPR 6.8.
73 CPR 6.3(1)(d).
74 PD (6A), para 4.1.
75
CPR 6.3(1)(e), referring to CPR 6.15(1); Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR
907, CA (rule not to be used to outflank international service conventions); JSC BTA Bank v Ablyazov
[2011] EWHC 2988 (Comm), at [41]; Cecil v Bayat [2011] EWCA Civ 135, [2011] 1 WLR 3086; Bacon v
Automattic Inc [2011] EWHC 1072 (QB), [2012] 1 WLR 753.
76
cf Abbey National plc v Frost [1999] 2 All ER 206, CA (claimant to issue advertisements to ‘notify’
defendant, whose whereabouts were unknown).
77
CPR 6.16.
78
CPR 6.10.
79
Totty v Snowden [2002] 1 WLR 1384, CA.
80
CPR 18.1.
81
For this wide definition, CPR 2.3(1).
82
[2010] EWCA Civ 20, at [75].
83
CPR 16.2(1); PD (16), 12–14 for matters which must be included in defences.
84
CPR 16.2(5).
85
CPR 16.4.
1328
or (iii) which allegations he admits.86 The defendant will be ‘taken to admit’ a particular
allegation if the defence contains no response to it, whether direct or indirect.87 A party can
include in a statement of claim ‘any point of law on which his claim or defence . . . is based’,
and ‘the name of any witness he proposes to call’, and ‘a copy of any document which he
considers is necessary to his claim or defence . . . (including any expert’s report to be filed in
accordance with [CPR] Part 35)’. ‘Statements of case’ must be verified by a statement of
truth.88 A dishonest statement can lead to contempt proceedings.89 Special rules govern
amendment of statements of case.90
(4) Limitation of Actions 91

The English limitation rules govern civil proceedings in the English county courts and High 22.15
Court, as well as arbitration proceedings governed by the Arbitration Act 1996.92 These rules
operate by reference to fixed periods, normally a number of years. The prospective claimant
must issue civil proceedings, ie issue a claim form, before the relevant period elapses.93 In
general, expiry of a limitation period does not extinguish the claimant’s right. And so a limi-
tation defence must be pleaded in the defendant’s statement of case.94 If the defence is not
raised, the action is sound.95 However, the contrary principle of automatic extinction applies
in a few exceptional contexts,96 notably a foreign limitation period.97
A person under a disability, including a minor, has three years from the date the disability 22.16
ceases (or he reaches 18, in the case of a minor).98 There are also special limitation provisions
where the action is based on the defendant’s fraud, or facts relevant to the claim have been
deliberately concealed by the defendant,99 or the action is for relief from the consequences of
mistake.100 The main limitation periods will now be set out.
86
CPR 16.5(1).
87
CPR 16.5(5).
88 CPR 22.1(1)(a).
89 PD (22) 3.1.
90 Limitation Act 1980, s 35; CPR 17.4; Andrews on Civil Processes: Court Proceedings (vol 1) (2013)
6.24ff, noting especially, Swain-Mason v Mills & Reeve [2011] EWCA Civ 14, [2011] 1 WLR 2735.
91 A McGee, Limitation Periods (6th edn, 2010); ‘Limitation of Actions’ (Law Com CP No 151, 1998);
NH Andrews, ‘Reform of Limitation of Actions: The Quest for Sound Policy’ [1998] CLJ 588–610; the 1998
consultation paper was succeeded by ‘Limitation of Actions’, (Law Com No 270, HC 23, 2001); text also
available at <htpp://www.lawcom.gov.uk>. On the 2001 Report, see R James (2003) 22 CJQ 41.
92 The limitation rules do not apply to family matters, ‘Limitation of Actions’ (Law Com No 270,
2001), para 1.2, n 1, referring to ‘family proceedings’ as defined by Matrimonial and Family Proceedings Act
1984, s 32 (including claims concerning matrimonial causes, legitimacy, adoption, etc); for arbitration, see
Arbitration Act 1996, ss 13, 14, on which Law Com No 270 (2001) 2.70 and ‘Limitation of Actions’ (Law
Com CP No 151, 1998) 7.4–7.9.
93 PD (7) 5.1 states that for limitation purposes a claim is ‘brought’ as soon as the claim form is ‘received
in the court office’.

94
PD (16) 13.1.
95
Ketteman v Hansel Properties [1987] AC 189, 219, HL.
96
Law Com CP No 151, 1998, para 9.4, noting certain international conventions, eg Payabi v Armstel
Shipping Corpn [1992] QB 907 (the Hague Rules); claims made under the Consumer Protection Act 1987;
the tort of conversion, Limitation Act 1980, s 3(2); recovery of land, 1980 Act, s 17; see also discussion in
Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd [2005] EWCA Civ 1408, [2006] QB
808, at [40]ff.
97
Foreign Limitation Periods Act 1984; eg Gotha City v Sotheby’s The Times 8 October, 1998.
98
Limitation Act 1980, s 28; eg Headford v Bristol & District Health Authority [1995] PIQR P180, CA (pro-
ceedings commenced 1992 concerning hospital incident in 1964; claimant permanently brain-damaged at birth).
99
1980 Act, s 32; Cave v Robinson, Jarvis and Rolf [2002] UKHL 18, [2003] 1 AC 368, HL (T Prime
(2002) 21 CJQ 357).
100
1980 Act, s 32; Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, HL; Test Claimants in the
Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2012] UKSC 19, [2012]
3 All ER 909.
1329
22.17 Defamation and malicious falsehood claims are subject to a one year rule.101 For personal
injury and fatal accident claims, the period is three years from the date of damage or (later)
date when the claimant acquired ‘knowledge’ of the wrong.102 The Supreme Court in AB v
Ministry of Defence103 was divided on the meaning to be given to ‘knowledge’, the majority
(Lords Wilson, Brown, Mance, Walker)104 preferring to adhere to settled authority105 that
a person has knowledge, for the purpose of the personal injury limitation regime, even if
his understanding does not yet rest on hard and verified fact. It is enough that the relevant
person holds a reasonable belief.106 There is a discretionary power to lift the statutory bar
in the case of actions for personal injury or fatal accidents.107 The three-year rule applies
to personal injury arising from breach of contract, even when the obligation breached is
strict.108 Furthermore, the House of Lords in A v Hoare109 held that section 11 of the
Limitation Act 1980 extends to actions founded on deliberate assault, including allega-
tions of sexual abuse (reversing its decision in Stubbings v Webb).110 A v Hoare establishes,
therefore, that the ‘date of knowledge’ test within section 11 and the discretionary power
to lift the limitation bar under section 33 of the 1980 Act will both be applicable to such
a complaint. Claims in tort for ‘latent damage’, other than claims for personal injury or
fatal accidents, are subject either to a six year period, reckoned from the date at which
the cause of action accrued, or a three year period running from the ‘starting date’ (when
the claimant acquired knowledge of the claim and of his capacity to bring it).111 The
House of Lords in Haward v Fawcetts112 held that the date of knowledge for the purpose of
the latent damage provision in section 14A of the Limitation Act 1980 is to be fixed at the
time when (i) the claimant knows that something has gone wrong and (ii) he has a reason-
able apprehension that this might be due to someone’s fault so that (iii) it would be pru-
dent and reasonable for him to make inquiries to determine more fully matters (i) and (ii).
The latent damage rules apply only to negligence pleaded in tort (and not in contract).113
A ‘long-stop’ provision bars a latent damage claim once 15 years have elapsed since the act
of alleged negligence.114
101
1980 Act, ss 4A, 32A.
102
1980 Act, ss 11, 12–14.
103 [2012] UKSC 9, [2012] 2 WLR 632.
104
The dissentients, Lord Phillips, Baroness Hale, and Lord Kerr preferred the view that ‘knowledge’
requires a belief which is founded upon a reasonable degree of evidence.
105 [2012] UKSC 9, [2012] 2 WLR 632, at [10] for citation, per Lord Wilson; and at [50] per
Lord Walker.
106 [2012] UKSC 9, [2012] 2 WLR 632, at [11].
107
1980 Act, s 33;. A v Hoare [2008] UKHL 6, [2008] 1 AC 844, at [49]; Aktas v Adepta [2010] EWCA
Civ 1170, [2011] QB 894, CA; AB v Ministry of Defence [2012] UKSC 9, [2012] 2 WLR 643, at [27],
[65], [89].
108
Foster v Zott GmbH & Co (CA, unreported, 24 May 2000); noted ‘Limitation of Actions’ (Law Com
No 270, 2001) 2.10.
109
[2008] UKHL 6, [2008] 1 AC 844.
110
Stubbings v Webb [1993] AC 498, HL (this decision had survived an application to the Strasbourg
court: Stubbings v UK (1997) 23 EHRR 213, ECHR).
111
1980 Act, s 14A, added by Latent Damage Act 1986.
112
[2006] UKHL 9, [2006] 1 WLR 682 (Lord Nicholls, at [20]–[24] is especially clear); Williams v
Lishman Sidwell Campbell & Price Ltd [2010] EWCA Civ 418, [2010] PNLR 25, at [54]–[58] (on a loose
end discussed in dicta in this case, see I Gatt and M McIntosh (2011) 30 CJQ 15).
113
Iron Trade Mutual Insurance Co Ltd v JK Buckenham Ltd [1990] 1 All ER 808; aff’d Société Générale de
Réeassurance v Eras (International) Ltd (note) [1992] 2 All ER 82, CA.
114
1980 Act, s 14B.
1330
D. Accelerated and Interim Relief
Subject to the preceding special provisions, other tort actions (for damages) or claims founded 22.18
on ‘simple contract’ (for damages or debt) are subject to a 6-year rule.115 As for damages or
debt claims in respect of deeds (or ‘covenants’), the period is 12 years.116 The Contracts
(Rights of Third Parties) Act 1999 applies the 6-year rule and the 12-year rule, respectively,
to third party claims upon simple contract and contracts founded upon deeds.117 A 2-year
period applies to statutory contribution claims.118 There is no general provision governing
actions for restitution for unjust enrichment, but the statutory limitation rules have been
applied in a piece-meal way to many such claims.119 Finally, there are special provisions
concerning actions for the recovery of land, or concerning mortgages or for non-fraudulent
breaches of trust.120
In some situations Equity imposes a limitation period upon an equitable remedy by anal- 22.19
ogy with statutory limitation periods applicable to common law remedies.121 The effect of
Equity imposing such an ‘analogous’ limitation period is that the relevant equitable remedy
is subject to the same cut-off as the parallel statutory period, and the doctrine of laches will
not exclude that remedy in any shorter time. However, extension by analogy does not apply
to the remedy of specific performance,122 nor does it apply to injunctions. In essence, this is
because these forms of coercive relief are not mirrored by the common law remedy of dam-
ages: they are remedial ‘chalk and cheese’. It follows that claims for injunctive relief or specific
performance are only subject to the equitable bars of laches and acquiescence, and statutory
periods of limitation do not apply.123

(1) Preservation of Assets: Freezing Injunctions 124
Freezing injunctions and civil search orders (see 22.28 below) prevent the defendant from 22.20
thwarting the claimant’s efforts at achieving justice by dealing with assets or evidence in
115
1980 Act, ss 2, 5, respectively.
116
1980 Act, s 8(1).
117 Contracts (Rights of Third Parties) Act 1999, s 7(3).
118 Limitation Act 1980, s 10 (claims under the Civil Liability (Contribution) Act 1978); Aer Lingus
v Gildacroft Ltd [2006] EWCA Civ 4, [2006] 1 WLR 1173 (date runs from time that primary liability is
quantified).
119
Law Com No 270, HC 23, 2001, paras 2.48–2.51; Andrews on Civil Processes: Court Proceedings
(vol 1) (2013) 8.77ff.
120 1980 Act, ss 15–17 (recovery of land), s 20 (mortgages), see also s 16.
121 1980 Act, s 36(1) notes this; ‘Limitation of Actions’ (Law Com CP No 151, 1998) 9.22; a leading
statement is by Lord Westbury in Knox v Gye (1872) LR 5 HL 656, 674–675, HL; Coulthard v Disco Mix
Club Ltd [2000] 1 WLR 707, 728–730 (Jules Sher QC); Paragon Finance plc v DB Thakerar & Co [1999] 1
All ER 400, 415–416, per Millett LJ, CA; Cia de Suguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112,
120–123, per Waller LJ, 124–126, per Clarke LJ, CA; for other case law, ‘Limitation of Actions’ (Law Com
No 270, 2001) 2.102, fn 196.
122
W Goodhart and GH Jones, Specific Performance (2nd edn, 1996) 109–112; for comment, J Beatson,
‘Limitation Periods and Specific Performance’ in E Lomnicka and CGJ Morse (eds), Contemporary Issues in
Commercial Law (1997) 9–23.
123
Limitation Act 1980, s 36(2); P & O Nedlloyd BV v Arab Metals Co [2006] EWCA Civ 1717, [2007]
1 WLR 2288; Heath v Heath [2009] EWHC 1908 (Ch), [2010] FSR 610, at [27]ff; ‘Limitation of Actions’,
(Law Comm No 270, 2001) 2.97–2.99.
124
S Gee, Commercial Injunctions (5th edn, 2006) ch 2 (6th edn expected 2013 or 2014); M Hoyle,
Freezing and Search Orders (4th edn, 2006); AAS Zuckerman, Zuckerman on Civil Procedure (2nd edn, 2006)
9.139ff; IS Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 2; for
extensive bibliographical details on this topic, NH Andrews, ‘Provisional and Protective Measures: Towards
a Uniform Provisional Order’ (2001) Uniform L Rev (Rev dr unif ) vol VI, 931–949 (this article contains
1331
a cynical way, or by absconding from the jurisdiction. A freezing injunction is an in per-

sonam order (an order addressed personally to the respondent) requiring the respondent to
refrain from dealing with his assets. The standard form appears in the Annex to the Practice
Direction in CPR Part 25. The defendant is permitted to satisfy his ordinary domestic or
business expenses, and to pay for legal advice when resisting the order.125 This relief does
not give the applicant any proprietary interest in the defendant’s assets.126 The rationale
for this English approach is that the creditor should not be entitled to gain priority in the
pursuit of the debtor’s assets. Such proprietary priority would violate the pari passu princi-
ple of insolvency law (unsecured creditors to rank proportionately, according to the value
of their proven claims, in the allocation of the insolvent debtor’s assets). A freezing injunc-
tion is nearly always supplemented by an asset disclosure order. This compels the respond-
ent to disclose details of his assets in England (or, where appropriate, elsewhere).127 Such
disclosed information, including information obtained during cross-examination of the
respondent on his affidavit, can be used only for the purpose of the present asset freezing
exercise.128 A non-party can be compelled to provide certain information if he has assisted,
even innocently, another’s wrongdoing.129 Failure to comply (including failure to comply
fully) with an asset disclosure order will render the respondent, or non-party, liable to
punishment for contempt of court. This was discussed in JSC BTA Bank v Solodchenko
(No 2) (on this case and generally on contempt of court, 22.129ff).130 There is also the
possibility of the court using ‘unless’ and ‘debarring’ orders.131 Freezing injunctions are
often coupled with asset disclosure orders which disclose details of the respondent’s assets
in England (or, where appropriate, elsewhere),132 whether or not the assets are in his
own name, and whether or not solely owned.133 A non-party can also be compelled to
provide certain information if he has assisted, albeit innocently, another’s wrongdoing.134
analysis of a possible ‘blue-print’ for an international code or practice relating to freezing relief, preserva-
tion of evidence, and asset disclosure orders). See also D Bean, Injunctions (10th edn, 2010); LA Sheridan,
Injunctions and Similar Orders (Chichester, 1999); P McGrath, ‘The Freezing Order: A Constantly Evolving
Jurisdiction’ (2012) 31 CJQ 12.
125 PD (25); United Mizrahi Bank v Doherty Ltd [1998] 1 WLR 435.
126 Cretanor Maritime Co Ltd v Irish Marine Maritime Ltd [1978] 3 All ER 164, CA; Capital Cameras Ltd
v Harold Lines Ltd [1991] 1 WLR 54; Flightline v Edwards [2003] 1 WLR 1200, CA.
127 Derby & Co Ltd v Weldon (No 1) [1990] Ch 48, CA; Derby & Co Ltd v Weldon (No’s 3 & 4) [1990] Ch
65, 86, 94–95, CA; Bank of Crete SA v Koskotas [1991] 2 Lloyd’s Rep 587, CA; LA Collins (1989) 105 LQR
262, 286ff; C McLachlan, ‘The Jurisdictional Limits of Disclosure Orders: Transnational Fraud Litigation’
(1998) ICLQ 3.
128 British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Ltd [2011] EWHC 3062 (Ch),
[2012] 1 WLR 219, Robert Knowles QC.

129 On the ‘mere witness’ rule, see Norwich Pharmacal Co v Customs and Excise [1974] AC 133, HL and, in
the present context, Bankers Trust Co v Shapira [1980] 1 WLR 1274, CA; Arab Monetary Fund v Hashim (No 5)
[1992] 2 All ER 911, Hoffmann J; NH Andrews, English Civil Procedure (2003) 26.102–26.128.
130
[2011] EWCA Civ 1241, [2012] 1 WLR 350, esp at [55] and [56], per Jackson LJ (reversing [2010]
EWHC 2843, [2011] 1 WLR 906, Proudman J).
131
Tarn Insurance Services Ltd v Kirby [2009] EWCA Civ 19, [2009] CP Rep 22; JSC BTA Bank v
Ablyazov [2011] EWHC 470 (Comm), Christopher Clarke J; Marcan Shipping (London) Ltd v Kefelas [2007]
EWCA Civ 463, [2007] 1 WLR 1864, at [14], [28]–[30], [33]–[36].
132
Derby & Co Ltd v Weldon (No 1) [1990] Ch 48, CA; Derby & Co Ltd v Weldon (Nos 3 & 4) [1990] Ch
65, 86, 94–95, CA; Bank of Crete SA v Koskotas [1991] 2 Lloyd’s Rep 587, CA; LA Collins (1989) 105 LQR
262, 286ff; C McLachlan ‘The Jurisdictional Limits of Disclosure Orders: Transnational Fraud Litigation’
(1998) ICLQ 3.
133
PD (25); AJ Bekhor & Co Ltd v Bilton [1981] 1 QB 923, CA; A v C (Note) [1981] 1 QB 956, Goff J;
Bankers Trust Co v Shapira [1980] 1 WLR 1274, CA.
134
On the ‘mere witness’ rule, Norwich Pharmacal Co v Customs and Excise [1974] AC 133, HL; Bankers
Trust Co v Shapira [1980] 1 WLR 1274, CA, Arab Monetary Fund v Hashim (No 5) [1992] 2 All ER 911,
Hoffmann J.
1332
‘Freezing injunctions’,135 formerly called Mareva injunctions, can normally136 be granted

only by puisne judges in the High Court, rather than by Masters in the High Court or by
judges in the county courts. This is because they are draconian.137
The following criteria govern the decision whether to grant this type of injunction:138 22.21
(a) The applicant must show a good arguable case that he is entitled to damages or some
other underlying relief. This is a low threshold.139 However, in Fourie v Le Roux the
House of Lords in  held that a freezing injunction had been invalidly awarded
when the applicant had made no attempt at all to indicate the nature of its substantive
claim.140 The lower courts’ award of indemnity costs in this case was not disturbed (on
‘indemnity costs’, see .).
(b) The court must also be satisfied that the underlying cause of action has ‘accrued’,
ie a breach of duty or a debt obligation has arisen. Such liabilities cannot be merely
anticipated.141
(c) There must be a real risk that the respondent’s assets will be removed or dissipated unless
the injunction is granted:142 there must be clear and strong evidence of such a risk.143
‘Dissipation’ includes any act of alienation or charging of property,144 with the exception
of innocent transactions made in the ordinary course of business. However, anticipated
dissipation need not be ‘unconscionable’ in nature: it is enough that the court is satisfied
that the applicant’s eventual judgment will go unsatisfied unless a freezing injunction is
granted.145
(d) The court must be satisfied that the applicant will be unable to receive satisfaction of the
claim unless he receives an injunction.146 The court will take into account whether the
applicant already has adequate security against such a risk.147
(e) The injunction must be a necessary and fair response, on the facts: ‘ . . . the court [must
be] satisfied that any damage which the respondent may suffer through having to com-
ply with the order is compensatable under the cross-undertaking or that the risk of
135 CPR 25.1(1)(f ) renames the injunction, which had been earlier ratified by Senior Courts Act
1981, s 37(3).
136 PD (25A), para 1.2: Masters or District judges can make such orders only in special cases.
137 Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320 recently emphasized this feature.
138 Flightwise Travel Service Ltd v Gill, The Times 5 December 2003, Neuberger J, [2003] EWHC 3082
(Ch), at [18]–end.
139 Ninemia Maritime Corporation v Trave [1983] 2 Lloyd’s Rep 600, per Mustill J (approved [1983] 1
WLR 1412, CA, per Kerr LJ); on different perceptions of an applicant’s claim by successive Commercial
Court judges, see the facts of Laemthong International Lines Co Ltd v ARTIS [2005] 1 Lloyd’s Rep 100, [2004]
2 All ER (Comm) 797, Colman J.
140 Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320.
141 Veracruz Transportation Inc v VC Shipping Co Inc (‘The Veracruz’) [1992] 1 Lloyd’s Rep 353, CA, noted
LA Collins (1992) 108 LQR 175–181; Zucker v Tyndall Holdings plc [1992] 1 WLR 1127, CA.
142
Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, 171, CA, per Morritt LJ (no such risk on
the facts).
143
Laemthong International Lines Co Ltd v ARTIS [2005] 1 Lloyd’s Rep 100, [2004] 2 All ER (Comm)
797, at [60], per Coleman J, citing Thane Investments Ltd v Tomlinson [2003] EWCA Civ 1271; Antonio
Gramsci Shipping Corporation v Recoletos Ltd [2011] EWHC 2242 (Comm), at [24], per Cooke J.
144
Dispositions, pledges, charges; in CBS UK Ltd v Lambert [1983] Ch 37, 42, CA, per Lawton LJ and
in Z Ltd v A-Z [1982] 1 QB 558, 571, CA, per Lord Denning MR, both citing the words ‘otherwise dealing
with’ in Senior Courts Act 1981, s 37(3).
145
Ketchum International plc v Group Public Relations Holdings Ltd [1997] 1 WLR 4, 13, CA; Commissioner
of Customs & Excise v Anchor Foods Ltd [1999] 1 WLR 1139 (if D’s proposed transaction is bona fide, the
court’s discretion to grant an injunction should be exercised very circumspectly); this factor was not satisfied
in Re Q’s Estate [1999] 1 All ER (Comm) 499, Rix J.
146
Etablissements Esefka International Anstalt v Central Bank of Nigeria [1979] 1 Lloyd’s Rep 445.
147
Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, 171, CA, per Morritt LJ.
1333
uncompensatable loss is clearly outweighed by the risk of injustice to the applicant if the
order is not made.’148
(f ) There must not have been any significant delay in seeking the relief once the facts
known to support the possible application are known; such delay can affect the court’s
assessment whether the order is just and equitable; it might be relevant also to the issue
whether there is a true risk of dissipation; and delay might have caused prejudice to the
respondent (although this last factor will seldom arise, given the ex parte nature of these
applications).149
22.22 Christopher Clarke J held in JSC BTA Bank v Ablyazov150 that ‘asset’ did not include a
respondent’s contractual right to receive a loan from a third party. And the Court of Appeal in
JSC BTA Bank v Solodchenko151 held that the standard form of the freezing order contained
in the Admiralty and Commercial Court Guide152 is wider than the standard form used by
other branches of the High Court153 because the Guide extends relief to assets of which the
respondent is merely a trustee or nominee.
22.23 An applicant and his lawyer(s) must make full and frank disclosure.154 Failure to make full
disclosure will normally cause the injunction to be summarily set aside, unless the failure was
innocent and either made no difference155 or the importance of providing freezing relief,
especially to combat fraud, outweighs this aspect of procedural fairness.156 The injunction’s
standard provisions157 require the applicant, inter alia, (i) to indemnify the respondent if the
injunction is wrongly granted; the applicant should provide a guarantee to support this;158
(ii) to pay the reasonable costs or any loss suffered by non-parties when complying with the
order, whether or not the injunction is properly granted; and (iii) to return to court for a
‘with notice’ review.159
148
Re First Express Ltd, The Times 8 October, 1991, per Hoffmann J.
149
Antonio Gramsci Shipping Corporation v Recoletos Ltd [2011] EWHC 2242 (Comm), at [5]–[20], esp
[5]–[7], per Cooke J.
150 [2012] EWHC 1819 (Comm).
151 [2010] EWCA Civ 1436, [2011] 1 WLR 888.
152
The Admiralty and Commercial Courts Guide (9th edn, 2011) Appendix 5, para 6 (the relevant words
are now stated to be open to insertion on a ‘case by case basis’).
153 JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436, [2011] 1 WLR 888, at [55], per
Longmore LJ.
154 Memory Corporation plc v Sidhu (No 2) [2000] 1 WLR 1443, 1455, CA.
155
Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, 1358, CA; Lloyds Bowmaker Ltd v Britannia Arrow
Holdings plc [1988] 1 WLR 1337, 1347, CA (these two statements were cited in Memory Corporation plc v
Sidhu (No 2) [2000] 1 WLR 1443, 1454, CA); Behbehani v Salem [1989] 1 WLR 723, CA; Gulf Interstate
Oil Corpn LLC v Ant Trade & Transport Ltd of Malta (‘The Giovanna’) [1999] 1 Lloyd’s Rep 867; in Laemthong
International Lines Co Ltd v ARTIS [2004] EWHC 2226 (Comm), [2005] 1 Lloyd’s Rep 100, [2004] 2 All
ER (Comm) 797, at [64].
156
Marc Rich & Co Holdings GmbH v Krasner (CA, unreported, 17 January, 1999).
157
PD (25).
158
PD (25). And see next note.
159
Such protection of non-parties is not standard practice for all types of injunctions: Smithkline Beecham
plc v Apotex Europe Ltd [2006] EWCA Civ 658, [2007] Ch 71, at [23]ff; in Financial Services Authority v
Sinaloa Gold plc [2013] UKSC 11, [2013] 2 WLR 678 the Supreme Court held that the applicant was not
required to give an undertaking, in respect of loss, to a third party (nor, as already established in the case law,
to a respondent) if the applicant is a public authority seeking the injunction as part of its law enforcement
functions.
1334
A respondent will be in contempt of court if he breaches an injunction (generally on con- 22.24

tempt, see 22.129ff).160 He might then be fined, imprisoned or, in the case of a company,
suffer sequestration of assets. Gross or prolonged negligence suffices.161
As for non-parties, it is common to notify the respondent’s bank(s) of the injunction even 22.25
before he receives notice. A non-party is obliged not to act inconsistently with the terms of
the injunction.162 Thus a non-party bank must refrain from honouring its client’s cheques
and instructions, except where such dealings are permitted by the order.163 A non-party will
be in contempt if it deliberately or ‘knowingly’ acts, or omits to act, with the result that the
injunction is undermined, or if it aids and abets the respondent’s breach of the order.164
However, the non-party’s only duty is towards the court. In Customs & Excise Commissioners
v Barclays Bank plc the House of Lords held that a non-party owes no common law duty of
care to the recipient of freezing relief.165
The English High Court can grant freezing injunctions (and connected orders for disclosure 22.26
of assets) in support of pending or prospective166 substantive civil proceedings throughout
the world. This supportive English jurisdiction applies whether or not the relevant foreign
jurisdiction is party to the Brussels or Lugano jurisdictional regimes.167 ‘Worldwide’ freezing
injunctions are now common.168 The applicant can gain both an in personam order affecting
the relevant foreign assets and a disclosure order compelling the respondent to provide infor-
mation relating to such assets. The Court of Appeal has provided guidance on this.169 Trevor
Hartley has summarized the impact of freezing injunctions on assets, information, or persons
outside England and Wales.170 The ‘worldwide’ disclosure order is of greater practical and
160 Motorola Credit Corpn v Uzan (No 2) [2003] EWCA Civ 752, [2004] 1 WLR 113, CA, at [45]–[58],
[148]–[156]; Federal Bank of the Middle East Ltd v Hadkinson [2000] 2 All ER 395, 411, CA; information
disclosed under a disclosure order, including in response to cross-examination, ancillary to a freezing order
can be used for contempt purposes, Dadourian Group International Inc v Simms [2006] EWCA Civ 1745,
[2007] 2 All ER 329.
161 Z Bank v D1 [1994] 1 Lloyd’s Rep 656, Colman J; Steyn LJ in Guildford BC v Valler The Times 15
October, 1993, CA (dictum); on the duty to respond to an order for information, Bird v Hadkinson The Times
4 March, 1999, Neuberger J (respondent to answer accurately after exercising reasonable care).
162 PD (25).
163 Z Ltd v A [1982] QB 558, CA.
164 PD (25); Z Ltd v A [1982] QB 558, 567, CA; Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC
456, HL; and A-G v Newspaper Publishing plc [1997] 3 All ER 159, 169, CA.
165 [2006] UKHL 28, [2007] 1 AC 181 (reversing [2004] EWCA Civ 1555, [2005] 1 WLR 2082).
166
‘ . . . proceedings have been or are to be commenced in a [Brussels or Lugano] Contracting State [or a
Member State]’: Civil Jurisdiction and Judgments Act 1982, s 25(2); C-104/03, St Paul Dairy Industries NV
v Unibel Exser BVBA [2005] ECR I-3481, ECJ.
167 Civil Jurisdiction and Judgments Act 1982, s 25; Civil Jurisdiction and Judgments Act 1982 (Interim
Relief ) Order 1997, SI 1997/302.

168
Annex to PD (25A); Babanaft Co SA v Bassatne [1990] Ch 13, CA; Republic of Haiti v Duvalier
[1990] QB 202, CA; Derby & Co v Weldon (No 1) [1990] Ch 48, CA; Derby & Co Ltd v Weldon (No’s 3 &
4) [1990] Ch 65, CA; LA Collins, ‘The Territorial Reach of Mareva Injunctions’ (1989) 105 LQR 262–299;
LA Collins, chs VIII and IX, in Essays in International Litigation (1993); Dicey, Morris and Collins on the
Conflict of Laws (15th edn, 2012), 8.14ff; the English court cannot grant worldwide relief in the context of
post-judgment relief under Art 47(1), Jurisdiction Regulation (the Brussels Regulation) No 44/2001, Banco
Nacional De Comercio Exterior SNC v Empresa De Telecomunicationes De Cuba SA [2007] EWCA Civ 662
(reversing Steel J in [2006] EWHC 19 (Comm)); noted L Merrett [2007] CLJ 495–498.
169
Motorola Credit Corpn v Uzan (No 2) [2003] EWCA Civ 752, [2004] 1 WLR 113, CA, at [115]; A
Johnson in M Andenas, NH Andrews, R Nazzini, The Future of Transnational Civil Litigation (reprinted,
British Institute of International and Comparative Law, 2006) ch 11; the English court can grant worldwide
relief in the context of post-judgment relief under the Jurisdiction Regulation, Banco Nacional De Comercio
Exterior SNC v Empresa De Telecomunicationes De Cuba SA [2006] EWHC 19 (Comm).
170
T Hartley, ‘Jurisdiction in Conflict of Laws: Disclosure, Third-Party Debt and Freezing Orders’ (2010)
126 LQR 194, 201–205 (disclosure), 210–221 (freezing injunctions).
1335
tactical importance than the main freezing injunction.171 This is because the latter is merely
a ‘holding operation’ to give the claimant time to apply to the relevant foreign court(s) for
appropriate supplementary or substantive relief.172
22.27 As for the use of freezing injunctions outside the English jurisdiction, the English courts have
fashioned three regimes designed to protect respondents and non-parties from oppression
or injustice. First, the Guidelines in Dadourian Group International Inc v Simms protect the
defendant against oppressive enforcement of a worldwide English freezing order in a foreign
jurisdiction173 (Guidelines 1, 4, and 5 are especially important). Secondly, non-parties resi-
dent in other jurisdictions are protected by the ‘Babanaft proviso’.174 Its effect is that a non-
party, such as the respondent’s bank, will be punishable in England only if it had practical
control of the relevant foreign branch which has failed to comply with the English freezing
relief, by continuing to honour the relevant respondent’s financial instructions, where those
instructions constitute a breach by the respondent of the English freezing injunction. Thirdly,
where there might be conflict between the English freezing injunction and foreign law, the
‘Baltic proviso’ permits the relevant respondent or non-party to comply with foreign law.175
(2) Preservation of Evidence: Civil Search Orders176

22.28 Civil search orders are ancillary injunctions requiring the respondent to permit the applicant
to inspect premises and to remove or secure evidence of any alleged wrongdoing (formerly
known as ‘Anton Piller orders’).177 The standard form appears in the Annex to the Practice
Direction in CPR Part 25. A search order is made ex parte. Its essence is surprise. It is designed
to pre-empt destruction of evidence. The search order authorizes a limited number of per-
sons, normally the applicant or his lawyer and the ‘supervising solicitor’ (someone who is
independent of the parties), to enter the respondent’s premises. The premises or vehicle must
be situated in England or Wales. This relief has been especially useful in tackling breaches of
intellectual property rights and confidentiality. Only the High Court can issue such a civil
search order.178 The (cumulative) criteria are: the applicant must have a very strong prima
facie case on the substance of the main complaint;179 an order cannot be made as a means of
fishing for a cause of action;180 there must be a very serious risk of damage to the applicant’s
interests unless this special order is granted;181 the respondent must be shown to be likely
171 Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818, 827–828, CA, per Millett LJ; L Merrett,
‘Worldwide Freezing Orders in Europe’ [2008] LMCLQ 71, 84–85; Dicey, Morris and Collins on the Conflict
of Laws (15th edn, 2012) 8.20.
172 Babanaft International Co SA v Bassatne [1990] Ch 13, 41, CA, per Nicholls LJ.
173 [2006] EWCA Civ 399, [2006] 1 WLR 2499, [2006] CP Rep 31, at [25] with commentary on each
at [26]ff; noted T Rutherford (2006) NLJ 837.

174
Incorporated in Freezing Injunctions, Annex to PD (25A), at (19); this protection originated in
Babanaft Co SA v Bassatne [1990] Ch 13, CA.
175
[2002] 1 All ER 717, CA; noting the proviso’s genesis in Baltic Shipping v Translink Shipping Ltd
[1995] 1 Lloyd’s Rep 673, Clarke J; the proviso is now incorporated in the Freezing Injunctions, Annex to
PD (25A), at (20).
176
Re-named as such, CPR 25.1(1)(h); the standard order is set out in Search Orders, Annex to PD
(25A); S Gee, Commercial Injunctions (5th edn, 2006) ch 2 (6th edn expected 2013 or 2014); M Hoyle,
Freezing and Search Orders (4th edn, 2006); Zuckerman on Civil Procedure (2nd edn, 2006) 14.175ff; IS
Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 3; see also D
Bean, Injunctions (10th edn, 2010); LA Sheridan, Injunctions and Similar Orders (1999).
177
Anton Piller KG v Manufacturing Processes [1976] Ch 55, CA is the eponymous decision.
178
Civil Procedure Act 1997, s 7(8).
179
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, 62, CA, per Ormrod LJ.
180
Hy-trac v Conveyors International [1983] 1 WLR 44, CA.
181
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, 62, CA.
1336
to destroy relevant material unless subjected to a surprise search;182 it must also be shown at
the ex parte application that if—later in the proceedings—the ex parte freezing order is not
upheld, the respondent will be adequately protected:‘the harm likely to be caused by the
execution of the . . . order to the respondent and his business affairs must not be excessive or
out of proportion to the legitimate object of the order.’183 The search is conducted under the
control of the supervising solicitor. The scope of the search is confined to evidence, property
or other material encompassed by the order. After the respondent is served with the order, he
has two hours within which to consult a lawyer, during which time he must allow the appli-
cant and independent solicitor to enter the premises to ‘keep watch’. Otherwise the respond-
ent commits a contempt of court.184 Once the detailed search begins, the applicant is entitled
to take copies, samples, or remove the material so that it can be safeguarded.
The respondent need not disclose material protected by legal professional privilege (on which 22.29
see 22.63ff ). As for the privilege against self-incrimination, this is defined by section 14 of
the Civil Evidence Act 1968 as follows:185‘ The right of a person in any legal proceedings
other than criminal proceedings to refuse to answer any question or produce any document
or thing if to do so would tend to expose that person [or his or her spouse] to proceedings
for an offence or for the recovery of a penalty [under UK law].’ However, a majority of the
Court of Appeal in C plc v P186 held that there is no privilege in things or documents exist-
ing prior to the order compelling their production, applying the European Court of Human
Rights’ decision in Saunders v UK.187 Statutory provisions override the privilege against self-
incrimination in the context of criminal offences involving fraud,188 or in civil proceedings
concerning intellectual property or confidential information,189 or in matrimonial proceed-
ings in which details of assets must be disclosed.190 In these situations, the respondent is
obliged to reveal incriminating information or documents, but this information or material
cannot be used against him in a criminal prosecution for the fraud or (criminal) infringement
of intellectual property.
(3) Security for Costs191

The function of such security is to ensure that funds are available for the claimant to pay 22.30
the defendant’s costs if the claimant becomes the ‘paying party’. The need for such protec-
tion arises if the claimant cannot pay, or that party proves recalcitrant, or, if the claimant is
182
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, 59–60, CA, per Lord Denning: ‘grave
danger that vital evidence will be destroyed’.
183 Criterion proposed by the report into ‘Anton Piller Orders’, (Consultation Paper, Lord Chancellor’s
Department, 1992) 2.8, following Columbia Picture Industries v Robinson [1987] 1 Ch 38, 76, and Lock
International plc v Beswick [1989] 1 WLR 1268, 1281.
184
PD (25A), Seach Orders, Annex.
185
C plc v P [2007] EWCA Civ 493, [2008] Ch 1; B Thanki (ed), The Law of Privilege (2nd edn, 2011)
ch 8; Cross and Tapper on Evidence (12th edn, 2010) 417ff; C Hollander, Documentary Evidence (10th edn,
2009) ch 17; P Matthews and H Malek, Disclosure (4th edn, 2012) ch 13; HM Malek, J Auburn, R Bagshaw,
Phipson on Evidence (17th edn, 2010) 24-60ff; Zuckerman on Civil Procedure (2nd edn, 2006) ch 17.
186
[2007] EWCA Civ 493, [2008] 1 Ch 1, at [26]–[38], per Longmore LJ, and [74], per Sir Martin
Nourse; noted R Moules [2007] CLJ 528.
187
(1996) 23 EHRR 313, at [69].
188
Fraud Act 2006, s 13 (considered in Kensington International Ltd v Republic of the Congo [2007]
EWCA Civ 1128, [2008] 1 WLR 1144).
189
Senior Courts Act 1981, s 72.
190
R v K (A) [2009] EWCA Crim 905, [2010] QB 343, at [19]–[32].
191
R Perkoff (ed), Security for Costs (2010); MJ Cook, Cook on Costs 2012 (2012); P Hurst Civil Costs
(4th edn, 2007) ch 15; Zuckerman on Civil Procedure (2nd edn, 2006) 9.182ff; IS Goldrein (ed), Commercial
Litigation: Pre-emptive Remedies (updated service), Part A, section 4.
1337
resident outside the EU territories, enforcement of a costs order in the relevant foreign juris-
diction might be (unusually) difficult.
22.31 To obtain an order for such security the defendant must demonstrate that one of the circum-
stances in CPR 25.13(2) is satisfied:
(a) the claimant is resident out of the English and Welsh jurisdiction but not resident in a
member state of the European Union or a Lugano Convention Contracting State; or
(b) the claimant is a company or other body (whether incorporated inside or outside Great
Britain) and there is reason to believe that it will be unable to pay the defendant’s costs
if ordered to do so; or
(c) the claimant has changed his address since the claim was commenced with a view to
evading the consequence of the litigation; or
(d) the claimant failed to give his address on the claim form, or gave an incorrect address in
that form; or
(e) the claimant is acting as a nominal claimant, other than as a representative claimant
under CPR Part , and there is reason to believe that he will be unable to pay the
defendant’s costs if ordered to do so; or
(f ) the claimant has taken steps in relation to his assets that would make it difficult to
enforce an order for costs against him.192
22.32 Even if the jurisdictional test is satisfied, CPR 25.13(1) makes it clear that the order is dis-
cretionary, so the court may take into account further relevant factors not listed in the CPR.
In Michael Phillips Architects v Riklin193 Akenhead J noted that the pre-CPR case law, which
remains relevant in this context, identifies the following (non-exhaustive) factors which the
court should consider when deciding whether to award security for costs:194 ‘(i) the action is
a sham or is made in good faith; (ii) the claimant has a reasonably good prospect of success
in the case; (iii) there is an admission by the defendant in the statement of case or elsewhere
that the money is due or the claim is otherwise sound; (iv) there is a substantial payment into
court or offer to settle; (v) the application [for security for costs] is being used by the defend-
ant to stifle an honest and sound claim; (vi) the claimant’s lack of funds has been caused, or
aggravated, by the defendant’s failure to pay; (vii) the application for security for costs has
been made late.’
22.33 Natural persons are favoured. Thus an impecunious claimant who is an individual cannot be
ordered to provide security for costs solely because he is impecunious. By contrast, corporate
claimants’ lack of funds is a ground for awarding security for costs.
(4) Interim Payments195

22.34 An interim payment order enables the claimant to obtain advance payment, often well before
trial, of a ‘reasonable proportion’ of the claim. An order is possible if the defendant has
admitted liability or the court ‘is satisfied’ that, if the case went to trial, the claimant would
192
Harris v Wallis (Ch D, 15 March 2006, All England Reporter) on the phrase ‘taken steps in relation to
his assets that would make it difficult to enforce an order for costs against him’; no need to show improper
motivation by claimant.
193
[2010] EWHC 834 (TCC), [2010] BLR 569, [2010] Lloyd’s Rep IR 479, at [13]. For an example
where tardiness in making the application resulted in a reduction in the security granted, see RBIL v Ryhurst
[2011] EWHC 2209, [2011] BLR 721, [2012] 3 Costs LO 296, at [25], per Akenhead J.
194
Sir Lindsay Parkinson v Triplan Ltd [1973] QB 609, 626–627, CA, per Lord Denning MR.
195
CPR 25.6–25.9; and PD (25B) ‘Interim Payments’; IS Goldrein (ed), Commercial Litigation:
Pre-emptive Remedies (updated service), Part A, section 1.
1338
obtain judgment for a ‘substantial’ monetary award against the defendant, other than costs.
After receiving such an award, the claimant cannot discontinue the proceedings unless the
defendant consents in writing or the court gives permission.196 Interim payments are not
disclosed to the court at trial until all questions concerning liability have been considered.197
The Court of Appeal in Revenue and Customs Commissioners v GKN Group examined many
facets of this jurisdiction.198 In the commercial context, Vos J in Pfizer Inc v Mills199 made an
order for an interim payment of 75 per cent of the estimated profits made by the defendant
which had infringed the claimant’s trade marks by passing off. The Court of Appeal in Eeles v
Cobham Hire Services Ltd 200 gave detailed guidance concerning interim payments in personal
injury claims involving serious disability.
(5) Interim Injunctions 201

The court has jurisdiction to issue interim injunctions where the relief sought at trial is a final 22.35
injunction.202 Recipients of interim injunctions are normally bound by an implicit ‘cross-
undertaking’ (an implied promise to the court for the benefit of the other litigant) to indem-
nify the respondent if the interim order is subsequently held, for whatever reason, to have
been improperly granted. And so this duty to indemnify will apply if the court discharges
the interim order or the claimant later concedes during a settlement arrangement that the
interim injunction should not have been granted.203 Gee204 has examined the history of this
undertaking.
The House of Lords in American Cyanamid Ltd v Ethicon Ltd (1974) established the general 22.36
principle for the award of such interim injunctions: that the court must not attempt to con-
sider the ‘merits’, ie provisional evaluation of the substantive claim and defence.205 Instead the
court must assess the litigants’ competing interests in, respectively, gaining interim restraint
of the defendant’s alleged misconduct, and preserving freedom from that restraint. The court
must strive to balance the hardship to the applicant caused by refusal of relief against the
hardship to the other party if he is temporarily bound by an injunction. Consideration of
the case’s factual merits is justified only if the court discovers no real difference in weight
between the parties’ respective potential hardships. Later case law established various situa-
tions where efficiency and fairness demand pre-trial examination of the ‘merits’ (as explained
above), notably:206 first, transparent cases where the factual merits of the application are
196
CPR 38.2(2)(b).
197
CPR 25.9.
198 [2012] EWCA Civ 57, [2012] 3 All ER 111, [2012] STC 953, [2012] CP Rep 20, [2012] BTC 35.
199 Unreported, 10 May 2010: [2010] All ER (D) 96 (May).
200 [2009] EWCA Civ 204, [2010] 1 WLR 409.
201 D Bean, Injunctions (10th edn, 2010); S Gee, Commercial Injunctions (6th edn, 2012); IS Goldrein
(ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 1.

202
Senior Courts Act 1981, s 37.
203
F Hoffmann-La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 295, 360–361,
HL; American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407–409, HL; on enforcement of the cross-
undertaking, Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545, CA; Goldman Sachs
International v Philip Lyons The Times 28 February, 1995, CA; Barratt Manchester Ltd v Bolton MBC [1998]
1 WLR 1003, CA; Customs & Excise Commissioners v Anchor Foods Ltd [1999] 1 WLR 1139; note also, in
the context of freezing relief, that such a cross-undertaking will not always be required; in Financial Services
Authority v Sinaloa Gold plc [2011] EWCA Civ 1158, [2012] CP Rep 4: the court held that the applicant
was not required to give such an undertaking to the respondent where the applicant was a public authority
which was seeking the injunction as part of its law enforcement functions; readers should note that a further
appeal is pending in this case.
204
S Gee, ‘The Undertaking in Damages’ [2006] LMCLQ 181.
205
[1975] AC 396, HL.
206
NH Andrews, English Civil Procedure (2003) 18.53–18.65.
1339
‘plain and uncontroversial’ or the application is plainly hopeless; secondly, the matter is so
urgent that the decision on the interim application will be likely to dispose of the whole
litigation; thirdly, the case concerns the respondent’s freedom of expression: ‘No such relief
is to be granted so as to restrain publication before trial unless the court is satisfied that the
applicant is likely to establish that publication should not be allowed.’207
22.37 Protection of privacy by injunctions is a topical matter in England.208 In CTB v News Groups
Newspapers Eady J, a specialist in this area, charted the law’s modern development.209 There
had been some cases where the court had granted an anonymized injunction, whereby the
identity of the applicant for an interim injunction was concealed, so that his or her interest
in privacy could be fully protected, and where even the fact that there had been an injunction
granted could not be disclosed.210 During 2012 the Leveson Inquiry,211 chaired by Sir Brian
Leveson, a Lord Justice of Appeal, investigated ‘phone-hacking’ by the media.212
(6) Preliminary Issues213

22.38 The court can be asked to pronounce in final form on a preliminary issue: either a point of
pure law or ‘construction’ (ie interpretation) of a document. The preliminary matter can
be heard before the factual issues have been investigated. Such a ‘preliminary’ decision is
not provisional, but final. Often the point singled out for this accelerated treatment is the
‘crux’ on which the entire fate of the litigation might depend. Typical ‘preliminary issues’ are:
points concerning limitation of actions;214 consensual time bars upon valid proceedings;215
exclusion clauses;216 and, disputes on a preliminary point of substantive law, eg, whether
the defendant owes a duty of care on the present facts.217 Considerations of speediness,
proportionality, and efficiency justify measured use of this technique. Even if the preliminary
decision does not determine the rest of the dispute, it might provide the basis for settlement
of the remaining issues, or at least reduce the scope or length of the ensuing process. For
example, a settlement occurred following the decision on a preliminary issue by the Supreme
207 Human Rights Act 1998, s 12(3); Cream Holdings Inc v Banerjee [2004] UKHL 44, [2005]
1 AC 253.
208 Sir David Eady (a specialist judge in this field), ‘Injunctions and the Protection of Privacy’ (2010)
29 CJQ 411; M Warby, N Moreham and I Christie (eds), Law of Privacy and the Media (2nd edn, 2011); I
Goldrein, Privacy Injunctions and the Media: A Practice Manual (2012).
209 (1) [2011] EWHC 1232 (QB), at [18]–[28]; for the sequel to this case, see (2) CTB v News Groups
Newspapers [2011] EWHC 1326 (QB) where Eady J held that an injunction should be maintained, even
though there had been leakage of the claimant’s identity on the Internet; (3) CTB v News Groups Newspapers
[2011] EWHC 1334 (QB), Tugendhat J, continuation of the injunction despite the fact that a Member of
Parliament had named the footballer; and (4) CTB v News Groups Newspapers [2011] EWHC 3099 (QB),
Eady J, where the judge acknowledged that PD (53) para 6 does enable the court to allow either a claim-
ant or defendant to make a statement in open court, but on the facts, the proposed statement was not in
appropriate form.
210
D Eady, Injunctions and the Protection of Privacy’ (2010) 29 CJQ 411, 425–427.
211
<http://www.levesoninquiry.org.uk/>.
212
On the Inquiry’s genesis and remit, R (on the Application of Associated Newspapers Ltd) v Leveson [2012]
EWHC 57 (Admin), at [2]ff.
213
NH Andrews, English Civil Procedure (2003) 9.33, 9.34, 34.17.
214
eg Haward v Fawcetts [2006] UKHL 9, [2006] 1 WLR 682, on Limitation Act 1980, s 14A; and Test
Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2012] UKSC 19, [2012] 2 AC
337, on 1980 Act, s 32(1)(c).
215
Senate Electrical Wholesalers Ltd v Alacatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 243,
355–357, CA; Laminates Acquisition Co v BTR Australia [2003] EWHC 2540 (Comm), Cooke J.
216
Cremdean Properties v Nash (1977) 244 EG 547, CA.
217
eg Customs & Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181; Deep Vein Thrombosis and
Air Travel Group Litigation [2005] UKHL 72, [2005] UKHL 72, [2006] 1 AC 495.
1340
Court in Al Rawi v Security Service 218 (the Guantanamo Bay claims). There the preliminary
issue concerned the fundamental issue whether civil proceedings can be conducted on a
closed materials basis, one party being denied access, other than via special advocates, to the
other side’s evidence (much of which might be subject to public interest immunity).
(7) Summary Judgment219

This streamlined procedure allows claimants or defendants to gain final judgment if they 22.39
can show that their opponent’s claim or defence lacks a ‘real prospect’ of success. The court
receives only written evidence.220 This procedure can be used to test both the legal and fac-
tual merits of a claim or defence.221 ‘The court can itself initiate a summary judgment hear-
ing. The governing rule states:222 The court may give summary judgment against a claimant
or defendant . . . if (a) it considers that (i) that claimant has no real prospect of succeeding on
the claim or issue; or (ii) that defendant has no real prospect of successfully defending the
claim or issue and (b) there is no other reason why the case or issue should be disposed of at
a trial’. In Swain v Hillman (2001), Lord Woolf said that the words ‘no real prospect’ denote
that the claim or defence must have a ‘realistic’ rather than a ‘fanciful’ chance of success.223
He added that the function of summary judgment would be distorted if summary judgment
hearings were allowed to become ‘mini-trials’. Instead, issues involving detailed factual inves-
tigation require the case to progress through disclosure under CPR 31 and preparation of
witness statements, perhaps culminating in cross-examination at trial.224
The court can (i) give judgment for the applicant, whether this is the claimant or the defend- 22.40
ant, and whether on the whole of the claim or merely on a particular issue;225 or strike out
or dismiss the claim or defence, or part of it;226 or (ii) dismiss the application for summary
judgment;227 or (iii) grant a conditional order where ‘it appears to the court that a claim
or defence may succeed but improbable that it will do so’.228 The possible conditions are:
a payment into court or some other ‘specified step’.229 The interaction between summary
judgment, counterclaims and the defence of set-off is examined elsewhere.230 In Crédit Suisse
International v Ramot Plana OOD Hamblen J offered valuable guidance concerning a sum-
mary judgment hearing.231 He concluded:232 ‘The authorities show that for the Court sum-
marily to reject factual evidence as being fanciful it must be “clear” that it has “no substance”.
218 [2011] UKSC 34, [2012] 1 AC 531; also confirming absence of closed material proceedings at
Common Law; on the latter aspect the Al Rawi case was considered in Re A [2012] UKSC 60, [2012] 3 WLR
1484 (X, a vulnerable informant, alleging child abuse by Y; Y father of A; proceedings to determine whether
Y should have access to his child Y; no closed material hearing possible to protect X’s identity).
219 IS Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 6.
220 CPR 24.5.
221 PD (24) 1.2, 1.3.
222 CPR 24.2.
223
[2001] 1 All ER 91, 92, CA; obfuscatory references to this test in PD (24) were deleted, as explained
in Swain v Hillman [2001] 1 All ER 91, 93, CA.
224
For judicial emphasis of this point under the pre-CPR rules, Neil Andrews, Principles of Civil Procedure
(1994) 9–024–9–026.
225
CPR 24.1 and 24.2; PD (24) 5.1(1), (2).
226
PD (24) 5.1(2) which should be construed in the light of CPR 24.1 and 24.2 where ‘claim’ is clearly
used compendiously to embrace both an active claim and a possible defence to that active claim.
227
PD (24) 5.1(3); in the case of applications under the old ‘Order 14’, this result was known as ‘granting
the defendant unconditional leave to defend’.
228
PD (24) 4; consistent with Yorke Motors Ltd v Edwards [1982] 1 WLR 444, HL; NH Andrews,
Principles of Civil Procedure (1994) 9–028, on the background to the Yorke case.
229
CPR 24.6; PD (24) 5.2.
230
CPR 16.6.
231
[2010] EWHC 2759 (Comm), at [24], per Hamblen J.
232
[2010] EWHC 2759 (Comm), at [25].
1341
This will generally only be the case where the factual assertions made are inherently improb-
able or incredible and/or are contradicted by the evidence on which they are based and/or by
the documents.’233
(8) Striking Out Claims or Defences

22.41 A defective claim or defence can be ‘struck out’ without a trial, often at a very early stage of
the proceedings. Striking out can be exercised whether or not a party makes an application to
the court.234 The court can strike out a pleading (now known as a ‘statement of case’, whether
it is a claim, defence, reply, or counterclaim, or any part of one) on any of these grounds:235
(a) the statement of case discloses no reasonable grounds for bringing or defending the claim;
or (b) the statement of case is an abuse of the court’s process or is otherwise likely to obstruct
the just disposal of the proceedings; or (c) failure to comply with a rule, practice direction
or court order.236 As for ground (b), the Supreme Court in Summers v Fairclough Homes Ltd
unanimously held (Lord Clarke giving the court’s judgment) that a court has power to strike
out an entire claim where that claim was fraudulently exaggerated. This strike out power is
provided by CPR 3.4(2)(b), to which nothing is added by the court’s inherent jurisdiction.237
But the Supreme Court in Summers v Fairclough Homes Ltd had trouble giving an example of
when it would ever be a sound decision to strike out for abuse at the conclusion of trial.238 As
for ground (a), this overlaps with the court’s jurisdiction to award summary judgment under
CPR Part 24. Both the striking out and summary judgment processes enable the court to
eliminate bad or tenuous claims or defences. Both are subject to the evidential constraint that
the court can only receive oral evidence at trial. The Court of Appeal in S v Gloucestershire
CC (2000)239 affirmed settled principle240 that striking out on the factual or legal merits (see
rule 3.4(2)(a) cited above) is justified only in ‘the clearest case’241 based only on considera-
tion of written evidence.242 Similarly, Lord Phillips in AB v Ministry of Defence243 said that
ex-servicemen’s radiation group litigation did not involve an abuse of process, and so should
not be struck out under CPR Part 3 or the court’s inherent jurisdiction244 even though the
actions had been brought in a speculative way.245 The upshot is that summary judgment
permits closer scrutiny than striking out.246 The House of Lords in Three Rivers DC v Bank
of England (No 3) (2001) also noted the potentially concurrent application of striking out
and summary judgment procedures.247 Unfortunately, a majority of the House of Lords
fatefully allowed this case to proceed to trial. The claimant eventually discontinued it, before
233 Other important judicial discussion includes Warner v Penningtons [2011] EWCA Civ 337; Pink Floyd
Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770; and Lord Phillips’s judgment in
AB v Ministry of Defence [2012] UKSC 9, [2012] 2 WLR 643.
234
Similarly, the court at its own initiative can order a summary judgment hearing to examine whether a
claim or defence should be dismissed because it has ‘no real prospect of succeeding’: see CPR 24.5(3).
235
CPR 3.4(2).
236
CPR 3.4(2)(a), (b), (c).
237
[2012] UKSC 26; [2012] 1 WLR 2004.
238
[2012] UKSC 26, [2012] 1 WLR 2004, at [43] and [44].
239
S v Gloucestershire CC [2000] 3 All ER 346, 370–373, CA.
240
Authorities collected at NH Andrews, Principles of Civil Procedure (1994) 10–23.
241
S v Gloucestershire CC, n 241, at 373.
242
S v Gloucestershire CC, n 241, at 372–373.
243
[2012] UKSC 9, [2012] 2 WLR 643.
244
[2012] UKSC 9, [2012] 2 WLR 643, at [149].
245
[2012] UKSC 9, [2012] 2 WLR 643, at [153]; similarly, Lord Kerr, at [212].
246
S v Gloucestershire CC, n 241, at 373.
247
[2001] UKHL 16, [2001] 2 All ER 513, HL, notably at [90]ff, and [134]ff.
1342
judgment, on ‘day 256’ of the trial.248 This very lengthy trial demonstrates that appeal courts
should be slow to upset a striking out decision, even if the case is ‘complicated’ and involves
‘extensive documentation’. English law should also consider a focused pre-trial oral hearing
to probe weak claims which might otherwise proceed to lengthy trial.
In 1998 the European Court of Human Rights at first castigated the English courts for 22.42
employing striking out to dismiss legally unfounded claims, but the same European Court
in 2001 acknowledged that such a pre-trial legal filter is compatible with the human right to
a ‘fair hearing’. And so an English court must only strike out if it has considered pertinent
differences between factual situations.249
(9) Default Judgment250

Judgment by default is an important means of accelerating the legal process. It involves judg- 22.43
ment without trial where a defendant: (a) has failed to file an acknowledgment of service;
or (b) has failed to raise a defence.251 A claimant can obtain default judgment if the claim
is for: ‘a specified amount of money’ (formerly known as ‘liquidated claims’); or ‘an amount
of money to be decided by the court’ (formerly known as ‘unliquidated claims’); or delivery
of goods where the claim form gives the defendant the alternative of paying their value.252
In these situations, the claimant can normally apply for judgment by administrative process
to the court office without troubling a judge.253 If the claimant seeks some other remedy,
default judgment must be sought by specific application to the court.254 Certain classes of
claim are not amenable to default judgment.255 A judgment by default is regarded as not as
strong as a judgment obtained after a full contest between the parties. In the classic state-
ment, Lord Atkin said: ‘The principle obviously is that unless and until the court has pro-
nounced a judgment upon the merits or by consent, it is to have the power to revoke the
expression of its coercive power where that has been obtained by a failure to follow any of the
rules of procedure.’256
CPR 13.3257 provides that if a default judgment is challenged by the defendant in good time, 22.44
the court can set aside or vary a regular judgment if (i) ‘the defendant has a real prospect
of successfully defending the claim’ or (ii) ‘there is some other good reason’ why judgment
should be set aside or varied. The court will consider whether the defence has objective
merits and why the defendant failed to acknowledge service or file a defence. When asked to
set aside a default judgment, the court should not dismiss peremptorily a (newly-presented)
defence, even it is has been merely sketched by the defendant. The court should not lean
too far in its scepticism.258 When the default judgment has been obtained on the question
of liability, the power to set aside exists whether or not there was a further failure to contest
248
Three Rivers DC v Bank of England [2006] EWHC 816 (Comm) (12 April 2006), at [1], per
Tomlinson J.
249
Z v UK (2002) 34 EHRR 97; (2001) BHRC 384, ECtHR, not following Osman v UK (1999) 29
EHRR 245; (1998) BHRC 293; ACL Davies (2001) 117 LQR 521.
250
IS Goldrein (ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 5.
251
CPR 12.1 and 12.3; CPR 10.2 and CPR 15.3.
252
CPR 12.4(1)(a)–(c).
253
For exceptions, CPR 12.9, 12.10, 12.11.
254
CPR 12.4(2), 12.10, 12.11.
255
CPR 12.2; PD (2) 1.2.
256
Evans v Bartlam [1937] AC 473, 480, HL, per Lord Atkin.
257
CPR 13.3; Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (The Saudi Eagle) [1986] 2
Lloyd’s Rep 221, CA; considered in Allen v Taylor [1992] 1 PIQR P 255, CA and Shocked v Goldschmidt
[1998] 1 All ER 372, 376, CA; Henriksen v Pires [2011] EWCA Civ 1720.
258
Day v RAC Motoring Services Ltd [1999] 1 WLR 2150, 2157, CA.
1343
the quantification of damages or other monetary relief.259 A default judgment which sur-
vives a review on the merits, as just explained, in fact becomes a stronger form of judgment:
the claimant now holds a judgment on the merits, capable of being reconsidered only on
appeal.260 Finally, the court can impose a condition upon the setting aside of a regular judg-
ment. The condition can either require the defendant to provide security for the claimant’s
costs,261 or to make a payment into court.262
22.45 The court must uphold the defendant’s application to set aside a procedurally defective
default judgment in any of the following situations: (i) because judgment was procedurally
premature (it preceded expiry of the time for acknowledging service or filing a defence);263
or (ii) an application for summary judgment was still pending;264 or (iii) the defendant had
fully discharged the claim (including any costs claim);265 or (iv) the defendant had admitted
liability in full and requested more time to pay.266 If the defendant satisfies the court that he
was unaware of the relevant claim form, the court will ‘normally’ set aside the default judg-
ment ‘unless it is pointless to do so’.267 There is a cognate power to set aside judgment where
the relevant party fails to attend trial and his claim or defence is struck out.268 In Northern
Rock (Asset Management) plc v Chancellors Associates Ltd (Note)269 Akenhead J held that a
judgment entered after the defendant has informally conceded the case is to be treated as
irregular if there has been no judicial scrutiny of the process so that the judgment is without
judicial supervision. The defendant is entitled to apply to have the judgment set aside where,
eg, the admission was made by error. Here the decision to set aside occurs outside the rules.
The setting aside process is justified under general principles of procedural fairness. It would
be nonsensical to confine the defendant to obtaining permission to appeal and then seeking
to set aside the judgment on appeal (compare discussion in Kojima v HSBC Bank plc 270 of
the process of entering judgment based on formal admissions). But the Court of Appeal in
Henriksen v Pires refused to set aside a default judgment even though it had been obtained
without procedural regularity. The claimant had not served a response pack when it had
served the claim form, but this procedural failure had not caused any injustice, and there had
been significant delay by the defendant in seeking to set aside the default judgment.271
259
Strachan v The Gleaner Co Ltd [2005] 1 WLR 3204, PC.
260
Clapp v Enron [2005] EWCA Civ 1511, at [36]ff, citing Odyssey (London) Ltd v OIC Run-off [2001]
Lloyd’s Rep (Insurance) 1.
261 Burchmore v Hills (1935) 79 Law Journal Newspaper 30.
262 City Construction Contracts (London) Ltd v Adam, The Times, 4 January 1988, CA.
263 CPR 13.2, 12.3(1), (2).
264
CPR 13.2, 12.3(3).
265
CPR 13.2(c), 12.3(3)(b).
266
CPR 13.2, 12.3(3)(c), 14.4, 14.7.
267
Godwin v Swindon BC [2001] 4 All ER 641, CA, at [49], per May LJ; Akram v Adam [2004] EWCA
Civ 1601, [2005] 1 WLR 2762, at [42] and [43]; City & Country Properties Ltd v Kamali [2006] EWCA Civ
1879, [2007] 1 WLR 1219, at [17], noted J Sorabji (2007) 26 CJQ 279; cf Henriksen v Pires [2011] EWCA
Civ 1720, at [28], per Pitchford LJ (failure to accompany claim form with a response pack; default judgment
not set aside).
268
CPR 39.3(5); Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533; Nelson v
Clearsprings (Management) Ltd [2006] EWCA Civ 1854, [2007] 2 All ER 407; for the general common law
principles, Gaydamak v UBS Bahamas Ltd (Bahamas) [2006] UKPC 8, [2006] 1 WLR 1097.
269
[2011] EWHC 3229 (TCC), [2012] 2 All ER 501, [2012] BLR 303, [2012] TCLR 1.
270
[2011] EWCA Civ 1709, [2012] 1 All ER 1392 (note).
271
[2011] EWCA Civ 1720, at [28], per Pitchford LJ; and the question of delay in this context was exam-
ined, [2011] EWCA Civ 1720, at [30]ff.
1344
E. Case Management
E. Case Management272
(1) Case Management in General
273
In his reports of 1995–96 Lord Woolf adopted this technique as the mainstay for actions 22.46
on the ‘multi-track’, thus including all High Court litigation. The court must now ensure
that matters are properly focused, procedural indiscipline checked, expense reduced, progress
accelerated, and that just outcomes are facilitated or awarded. Case management has three
main functions: to encourage the parties to pursue mediation, where this is practicable;274
secondly, to prevent the case from progressing too slowly and inefficiently; finally, to ensure
that judicial resources are allocated proportionately, as required by ‘the Overriding Objective’
in CPR Part 1 (reformulated in April 2013, Part 1 now highlights the need for cases to
be dealt with justly and ‘at proportionate cost’).275 Furthermore, the courts are now ready
to embrace the system of ‘docketing’. As Sir Vivian Ramsey explains:276 ‘The idea behind
docketing is that a case is allocated (but not reserved) to one judge who is then primarily
responsible for hearing all applications in relation to the case, as well as dealing with any
case management applications on paper and hearing the final trial. . . . Essentially docketing
will apply to those multi-track cases which would benefit from that type of consistent case
management.’
The CPR lists various managerial responsibilities. These are not intended to be exhaustive 22.47
statements of the court’s new active role.277 Judges, especially at first instance, have the fol-
lowing managerial responsibilities: co-operation and settlement: encouraging co-operation
between the parties;278 helping parties to settle all or part of the case;279 encouraging alterna-
tive dispute resolution;280 if necessary, staying the action to enable such extra-curial negotia-
tions or discussions to be pursued (see further 22.94 below);281 determining relevance and
priorities: helping to identify the issues in the case;282 deciding the order in which the issues
are to be resolved;283 deciding which issues need a full trial and which can be dealt with
summarily;284 making summary decisions: deciding whether to initiate a summary hearing
(under CPR Part 24);285 or whether the claim or defence can be struck out as having no
prospect of success;286 or whether to dispose of a case on a preliminary issue;287 excluding
issues from consideration;288 maintaining impetus: fixing timetables and controlling in other
272 NH Andrews, ‘A New Civil Procedural Code for England: Party-Control “Going, Going, Gone”’
(2000) 19 CJQ 19.

273 Lord Woolf ’s two reports are: Access to Justice: Interim Report (1995) and Access to Justice: Final Report
(1996); A Zuckerman and R Cranston, The Reform of Civil Procedure: Essays on ‘Access to Justice’ (1995);
R Cranston, How Law Works (2006) ch 5.
274 See 22.94 and 22.95.
275
CPR 1.1(1): ‘These Rules are a new procedural code with the overriding objective of enabling the court
to deal with cases justly and at proportionate cost.’.
276
V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112, 117–118.
277
CPR 1.4(2); CPR 3.1(2); CPR Parts 26, 28, 29.
278
CPR 1.4(2)(a).
279
CPR 1.4(2)(f ).
280
CPR 1.4(2)(e).
281
CPR 3.1(2)(f ).
282
CPR 1.4(2)(a).
283
CPR 1.4(2)(d); 3.1(2)(j).
284
CPR 1.4(2)(c).
285
PD (26) 5.1, 5.2.
286
CPR 3.4(2).
287
CPR 3.1(2)(l).
288
CPR 3.1(2)(k).
1345
ways the progress of the case;289 giving directions which will bring the case to trial as quickly
and efficiently as possible;290 regulating expenditure: deciding whether a proposed step in the
action is cost-effective,291 taking into account the size of the claim (‘proportionality’).292
No later than seven days before any case management conference, multi-track parties must
endeavour to agree appropriate directions.293 Following the filing of the pre-trial check list,
a listing hearing or a pre-trial review, parties will receive judicial confirmation of the day or
week in which the trial will begin.294 Lord Woolf commented on the court’s case manage-
ment powers: ‘ . . . judges have to be trusted to exercise the wide discretions which they have
fairly and justly . . . [Appeal courts] should not interfere unless judges can be shown to have
exercised their powers in some way which contravenes the relevant principles’.295 A party
must obtain permission to appeal from a case management decision, but this will be dif-
ficult to obtain.296 Appellate courts are prepared to show considerable deference to judges’
case management decisions, unless they are incorrect in principle:297 as Lewison LJ said in
Mannion v. Ginty:298 ‘it is vital for the Court of Appeal to uphold robust fair case manage-
ment decisions made by first instance judges. It has also been said, not least by Jackson LJ,
that the culture of toleration of delay and non-compliance with court orders must stop.’
(2) Case Management in the Commercial Court

22.48 In December 2007, a report on long trials in the Commercial Court was published.299 The
result has been an intensification of case management. Indeed, Commercial Court judges
first developed the technique of ‘case management’ in England, in which they are now
expert. The court is now especially alert to possible improvements in pre-trial preparation of
complex cases.
22.49 There are two important pre-trial hearings in the Commercial Court, the ‘case management
conference’ (CMC) and the ‘pre-hearing review’. The 2011 Commercial Court Guide places
emphasis on continuity of judicial involvement during the case’s development, and on a
‘docket’ arrangement in cases of complexity.300 Section D2 of this Guide301 identifies 12
‘Key Features’ of case management in this court.
22.50 In his lecture entitled ‘Docketing: Completing Case Management’s Unfinished Revolution’,302
Lord Neuberger MR examined the Commercial Court’s303 docketing system. He noted304
289
CPR 1.4(2)(g).
290
CPR 1.4(2)(l).
291 eg the suggestion that video-conferencing be used for short appeals: Black v Pastouna [2005] EWCA
Civ 1389, [2006] CP Rep 11, per Brooke LJ.

292 CPR 1.4(2)(h) and 1.1(2)(c).
293 CPR 29.4.
294
CPR 29.8.
295
Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, 1934 F, CA, per Lord Woolf MR.
296
PD (52) 4.4, 4.5.
297
Thomson v O’Connor [2005] EWCA Civ 1533, at [17]–[19], per Brooke LJ; Three Rivers DC v Bank of
England [20005] EWCA Civ 889, [2005] CP Rep 46, at [55]; see also the authorities cited in NH Andrews,
English Civil Procedure (2003) 13.61–13.68, 38.49.
298
[2012] EWCA Civ 1667, at [18].
299
<http://www.judiciary.gov.uk/publications-and-reports/reports/civil/commercial-court/long-trials-
working-party-report> last accessed 10 December 2010.
300 Admiralty and Commercial Courts Guide (9th edn, 2011) D4.1, 4.3, and 4.4.
301 Admiralty and Commercial Courts Guide (9th edn, 2011) D2.
302 Neuberger lecture (2012) para 27: <http://www.judiciary.gov.uk/Resources/JCO/Documents/
Speeches/mor-speech-solicitors-cost-conference-lecture-feb2012.pdf>.
303 Admiralty and Commercial Courts Guide (9th edn, 2011) D4, 25–26.
304 Neuberger lecture (2012) para 27.
1346
F. Disclosure
that the Technology and Construction Court had earlier developed a similar system). Within
the Commercial Court this is known as the ‘designated judge’ arrangement. When appropri-
ate, and in the interest of continuity, the judge so designated will hear all pre-trial applica-
tions as well as the trial itself.
(3) Sanctions and Procedural Discipline

The main sanctions for breach of a procedural requirement are: costs orders;305 stay of the 22.51
proceedings;306 and striking out part or all of the claim or defence.307 Breach of a judicial order
or injunction can involve contempt of court (see 22.129ff), eg a freezing injunction.308
As for relief from sanctions, CPR 3.9 has been re-drafted (effective since 1 April 2013): ‘On 22.52
an application for relief from any sanction imposed for a failure to comply with any rule,
practice direction or court order, the court will consider all the circumstances of the case, so
as to enable it to deal justly with the application, including the need (a) for litigation to be
conducted efficiently and at proportionate costs; and (b) to enforce compliance with rules,
practice directions and orders.’ As Zuckerman notes,309 this reformulation is the response to
Sir Rupert Jackson’s complaint that ‘the courts at all levels have become too tolerant of delays
and non-compliance . . . [and] have lost sight of the damage which the culture of delay and
non-compliance is inflicting upon the civil justice system’.310
F. Disclosure311
Disclosure between adversaries (prospective or present parties), in its various forms, serves 22.53
three main functions: it can achieve equality of access to information; and facilitate settle-
ment of disputes; finally, it avoids so-called ‘trial by ambush’, ie the situation when a party is
unable to respond properly to a surprise revelation at the final hearing.
(1) Pre-Action Orders

The rules empower the court to make a pre-action documentary disclosure order against any 22.54
type of prospective defendant.312 However, in Black v Sumitomo Corporation, where, the
Court of Appeal refused to open the door to roving and ‘deep-sea fishing’ expeditions in com-
mercial contexts,313 Rix LJ identified these factors: (i) the court must bear in mind that the
initial cost of pre-action disclosure and the burden of persuasion rest with the applicant;314
(ii) the nature of the injury or loss complained of; (iii) the clarity and identification of the
issues raised by the complainant; (iv) the nature of the documents requested; (v) the rel-
evance of any protocol or pre-action inquiries; (vi) whether the applicant might raise his case
305
CPR 3.8(2).
306
CPR 3.1(2)(f ).
307
CPR 3.4(2)(c).
308
eg Daltel Europe Ltd v Makki [2006] EWCA Civ 94, [2006] 1 WLR 2704.
309
A Zuckerman, ‘The Revised CPR 3.9: a Coded Message Demanding Articulation’ Reforms’ (2013) 32
CJQ 123; for other critical comment, I Levy, ‘Lightening the Overload of CPR 3.9’ (2013) 32 CJQ 139.
310
Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (2010), 397.
311
P Matthews and H Malek, Disclosure (4th edn, 2011); C Hollander, Documentary Evidence (10th edn,
2009); see also Andrews on Civil Processes (2013), vol 1, ch 11; Zuckerman on Civil Procedure (2nd edn, 2006)
ch 14; S Cockerill, The Law and Practice of Compelled Evidence in Civil Proceedings (2011) (but these editions
do not reflect the 1 April 2013 changes: see below).
312 CPR 31.16 (3).
313 [2002] 1 WLR 1562, CA.
314 [2002] 1 WLR 1562, CA, at [96].
1347
without pre-action disclosure;315 (vii) the strength of the applicant’s determination to com-
mence proceedings; (viii) whether the applicant has access to sources of documentation other
than pre-action disclosure orders; (ix) the need to protect the respondent against oppressive
orders;316 (x) the need to reduce the risk of pre-action disclosure generating expensive satel-
lite litigation on claims which have yet to be initiated.317 Specific rules provide that property,
eg factory equipment, can be preserved for inspection.318 It is an offence for a prospective
defendant to destroy documents, or other evidence, in order to spoil his opponent’s chances
of winning the relevant case.319 The reader is referred to 22.28 for discussion of civil search
orders to prevent a prospective defendant from destroying vital evidence.
(2) Disclosure Against Non-Parties

22.55 After commencement of proceedings, the court has a statutory power to order disclosure of
documents against a non-party in any type of case.320 The rule states that an applicant must
satisfy the court that the document is ‘likely’ to be supportive in those proceedings, but this
has been interpreted to require only something weightier than a mere ‘fanciful chance’.321
But there is a wider equitable power, available before commencement, and covering non-
documentary information as well as documentary: ‘Norwich Pharmacal orders’. This is a
judicial power to compel a person (not necessarily a prospective defendant) to disclose docu-
ments or non-documentary information if that person was factually ‘involved’ (actively or
passively—but not as a mere onlooker), whether culpably or innocently, in an alleged civil
wrong.322 A Norwich Pharmacal order, normally made before the main proceedings have
begun, can concern:323
(a) the identity of a wrongdoer;324
(b) the location, nature and value of the prospective defendant’s assets;325
(c) whether the applicant has fallen victim to a civil wrong, such as defamation, committed
behind his back;326
(d) the order might also enable the applicant to identify and discipline a dishonest or default-
ing employee within the applicant’s organization.327
315
[2002] 1 WLR 1562, CA, at [96] for points (ii)–(vi).
316
[2002] 1 WLR 1562, CA, at [97] for points (vii)–(ix).
317 [2002] 1 WLR 1562, CA, at [98].
318 Senior Courts Act 1981, s 33.
319
Douglas v Hello! [2003] EWHC 55 (Ch), [2003] 1 All ER 1087 (brief note), Morritt V-C.
320
CPR 31.17; this rule concerns only documents: see CPR 31.17(3)(4).
321
Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210 CA, at
[32], [33].
322
Norwich Pharmacal Co v Commissioners for Customs and Excise [1974] AC 133, 175, H; Ashworth
Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033, HL.
323
Note also Carlton Film Distributors Ltd v VCI plc [2003] EWHC 616, [2003] FSR 47, Jacob J.
324
Norwich Pharmacal Co v Commissioners for Customs and Excise [1974] AC 133, HL, eg, Bacon v
Automattic Inc [2011] EWHC 1072 (QB), [2012] 1 WLR 753, at [45]; Patel v Unite [2012] EWHC 92
(QB) (noting Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585, [2012] 2 CMLR 3); see also M3
Property Ltd v Zedhomes Ltd [2012] EWHC 780 (TCC).
325
Mercantile Group (Europe) AG v Aiyele [1994] QB 366, CA (if the information is sought to assist
enforcement after judgment, Hoffmann LJ observed that the ‘mere witness’ rule is in any case inapplicable).
326
P v T Ltd [1997] 1 WLR 1309, Scott V-C.
327
Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033, HL.
1348
F. Disclosure
(3) Disclosure of Documents During the Main Proceedings

In multi-track litigation, other than personal injury claims, no fewer than fourteen days 22.56
before the first case management conference, parties must exchange reports which:328
(i) identify concisely which documents exist that are relevant to the matters in issue in the
case; (ii) give the location of those documents, including information about electronic docu-
ments; (iii) provide an estimate of the costs likely to be incurred in the disclosure process;
and (iv) explain what directions for disclosure are being sought. Information disclosed under
CPR Part 31 only becomes evidence if it is ‘adduced’ by one party for the purpose of a trial or
other ‘hearing’. Under the CPR, ‘document’ refers to ‘anything in which information of any
description is recorded’:329 whether paper or electronic; literary, pictorial, visual or ‘audio’.
It thus encompasses ‘e-mail’, ‘e-commerce’, information held on answer-phones, and details
recorded in mobile phones. Since 1998, the rules have been amended to deal with the ques-
tion of disclosure of electronic data.330 The topic of ‘e-disclosure’ was discussed by Sir Rupert
Jackson in his lecture ‘Controlling the Costs of Disclosure’.331 He noted that sometimes the
High Court is prepared to make a ‘key to the warehouse’ order for e-disclosure: instead of the
disclosing party making a selection, the opponent is given free rein to visit all relevant e-files
and to make its own selection (the court and disclosing party must make special provision to
ensure that privileged documents are not ‘globally’ waived by this process).332
Introduced in CPR Part 31 (1999) was a more restrictive approach to exchange of documents 22.57
between the parties in preparation for trial333 and an attempt to render the process propor-
tionate to the nature of the claim.334 ‘Standard disclosure’ concerns documents which satisfy
one of the following criteria:335 documents on which a party will rely; or which adversely
affect his case; or adversely affect the opponent’s case; or support the opponent’s case; or any
other documents of which disclosure is required under a practice direction.336 The Court of
Appeal in Shah v HSBC Private Bank (UK) Ltd noted that standard disclosure is not accu-
rately defined as a compendious or simplistic test of ‘relevance’.337 However, as noted by
Sir Rupert Jackson in his 2011 speech ‘Controlling the Costs of Disclosure’,338 the Woolf
reforms were only partly successful because:339 ‘even in medium sized actions where all the
documents are in paper form, disclosure can be a major exercise which generates dispropor-
tionate costs’; ‘it can also result in a formidable bundle, most of which is never looked at dur-
ing the trial’; ‘in larger actions where the documents are electronic, the problem, is multiplied
many times over . . . ’. From 1 April 2013, in multi-track litigation other than personal injury
claims, although standard disclosure remains the default regime, five other possibilities are
now listed:340 (a) no disclosure; (b) disclosure restricted to documents on which a party relies,
328
CPR 31.5.
329
CPR 31.4.
330
See PD (31B).
331
<http://www.judiciary.gov.uk/publications-and-reports/review-of-civil-litigation-costs/lectures/
controlling-costs-disclosure-lj-jackson-lecture-24112011>.
332
controlling-costs-disclosure-lj-jackson-lecture-24112011> 4.7.
333
Lord Woolf, Access to Justice: Interim Report (1995) ch 21, paras 1–9.
334
Especially, CPR 31.3(2), 31.7(2), 31.9(1).
335
CPR 31.6.
336
The court can order narrower disclosure: CPR 31.5(1),(2).
337
[2011] EWCA Civ 1154, [2012] Lloyd’s Rep FC 105, at [25], per Lewison LJ.
338
controlling-costs-disclosure-lj-jackson-lecture-24112011>.
339
controlling-costs-disclosure-lj-jackson-lecture-24112011> 2.2.
340
CPR 31.5.
1349
with each party being able to supplement this by requests for specific disclosure; (c) disclosure
on an ‘issue by issue’ basis; (d) ‘an order that each party disclose any documents which it is
reasonable to suppose may contain information which enables that party to advance its own
case or to damage that of any other party, or which leads to an enquiry which has either of
those consequences’; (e) ‘any other order in relation to disclosure that the court considers
appropriate’.
22.58 The obligation to make disclosure applies to ‘documents’, whether or not they are currently
available, and whether they were created before or during the relevant litigation.341 These
documents must either fall within the scope of standard disclosure (discussed above), or
they must have been referred to in that party’s statement of case, a witness statement or sum-
mary, affidavit, or (subject in the last case to special judicial control) in that party’s expert
report(s).342 A party’s duty to make ‘disclosure’ embraces documents which ‘are or have been
in [the relevant party’s] control’; and ‘control’ refers to material which ‘is or was in his physi-
cal possession’, or other material to which he has or has had a ‘right to possession’ or ‘a right
to inspect or take copies’.343 In Favor Easy Management Ltd v Wu344 the Court of Appeal
noted that it had been assumed that a litigant had a right to records held by her doctor,
but this issue had not been properly analysed because it involved application of foreign law
(Hong Kong law to the relevant professional relationship).
22.59 In Favor Easy Management Ltd v Wu345 Lord Neuberger MR noted346 that CPR 31.12,347
enabling a party to seek specific disclosure, is not subject to the restrictions governing stand-
ard disclosure. CPR 31.12 is the general means by which a party can challenge the adequacy
of disclosure under the standard disclosure regime.348 If a party relies on a document during
trial, and this has not already been disclosed to the opponent, the latter can apply to the court
for specific disclosure under CPR 31.12.349
22.60 The ‘implied undertaking’ in CPR 31.22(1) ensures that the recipient can use the informa-
tion only in the present proceedings.350 The same undertaking also obliges him not to reveal
the information to any non-party.351 The recipient’s lawyer is similarly constrained.352 CPR
31.22(2) provides: ‘The court may make an order restricting or prohibiting the use of a
document which has been disclosed, even where the document has been read to or by the
court, or referred to, at a hearing which has been held in public.’ This empowers the court
to make a special order restricting or prohibiting use of a document.353 However, even when
an order is made under this last power, the Court of Appeal noted in SmithKline Beecham
341
On the duty to make disclosure until the end of the relevant proceedings, CPR 31.11.
342
CPR 31.14.
343 CPR 31.8; Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210,
CA, at [46]–[51].
344
[2010] EWCA Civ 1630, [2011] 1 WLR 1803, at [11]–[13].
345
[2010] EWCA Civ 1630, [2011] 1 WLR 1803.
346
[2010] EWCA Civ 1630, [2011] 1 WLR 1803, at [20].
347
CPR 31.12.
348
CPR 31.12.
349
[2010] EWCA Civ 1630, [2011] 1 WLR 1803, at [26], per Patten LJ.
350
As Lord Hoffmann explained in Taylor v Serious Fraud Office [1999] 2 AC 177, 207, HL.
351
eg Omar v Omar [1995] 1 WLR 1428; Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31; Miller
v Scorey [1996] 1 WLR 1122; SMC Gibbons, ‘Subsequent use of documents obtained through disclosure
in civil proceedings’ (2001) 20 CJQ 303; see also Shlaimoun v Mining Technologies International Inc [2011]
EWHC 3278 (QB), [2012] 1 WLR 1276.
352 Bowman v Fels [2005] EWCA Civ 226, [2005] 1 WLR 3083, at [88], per Brooke LJ.
353 McBride v The Body Shop International plc [2007] EWHC 1658 (QB), noting Lilly Icos Ltd v Pfizer Ltd
[2002] 1 WLR 2253, CA; AF Noonan (Architectural Practice) Ltd v Bournemouth and Boscombe ACFC Ltd
[2007] EWCA Civ 848, [2007] 1 WLR 2615, at [10], [15], [18], [19].
1350
G. Legal Advice and Litigation Privileges
plc v Generics (UK) Ltd that the court has a further power to release this restriction, acting
in the interests of justice.354

(1) Privileges in General
‘Evidential privileges’ in English law confer immunity upon the privilege holder (which can 22.61
be a person, company or organization) against compulsion to supply information under legal
obligation. The potential compulsion can arise in two main355 contexts: as an order for a
witness to give evidence at a civil or criminal trial; or, secondly, during the pre-trial process
of information gathering (known in English civil proceedings as ‘disclosure’, on which see
22.53ff ).356 The privileges recognized in English law are: confidential discussion between
lawyer and client (‘legal advice privilege’ see 22.63); documents created for the dominant
purpose of use in pending or contemplated criminal or civil proceedings (including arbi-
tration proceedings) (‘litigation privilege’ see 22.67); settlement negotiations explicitly or
implicitly conducted on a secret basis (‘without prejudice communications privilege’; on
which see 22.91); mediation or conciliation negotiations conducted on a confidential basis
(‘mediation privilege’; on which see 22.91); the privilege against self-incrimination (on which
see 22.29);357 and ‘public interest immunity’,358 that is protection against use in civil pro-
ceedings of information protected in the public interest, eg, high-level state secrets or infor-
mation supplied to identify criminal wrongdoers.
(2) Privilege and ‘Confidentiality’ 359

Not all confidential information is privileged. For example, confidential discussion between 22.62
a person and a priest or religious advisor, or between a patient and doctor, and in many other
professional relationships, is undoubtedly subject to legal protection through injunctions360
and pecuniary relief. But the holder of those types of confidentiality cannot invoke privilege
if ordered by the court to give evidence or produce documents relating to this information.
354 [2003] EWCA Civ 1109, [2004] 1 WLR 1479, at [36], per Aldous LJ: ‘The most important consid-
eration must be the interest of justice which involves considering the interest of the party seeking to use the
documents and that of the party protected by the CPR r 31.22 order.’
355 Sometimes the privilege is asserted outside the context of the formal legal process: eg R (on the
Application of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21, [2003] 1
AC 563 (privilege available against a tax inspector’s demand for documents).
356 Predominantly covered by CPR Part 31.
357 C Tapper, Cross and Tapper on Evidence (12th edn, 2010) 417ff; I Dennis, The Law of Evidence (4th
edn, 2010) ch 5; C Hollander, Documentary Evidence (10th edn, 2009) ch 17; P Matthews and H Malek,
Disclosure (4th edn, 2012) ch 13; Phipson on Evidence (17th edn, 2010) 24.60ff; B Thanki (ed), The Law of
Privilege (2nd edn, 2011) 8.30; Zuckerman on Civil Procedure (2nd edn, 2006) ch 17; for general reflections,
J Sorabji (2012) 31 CJQ 261 (although the Court of Appeal decision there noted was reversed in Gray v News
Group Newspapers Ltd [2012] UKSC 28, [2012] 3 WLR 312).
358
Cross and Tapper on Evidence (12th edn, 2010) 479ff; C Hollander, Documentary Evidence (10th edn,
2009) ch 18; P Matthews and H Malek, Disclosure (4th edn, 2012) ch 12; Phipson on Evidence (17th edn,
2010) ch 25; Zuckerman on Civil Procedure (2nd edn, 2006) ch 18.
359
T Aplin, L Bently, P Johnson and S Malynicz (eds), Gurry on Breach of Confidence (2nd edn, 2012);
P Stanley, Confidentiality: A Restatement (2008); R Pattenden, The Law of Professional–Client Confidentiality:
Regulating the Disclosure of Confidential Personal Information (2003); RG Toulson and CM Phipps,
Confidentiality (3rd edn, 2012); a leading judicial examination is Imerman v Tchenguiz [2010] EWCA Civ
908, [2011] Fam 116, at [54]ff.
360 Stiedl v Enyo Law LLP [2011] EWHC 2649 (Comm), [2012] PNLR 4, Beatson J (surveying the
case law).
1351
In short, privilege is confidentiality admitted to a higher level of legal protection; but not all
confidential relations are raised to that level. In West London Pipeline and Storage Ltd v Total
Oil UK Ltd361 Beatson J noted that, in response to a challenge to privilege: (1) the court can
declare that the claim to privilege is sound; (2) conversely, it can declare that the claim fails;
(3) the court can order the privilege claimant to swear a further affidavit to clarify the claim;
(4) or the court can inspect the disputed documents; or (5) under CPR 32.7(1) the court can
supplement these four responses and, exceptionally, authorize pre-trial cross-examination of
the relevant deponent (whose affidavit contains the claim to privilege). Three propositions
emerge from this seminal discussion in West London Pipeline and Storage Ltd v Total Oil UK
Ltd: (i) a further affidavit, option (3), is the ‘default’ response, if the court cannot immedi-
ately resolve the matter in accordance with options (1) or (2); (ii) a less frequent response is
judicial inspection, option (4); and (iii) cross-examination is the final possibility, option (5),
but it will seldom be appropriate.
(3) Legal Advice Privilege362

22.63 Legal advice privilege operates as an absolute protection because: (i) it cannot be disapplied
by exercise of judicial discretion363 (see 22.64); and (ii) unless this privilege is waived by
a privilege holder (or his authorized agent),364 protection endures beyond the immediate
occasion or context of the privileged communications.365 The party cannot be called to give
evidence of, or produce any document containing details of, confidential discussion between
a client and a lawyer concerning the law and its application. In the United States it is known
as ‘attorney-client’ privilege (Upjohn Co v United States).366 Protection of confidential legal
consultation is also recognized as a human right under the European Convention on Human
Rights,367 and as part of European Union law.368 In the leading English decision on this priv-
ilege, Three Rivers DC v Governor and Company of the Bank of England (No 6),369 Baroness
Hale quoted Lord Taylor (Taylor LJ, as he then was) in Balabel v Air India370 who had said:
‘legal advice is not confined to telling the client the law; it must include advice as to what
361
[2008] EWHC 1729 (Comm), [2008] 2 CLC 258.
362
Cross and Tapper on Evidence (12th edn, 2010) 435ff; I Dennis, The Law of Evidence (4th edn, 2010) ch
10; C Hollander, Documentary Evidence (10th edn, 2009) chs 11–15, esp 13, 14; P Matthews and H Malek,
Disclosure (4th edn, 2012) ch 11; Phipson on Evidence (17th edn, 2009) ch 23; C Passmore, Privilege (2nd
edn, 2006) ch 2; B Thanki (ed), The Law of Privilege (2nd edn, 2011) ch 2; Zuckerman on Civil Procedure (2nd
edn, 2006) ch 15; J Auburn, Legal Professional Privilege: Law & Theory (2000); HL Ho, ‘History and Judicial
Theories of Legal Professional Privilege’ (1995) Sing J L Studies 558.
363 R v Derby Magistrates’ Court, Ex p B [1996] AC 487, HL; B v Auckland District Law Society [2003]
UKPC 38, [2003] 2 AC 736, PC, at [50]–[56], per Lord Millett; B Thanki (ed), The Law of Privilege (2nd
edn, 2011) 1.28–1.32.
364 For detailed discussion, NH Andrews, English Civil Procedure (2003) ch 28.
365
B v Auckland District Law Society [2003] UKPC 38, [2003] 2 AC 736, PC, at [44]; B Thanki (ed), The
Law of Privilege (2nd edn, 2011) 1.63– 1.69.
366
449 US 383 (1981); on which, Zuckerman on Civil Procedure (2nd edn, 2006) 15.43ff, fnn 70–82;
B Thanki (ed), The Law of Privilege (2nd edn, 2011) 2.31–2.35, notes Australian discussion in Esso v Federal
Commissioner of Taxation (1999) 201 CLR 49.
367
Noted in the Morgan Grenfell case [2002] UKHL 21, [2003] 1 AC 563, at [39].
368
AM & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878, ECJ,
at [18] and [25].
369
[2004] UKHL 48, [2005] 1 AC 610; noted NH Andrews (2005) CJQ 185; S Partington and J Ward
[2005] JBL 231; J Seymour [2005] CLJ 54; C Tapper (2005) 121 LQR 181; the leading historical survey
conducted by an English court is Lord Taylor of Gosforth CJ’s remarkable speech in R v Derby Magistrates
Court, Ex p B [1996] AC 487, HL; HL Ho, ‘History & Judicial Theories of Legal Professional Privilege’
(1995) Sing J L Studies 558.
370
[2004] UKHL 48, [2005] 1 AC 610, at [62], referring to Taylor LJ’s statement in Balabel v Air India
[1988] Ch 317, 330, CA.
1352
should prudently and sensibly be done in the relevant legal context.’ As Andrews wrote in
1994, ‘modern society accepts that there is an important constitutional value in obtaining
“free, confident, and candid” legal consultation’.371
A ‘lawyer-client’ relationship is normally easy to identify when the client is an individual. The 22.64
traditional approach has been that the lawyer must be a barrister or solicitor. The Supreme
Court in R (Prudential plc) v Special Commissioner of Income Tax372 held that accountants are
not lawyers for the purpose of legal advice privilege, even if the accountant in question is a
tax specialist (upholding the Court of Appeal).373 In-house counsel can give privileged legal
advice.374 By contrast, the European Court of Justice in the Akzo Nobel case375 confirmed
that an in-house lawyer’s advice does not attract legal advice privilege for the purpose of
EU competition law. According to the House of Lords in the Three Rivers case (in 2004),
legal advice privilege can extend to ‘presentational’ advice for participation in an inquiry.376
However, this privilege does not extend to a lawyer’s advice or assistance in a general com-
mercial capacity if the same can be provided equally well by a non-lawyer. This last point is
known as the ‘mere man of business’ limitation.377 And so there must be a distinctive ‘legal
input’ to differentiate the lawyer’s advice from commercial advice given by a banker, surveyor,
property developer, or insurer. If this is so, all that passes between the client and lawyer will
fall within the protection of the privilege.
However, in the corporate context, the scope of a lawyer-client relationship is subject to the 22.65
problematic Court of Appeal decision in Three Rivers (No 5),378 which held that when an
event involving or affecting a company (or other organization) is being investigated by that
company’s lawyers, the ‘client’ should be defined narrowly to comprise only a small segment
of the company or organization who have been chosen to carry out and supervise the internal
investigation. Sometimes legal consultation beyond this ‘core’ client group might be privi-
leged on the basis of ‘litigation’ privilege, but that head of privilege is confined to confiden-
tial communications in relation to ‘adversarial’ proceedings, as distinct from an inquiry.379
The Court of Appeal’s decision in Three Rivers (No 5)380 thus reflects judicial anxiety that
companies should not gain too extensive protection. But the decision creates uncertainty.
On balance, it would be better to define the client as ‘the company’ in all cases. Thus the US
Supreme Court in Upjohn Co v United States adopted a broader approach than the English
371
NH Andrews, Principles of Civil Procedure (1994) 12-009.
372
[2013] UKSC 1, [2013] 2 WLR 325; in England, legal advice privilege has been extended to trade
mark and patent agents, and certain other ‘quasi-legal’ advisors, mostly by statute: B Thanki (ed), The Law
of Privilege (2nd edn, 2011) 1.41–1.42; C Passmore, Privilege (2nd edn, 2006) 1.144. In Bolkiah v KPMG
[1999] 2 AC 222, HL, privilege arose in the dealings between ‘forensic accountants’ and potential witnesses;
but this seems to have been rooted in litigation privilege, C Passmore, Privilege (2nd edn, 2006) 1.145.
373
[2010] EWCA Civ 1094, [2011] QB 669.
374
Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] 2 QB 102,
129, CA; not challenged on appeal, [1974] AC 405, 430–431, HL.
375
Akzo Nobel ECJ Case C-550/07 (decision of 14 Sept 2010); noted A Higgins (2011) CJQ 113; and
L Bastin, ‘Should “Independence” of In-House Counsel be a Condition Precedent to a Claim of Legal
Professional Privilege . . . ?’ (2011) 30 CJQ 33.
376
Three Rivers (No 6) [2004] UKHL 48, [2005] 1 AC 610, at [120].
377
Three Rivers (No 6) [2004] UKHL 48, [2005] 1 AC 610, at [38].
378
Three Rivers DC v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474,
[2003] QB 1556; distinguished in BBGP Managing General Partner Ltd & Ors v Babcock & Brown Global
Partners [2010] EWHC 2176 (Ch), [2011] 2 All ER 297, at [42], per Norris J (agent entering into retainer
with law firm and obtaining legal advice on behalf of its principal, a partnership; whole partnership a client,
and not the agent).
379
Re L [1997] AC 16, HL.
380
[2003] EWCA Civ 474, [2003] QB 1556.
1353
Court of Appeal’s (on which see 22.64) to the question of a ‘corporate client’.381 The House
of Lords in Three Rivers (No 6) chose not to decide whether they regarded the American deci-
sion in the Upjohn case as attractive.
22.66 Statutes have overridden this head of privilege in specific contexts.382 For this purpose, how-
ever, only clear legislation can suppress privilege.383 Furthermore, the rule in R v Cox &
Railton384 prevents privilege from attaching to legal advice or assistance concerning the cli-
ent’s intended commission of a crime or ‘fraud’. ‘Fraud’ in this context includes, it seems,
all species of dishonest conduct, but does not extend to: (i) breaches of contract; or (ii) the
torts of conversion of goods or trespass.385 Nor does privilege apply where the client is being
manipulated for fraudulent purposes by a third party.386 A further exception arose in JSC
BTA Bank v Solodchenko,387 where the defendant had been committed to imprisonment
for 18 months for failure to comply with an asset disclosure order, as part of freezing relief
proceedings. Henderson J recognized an exceptional power in this context to order his solici-
tor to disclose contact details so that the fugitive might be traced and imprisoned. There can
also be waiver of privilege.388 The Court of Appeal in Re D (A Child) held that a mother had
waived legal advice privilege by making comments in her witness statement; and so the father
of her child was entitled to cross-examine her on this formerly privileged material.389 General
principles of ‘collateral waiver’ were examined in Berezovsky v Abramovich in the context of
‘without prejudice’ communications.390
(4) Litigation Privilege 391

22.67 This privilege shields a party’s (or lawyer’s) attempt to prepare a case for litigation conducted
inter partes. Each party’s (or prospective party’s) private investigation into the case’s facts and
background can be conducted in the knowledge that an opponent cannot discover either
381 449 US 383 (1981); cf the US material collected at Zuckerman on Civil Procedure (2nd edn,
2006) 15.43ff, fnn 70–82, also noting J Sexton, ‘A Post-Upjohn Consideration of Corporate-Client Privilege’
(1982) 57 NYULR 442; on the danger of corporate ‘cloaking’, B Thanki (ed), The Law of Privilege (2nd
edn, 2011) 2.149, fn 394, noting Australian discussion in Esso v Federal Commissioner of Taxation (1999)
201 CLR 49.
382 B Thanki (ed), The Law of Privilege (2nd edn, 2011) 4.78–4.82; Derby & Co Ltd v Weldon (No 7) [1990]
1 WLR 1156, 1174 E–G, per Vinelott J; O’Rourke v Darbishire [1920] AC 681, 613, HL, per Lord Sumner.
383 R (on the Application of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL
21, [2003] 1 AC 563 (legal advice privilege available against a tax inspector’s demand for documents); statu-
tory suppression of this privilege requires explicit language or ‘necessary implication’: R (on the Application
of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21, [2003] 1 AC 563,
at [45], [46], and remarks by Lord Millett in B v Auckland District Law Society [2003] UKPC 38, [2003] 2
AC 736, PC, at [57]ff, and by Brooke LJ in Bowman v Fels [2005] EWCA Civ 226, [2005] 1 WLR 3083,
at [85]ff.
384 (1884) 14 QBD 153, Stephen J; C Passmore, Privilege (2nd edn, 2006) ch 8.
385
B Thanki (ed), The Law of Privilege (2nd edn, 2011) 4.35–4.67.
386
R v Central Criminal Court, ex p Francis & Francis [1989] AC 346, HL.
387
[2011] EWHC 2163 (Ch), [2012] 1 All ER 735.
388
NH Andrews, English Civil Procedure (2003) 27.70ff (‘deliberate waiver’), and ch 28 (‘inadvertent
waiver’); C Hollander, Documentary Evidence (10th edn, 2009) chs 19 and 20; P Matthews and H Malek,
Disclosure (3rd edn, 2010) ch 16; C Passmore, Privilege (2nd edn, 2006) ch 7; Phipson on Evidence (17th edn,
2009) ch 26; B Thanki (ed), The Law of Privilege (2nd edn, 2011) 5.19–5.105; J Brabyn, ‘Limited Purpose
Waivers of Legal Professional Privilege’ (2012) 31 CJQ 177.
389
[2011] EWCA Civ 684, [2011] 4 All ER 434; distinguished in Pathology Group v Reynolds (28
November, 2011, unreported, Queen’s Bench, Judge Seymour QC).
390
[2011] EWHC 1143 (Comm), at [20]–[22], Gloster J.
391
I Dennis, The Law of Evidence (4th edn, 2010) 10.27ff; C Hollander, Documentary Evidence (10th
edn, 2009) ch 14; P Matthews and H Malek, Disclosure (3rd edn, 2010) ch 11; C Passmore, Privilege (2nd
edn, 2006) ch 3; Phipson on Evidence (17th edn, 2009) 23.89ff; B Thanki (ed), The Law of Privilege (2nd edn,
2011) ch 3; Zuckerman on Civil Procedure (2nd edn, 2006) ch 15.
1354
the target or fruit (or empty handedness) of the other party’s forensic investigation. There is
no general duty, therefore, to reveal ‘bad points’ discovered during this process. However, a
litigant or lawyer must not positively mislead the court. The elements of ‘litigation privilege’
are:392 it covers (i) confidential393 communication (including the creation of documentary
material) between third parties and either the client or lawyer; (ii) the communication must
have occurred, or this material must have been created, for the dominant purpose394 of use in
pending or anticipated proceedings; if not already commenced, the relevant proceedings must be in
reasonable prospect;395 (iii) the proceedings for which the communication was intended can
be criminal or civil, foreign396 or domestic, and involve courts, tribunals or arbitration (but see
the next restriction); however, (iv) the proceedings must be adversarial in nature, as distinct
from an inquisitorial procedure.397 This last aspect appears to prevent this head of privilege
attaching to communications with third parties relating to any type of ‘inquiry’. Such com-
munications can only be protected under the aegis of ‘legal advice privilege’. However, legal
advice privilege only applies to direct communications between a ‘client’ and lawyer. It is
submitted that element (iv), the ‘inquisitorial’ proceeding bar upon litigation privilege, needs
to be re-examined, as a matter of principle.398
In Axa Seguros SA v Allianz Insurance plc,399 concerning insurance claims for hurricane dam- 22.68
age to a Mexican highway, the claimant insurance company sought to inspect reports pre-
pared for the insured. The defendants claimed litigation privilege. Christopher Clarke J held
that the first limb of the litigation privilege test, namely that litigation was reasonably in
prospect at the time the reports were created, had been met.400 However, the claim to privi-
lege failed at a later stage of the analysis: the reports were prepared to assess the standards to
which the highway had been constructed and to determine to what extent the damage was
caused by the hurricane,401 and not for the predominant purpose of anticipated litigation
between the claimant and defendant.
In JSC BTA Bank v Shalabayev402 Henderson J was satisfied that the party claiming litigation 22.69
privilege had supplied just enough detail to suggest that the correct test had been considered
392 Axa Seguros SA v Allianz Insurance plc [2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544, at
[13]–[16], [40]–[41], [49]–[52].

393 An unsolicited communication with a potential witness would be privileged even if the witness has
not indicated that he intends to respect confidence: ISTIL Group Inc v Zahoor [2003] 2 All ER 252, [2003]
EWHC 165 (Ch), at [63], per Lawrence Collins J; B Thanki (ed), The Law of Privilege (2nd edn, 2011)
3.33–3.35. On loss of confidentiality, Axa Seguros SA v Allianz Insurance plc [2011] EWHC 268 (Comm),
[2011] Lloyd’s Rep IR 544, at [49]–[52].
394
On the ‘dominant purpose’ test, Axa Seguros SA v Allianz Insurance plc [2011] EWHC 268 (Comm),
[2011] Lloyd’s Rep IR 544, at [13]–[16], [40]–[41], [49]–[52]; B Thanki (ed), The Law of Privilege (2nd edn,
2011) 3.68–3.87.
395 A ‘real prospect’ rather than a ‘mere possibility’: USA v Philip Morris Inc (No 1) [2004] EWCA Civ
330, [2004] 1 CLC 811, at [66]–[69]; Axa Seguros SA v Allianz Insurance plc [2011] EWHC 268 (Comm),
[2011] Lloyd’s Rep IR 544, at [13]–[16], [40]–[41], [49]–[52]; B Thanki (ed), The Law of Privilege (2nd edn,
2011) 3.47–3.53.
396
Re Duncan [1968] P 306; Minnesota Mining and Manufacturing Co v Rennicks (UK) Ltd [1991] FSR
97, 99; Société Francaise Hoechst v Allied Colloids Ltd [1992] FSR 66; International Computers (Ltd) v Phoenix
International Computers Ltd [1995] 1 All ER 413, 427ff.
397
Re L [1997] AC 16, HL.
398
In the Three Rivers litigation, the Bank’s counsel conceded that the Bingham Inquiry was not ‘adver-
sarial’ procedure and that ‘litigation privilege’ did not apply (on the basis of Re L [1997] AC 16, HL); cf Lord
Rodger, Three Rivers DC v. Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1
AC 610, at [53]; Zuckerman on Civil Procedure (2nd edn, 2006) 15.110ff; B Thanki (ed), The Law of Privilege
(2nd edn, 2011) 3.57–3.61; C Passmore, Privilege (2nd edn, 2006) 3.058ff.
399
[2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544.
400
[2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544, at [44].
401
[2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544, at [40] and [49].
402
JSC BTA Bank v Shalabayev [2011] EWHC 2915 (Ch).
1355
and applied in asserting that claim. He was prepared to uphold the claim to privilege. The
case concerned a search order in respect of a storage unit licensed by the defendants. Issues
arose concerning the privileged nature of documents seized from that unit. The court had
previously granted an ‘unless’ order. Its effect was that, if the defendants did not produce
a schedule of documents detailing claims to privilege by a specified time, they would be
debarred from claiming privilege over the documents in question. The defendants delayed,
and sought relief from the ‘unless’ order. Relief was granted. Henderson J held that legal pro-
fessional privilege was a principle of such strength that he found it ‘hard, if not impossible,
to envisage any circumstances where legal professional privilege could properly be directly
overridden by an order of the court made in exercise of its case management powers’.403
22.70 What is the relationship between legal advice and litigation privileges? Legal advice privilege
applies to lawyer-client consultation, whether or not the relevant advice concerns litigation.
Litigation privilege concerns confidential discussion or investigation outside the lawyer/
client relationship.404 The better view is that there is no overlap between these privileges.405
A communication or document should be analysed as privileged under one head rather than
the other, and not as privileged under both.406
H. Experts407
(1) Nature of Expert Opinion
22.71 Experts are needed in the civil process because (as a non-judge has had the temerity to sug-
gest) ‘no judge is omniscient’ and ‘we cannot demand of the judges that they have knowledge
of every branch of science, of every art and of the mysteries of every profession’.408 Under the
CPR, there are three ways in which the ordinary civil courts can receive expert opinion: by
a ‘single, joint expert’, party-appointed experts, and court assessors.409 These will be intro-
duced in turn in the ensuing discussion. Lord Woolf in the Interim Report (1995)410 had
contemplated a much larger role for expert court-assistants, to be appointed by the court
to act as independent experts in a particular case. However, this was resisted on the ground
that in the larger cases there should be adversarial debate and the parties should retain con-
trol of this. Lord Woolf noted the sharp resistance to his tentative idea that England might
403
JSC BTA Bank v Shalabayev [2011] EWHC 2915 (Ch), at [34].
404
Several Law Lords in Three Rivers (No 6) [2004] UKHL 48, [2005] 1 AC 610 acknowledged this dis-
tinction between legal advice and litigation privilege: see Lord Scott at [10], Lord Rodger at [50] and [51],
and Lord Carswell at [65] and [72]; see also Lord Rodger at [51], commenting on Waugh v BR Board [1980]
AC 521, 541–542, HL, which made clear that litigation privilege is subject to a ‘dominant purpose’ test; the
House of Lords in the Three Rivers case assumed that a ‘dominant purpose’ test also applies to legal advice
privilege; on this last issue, B Thanki (ed), The Law of Privilege (2nd edn, 2011) 2.173ff.
405
B Thanki (ed), The Law of Privilege (2nd edn, 2011) 1.09, 3.08–3.10; C Passmore, Privilege (2nd edn,
2006) 3.002ff.
406
cf the contention that there is overlap: Zuckerman on Civil Procedure (2nd edn, 2006) 15.17.
407
L Blom-Cooper (ed), Experts in Civil Courts (2006); S Burn, Successful Use of Expert Witnesses in Civil
Disputes (2005); Cross and Tapper on Evidence (12th edn, 2010) 540ff; D Dwyer, The Judicial Assessment of
Expert Evidence (2008); D Dwyer and R Jacob in D Dwyer (ed), Civil Procedure Rules: Ten Years On (2009)
chs 16, 17, respectively; IR Freckleton, The Trial of the Expert (1987); T Hodgkinson and M James, Expert
Evidence: Law and Practice (3rd edn, 2010); C Hollander, Documentary Evidence (10th edn, 2009) ch 24;
Phipson on Evidence (16th edn, 2005) ch 33; Zuckerman on Civil Procedure (2nd edn, 2006) ch 20.
408
JA Jolowicz, On Civil Procedure (2000) 225.
409 cf ‘expert’ constitution of, eg Coroners Courts, medical appeal tribunals, etc.
410 Access to Justice: Interim Report (1995) ch 23, paras 20–23, and recommendation (2), at end of ch 23.
1356
H. Experts
even develop a preference for court-appointed experts. In the Final Report (1996) he said:411
‘Since the publication of the interim report, resistance to my proposals on single experts has
remained particularly strong, and it is clear that the idea is anathema to many members of
the legal professions in this country who are reluctant to give up their adversarial weapons . . . ’
He added:412 ‘Given the strength of opposition to my proposals, it would not be realistic to
expect a significant shift towards single experts in the short term.’ In the event, a two-tier
structure has emerged: single, joint experts for use in relatively minor cases or on minor issues
within larger cases; and party-appointed experts for use in the top stratum of civil disputes,
where the complexity of the issues or the size of the claim justify the adversarial collision of
rival expert opinions.
Common to all forms of expert evidence under the CPR is the requirement that the court 22.72
must give permission for such evidence.413 The court (after noting the details contained in
the parties’ application for such permission)414 will clarify and specify the issues where expert
opinion is required.415 And since 1 April 2013, the parties must provide an estimate of costs
in respect of expert evidence.416 Another common feature is that all expert witnesses owe a
duty to the court ‘to help the court on the matters within his expertise’.417 This duty ‘to help
the court’ overrides any obligation owed by the expert to the instructing party.418 In short,
experts must exercise independent judgement. They must not become the pawns of litigants.
Nor should they become, or at least remain, attached to their own dogmas. An expert can
file a written request to the court for ‘directions to assist him in carrying out his function as
an expert’.419 Because they enjoy direct access to the court in this manner, this rule elevates
expert witnesses into a higher category of witness. So far, however, experts have seldom sought
such direct contact.420 The expert’s report must ‘contain a statement that the expert under-
stands his duty to the court, and has complied with that duty’.421 The expert has been styled
a ‘quasi-officer of the court’, who can be ordered to pay the other side’s wasted costs if his
opinion is wrong or exaggerated as a result of reckless or gross dereliction of his duty.422 It is
411 Access to Justice: Final Report (1996) ch 13, para 16; available online at: <http://www.dca.gov.uk/civil/
reportfr.htm>.
412 Access to Justice: Final Report (1996) ch 13, para 20.
413 CPR 35.4(1).
414 CPR 35.4(2)(a),
415 CPR 35.4(3); this change is designed to counter the problem which occurred in, for example, Trebor
Bassett Holdings Ltd v ADT Fire & Security plc [2011] EWHC 1936 (TCC), [2011] BLR 661 at [396]–[402];
Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2007] EWCA Civ 936, [2008] Bus LR 801, at [5]; and
in Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206, [2012] FSR 4, at [36]–[39]; Sir Rupert Jackson, ‘Focusing
Expert Evidence and Controlling Costs’ 11 November 2011: <http://www.judiciary.gov.uk/Resources/JCO/
Documents/Speeches/lj-jackson-lecture-focusing-expert-evidence-controlling-costs.pdf>; and these rule
changes are anticipated also in Jackson LJ’s remarks in Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206, [2012]
FSR 4, at [36]–[39].
416
CPR 35.4(2).
417
CPR 35.3(1); Anglo Group plc, Winter Brown & Co Ltd v Winter Brown & Co Ltd, BML (Office
Computers) Ltd, Anglo Group plc, BML (Office Computers) Ltd [2000] EWHC Technology 127 (8 March
2000), at [108]–[110], Judge Toulmin QC; on the expert’s duty to the court, L Blom-Cooper (ed), Experts
in Civil Courts (2006) ch 11.
418
Or duty owed to ‘the instructing parties’, in the case of a ‘single, joint expert’ under CPR 35.7(2); or
‘any obligation’ owed by the expert to the person ‘by whom [the expert] is paid’); see CPR 35.3.
419
CPR 35.14(1).
420
Master John Leslie, Queen’s Bench Division (Cambridge seminar, February 2012) states that he has
only encountered two instances since April 1999; in one case the problem arose between a litigant in person
and his appointed expert.
421
CPR 35.10(2).
422
Phillips v Symes (No 2) [2005] 1 WLR 2043, Peter Smith J.
1357
established that the court has the ultimate say on matters of expertise.423 If ultimate decision-
making were to be ceded by the judge to the expert, this would involve the expert being
allowed to usurp ‘the constitutional function of the judge’.424
(2) Assessors 425

22.73 Assessors are mainly used in cases concerning maritime collisions, some patent litigation,
and occasional appeals concerning technical questions of costs. By contrast, in civilian sys-
tems, court-appointed experts are used extensively. Indeed several such regimes might operate
within each jurisdiction.426 The (English) assessor’s task is to advise the judge on evaluation
of disputed matters of fact.427 Assessors’ advice must be disclosed to the parties. It would
be wrong for assessors to retire with the judge to present further comment because such a
practice would infringe the right of the parties to contradict all relevant issues or matters of
opinion.428
(3) Single, Joint Expert System

22.74 In relatively straightforward claims, or peripheral matters in large litigation, the expert will
be a ‘single, joint expert’, appointed to act for both parties.429 The parties share the cost
of the expert. The parties can agree on the relevant individual, failing which the court can
select him from rival lists supplied and briefly annotated by each party.430 Each party has
an opportunity to instruct the expert and to ask written questions. Such an expert should
not communicate, meet, or discuss the case or his evidence with one party, independently
of the opponent.431 The single, joint expert’s report must summarize the ‘range of opinion’
on the relevant issue and give reasons for preferring the view adopted.432 In the interest of
economy,433 the courts at first expressed a strong disinclination to hear oral evidence from
such an expert. But the Court of Appeal has since confirmed that a court can give permission
423 Armstrong v First York Ltd [2005] 1 WLR 2751, CA, [2005] EWCA Civ 277, at [28], approving
Liddell v Middleton [1996] PIQR P36, 43.

424 Law Reform Committee’s 17th Report, ‘Evidence of Opinion and Expert Evidence’ (Cmnd
4489, 1970) 5.
425 CPR 35.15; PD (35) 7.1–7.4; T Bingham, The Business of Judging (2000) 19–24; L Blom-Cooper (ed),
Experts in Civil Courts (2006) ch 8; DM Dwyer, ‘The Future of Assessors under the CPR’ (2006) 25 CJQ
219; T Hodgkinson and M James, Expert Evidence: Law and Practice (3rd edn, 2010) 5-012ff.
426 JA Jolowicz, On Civil Procedure (2000) ch 12; L Cadiet and E Jeuland, Droit Judiciare Privé (6th edn,
2009) 428ff; PL Murray and R Stürner, German Civil Justice (2004) 280ff.
427 Law Reform Committee’s 17th Report, ‘Evidence of Opinion and Expert Evidence’ (Cmnd
4489, 1970) 6.
428
Owners of the Ship Bow Spring [2005] 1 WLR 144, CA.
429
L Blom-Cooper (ed), Experts in Civil Courts (2006) ch 5; T Hodgkinson and M James, Expert Evidence:
Law and Practice (3rd edn, 2010) ch 5; as CPR 35.7 mentions, this presupposes that more than one party
wishes to adduce expert evidence on a particular issue. A cheaper ‘single, joint expert’ might be appointed, if
the more expensive expert’s fees are disproportionate to the case’s value: Kranidotes v Paschali [2001] EWCA
Civ 357, [2001] CP Rep 81; T Hodgkinson and M James, Expert Evidence: Law and Practice (3rd edn,
2010) 4-018.
430
The author is grateful to Master John Leslie, Queen’s Bench Division, for this insight into High Court
practice.
431 Peet v Mid-Kent Care Healthcare Trust [2002] 1 WLR 210, at [24]; ‘Protocol for the Instruction of
Experts to Give Evidence in Civil Claims’ (Civil Justice Council, 2005) 17.12.
432 PD (35), para 2.2(6).
433 Daniels v Walker [2000] 1 WLR 1382, 1388 A, CA, where Lord Woolf admitted that cross-examina-
tion of a single, joint evidence is a possibility; similarly, Peet v Mid-Kent Care Healthcare Trust [2002] 1 WLR
210, at [28], per Lord Woolf CJ.
1358
H. Experts
for a ‘single, joint expert’ to be cross-examined.434 In most cases the court will adopt the
opinion of the ‘single joint expert’, but a judge can reject it if it appears to be unsound. The
Court of Appeal in Armstrong v First York Ltd435 noted that the trial judge is not bound by an
expert’s opinion, even that of a single, joint expert, when it contradicts the factual evidence
given by one party. The judge can here decide to prefer the party’s factual evidence, even if the
same judge lacks the technical capacity to repudiate the expert’s evidence.436
The court will give permission for a party to adduce supplementary party-appointed expert 22.75
evidence only if: (i) that party can show reasons which are ‘not fanciful’ for this additional
evidence; and (ii) this will not result in disproportionate costs. The party who seeks the court’s
permission to adduce additional expert evidence will be expected already to have asked writ-
ten questions of the expert and to have received manifestly unsatisfactory answers.437 The
approach just explained was established in Daniels v Walker (2000)438 and further explained
in Peet v Mid-Kent Healthcare Trust (2002).439
(4) Party-Appointed Experts

In complex or relatively large claims, each party will seek permission to appoint his own 22.76
expert or experts. If permission is granted, the court will also order the parties to exchange
their reports. The Court of Appeal in Dyson Ltd v Vax Ltd emphasized that the permission
stage is an opportunity for procedural control and direction. Accordingly, the court should
take steps to delineate the precise ambit of the expert’s required evidence, otherwise experts
will tend to stray into unhelpful peripheral areas or address the wrong issues instructions.440
The court’s permission will be expressed either in relation to ‘the expert named’ or ‘the field
identified’.441 If permission exists to call a ‘named’ expert, that party must obtain the court’s
further permission to substitute another expert.442 But such further permission will be condi-
tional on that party disclosing the first expert’s report.443 ‘Transparency’ can then be achieved.
However, this condition cannot be imposed if permission has been expressed in terms of a
‘field’ of expertise.444 In that situation, which is the more common, there is no check upon
so-called ‘expert shopping’. A party cannot pre-emptively buy up all the prominent experts
in a relevant field, depriving the opponent of access to these influential oracles of wisdom.
This rule against monopolising leading experts is expressed by the statement that there is
‘no property in a witness’ (and indeed this proposition extends to a ‘witness of fact’).445
434 R v R [2002] EWCA Civ 409, at [14]–[18], per Ward LJ; Popel v National Westminster Bank plc [2002]
EWCA Civ 42, [2002] CPLR 370, at [28] and [29], per Dyson LJ, and Austen v Oxfordshire County Council
[2002] All D 97 (CA); 17 April 2002.
435 Brooke LJ in Armstrong v First York Ltd [2005] 1 WLR 2751, CA, [2005] EWCA Civ 277, at [28],
approving a comment in Liddell v Middleton [1996] PIQR P36, 43.

436 For other cases on this topic: Jakto Transport v Derek Hall [2005] EWCA Civ 1327; Montracon v
Whalley [2005] EWCA Civ 1383; Montoya v Hackney London Borough Council (unreported).
437
Practice reported to author by Master John Leslie, Queen’s Bench Division.
438
[2000] 1 WLR 1382 CA; Cosgrove v Pattison [2001] CP Rep 68; The Times 13 February 2001,
Neuberger J; Stallwood v David [2006] EWHC 2600 (QB), [2007] 1 All ER 206, Teare J, at [32] (noted A
Zuckerman (2007) 26 CJQ 159).
439
[2002] 1 WLR 210, CA, at [28].
440
[2011] EWCA Civ 1206, [2012] FSR 4, at [10], per Jacob LJ and at [36]–[39], per Jackson LJ.
441
CPR 35.4(2).
442
Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 1 WLR 2195, CA: applying Beck v Ministry of
Defence [2003] EWCA Civ 1043, [2005] 1 WLR 2206 (note), even though in the Beck case the relevant order
had not mentioned an expert by name.
443 Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 1 WLR 2195, CA (applying Beck case).
Edwards-Tubb v JD Weatherspoon plc [2011] EWCA Civ 136, [2011] 1 WLR 1371, at [30]–[33].
444 Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 1 WLR 2195, CA considering CPR 35.4(2)(a).
445 Harmony Shipping Co SA v Davis [1979] 1 WLR 1380, 1384–1385, CA, per Lord Denning MR.
1359
Furthermore, the CPR provide: ‘where a party has disclosed an expert’s report, any party may
use that expert’s report as evidence at the trial.’446 It is improper to pay an expert witness on
a conditional or contingency fee basis.447 The expert selected should be competent.448 The
fact that an expert ‘oversteps the mark’ by straying beyond his zone of expertise will not nec-
essarily lead to his report being invalidated and the potential evidence (insofar as his report
remains within the field of expertise) being excluded.449 The proposed expert should also be
available.450 The instructing party and lawyers must take steps to ensure that the expert is
aware of the duty to be independent.451 It is certainly desirable that the expert should not
have any close connection with the appointing party or persons involved in the case or any
potential conflict of interest.452 However, an employer might use an employee as an expert,
although this evidence’s weight will be reduced because his manifest lack of independence
will reduce the weight of his evidence.453
22.77 More generally, there is a widespread suspicion that the evidence of party-appointed experts
might be tailored to suit the appointing party: ‘For whatever reason, and whether consciously
or unconsciously, the fact is that expert witnesses instructed on behalf of parties to litigation
often tend, if called as witnesses at all, to espouse the cause of those instructing them to a
greater or lesser extent, on occasion becoming more partisan than the parties.’454 Nevertheless,
the adversarial party-appointed expert system can inject often salutary scepticism, debate,
and ‘intellectual honesty’, into the process of deciding contestable matters of opinion.
22.78 Expert evidence must be given in a written report, unless the court directs otherwise.455 Pre-
trial disclosure of a party’s expert report is also a condition for use of that expert: without such
disclosure a party ‘may not use the report at the trial or call the expert to give evidence orally
unless the court gives permission’.456 The rules prescribe the form of the expert’s report.457
Experts must list their qualifications in these reports,458 and they must not exceed their field
446
CPR 35.11.
447
R (Factortame Ltd) v Secretary of State for the Environment, Transport and the Regions (No 8) [2003]
QB 381, CA, [2002] EWCA Civ 932, at [54], [57], [87], [90], [91], per Lord Phillips MR; but an expert
not acting as witness can validly agree a percentage return for litigation support: Mansell v Robinson [2007]
EWHC 101 (QB).
448 On the question of ‘accreditation’ and ‘training’, L Blom-Cooper (ed), Experts in Civil Courts (2006)
chs 2, 12.
449 Vickrage v Badger [2011] EWHC 1091, at [11]ff (Judge Yelton).
450 N Madge in L Blom-Cooper (ed), Experts in Civil Courts (2006) 4.33, noting Rollison v Kimberly Clark
[2001] EWCA Civ 1456, [2002] CP Rep 10.

451 Medimmune Ltd v Novartis Pharmaceuticals Ltd [2011] EWHC 1669 (Pat), at [114].
452 ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council,
2005) 7.1; cf Akai Holdings Limited (in compulsory liquidation) v RSM Robson Rhodes LLP and Another [2007]
EWHC 1641, Briggs J.
453
Field v Leeds City Council [2000] 1 EGLR 54 CA; R (Factortame Ltd) v Secretary of State for the
Environment, Transport and the Regions (No 8) [2003] QB 381, CA, [2002] EWCA Civ 932, at [70]; on
which, T Hodgkinson and M James, Expert Evidence: Law and Practice (2nd edn, 2006) 1-030 and DM
Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence’ (2007) 26 CJQ 57; see also Meat
Corporation of Namibia v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch), notably at [31], [34], [45], [52],
[54], and [61].
454
Abbey National Mortgages plc v Key Surveyors Ltd [1996] 1 WLR 1534, 1542, CA; on party-appointed
expert partiality, A Edis, ‘Privilege and Immunity: Problems of Expert Evidence’ (2007) 26 CJQ 40, and DM
Dwyer, ‘The Effective Management of Bias in Civil Expert Evidence’ (2007) 26 CJQ 57.
455 CPR 35.5; generally on expert reports, L Blom-Cooper (ed), Experts in Civil Courts (2006) ch 6.
456 CPR 35.13.
457 CPR 35.10 and PD (35) 2.2; ‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’
(Civil Justice Council, 2005) 13.

458 PD (35), 2.2(1) for the latter requirement.
1360
H. Experts
of expertise.459 If they do, they should make this clear.460 The expert must: (i) provide ‘details
of any literature or other material which [he] has relied on in making the report’;461(ii) ‘sum-
marise the range of opinion [if there is one] and give reasons for his own opinion’;462 and
(iii) ‘if the expert is not able to give his opinion without qualification, [he must] state the
qualification’.463 The expert’s report must ‘contain a statement that the expert understands
his duty to the court, and has complied with that duty’.464 Because his report can cover
matters both of opinion and fact, the rules prescribe a special ‘statement of truth’: ‘I confirm
that I have made clear which facts and matters referred to in this report are within my own
knowledge and which are not. Those that are within my own knowledge I confirm to be true.
The opinions I have expressed represent my true and complete professional opinions on this
matter to which they refer.’465
As for amendment of the report at the instructing party’s request, ‘experts should not be 22.79
asked to, and should not, amend, expand, or alter any parts of reports in a manner which
distorts their true opinion, but may be invited to amend or expand reports to ensure accu-
racy, internal consistency, completeness and relevance to the issues and clarity’.466 The court’s
order can be for simultaneous or sequential disclosure of reports by the opposing parties.467
Disclosure is confined to ‘the expert’s intended evidence’ and does not extend to ‘earlier and
privileged drafts of what might or might not become the expert’s evidence’, unless the final
report is ‘on its face’ a ‘partial or incomplete document’.468 Parties can pose written questions
for the attention of the other side’s expert witness or the ‘single, joint expert’.469 Answers
become part of the main report.470
‘The expert’s report must state the substance of all material instructions, whether written or 22.80
oral, on the basis of which the report was written.’471 ‘Instructions’ include ‘material sup-
plied by the instructing party to the expert as the basis on which the expert is being asked
to advise’.472 But the expert’s declaration of a summary of these ‘instructions’ will suffice.473
‘Instructions’ do not include material lying behind the instructing party’s written sum-
mary of ‘assumed facts’.474 A litigant, or prospective litigant, enjoys ‘litigation privilege’ in
459 The need for such delineation of his legitimate field of comment is made clear in: (1) section 3(1),
Civil Evidence Act 1972 (‘ . . . where a person is called as a witness in any civil proceedings, his opinion on any
relevant matter on which he is qualified to give expert evidence shall be admissible in evidence’); and (2) CPR
35.3.1, referring to an expert’s evidence on: ‘ . . . matters within his expertise’.
460 PD (35) 1.5(a); for such a failure in the criminal context, see Meadow v General Medical Council [2006]
EWCA Civ 1390, [2007] QB 462, discussed later.

461 PD (35) 2.2(2).
462 PD (35) 2.2(6).
463 PD (35) 2.2(8).
464 CPR 35.10(2).
465 PD (35) 3.3.
466
‘Protocol for the Instruction of Experts to Give Evidence in Civil Claims’ (Civil Justice Council,
2005) 15.2.
467
Normally the exchange is simultaneous; but fairness and clarity might sometimes justify sequential
disclosure: T Hodgkinson and M James, Expert Evidence: Law and Practice (2nd edn, 2006) 4-020.
468
Jackson v Marley Davenport Ltd [2004] 1 WLR 2926, CA, at [14] and [18], per Longmore LJ.
469
See PD (35) 5.1–5.3.
470
CPR 35.6(3).
471
CPR 35.10(3) (author’s emphasis).
472
Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2004] 1 WLR
220, at [34].
473 Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2004] 1 WLR
220, at [36], per Waller LJ.

474 Morris v Bank of India (unreported, 15 Nov 2001, Chancery), Hart J; on which NH Andrews, English
Civil Procedure (,2003) 32.51–31.56; and comments in Lucas v Barking, Havering and Redbridge Hospitals
NHS Trust [2003] EWCA Civ 1102, [2004] 1 WLR 220, at [8].
1361
communications between him (or his lawyer) and a prospective expert if the communication
is confidential and made for the dominant purpose of use in, or preparation for, criminal or
civil litigation475 which is in reasonable prospect.476 The CPR have removed litigation privi-
lege in the ‘instructions’, written or oral, provided by the litigant to an expert.477 But such
loss of privilege occurs only when ‘the party decides that the particular report on which he
wishes to rely should be disclosed’.478
(5) Discussions Between Experts and ‘Concurrent’ Expert Evidence at Trial

22.81 The court can direct that there should be a ‘discussion’479 between party-appointed experts,
followed by a ‘joint statement’.480 Although not bound to do so,481 courts often order such
discussions because they can engender settlement, reduce the adversarial sting of the contest,
narrow the scope of the dispute, and produce ideas for further streamlining the dispute. In
fact the experts can often reach agreement to a surprising extent. Normally, neither the par-
ties nor their lawyers may attend such a discussion.482 If lawyers do attend, they should not
‘intervene’ except to answer experts’ questions, notably on points of law.483 It is also provided
that experts: ‘must give their own opinions to assist the court and do not require the authority
of the parties to sign a joint statement’.484 Finally, ‘if an expert significantly alters an opinion,
the joint statement must include a note or addendum by that expert explaining the change
of opinion’.485
22.82 The joint statement agreed by rival parties’ experts at the end of such a session is not privi-
leged. It is addressed to the court and so becomes available to the court in the proceedings
(under CPR 35.12(3), the court can order that the parties’ experts‘must prepare a statement
for the court . . . ’).486 As distinct from the joint report, the preceding discussion between
experts is privileged: ‘the content of the discussion between the experts shall not be referred
to at the trial unless the parties agree’.487 The joint statement is not formally binding on the
parties, but in practice it will be difficult to sidestep and the parties will find it hard to con-
tradict. However, in Stallwood v David Teare J held that permission to appoint a new party-
appointed expert to give a report, following a discussion involving another expert selected by
that party, should be refused, except in three situations: (i) the expert plainly acted beyond his
expertise; or (ii) he was incompetent for this task; or (iii), as on the facts of the present case,
the application for permission to substitute a party-appointed expert was unjustly conducted
(eg, by unsympathetic comments based on the judge’s own personal experience; in the present
case, the first instance judge’s autobiographical remarks on his stoical resistance to prolonged
back-pain).488 Furthermore, abolition of expert witness immunity by the Supreme Court in
475 See, eg, Carlson v Townsend [2001] 1 WLR 2415, CA; Jackson v Marley Davenport Ltd [2004] 1 WLR
2926, CA, at [13], [14], [22], cited in Vasiliou v Hajigeorgiou [2005] 1 WLR 2195, CA, at [28].
476
On this last element, USA v Philip Morris [2004] EWCA Civ 330.
477
CPR 35.10(4).
478
Jackson v Marley Davenport Ltd [2004] 1 WLR 2926, CA, at [22], per Peter Gibson LJ; A Edis,
‘Privilege and Immunity: Problems of Expert Evidence’ (2007) 26 CJQ 40.
479
CPR 35.12; L Blom-Cooper (ed), Experts in Civil Courts (2006) ch 7.
480
CPR 35.12(3).
481
PD 35, para 9.1.
482
PD 35, para 9.4.
483 PD 35, para 9.5.
484 PD 35, para 9.7.
485 PD 35, para 9.8.
486 Aird v Prime Meridian Ltd [2006] EWCA Civ 1866, at [3].
487 CPR 35.12(4).
488 [2006] EWHC 2600 (QB), [2007] 1 All ER 206; noted A Zuckerman (2007) 26 CJQ 159.
1362
H. Experts
Jones v Kaney (2011)489(22.84) exposes an expert to civil liability if his conduct of the ‘discus-
sion’, just summarized, is held to have been negligent. Finally, at trial the court can hear rival
experts ‘concurrently’ (so-called ‘hot-tubbing’). This will enable the court to determine areas
of common ground, and explore rival views. Then the parties will be allowed to supplement
this judicial examination.490
(6) Witness Immunity

Lord Hoffmann in Arthur JS Hall v Simons said:491 ‘ . . . a witness is absolutely immune from 22.83
liability for anything which he says in court . . . .[He] cannot be sued for libel, malicious
falsehood, or conspiring to give false evidence . . . The policy of this rule is to encourage
persons who take part in court proceedings to express themselves freely.’ In Darker v Chief
Constable of the West Midlands Police the House of Lords distinguished (i) the false presen-
tation of evidence in court, whether deliberately or not (if deliberate the crime of perjury
arises), and (ii) out-of-court steps taken to produce false evidence, such as fabrication of
evidence and conduct aimed at ‘setting up’ an accused; or destroying evidence.492 Matters
falling within (ii) do not attract witness immunity. Therefore, a lie told in the witness box,
although attracting criminal liability for perjury, will not also expose the witness to civil
liability, eg in tort.
In Jones v Kaney,493 the Supreme Court (by a majority) held that the immunity of experts 22.84
against liability should be abolished (the House of Lords in Arthur JS Hall & Co v Simons,494
overruling Rondel v Worsley,495 had earlier abolished the civil immunity of advocates in
criminal and civil proceedings). Jones v Kaney reversed the Court of Appeal’s decision in
Stanton v Callaghan,496 which had held that an expert is immune from liability in negli-
gence when agreeing to a joint statement. Therefore, after Jones v Kaney,497 the instructing
party can sue his expert, alleging negligence or fraud.498 The expert is potentially liable to
his instructing party for negligence (or perhaps other civil wrongs) (i) in the giving of an
opinion, including (ii) the presentation of a report (which is shown to the other side, and
to the court), and (iii) for the manner in which he conducts meetings between experts, and
(iv) for the giving of his evidence at trial. Jones v Kaney acknowledges that the expert will
not be open to action by the opponent, because no duty of care is owed by the expert to
that opponent. The decision in Jones v Kaney will tend, unfortunately, to induce experts not
to make risky or generous concessions during settlement negotiations, for fear of incurring
liability to their instructing party. Indeed this was the very context in which Jones v Kaney
was decided.
489
[2011] UKSC 13, [2011] 2 AC 398; considered in Ridgeland Properties Ltd v Bristol City Council
[2011] EWCA Civ 649, [2011] RVR 232, [2011] JPL 1498, at [47].
490
PD (35), para’s 11.1 to 11.4; V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ
112, 117.
491
[2000] UKHL 38, [2002] 1 AC 615, 697, HL; A Edis, ‘Privilege and Immunity: Problems of Expert
Evidence’ (2007) 26 CJQ 40.
492
[2001] 1 AC 435; similarly, L (A Child) v Reading BC [2001] EWCA Civ 346, [2001] 1 WLR 1575,
1593, CA.
493
[2011] UKSC 13, [2011] 2 AC 398; considered in Ridgeland Properties Ltd v Bristol City Council
[2011] EWCA Civ 649, [2011] RVR 232, [2011] JPL 1498, at [47].
494 [2000] UKHL 38, [2002] 1 AC 615, 685, HL.
495 Rondel v Worsley [1969] 1 AC 191, HL.
496 [2000] 1 QB 75, CA.
497 [2011] UKSC 13, [2011] 2 AC 398.
498 [2000] 1 QB 75, CA.
1363
22.85 Jones v Kaney499 concerns the position of party-appointed experts and does not address the
position of single, joint experts (above). However, one commentator500 has suggested that
removal of immunity extends to single, joint experts.
22.86 Even before Jones v Kaney the Court of Appeal in Meadow v General Medical Council had held
that an expert (whether he has given evidence in a criminal or civil case) can be later subjected
to disciplinary proceedings before his professional body if he is alleged to have given expert
evidence in a thoroughly unsatisfactory way.501 Witness immunity does not protect an expert
from such disciplinary proceedings.502 Also before Jones v Kaney,503 in Phillips v Symes (Costs
No 2) Peter Smith J held that a party-appointed expert can be ordered to pay costs wasted by
his reckless or grossly negligent advice, and witness immunity should not preclude a wasted
costs order against an expert.504
I. Settlement and Mediation

(1) Importance of Settlement
22.87 Settlement505 is by far the most common way in which civil disputes truly contested on the
merits (ie, claims other than straightforward debt enforcement actions, where there is no real
defence) are concluded in England.506 A very high percentage of civil actions do not proceed
to trial.507 Instead most English actions culminate not in judgment on the merits, follow-
ing examination of witnesses and documents at trial, or consideration of the merits during a
summary proceeding, but in an agreement of compromise or settlement between the parties.
The decline of civil trials in the USA has also attracted comment.508
22.88 The Practice Direction on ‘[Pre-Action] Protocols’ emphasizes the duty of prospective par-
ties and their legal advisors to consider ADR:509 ‘The courts increasingly take the view that
litigation should be a last resort, and that claims should not be issued prematurely when a
settlement might still be achieved. Therefore, the parties should consider whether some form
of ADR might be more suitable than litigation.’ The CPR emphasizes that, where appropri-
ate, the court must try to help the parties to settle the case,510 and encourage them to pursue
out-of-court ADR.511 More recently, leading judges have made speeches extolling mediation,
including Lord Phillips, President of the Supreme Court,512 Lord Clarke, a former Master of
499
[2000] 1 QB 75, CA.
500
Mark Solon ‘Expert Witness Immunity’ (2011) NLJ 601.
501 [2006] EWCA Civ 1390, [2007] QB 462.
502 [2006] EWCA Civ 1390, [2007] QB 462, at [46]; the other members agreed, at [106] and [249].
503 [2011] UKSC 13, [2011] 2 AC 398.
504
[2004] EWHC 2330 (Ch), [2005] 1 WLR 2043; noted NH Andrews [2005] CLJ 566.
505
D Foskett, The Law and Practice of Compromise (7th edn, 2010).
506 H Genn, ‘Understanding Civil Justice’ (1997) 48 CLP 155, 177ff; S Roberts, ‘Settlement as Civil
Justice’ (2000) 63 MLR 739–747; M Galanter and M Cahill, ‘Most Cases Settle: Judicial Promotion and
Regulation of Settlements’ (1994) 46 Stanford L Rev 1329 (on the US practice).
507 Sir Leonard Hoffmann, ‘Changing Perspectives on Civil Litigation’ (1993) 56 MLR 297.
508
S Burbank, ‘Vanishing Trials and Summary Judgment in Federal Civil Cases . . . ’ (2004) 1 J of Empirical
Legal Studies 591.
509 Practice Direction—‘Protocols’, para 4.7; see also text of the Pre-Action ‘Protocol for Construction and
Engineering Disputes’ (April 2007) 5.4 for emphasis on ADR as an alternative to litigation in that context.
510
CPR 1.4(2)(f ).
511 CPR 1.4(2)(e).
512
Lord Phillips, ‘Alternative Dispute Resolution: An English Viewpoint’ (Judicial Communications
office, 29 March 2008): <http://www.judiciary.gov.uk/NR/rdonlyres/6BBEAB74-204A-4AED-AC83-0624-
CC358794/0/lcj_adr_india_290308.pdf>.
1364
I. Settlement and Mediation
the Rolls,513 and Sir Rupert Jackson, currently the leading judicial expert on civil procedure
in England.514 English law has implemented the European Directive on Mediation515 by an
addition to the CPR;516 by Regulations;517 by amending the Limitation Act 1980,518 and
by implementing (in the form of Regulations)519 the confidentiality regime contained with
the Directive.
There are four main means by which the parties can achieve a settlement, and the first three 22.89
involve court judgment: (a) by obtaining a judgment by consent;520 or (b) by the device
known as a ‘Tomlin order’; or (c) by consensual dismissal of the action; or (d) by pure agree-
ment (settlements need not, be in writing;521 although mediation agreements often provide
that a mediated settlement must be reduced to writing; if so, Brown v Rice confirms that a
party to a mediated settlement, no less than an unmediated settlement, can adduce the con-
tents of settlement negotiations both to prove whether a settlement was reached and to ascer-
tain its terms).522 Most consent judgments can be obtained from a court official without the
need to seek a judge’s approval. Such consent judgments are more truly administrative rather
than adjudicative acts.523 Nevertheless, a consent judgment can be attacked only by obtain-
ing permission to appeal or by commencing fresh proceedings in which the consent order is
challenged on the ground of, eg, mistake or fraud.524 ‘Tomlin orders’525 can give effect to a
relatively complex settlement agreement. The normal procedure is for the parties jointly to
obtain a stay by the court of the proceedings. The stay will be expressed to be conditional on
the terms contained in the relevant schedule being satisfied by one or more of the parties. If
a party fails to satisfy any of those terms, the innocent party will normally seek an order of
specific performance of the terms contained in the Tomlin order’s schedule.526
513 A Clarke, ‘The Future of Civil Mediation’ (Civil Mediation Council, May 2008): <http://www.
judiciary.gov.uk/NR/rdonlyres/927B0C45-8C4D-4A3B-BDF7-5FEB7D8A0D1B/0/mr_mediation_
conference_may08.pdf>.
514 Sir Rupert Jackson, ‘The Role of Alternative Dispute Resolution in Furthering the Aims of the Civil
Litigation Costs Review’ (RICS Expert Witness Conference, Eleventh Lecture in the Implementation
Programme, 8 March 2012).
515 ‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters’: Official Journal L 136, 24/05/2008 P 0003 – 0008;
N Trocker and A De Luca (eds), La Mediazione Civile alla Luce della Direttiva 2008/52/CE (2011).
516 CPR Part 78, section III.
517 Directive Cross-Border Mediation (EU Directive) Regulations 2011/1133, regulation 26.
518 Limitation Act 1980, s 33A (where mediation proceedings are commenced before the limitation period
has expired, and that period would otherwise elapse during those proceedings, the period is postponed so as
to elapse eight weeks after those proceedings have ended).
519 Cross-Border Mediation (EU Directive) Regulations 2011/1133, regulations 9 and 10.
520 D Foskett, The Law and Practice of Compromise (7th edn, 2010) 9.07ff.
521
Littlefair, Williamson, & Beardall v Vinamul [2006] EWCA Civ 31, at [34] (no need for oral agreement
to be confirmed in writing); cf Brown v Rice and Patel [2007] EWHC 625 (Ch); held that agreement follow-
ing mediation, on these facts, see at [52], required written form.
522
[2007] EWHC 625 (Ch).
523
CPR 40.6 lists various types of consent judgment which can be entered and sealed by a ‘court officer’
without a judge becoming involved, notably judgments for the payment of an amount of money or for the
delivery up of goods.
524
de Lasala v de Lasala [1980] AC 546, 561, PC, per Lord Diplock giving the advice of the Privy Council
in the context of matrimonial consent judgments; on the grounds for setting aside a consent order, see S v S
(Ancillary Relief: Consent Order) [2003] Fam 1, at [13]ff.
525
D Foskett, The Law and Practice of Compromise (7th edn, 2010) 9.21–9.33, 11.22ff; the ‘fons et origo’
is Dashwood v Dashwood [1927] WN 290, Tomlin J; generally on Tomlin orders, Community Care North East
v Durham CC (2010) [2010] EWHC 959 (QB), [2012] 1 WLR 338, at [23]–[27].
526
Anders Utkilens Rederi A/S v O/Y Lovisa Stevedoring Co A/B, ‘The Golfstraum’ [1985] 2 All ER 669,
673–675 (damages might be an adequate remedy).
1365
(2) Mediation Agreements 527

22.90 In Cable & Wireless v IBM United Kingdom Ltd, a ‘tiered’ dispute resolution clause stated that,
if settlement negotiations failed, mediation would be obligatory before commencing court
litigation.528 After one party skipped mediation, Colman J held that it was appropriate to
place a ‘stay’ on those proceedings. But, for this purpose, Sulamerica Cia Nacional de Seguros
SA v Enesa Engenharia SA decided that a vague expression of the desirability of mediation is
not enough, and instead the courts must discern a clear contractual commitment to pursue
mediation.529
(3) Privileges Protecting Mediation and Settlement Negotiations

22.91 Settlement negotiations are protected by ‘without prejudice’ privilege or ‘mediation secrecy’.530
Parties to mediation agreements normally adopt such protection by express agreement, but
sometimes privilege rests merely upon implicit consensus.531 In Cumbria Waste Management
Ltd v Baines Wilson it was held that mediated settlement discussions between parties X and Y
remain privileged if X or Y is unwilling to waive privilege.532 However, the mediator possesses
no independent immunity. And so Ramsey J in Farm Assist Limited (in liquidation) v The
Secretary of State for the Environment, Food and Rural Affairs (No 2)533 upheld a witness sum-
mons requiring a mediator to give evidence on the question whether a settlement achieved
during the relevant mediation had been procured by duress by a party to that settlement.
(4) Settlement Offers and Costs Incentives to Compromise

22.92 Settlement is promoted by the capacity of both defendants and claimants to make settlement
offers backed by costs sanctions. In essence: under the English CPR system, Part 36, the
claimant’s costs risk arises if he does not accept the defendant’s settlement offer. In that situa-
tion, if the claimant at trial ‘fails to obtain a judgment more advantageous than a defendant’s
Part 36 offer’,534 then, ‘unless [the court] considers it unjust to do so’, the claimant must pay
527 H Brown and A Marriott, ADR Principles and Practice (3rd edn, 2011) 26-033ff; D Joseph, Jurisdiction
and Arbitration Agreements and their Enforcement (2nd edn, 2010); K Mackie, D Miles, W Marsh, T Allen,
The ADR Practice Guide (3rd edn, 2007) ch 9; N Blackaby and C Partasides (eds), Redfern and Hunter’s
International Arbitration (5th edn, 2009) 2.83ff.
528 Cable & Wireless plc v IBM UK [2002] EWHC 2059 (Comm), [2002] 2 All ER (Comm) 1041,
Colman J; extra-judicial comment in A Colman ‘ADR: An Irreversible Tide?’ (2003) 19 Arbitration

International 303.
529 [2012] EWCA Civ 638, [2013] 1 WLR 102, at [35], per Moore-Bick LJ.
530 H Brown and A Marriott, ADR Principles and Practice (3rd edn, 2011) ch 23; Cross and Tapper on
Evidence (12th edn, 2010) 470ff; D Foskett The Law and Practice of Compromise (7th edn, 2010) ch 22;
C Hollander, Documentary Evidence (10th edn, 2009) ch 16; P Matthews and H Malek, Disclosure (4th
edn, 2012) 24.51–24.53; Phipson on Evidence (17th edn, 2010) 24-18ff; C Passmore, Privilege (2nd edn,
2006) ch 10; B Thanki (ed), The Law of Privilege (2nd edn, 2011) ch 7; Zuckerman on Civil Procedure (2nd
edn, 2006) ch 16. Literature concerning privilege in the context of mediation or conciliation: H Brown and A
Marriott, ADR Principles and Practice (3rd edn, 2011); Cross and Tapper on Evidence (12th edn, 2010) 475;
K Mackie, D Miles, W Marsh, T Allen, The ADR Practice Guide (3rd edn, 2007) 7.2ff; B Thanki (ed), The
Law of Privilege (2nd edn, 2011) ch 7, 7.24–7.27, 7.42–7.43.
531
Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 887, [2004] 1 WLR 3026; Aird
v Prime Meridian Ltd [2006] EWCA Civ 1866; Bradford & Bingley plc v Rashid [2006] UKHL 37, [2006] 1
WLR 2066; Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, [2007] 1 WLR 2443, at [34].
532 [2008] EWHC 786 (QB)
533 [2009] EWHC 1102 (TCC), [2009] BLR 399; 125 Con LR 154; B Thanki (ed), The Law of Privilege
(2nd edn, 2011) 7.24–7.27.

534 CPR Part 36.14.
1366
J. Trial, Evidence, and Appeal
the defendant’s costs incurred after the date when the claimant should have accepted the set-
tlement offer. The defendant will only be liable for the claimant’s costs incurred before that
date. The defendant’s costs risk arises if he does not accept the claimant’s settlement offer. If
‘judgment against the defendant is at least as advantageous to the claimant as the proposals
contained in a claimant’s Part 36 offer’, then, ‘unless [the court] considers it unjust to do
so’, the defendant will be liable to pay the claimant not just the ordinary measure of costs
(‘standard’ costs) but an aggravated measure (so-called ‘indemnity costs’), with the further
possibility of a high level of interest on those costs. Furthermore, since 1 April 2013, defend-
ants who unjustifiably fail to accept the claimant’s settlement offer are liable to pay ‘an addi-
tional amount, which shall not exceed £75,000’, (this sum will be 10 per cent of awards up
to £500,000; for awards up to £1,000,000 the sum will be 10 per cent of the first £500,000
and 5 per cent of any amount above that figure;535 and 10 per cent of costs in the case of
non-monetary claims).
(5) Judicial Influence upon Settlement

The English courts’ overall responsibility to administer civil justice includes ‘helping the par- 22.93
ties to settle the whole or part of the case’536 and ‘encouraging the parties to use an alternative
dispute resolution procedure if the court considers that appropriate’.537 A new manual538 has
been officially commissioned for use by the judiciary.539
Even in the absence of a mediation agreement, an English court can direct that the proceed- 22.94
ings be stayed540 while the parties pursue ADR or other settlement negotiations.541 So-called
mediation orders, issued by the court, are merely robust recommendations to mediate.542
English courts are prepared, where appropriate, to register censure of a party’s unreasonable 22.95
refusal to engage in mediation. That refusal might be failure to accede to the opponent’s call
for mediation, or the court’s own suggestion that mediation be contemplated. In determining
the unreasonableness of a party’s refusal to pursue mediation, the Court of Appeal in Halsey
v Milton Keynes General NHS Trust listed various criteria.543

(1) Trial
Trial is important because it is the beginning of the ‘end-game’ of litigation before the courts. 22.96
Thereafter, provided the claimant has been successful (or the defendant’s counterclaim has
been upheld), enforcement proceedings might be brought, eg, to obtain satisfaction of a
judgment debt. But trial is rare. Many actions end without trial. Indeed most disputants do
not bring or become embroiled in formal civil proceedings. Of those who do become parties
535
CPR 36.14(3)(d); see also Offers to Settle in Civil Proceedings Order 2013/93; S Sime, ‘Offers to
Settle: Incentive, Coercion, Clarity’ (2013) 32 CJQ 182.
536
CPR 1.4(2)(f ).
537
CPR 1.4(2)(e); The Chancery Guide (2005) ch 17; The Admiralty and Commercial Courts Guide (9th
edn, 2011), section G and appendix 7 (available on the CPR webpage under ‘Guides’).
538
S Blake, J Browne, S Sime, The Jackson ADR Handbook (Oxford University Press, 2013).
539 V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112, 118.
540 CPR 26.4(3).
541 CPR 3.1(2)(f ); CPR 26.4(1)(2).
542 Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002.
543 [2004] EWCA Civ 576, [2004] 1 WLR 3002, at [16] ff; see also P4 Ltd v Unite Integrated Solutions plc
[2006] EWHC 2924 (TCC), Ramsey J.
1367
to court proceedings, most do not experience trial, because the case is either settled or a form
of summary judgment or dismissal terminates the case before a final hearing. When these
mountains of non-litigated disputes and litigated but untried cases are subtracted from the
pile, all that remains is a relatively small percentage of cases where a court has pronounced
final judgment on the merits, after hearing witness testimony. Admittedly, the historical cen-
tre-piece of the common law civil process has been ‘trial’. In the nineteenth century common
law courts in England, trial was an oral hearing before a judge and jury. In the USA civil trial
before juries remains a constitutional right. England has been more pragmatic. In modern
times, civil trials in England are almost invariably heard by a judge sitting alone without a
jury. Jury trial in England is now confined to serious criminal cases (eg, murder, rape, armed
robbery) and civil actions for defamation (even here there is the possibility of trial by judge
alone),544 or misconduct by the police (the torts of defamation, malicious prosecution, and
false imprisonment).545 As long ago as 1966, it became clear that the civil courts are unwill-
ing to back-track on the modern trend to confine jury trial to these special categories of
claim546 (and this contrasts with the constitutionally protected prominence of juries in com-
mon law actions in the USA).547 In Scotland jury trial is still available for personal injury
litigation. This has the effect of increasing the amount of some awards.548
22.97 The English judge in a civil case will have read a ‘trial bundle’ in preparation for the hear-
ing.549 In large actions, a core bundle must also be prepared.550 As for ‘skeleton arguments’,
listing legal points and supporting authorities,551 counsel are required to be succinct.552
Normally trial (and appeal)553 must be in public.554 To protect a person’s safety,555 the court
can order that the identity of a party or of a witness must not be disclosed.556 The courts are
prepared to allow a party to give evidence by video-link, normally from abroad.557
544 Fiddes v Channel Four Television Corpn [2010] EWCA Civ 730, [2010] 1 WLR 2245 (volume of video
footage rendering trial by jury inappropriate).

545 Senior Courts Act 1981, s 69; County Courts Act 1984, s 66; NH Andrews, ‘Development in English
Civil Procedure: how far can the English Courts Reform their own Procedure?’ (1997) 2 ZZPInt (Zeitscrift
für Zivilprozess International) 3, 4 (fnn 3 and 4) considering JIH Jacob, The Fabric of English Civil Justice
(1987) 156–157, fnn 16–18.
546 Ward v James (No 2) [1966] 1 QB 273, CA (applied H v Ministry of Defence [1991] 2 QB 103, CA;
Heil v Rankin [2001] QB 272, CA, at [25]); Aitken v Preston, The Times 21 May 1997, CA.
547 For the constitutional guarantee of jury trial in certain civil claims in the USA, G Hazard and
M Taruffo, American Civil Procedure (1993) 128ff.

548 A Hajducki, Civil Jury Trials (2nd edn, 2006).
549 CPR 39.5; PD (39A) paras 3.1–3.10.
550 PD (39A) 3.6.
551 eg The Queen’s Bench Guide (2007) 7.11.5; 7.11.10; 7.11.11; 7.11.12; Admiralty and Commercial
Courts Guide (9th edn, 2011), notably paras F 5.5 and J 6.1ff, and Appendix 9; and The Chancery Guide
(2009) 7.18.
552 Khader v Aziz [2010] EWCA 716, [2010] 1 WLR 2673; Midgulf International Ltd v Groupe Chimiche
Tunisien [2010] EWCA Civ 66, [2010] 2 Lloyd’s Rep 543, [2010] 1 CLC 113, at [71]ff, per Toulson LJ.
553
Three Rivers DC v Bank of England [2005] EWCA Civ 933, [2005] CP Rep 47.
554
For exceptions, CPR 39.2(1), CPR 39.2(3),and PD (39A) 1.5; the primary source is Senior Courts
Act 1981, s 67; J Jaconelli, Open Justice (2002); J Jacob, Civil Justice in the Age of Human Rights (2007) ch 2;
for discussion of these rules, North Shore Ventures Ltd v Anstead Holdings Inc (No 2) [2011] EWHC 910
(Ch), [2011] 1 WLR 2265, per Floyd J; on the question of exceptional restrictions on publicity in respect of
pre-trial hearings and judgments concerning interim decisions, Browne v Associated Newspapers Ltd [2007]
EWCA Civ 295, [2008] QB 103, at [2]–[5].
555
But the physical frailty of a witness was not a sufficient reason in Three Rivers DC v Bank of England
[2005] EWCA Civ 933, [2005] CP Rep 47.
556 CPR 39.2(4); PD (39A) 1.4A emphasises the need to consider the requirement of publicity enshrined
in Art 6(1) of the European Convention on Human Rights (incorporated into English law, Human Rights
Act 1998, Sch 1).
557 Polanski v Condé Nast Publications Ltd [2005] UKHL 10, [2005] 1 WLR 637; McGlinn v Waltham
Contractors Ltd [2006] EWHC 2322 (TCC); in neither case was the relevant absentee’s reason for not coming
1368
(2) Evidence at Trial558

‘Generally . . . a plaintiff or applicant must establish the existence of all the preconditions and 22.98
other facts entitling him to the [judgment or] order he seeks.’559 And so the basic rule is that
the party who asserts a proposition bears the burden of proving that issue (this is not peculiar
to court proceedings, but applies also to arbitration).560
The Court of Appeal in Birmingham CC v Shafi561 noted: (i) that decisions of the House of 22.99
Lords in Re D562 and Re B563 make clear that, apart from a few exceptional cases, the stand-
ard of proof in civil proceedings is proof on the balance of probabilities; and (ii) the balance
of probabilities test ‘is not affected by the seriousness of the allegation or the gravity of the
consequences, if it is proved, although regard must always be had to the inherent probabilities
when reaching a decision’.
Factual witness testimony is the main source of evidence at trial. The next most important 22.100
source of evidence is ‘documentary evidence’, which covers paper-based or electronically
recorded information. ‘Real evidence’ refers to ‘things’, such as the physical objects or site
relevant to the case, or body samples (on ‘expert evidence’, 22.71ff.
Witnesses can be compelled to attend a trial (or other hearing) by the issue of a ‘witness sum- 22.101
mons’.564 The witness must be offered compensation for his travel to and from court, and
for loss of time.565 In general, all factual witnesses whom a party identifies as the source of
relevant evidence are both competent and compellable to testify at a civil trial. Generally, a
competent witness is also compellable to give evidence.566 But a judge cannot be compelled
to give evidence on matters relating to discharge of his judicial functions.567 A potential wit-
ness cannot by agreement bind himself not to give evidence, since this would be contrary to
public policy.568
A proposed witness’s testimony (his so-called ‘evidence-in-chief ’) must be prepared in written 22.102
form, signed, and served on the other parties.569 These are known as ‘witness statements’.The
court can now exercise more control over this expensive pre-trial exercise by issuing directions
‘(a) identifying or limiting the issues to which factual evidence may be directed; (b) identify-
ing the witnesses who may be called or whose evidence may be read; or (c) limiting the length
to England held to bar use of video-linking (respectively, avoidance of extradition to the USA, and avoidance
of tax liability within the UK).
558 S Cockerill, The Law and Practice of Compelled Evidence in Civil Proceedings (2011).
559 Re H (Minors) (Sexual Abuse: Standard of Proof ) [1996] AC 563, 586, HL, per Lord Nicholls.
560 N Blackaby and C Partasides (eds), Redfern and Hunter’s International Arbitration (5th edn,
2009) 6.92.
561
[2008] EWCA Civ 1186, [2009] 1 WLR 1961, at [49], [53] (joint judgment of Sir Anthony Clarke
MR and Rix LJ), [73], and [75] (Moore-Bick LJ).
562
[2008] UKHL 33, [2008] 1 WLR 1499.
563
[2008] UKHL 35, [2009] 1 AC 11.
564
This phrase replaces the terms ‘subpoena ad testificandum’ (order to attend to give oral evidence) and
‘subpoena duces tecum’ (order to attend with relevant documents or other items): CPR 34.2.
565
CPR 34.7; PD (34) 3, referring to provisions applicable also to compensation for loss of time in
criminal proceedings.
566
The Sovereign, foreign heads of state and certain diplomats are competent but not compellable: Cross
and Tapper on Evidence (12th edn, 2010) 262, noting the Diplomatic Privileges Act 1964; Consular Relations
Act 1968; Diplomatic and Other Privileges Act 1971; State Immunity Act 1978; Phipson on Evidence (17th
edn, 2010) 9.16.
567 Warren v Warren [1997] QB 488, 496–498, CA, per Lord Woolf MR.
568 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, CA.
569 CPR 32.10.
1369
or format of witness statements.’570 In support of his witness statement, the witness or his
legal representative must supply a ‘statement of truth’, a solemn indication that the contents
of the witness statement have been presented honestly. It is an act of contempt of court to
make, or to cause to be made, a dishonest statement of truth.571 Normally, in the interest of
economy, a witness statement will be received as evidence. This will dispense with the need
for the witness to give oral evidence on behalf of the party who has called him, although the
court can allow the witness orally to amplify his statement and to introduce matters which
have subsequently arisen.572 At the trial, the witness will give evidence on oath (or a secular
equivalent, an ‘affirmation’).573 The crime of perjury is committed if false evidence is deliber-
ately given by a witness at trial. Conviction can result in imprisonment or fines. The witness
will answer questions posed by that opponent’s lawyer (whether a barrister or other type of
advocate). This process of intense questioning is known as ‘cross-examination’. During this
oral process, the court does not itself conduct the examination of witnesses. Instead the judge
is expected to listen to the parties’ presentation of evidence. However, the judge might inter-
vene to seek clarification, especially to assist a litigant in person (a party who is unassisted
by a lawyer). It is a breach of procedure for the judge persistently to interrupt. The Court
of Appeal in 2006 declared that if the judge were to intervene excessively, he would then
‘arrogate to himself a quasi-inquisitorial role’, something which is ‘entirely at odds with the
adversarial system’.574
22.103 The court at trial has powers of ‘evidential veto’ concerning these matters:575 ‘the issues
on which it requires evidence’, ‘the nature of the evidence which it requires’, ‘the way in
which evidence is to be placed before the court’;576 excluding admissible evidence; limiting
cross-examination;577 restricting the number of witnesses (both lay and expert) used by each
party;578 restricting the time devoted to examining witnesses. These powers must be exercised
with caution.579 Preliminary questions of law or fact can be separated from other matters,
in the interest of economy.580 Appeals are unlikely to succeed against such trial manage-
ment orders aimed at marshalling the issues.581 CPR 32.1(3) provides: ‘The court may limit
cross-examination.’ The Court of Appeal in Three Rivers DC v Bank of England582 upheld
a judge’s restriction upon cross-examination of a central witness to seven weeks (the claim-
ant’s lawyers had estimated that they would need 28 weeks). The Court of Appeal in Hayes v
570
CPR 32.2(3).
571
CPR 32.14.
572 CPR 32.5(2), (3), (4).
573 On affirmations, PD (32) 16.
574 Southwark London Borough Council v Kofi-Adu [2006] EWCA Civ 281, [2006] HLR 33, at [148].
575 K Grevling, ‘CPR 32.1(2): Case management Tool or Broad Exclusionary Power’ in D Dwyer (ed), The
Civil Procedure Rules: Ten Years On (2009) 249.

576
CPR 32.1(1); GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 2 All ER 931, CA.
577
CPR 32.1(2)(3); Grobbelaar v Sun Newspapers Ltd, The Times 12 August 1999, CA (prolix defence in
libel action); Three Rivers DC v Bank of England [2005] EWCA Civ 889, [2005] CP Rep 46 (upholding the
Commercial Court judge’s humane restriction in a long-running trial).
578
Fast-track: CPR 28.3(1) and PD (28) 8.4; CPR 32.1 (all tracks).
579 A Colman (with V Lyon and P Hopkins), The Practice and Procedure of the Commercial Court (6th edn,
2008) 218–219, especially curtailment of the power to cross-examine the other party’s witnesses; S Sugar and
R Wilson (eds), Commercial and Mercantile Courts Litigation Practice (2004).
580 CPR 3.1(2)(j)(l); for the pre-CPR emergence of this aspect of trial management, Ashmore v Corporation
of Lloyd’s [1992] 1 WLR 446, HL; Thermawear Ltd v Linton The Times 20 October 1995, CA.
581
Ward v Guinness Mahon plc [1996] 1 WLR 894, CA, Grupo Torras Sa v Al Sabah (No 2) The Times 17
April 1997, CA.
582
[2005] EWCA Civ 889, [2005] CP Rep 46; noting at [43] and [44], observations on the need for trial
judges to exercise control of the length of hearings expressed in Ashmore v Corp of Lloyd’s [1992] 1 WLR 446,
448-8, Lord Roskill and at 453–4 by Lord Templeman.
1370
Transco, overturning a decision imposing a five-minute restriction which was unfairly sprung
on counsel and which did not operate fairly as between the parties,583 held that this restric-
tion involved a serious irregularity.584
There has been much ‘modernizing’ of civil evidence during the last few decades, following 22.104
the civil jury’s virtual disappearance in England. These developments are consistent with a
perceived global trend towards ‘free evaluation’ of evidence.585 The three main English evi-
dential changes are:
(a) the English ‘hearsay rule’ in civil matters used to provide a barrier to admitting relevant
evidence; this rule concerned second-hand or more remote reports of oral statements (eg,
if the defendant wished to adduce evidence through one of his witnesses, who proposed
to state that ‘the claimant told me that his wife had said, “let’s concoct a claim against
these people”’); the hearsay rule also concerned documents composed out-of-court; since
, statute has allowed a party to use out-of-court oral statements, and documents,
as evidence;586 the court must assess the ‘weight’ to be attached to the hearsay evidence,
guided by various considerations;587
(b) the so-called ‘best evidence rule’ has been abandoned; a person is no longer obliged to
produce the original version of a document; however, he must provide a satisfactory
explanation for his inability to produce the original;588
(c) ‘similar fact’ evidence is now admissible in civil matters, so that the court can legitimately
take into account the fact that very similar events have occurred.589
Evidence is admissible in a civil case even though it has been obtained illegally or unlaw- 22.105
fully, provided the material is relevant.590 There are no hard-and-fast rules here, as Jones v
University of Warwick illustrates.591 In this case, the claimant alleged that she had suffered a
serious disabling injury to her hand. The defendant did not accept this. Its investigator gained
access to the claimant’s home, posing as a market researcher, and took secret video evidence of
the claimant’s use of her injured hand in her home.592 Lord Woolf CJ in the Court of Appeal
held that, on balance, the evidence should be admitted.However the Court of Appeal’s deci-
sion in Imerman v Tchenguiz might indicate a new tendency to exclude illegally obtained
evidence, at least through the medium of a pre-hearing injunction.593
583
[2003] EWCA Civ 1261, at [13] and [59], per Clarke LJ.
584
[2003] EWCA Civ 1261, at [54]–[58].
585 American Law Institute/UNIDROIT’s Principles of Transnational Civil Procedure (2006) Principle
16.6, at 37.
586 Civil Evidence Act 1995, s 1.
587 Civil Evidence Act 1995, s 4; see also Polanski v Condé Nast Publications Ltd [2005] UKHL 10, [2005]
1 WLR 637, at [36], per Lord Nicholls; S Salako, ‘The Hearsay Rule and the Civil Evidence Act 1995: Where
are we Now?’ (2000) 19 CJQ 371.
588 Springsteen v Masquerade Music Ltd [2001] EWCA Civ 513, [2001] Entertainment and Media
LR 654, CA.
589
O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534.
590 R v Khan [1995] QB 27, CA.
591
[2003] EWCA Civ 151, [2003] 1 WLR 954, CA; applied in Serious Organised Crime Agency v Olden
[2010] EWHC Civ 143 (recovery of property alleged to be or to represent the proceeds of the unlawful con-
duct of the defendant); O’Leary v Tunnelcraft Ltd [2009] EWHC 3438 (QB) (defendant employer instructed
enquiry agents to keep claimant employee, who had been injured at work, under surveillance in order to
dispute the level of damages the claimant was seeking); Amwell View School Governors v Dogherty [2007] ICR
135 (former employee took unauthorized recordings of the disciplinary and appeal panel’s deliberations).
592
This involved a tort (trespass) and an invasion of privacy (as recognized by Art 8 of the European
Convention on Human Rights).
593 [2010] EWCA Civ 908, [2011] Fam 116, [2011] 2 WLR 592.
1371
(3) Appeals 594

22.106 In general,595 an appeal proceeds to the next level of civil judge (district judge to circuit
judge,596 or Master to High Court judge, or circuit judge to High Court judge, or High
Court judge to Court of Appeal).597 Nearly all598 appeals require the court to give its permis-
sion (formerly known as ‘leave’). If the lower court refuses permission,599 a fresh application
for permission can be made to the appeal court. Where a paper application for permission is
refused by an appellate judge600 because it is ‘totally without merit’, that judge can dispense
with a further ‘hearing’ on this issue.601 As for applications for permission for a second
appeal, the appellant must identify in the grounds of appeal any suggested important point of
principle or practice, or compelling reason, said to justify the grant of permission for a second
appeal (before the Court of Appeal).602 If permission is granted, it can be set aside by the
appeal court.603 A court will allow an appeal when it concludes that the lower court’s decision
was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings
in the lower court’.604 On matters of law, appellate courts are fully prepared, indeed obliged,
to make corrections. The courts are reluctant to hear appeals on ‘academic’ or ‘hypothetical’
points, namely matters which are of no immediate and direct concern to the parties. But an
exception to this can arise if the point of law is of general public importance.605 In general,606
only a first instance court will hear live testimony. If it turns out that there should be
re-consideration of oral evidence, the appeal court will normally remit the matter to a first
instance court. The court will not consider new evidence unless: (i) ‘the evidence could not have
been obtained with reasonable diligence for use at the trial’; (ii) the new evidence would
‘probably have an important influence on the result of the case, though it need not be deci-
sive’; (iii) the new evidence must also be ‘credible, though it need not be incontrovertible.’607
594 Sir Henry Brooke, D di Mambro, L di Mambro (eds), Manual of Civil Appeals (2nd edn, 2004);
J Leabeater and others, Civil Appeals: Principle and Procedure (2010); CPR Part 52 was examined in Tanfern
Ltd v Cameron-MacDonald [2000] 1 WLR 1311, 1314–1321, CA; Review of the Court of Appeal (Civil
Division) (report to Lord Chancellor, September 1997; the ‘Bowman Report’).
595 There are special rules allowing some appeals to ‘hop’ a level of appeal and be fast-routed to the Court
of Appeal, or even to the Supreme Court of the United Kingdom.

596 eg, Barnstable Boat Co v Jones [2007] EWCA Civ 727, [2008] 1 All ER 1, at [1]–[6].
597 PD (52).
598 CPR 52.3(1): except decisions affecting a person’s liberty: see also Masri v Consolidated Contractors
International Co SAL [2011] EWCA Civ 898, [2012] 1 WLR 223, construing CPR 52.3(1)(i).
599 In fact the first instance judge in some jurisdictions, eg, Austria, is often keen to grant permission to
avoid the suspicion of concealing defective judgments.

600 Whether a member of the Court of Appeal, or of the High Court, or a Designated Civil Judge, or a
‘Specialist Circuit Judge’ (this last phrase is defined, at CPR 52.3(4A)(b), as ‘a patents court judge and any
circuit judge in any county court nominated to hear cases in the Mercantile, Chancery or Technology and
Construction Court lists’).
601
CPR 52.3(4A).
602
PD (52C), 5A.
603
Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011] EWCA Civ 1148, at [26]ff, noting that
CPR 52.9 permits this if a ‘compelling reason’ is shown.
604
CPR 52.11(3).
605
Bowman v Fels [2005] EWCA Civ 226, [2005] 1 WLR 3083, at [7], where Brooke LJ noted Sun
Life Assurance Co of Canada v Jervis [1944] AC 111, 113–114, HL, per Viscount Simon LC and Ainsbury v
Millington (Note) [1987] 1 WLR 379, 381, HL, per Lord Bridge of Harwich; and R v Secretary of State for the
Home Department ex p Salem [1999] 1 AC 450, 456 G–H, HL, per Lord Slynn of Hadley.
606 CPR 52.11(2).
607 Terluk v Berezovsky [2011] EWCA Civ 1534, at [32]; when determining whether, with reasonable
diligence, the evidence would have been available for presentation at trial, questions of proporitionality arise:
Singh v Habib [2011] EWCA Civ 599, [2011] CP Rep 34, at [13] and [14], per Sir Anthony May.
1372
K. Costs
From 1 April 2013, the appellate court can restrict the amount of costs recoverable by the
victorious party at the conclusion of the apppeal.608
K. Costs
(1) The Jackson Reforms
Major changes in this field took effect on 1 April 2013,609 implementing recommendations 22.107
made by Sir Rupert Jackson in his 2010 report on the costs regime.610 In addition to the
conspicuous changes mentioned in the ensuing paragraphs, many of which have been dis-
cussed by commentators,611 there has been a general ‘spring-cleaning’ of the costs rules in
general.612
The main costs regime for the multi-track is that the victorious party (‘the receiving party’) 22.108
will recover his costs from the losing party and these will be assessed as‘standard basis’ costs.613
608
CPR 52.9A.
609
Legal Aid, Sentencing, and Punishment of Offenders Act 2012; Damages-Based Agreements Regulations
SI 2013/609; Offers to Settle in Civil Proceedings Order 2013/93; Conditional Fee Agreements Order SI
2013/689 (abrogating the Conditional Fee Agreements Order 2000/823); Civil Procedure (Amendment)
Rules 2012 (SI 2013/262); accompanied by amendments to relevant Practice Directions (http://www.justice.
gov.uk/courts/procedure-rules/civil/pdf/update/cpr-60-update-pd-making-document.pdf ); Civil Procedure
(Amendment No 2) Rules 2013 (SI 2013/515); accompanied by amendments to relevant Practice Directions
(http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-61-pd-making-document.pdf ).
610 Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (2010).
611 AAS Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up a
Dysfunctional System’ (2010) 29 CJQ 263; and in the Special Issue (‘Implementation of Sir Rupert Jackson’s
Review of Civil Litigation Costs’) (2013) 32 CJQ: foreword by Sir Rupert Jackson, 109, and articles by V
Ramsey, ‘Implementation of the Costs Reforms’, 112; A Zuckerman, ‘The Revised CPR 3.9: a Coded Message
Demanding Articulation’, 123; I Levy, ‘Lightening the Overload of CPR 3.9’, 139; P Hurst, ‘The New Costs
Rules and Practice Directions’ 153; M Cook, ‘Hourly Rates and Fixed Costs’, 167; S Sime, ‘Offers to Settle:
Incentive, Coercion, Clarity, 182; A Higgins, ‘A Defence of Qualified One Way Cost Shifting’, 198; J Sorabji,
‘Prospects for Proportionality: Jackson Implementation’, 213; J Peysner, ‘Tail Wags Dog: Contingency Fees
(and Part 36 and Third Party Funding)’, 231; R Mulheron, ‘The Damages-Based Agreements Regulations
2013: Some Conundrums in the “Brave New World” of Funding’, 241; M Ahmed, ‘An Alternative Approach
to Repealing the General Pre-Action Protocol’, 256; H Genn, ‘Getting to the Truth: Experts and Judges in the
“Hot Tub”’, 275; A Sedgwick, ‘There are More Ways than One to Allocate Costs’, 300.
612 CPR Part 43 is revoked; CPR 44 to 48 and accompanying Practice Directions have been redrafted
to remove irrelevant and obsolete procedures (the revised version is inserted by the Schedule to the Civil
Procedure (Amendment) Rules 2013 (SI 2013/262). On this Senior Costs Judge Peter Hurst writes (European
Business Law Review), forthcoming (2014): ‘Before the sub-committee could turn its attention to revising
the Costs Practice Direction it was first necessary to go through the existing costs rules to remove all the
rules relating to funding arrangements which would become redundant with the abolition of the right to
recover success fees and after the event insurance premiums, by virtue of Sections 44 and 46 of the Legal
Aid Sentencing and Punishment of Offenders Act 2012. The result of this exercise was that the remaining
rules had large gaps, and it was therefore necessary to consolidate, and to a certain extent re-number the rules
before the Practice Direction could be dealt with in detail. This exercise resulted in the rules being reduced
from six parts (43 to 48) to four parts (44 – 47). It was also decided that the Practice Direction would be more
accessible if each part had its own dedicated Practice Direction as with the rest of the rules. The amendments
to the Costs Rules reflect Sir Rupert’s recommendations which have been accepted and also reflect any neces-
sary consequential amendments following the removal of the rules relating to funding arrangements. For the
most part, however, the wording of the rules has not changed, although their numbering and position in the
scheme of things may well have altered.’
613 CPR 44.2(2)(a); CPR 44.3(2); where the issues have concerned both the question of liability and
quantum, and a different party has been ‘successful’ under these respective heads, an ‘issues-based costs order’
is appropriate: McGlinn v Waltham Contractors Ltd [2007] EWHC 698 (TCC).
1373
However, since 1 April 2013, qualified one way costs shifting614 applies in personal injury
claims.615 This means that a personal injury claimant will not normally be at risk of liability
for the defendant’s costs even though the claim fails, unless the claim was ‘fundamentally
dishonest’ (if so, permission is required to enforce the costs order)616 or it was struck out as
an abuse of process (if so, no permission is required to enforce the costs order).617
(2) Protective Costs Orders, Costs Budgets, and Costs Capping

22.109 In special cases,618 predominantly619 ‘public interest’ litigation (including environmental
litigation, in accordance with a European Directive),620 the courts have recognized a discre-
tion to protect a claimant or a defendant621 against potential liability for costs, based on
these criteria:622 (i) whether the issues raised are of general public importance; (ii) whether
the public interest requires that those issues be resolved; (iii) whether the applicant has any
private interest in the matter;623 (iv) whether the order will be fair when account is taken of
the parties’ respective resources and the amount of costs likely to be incurred; (v) whether the
claim will be discontinued without the order.
22.110 Since 1 April 2013, a system of costs budgeting624 operates on the multi-track (but not
Admiralty Court or Commercial Court cases, nor claims over £2 million in the Technology
and Construction Court, Chancery Division, and Mercantile Courts).625 Parties must file a
costs budget.626 This budget will set the limit for standard basis costs, unless the court finds
that there is a good reason to depart from the budget.627 Costs management conferences can
be conducted by telephone or ‘in writing’.628 Costs recoverable in respect of the expense of
614 CPR 44.13 to 44.16; PD (44), 12.4 to 12.7; A Higgins, ‘A Defence of Qualified One Way Cost
Shifting’ (2013) 32 CJQ 198.

615 As defined at CPR 44.13(1).
616 CPR 44.16(1); PD (44), 12.4 to 12.7.
617 CPR 44.15.
618 ‘Improving Access to Justice Through Collective Actions’ (Civil Justice Council, 2008, Final Report),
Appendix I, 355ff.<http://www.civiljusticecouncil.gov.uk/files/Improving_Access_to_Justice_through_
Collective_Actions.pdf>.
619 For discussion in the contest of trusts litigation, IBM United Kingdom Pensions Trust Ltd v Metcalfe
[2012] EWHC 125 (Ch), [2012] 3 Costs LO 420, Warren J.

620 R (on the application of Edward) v Environment Agency [2010] UKSC 57, [2011] 1 All ER 785.
621 R (Ministry of Defence) v Wiltshire and Swindon Coroner [2005] EWHC 889 (Admin), [2006] 1 WLR
134, at [34]ff, per Collins J.

622 R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005]
1 WLR 2600; R (Buglife) v Thurrock Thames Gateway Corporation [2008] EWCA Civ 1209, considering R
(Compton) v Wiltshire Primary Care [2008] EWCA Civ 749, [2009] 1 All ER 978; R (Burkett) v Hammersmith
London Borough Council [2004] EWCA Civ 1342; R (England) v Tower Hamlets London Borough Council
[2006] EWCA Civ 1742; Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, [2009] 2 P &
CR 30; and for the position concerning the Aarhus Convention in respect of environmental matters, R
(on the application of Garner) v Elmbridge BC [2010] EWCA Civ 1006, [2011] 3 All ER 418, [2011] 1
Costs LR 48.
623
cf Weir v Secretary of State for Transport [2005] EWHC 24 (Ch) (claimant making private claim as well
as other disinterested claims).
624
CPR 3.12 to 3.18; PD (3E); V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112,
118-119; noting Lord Neuberger MR, Lecture, May 29, 2012: http://www.judiciary.gov.uk/Resources/JCO/
Documents/Speeches/proportionate-costs-fifteenth-lecture-30052012.pdf
625 See the judicial declaration concerning the TCC, Chancery Division, and Mercantile Courts: http://
www.judiciary.gov.uk/JCO%2FDocuments%2FPractice+Directions%2Fcosts-budgeting-announcement-
draft-direction-cpr-rule-3-12.pdf
626 Annexed to PD (3F).
627 CPR 3.18.
628 CPR 3.16.
1374
K. Costs
complying with the system of costs budgeting are tightly pegged.629 There is also a system
of costs capping,630 for exceptional cases. The cap fixes the maximum amount of recoverable
costs, unless the capped party shows that ‘there has been a material and substantial change
of circumstances’.631 No such order is justified unless: (a) there is a ‘substantial risk that
without such an order costs will be disproportionately incurred’ and, without the order, this
risk cannot be ‘adequately controlled’;632 and (b) there is ‘a substantial imbalance between
the financial position of the parties’.633 Costs-capping is distinct from protective costs (on
which see 22.109 above), because the latter insulate a party from being required to pay the
opponent costs, whereas cost-capping merely imposes a ceiling on the operation of the costs-
shifting rule.
(3) The Court’s Discretionary Adjustment of Costs

Assessment of costs can be: by summary assessment (‘on the spot’ assessment at the conclu- 22.111
sion of short hearings and trials not exceeding a day; such assessment is often rough-and-
ready);634 by detailed assessment before costs judges635 (since 1 April 2003,636 if the costs
claimed are £75,000637 or less, the court will undertake a provisional paper assessment of the
costs); or in accordance with fixed costs rules (such costs in respect of low value road traffic
accidents have been re-set).638
In some situations, the only court proceedings concern costs.639 These are known as ‘costs 22.112
only’ proceedings, eg, the litigation in Solomon v Cromwell Group plc.640 The Court of Appeal
in Morgan v Spirit Group Ltd examined leading authorities on the assessment of costs, notably
summary assessment.641
(4) Indemnity and Standard Basis Costs

The normal award is for payment to the victorious party of his costs assessed on the ‘standard 22.113
costs’ basis. Since 1 April 2013 ‘proportionality’ becomes the major determinant when assess-
ing standard basis costs.642 However, sometimes, especially where the paying party’s proce-
dural conduct has been reprehensible, costs are assessed in a manner more generous to the
‘receiving party’, namely on the ‘indemnity’ basis. ‘Indemnity costs’ expose the paying party
to liability for nearly all costs incurred by the other in the relevant litigation. ‘Standard costs’
are calculated less generously towards the receiving party, Examples of awards of indemnity
629 PD (3E), 2.2: ‘Save in exceptional circumstances: (1) The recoverable costs of initially completing
Precedent H shall not exceed the higher of £1,000 or 1% of the approved budget. (2) All other recoverable
costs of the budgeting and costs management process shall not exceed 2% of the approved budget.’
630 CPR 3.10 to 3.21; PD (3F).
631 CPR 3.19(7).
632
CPR 3.19(5).
633
CPR 3.19(6).
634
CPR 44.6(1)(a).
635
CPR 44.6(1)(b) and CPR Part 47.
636
CPR 47.15; PD (47), 14.
637
PD (47) 14.1.
638
CPR 45.16 to 28, specifying amounts for stages A to C in Table 6 at 45.18 (further amended by
Art 3(b), Civil Procedure (Amendment No 3) Rules, SI 2013/789); Pre-Action Protocol for Low Value
Personal Injury Claims in Road Traffic Accidents.
639 CPR 46.14 (‘costs-only proceedings’).
640 [2011] EWCA Civ 1584, [2012] 1 WLR 1048.
641 [2011] EWCA Civ 68, [2011] PIQR P9, considering Lownds v Home Office [2002] EWCA Civ 365,
[2002] 1 WLR 2450; and Flowers Inc v Phonenames Ltd [2001] EWCA Civ 721, [2002] FSR 12.
642 CPR 44.3(2); CPR 44.3(5) identifies five factors relevant to proportionality:. J Sorabji, ‘Prospects for
Proportionality: Jackson Implementation’ (2013) 32 CJQ 213.
1375
costs are: hopeless litigation (or at least seriously unreasonable conduct of litigation);643 or a
party’s reliance on a seriously defective report from one’s own expert;644 the setting aside of a
judgment on the ground that it has been procured by fraud;645 litigation necessitated by the
defeated party’s breach of an arbitration agreement.646
(5) ‘Wasted Costs’ Orders Against Lawyers and Experts

22.114 A lawyer might be ordered to pay costs to an opposing party as a result of the lawyer’s
improper conduct of the case, or the lawyer might be prevented from recovering costs from
his client because of such misconduct.647
(6) Costs Orders Against Non-Parties

22.115 The English courts have a statutory power to order a non-party to pay costs.648 Hamilton
v Al Fayed (No 2) (2002) decided that non-party costs orders will not normally be made
against non-parties whose financial contribution to litigation has been actuated by feelings
of friendship, natural affection, or political allegiance.649 It is different, however, if a party’s
lawyer has acted improperly. In Adris v Royal Bank of Scotland 650 Judge Waksman QC held
a solicitor, S, liable as a non-party for costs payable by S’s client, C, to the opponent, RBS,
after the substantive claim had failed. S had undertaken to obtain ‘After-the-Event’ (‘ATE’)
legal expenses insurance in case the substantive claim failed. S did not do so, and also failed
to inform his client (C) that the client might, therefore, be personally exposed to costs if
the claim failed. When the case was lost, the court held that it was appropriate for S to be
liable for costs because he was effectively controlling the litigation, and he had culpably
exposed C to personal costs liability by failing to obtain the ATE cover. And Eady J, in
Germany v Flatman,651 held that an order for disclosure of funding arrangements was justi-
fied when it appeared that the claimant’s solicitor, in the event of defeat of his client’s case,
would be self-funding, and thus funding the litigation as a non-party. The claimant carried
no ATE insurance. Therefore, it was appropriate to enable the defendant to gain access to
information concerning the extent of the claimant’s solicitor’s financial support of the case.
Finally, in Adams v Ford652 Toulson LJ noted that solicitors are liable under a warranty of
authority for costs incurred when they commence proceedings without authority. As for
commercial funders, the Court of Appeal in the Arkin case decided that such a non-party
funder might be liable for costs, to the extent of his financial contribution to the defeated
643 EQ Projects v Alavi [2006] EWHC 29 (TCC), at [38]; Waites Construction Limited v HGP Greentree
Alchurch Evans Limited [2005] EWHC 2174 (TCC); Three Rivers DC v Bank of England [2006] EWHC 816
(Comm); see the test formulated in National Westminster Bank plc v Rabobank Nederland [2007] EWHC
1742 (Comm), at [47].
644
Re Colt Telecom Group plc [2002] EWHC 2815 (Ch), at [80] and [110], per Jacob J.
645
Owners of the Ariela v Owners of the Kamal XXVII [2009] EWHC 3256 (Comm), [2010] 2 Lloyd’s Rep
247, at [30] and [31], per Burton J.
646
A v B [2007] 1 Lloyd’s Rep 358 (Colman J).
647
Senior Courts Act 1981, s 51(6)(7)(13), inserted by Courts and Legal Services Act 1990 s 4; see also
22.115 on instances of lawyers being liable as non-parties for costs.
648
Senior Courts Act 1981, s 53(1); and similarly s 53(3); Latimer Management Consultants Ltd v
Ellingham Investments Ltd [2006] EWHC 3662 (Ch), [2007] 1 WLR 2569, at [30] and [40].
649 [2002] EWCA Civ 665, [2003] QB 1175; for comment on Australian discussion of maintenance and
champerty, see D Capper (2007) 26 CJQ 288, considering Campbell Cash and Carry Pty Ltd v Fostif Pty Ltd
[2006] HCA 41 (High Court of Australia).
650 [2010] EWHC 941 (QB), [2010] 4 Costs LR 598.
651
[2011] EWHC 2945 (QB), [2012] 2 Costs LR 271, Eady J; not followed in Tinseltime Ltd v Roberts
[2012] EWHC 2628, [2012] 6 Costs LR 1094.
652 [2012] EWCA Civ 544, [2012] 3 All ER 247, [2012] CP Rep 31.
1376
K. Costs
party’s litigation.653 Sir Rupert Jackson has noted:654 ‘The funding of claims by commercial
bodies in return for a share of the proceeds has been a late arrival on the litigation scene.
This is because outside interference of this nature was long regarded as morally reprehensible
(since it stirred up litigation) and unlawful (because of the doctrines of maintenance and
champerty.’655 There is now a code of conduct governing such funding.656
(7) Conditional Fee Agreements and Damages-Based Agreements

The conditional fee agreement (CFA) system657 was the first English ‘no win, no fee’ sys- 22.116
tem.658 The Courts and Legal Services Act 1990 introduced the CFA arrangement. But that
legislative ‘break-through’ in public policy was not implemented until 1995, when it was first
applied to personal injury claims. The CFA system was then extended to other types of civil
claim (subject to only narrow exceptions) in 1998. An English CFA is valid only if it complies
with the statutory regime. Such an agreement specifies that the lawyer can receive a ‘success
fee’, as well as his ordinary fee. The success element is a ‘percentage increase’. CFAs entered
on or after 1 April 2013 are subject to these percentage restrictions: the success fee cannot
exceed 100 per cent of the recoverable fees;659 and in the case of personal injury claims at first
instance the success fee cannot exceed 25 per cent of damages.660
From 1 April 2013, neither the success fee661 nor the ATE legal expenses premium can be 22.117
recovered from the defeated party,662 although there are exceptions.663 It follows that the
success fee and any ATE insurance premium will have to be paid by the client. But, as noted
below, there will be no need for ATE insurance in personal injury litigation, because qualified
653 Arkin v Borchard Lines Ltd [2005] EWCA Civ 655, [2005] 1 WLR 3055, at [40]; Sir Rupert Jackson,
‘Third Party Funding or Litigation Funding’: <http://www.judiciary.gov.uk/Resources/JCO/Documents/

Speeches/lj-jackson-speech-third-party-funding-or-litigation-funding-23112011.pdf> 2.4 and 2.5;
R Mulheron and P Cashman, ‘Third Party Funding: a Changing Landscape’ (2008) 27 CJQ 312, 314,
654 Sir Rupert Jackson, ‘Third Party Funding or Litigation Funding’: <http://www.judiciary.gov.
uk/Resources/JCO/Documents/Speeches/lj-jackson-speech-third-party-funding-or-litigation-funding-
23112011.pdf> 2.1.
23112011.pdf> 2.2, noting that the doctrines of maintenance and champterty have been relxed in modern
times: eg Sibthorpe v Southward LBC [2011] EWCA Civ 25, [2011] 1 WLR 2111.
23112011.pdf> 2.7ff; the Code is appended to Jackson’s speech.
657 Main statutory provisions on conditional fee agreeements: Courts and Legal Services Act 1990, ss
58, 58A (substituted by Access to Justice Act 1999, s 27; and amended by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, notably ss 44, 45, 46); Conditional Fee Agreements Order, SI 2013/689
(abrogating the Conditional Fee Agreements Order, SI 2000/823).
658
For a judicial overview, Gloucestershire County Council v Evans [2008] EWCA Civ 21, [2008] 1 WLR
1883, at [1]–[11], per Dyson LJ.
659 Art 3, Conditional Fee Agreements Order, SI 2013/689.
660
SI 2013/689, Art 4 and 5; Art 5(2) refers to: ‘(a) general damages for pain, suffering, and loss of amen-
ity; and (b) damages for pecuniary loss, other than future pecuniary loss.’
661 Legal Aid, Sentencing, and Punishment of Offenders Act 2012, s 44(4), substituting a new s 58A(6)
within the Courts and Legal Services Act 1990.

662
Legal Aid, Sentencing, and Punishment of Offenders Act 2012, s 46(1), adding a new section 58C to
the 1990 Act.
663
(a) There is an exception to the non-recoverability of the ATE premium in the case of expert reports in
clinical negligence litigation; s 46(1), Legal Aid, Sentencing, and Punishment of Offenders Act 2012, adding
s 58C(2), Courts and Legal Services Act 1990; Recovery of Costs Insurance Premiums in Clinical Negligence
Proceedings (No 2) Regulations, SI 2013/739. (b) Conditional Fee Agreements Order, SI 2013/689, Arts 1,
6(2) create exceptions to the non-recoverability of success fees and ATE premia for these proceedings: (i)
mesothelioma claims; (ii) proceedings brought by liquidators, administrators or trustees in bankruptcy under
1377
one way costs shifting will normally protect such a claimant from liability for the defendant’s
costs in the event that the claim fails.The Court of Appeal has increased by 10 per cent the
level of general damages in personal injury litigation.664 The increase applies to cases which
settle or where judgment is given after 1 April 2013, unless there is a funding agreement,
such as a CFA, which pre-dates 1 April 2013. This is a quid pro quo to redress the fact that,
after March 2013, neither the ATE premium nor the success fee can be recovered from the
defendant.665 The position before 1 April 2013 was as follows. If a claimant won under a
CFA-funded action, the defendant was liable for each of the following three items: first, the
claimant’s ordinary costs; secondly, the claimant’s lawyer’s ‘success fee’; thirdly, the claimant’s
ATE insurance premiums for legal services. ATE cover was important to cover the claimant’s
risk that, if the claim fails, he might have to pay the victorious opponent’s costs—in accord-
ance with the loser must pay principle.
22.118 The ‘damages-based’ or ‘contingency fee’ agreement system (DBAs) has now been introduced
for ordinary civil litigation under the Legal Aid, Sentencing, and Punishment of Offenders
Act 2012 (LASPO 2012, introducing the terminology of ‘damages-based agreements’
(DBAs)).666 In essence, a legal representative can agree with the client667 that professional
remuneration will be waived unless the case is won. In the event of victory, the representa-
tive’s payment will be expressed by reference to the money recovered by the client from the
opponent.668 The amount of this contingent payment is, however, capped as a percentage
of the ‘sums ultimately recovered’ by the client from the opponent. That percentage cap
is 35 per cent in the case of employment disputes,669 25 per cent in the case of personal
injury disputes,670 and 50 per cent in all other cases.671 The victorious claimant can recover
costs from the defendant under the general costs-shifting regime of CPR Part 44. But those
costs cannot exceed the amount of the agreed contingency payment.672 This reflects the
so-called indemnity principle: that the paying party’s costs liability cannot exceed the level
of the receiving party’s costs liability towards his lawyer. The upshot is that the victorious
party’s lawyer will recover from his client any shortfall between those costs recovered from the
opponent and the agreed contingency fee. That shortfall will be funded from the claimant’s
damages. In this respect, Lord Neuberger MR, in a 2012 speech, noted that England has
adopted the ‘Ontario model’. Under this arrangement, as Jackson explained, both solicitors
and counsel ‘enter into contingency fee agreements . . . [Costs] shifting is effected on a con-
ventional basis and in so far as the contingency fee exceeds what would be chargeable under
a normal fee agreement, that is borne by the successful litigant’.673 In fact DBAs are not a
the provisions of the Insolvency Act 1986; (iii) proceedings for defamation, malicious falsehood, breach of
confidence involving publication to the general public, misuse of private information or, where the defend-
ant is a news publisher, harassment; on these exceptions, V Ramsey, ‘Implementation of the Costs Reforms’
(2013) 32 CJQ 112, 115.
664
Simmons v Castle [2012] EWCA Civ 1288, [2013] 1 All ER 334, at [50].
665
Sir Rupert Jackson, ‘Why Ten Per Cent?’ (29 February 2012): http://www.judiciary.gov.uk/Resources/
JCO/Documents/Speeches/lj-jackson-speech-why-ten-percent-29022012a.pdf
666
Courts and Legal Services Act 1990, s 58AA(3)(a), (amended by Legal Aid, Sentencing, and Punishment
of Offenders Act 2012, s 45); Damages-Based Agreements Regulations, SI 2013/609; CPR 44.18.
667 Damages-Based Agreements Regulations, SI 2013/609, reg 1(2).
668
Courts and Legal Services Act 1990, s 58AA(3)(a), (amended by Legal Aid, Sentencing, and Punishment
of Offenders Act 2012, s 45).
669 Damages-Based Agreements Regulations, SI 2013/609, reg 7.
670
SI 2013/609, reg 4(2).
671
SI 2013/609, reg 4(3)
672 CPR 44.18(1),(2).
673
‘Association of Costs Lawyers’ Annual Conference, 2012: Keynote Address’, (<http://www.judiciary.
gov.uk/Resources/JCO/Documents/Speeches/mr-speech-acl-lecture-may-2012.pdf> at [26]) quoting Sir
Rupert Jackson’s Review of Civil Litigation Costs: Final Report (2010) 131.
1378
L. Res Judicata and the Principle of Finality
complete stranger in English law. They had already applied in employment disputes litigated
in tribunals. The 2012 Act broadens this scheme to civil litigation in general.
(8) Security for Costs

This topic is examined at 22.30. 22.119
L. Res Judicata and the Principle of Finality

(1) Cause of Action and Issue Estoppels674
In R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales the Supreme 22.120
Court noted that cause of action estoppel has six elements:675
(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in
fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter;
(iv) the decision was—(a) final [this can include a binding decision on a point in proceedings
which are continuing,676 eg a finding of liability with damages yet to be assessed, or a deci-
sion on a preliminary point that a claim is not statute-barred]; (b) on the merits [and thus,
eg, dismissal of an action for procedural non-compliance does not give rise to res judicata];
(v) it determined a question raised in the later litigation; and (vi) the parties are the same or
their privies, or the earlier decision was in rem.
This is a bar to re-litigation of points decided in the earlier proceedings, unless fraud or collu-
sion can be established to impugn that decision. Cause of action estoppel can concern court
decisions in civil matters (whether a final decision,677 or a relevant type of consent order;678
or decisions by tribunals,679 including statutory or non-statutory disciplinary tribunals)680
and arbitration awards.681 Cause of action estoppel can also concern decisions by a foreign
court recognized under English rules of private international law.682
In R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales the Institute 22.121
had bungled disciplinary proceedings against Coke-Wallis because it had failed to cite the
relevant type of wrongdoing. The result was that the disciplinary tribunal had acquitted him
674 The leading work is G Spencer Bower, P Turner and KR Handley, The Doctrine of Res Judicata (4th
edn, 2009).
675 R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, [2011] 2
AC 146, at [34], citing G Spencer Bower, P Turner and KR Handley, The Doctrine of Res Judicata (4th edn,
2009) 1-04.
676 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642, CA, per Diplock LJ.
677 Including a final decision of an interim application: R v Governor of Brixton Prison, ex parte Osman
[1991] 1 WLR 281; Possfund v Diamond [1996] 2 All ER 774, 779, citing Chanel Ltd v F W Woolworth &
Co Ltd [1981] 1 WLR 485, 492–493, CA; for an example of a non-final decision, Buehler AG v Chronos
Richardson Ltd [1998] 2 All ER 960, CA.
678 eg Palmer v Durnford Ford [1992] 1 QB 483; Green v Vickers Defence Systems Ltd [2002] EWCA Civ
904; The Times 1 July 2002, CA; Gairy v Att-Gen of Grenada [2001] UKPC 30, [2002] 1 AC 167, PC, at
[27], per Lord Bingham: ‘a consent order may found a plea of res judicata even though the court has not been
asked to investigate and pronounce on the point at issue’.
679 Green v Hampshire County Council [1979] ICR 861; Crown Estate Commrs v Dorset County Council
[1990] Ch 297.
AC 146, at [27]–[31].
AC 146, at [57].
682 PR Barnett, Res Judicata, Estoppel and Foreign Judgments The Preclusive Effects of Foreign Judgments in
Private International Law (2001).
1379
of the charge of professional misconduct. The Institute now sought to bring a second set of
proceedings, in which a related from of wrongdoing would be raised against Coke-Wallis. In
R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales the Supreme Court
held that the Institute was precluded by res judicata from doing this. Dismissal of the first
complaint was an absolute bar to proceeding with the second complaint.
22.122 ‘Issue estoppel’ concerns adjudication of issues forming a necessary element in a cause of
action. Issue estoppel can arise in respect of findings made by a range of courts and tribu-
nals, including foreign adjudication,683 and including arbitration tribunals.684 Issue estoppel
applies if one of the parties to that decision seeks to re-open that issue in later proceedings
between the same parties involving a different cause of action.685 An example might be the
court’s decision in the first case that an exclusion clause is ineffective to bar claims for dam-
ages arising from a transaction. In this first case the claim concerned breaches occurring in
the first year of the transaction. If a later action is brought in respect of a breach arising in the
second year of the transaction, the court’s determination of the exclusion clause issue would
apply between the same parties on the basis of issue estoppel. Unlike cause of action estoppel,
issue estoppel can be relaxed in either of these situations: (i) there has been a retrospective
change in the law which renders the point covered by issue estoppel ‘plainly’ wrong;686 or
(ii) new evidence has emerged which ‘entirely changes the aspect of the case’, provided that,
even if he had displayed ‘reasonable diligence’, the relevant party could not have discovered
this evidence at the time of the earlier litigation.687
(2) The Rule in Henderson v Henderson

22.123 According to the rule in Henderson v Henderson688 English law does not only bar re-litigation
of decided points. It goes further and precludes litigation of points which might conveniently
have been included by a party as part of his claim or defence in earlier civil litigation between
the same parties. In the leading modern decision, the House of Lords in Johnson v Gore Wood
683 For extensive analysis, see [16]–[111] of Hamblen J’s judgment in Yukos Capital Sarl v OJSC Rosneft Oil
Co [2011] EWHC 1461 (Comm), [2011] 2 Lloyd’s Rep 443 (Hamblen J’s decision in Yukos was reversed by
the Court of Appeal in the Yukos case [2012] EWCA Civ 855, [2012] 2 Lloyd’s Rep 208, but this reversal does
not undermine Hamblen J’s discussion of the general aspects of this doctrine); in the Yukos case, Hamblen
J examined, among other decisions: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, HL;
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506; ‘The Sennar’ (No 2) [1985] 1 WLR 490, 499,
HL, ‘The Good Challenger’ [2003] EWCA Civ 1668, [2004] 1 Lloyd’s Rep 67; Dicey, Morris, and Collins on
the Conflict of Laws (15th edn, 2012) 14.119ff; P Rogerson, ‘Issue Estoppel and Abuse of Process in Foreign
Judgments’ (1998) CJQ 91.
684 In R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, [2011] 2
AC 146, at [31], Lord Clarke said: ‘the parties having chosen an arbitration tribunal to determine the issues,
they are bound by an interim arbitration award on specific issues under the principle of issue estoppel . . . It is
[also] implicit in Diplock LJ’s judgment that in such a case . . . cause of action estoppel would apply.’ This refers
to Diplock LJ’s statement in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 643 C, CA.
685 Arnold v National Westminster Bank plc [1991] 2 AC 93, 105, HL; Thoday v Thoday [1964] P 181, 198,
CA; ‘The Sennar’ (No 2) [1985] 1 WLR 490, 499, HL.

686 Arnold v National Westminster Bank plc [1991] 2 AC 93, 112, HL (and see Arnold case [1990] Ch
573, 598, 600, CA; not disturbed on final appeal); S v S (Ancillary Relief: Consent Order) [2002] EWHC 223
(Fam), [2003] Fam 1, at [30]ff.
687 Phosphate Sewage Co v Molleson (1879) 4 App Cas 801, 814, HL; the Phosphate case test applies to the
abuse of process doctrine: Hunter v Chief Constable of West Midlands [1982] AC 529, 545, HL and Smith v
Linskills [1996] 1 WLR 763, 771, CA.
688 Henderson v Henderson (1843) 3 Hare 100, 115, Wigram V-C; the leading modern examination is
Johnson v Gore Wood & Co [2002] 2 AC 1, HL; considered De Crittenden v Estate of Bayliss [2005] EWCA Civ
547, at [22]–[26] (earlier contract action; second action to plead a tracing action sufficiently closely tied to
facts of first action; abuse of process); considered in ‘The Good Challenger’ [2003] EWCA Civ 1668, [2004] 1
Lloyd’s Rep 67, at [93]ff; applied Mohammed Nazmul Hossain v Sonali Bank and Sonali Bank UK Ltd [2007]
1380
M. Enforcement
& Co said that the Henderson doctrine should not be applied too zealously or mechanically.689
This principle can be regarded as an adjunct to res judicata, linked by the unifying principle of
finality. But it should not be confused as an aspect of res judicata. The long-standing690 rule
in Henderson v Henderson (1843)691 was restated in 2002 by the Court of Appeal in Taylor v
Lawrence as follows: ‘ . . . parties who are involved in litigation are expected to put before the
court all the issues relevant to that litigation. If they do not, they will not normally be permit-
ted to have a second bite at the cherry.’692
(3) Other Aspects of Finality

First, a claimant cannot obtain damages in successive actions in respect of the same cause of 22.124
action: damages resulting from one and the same cause of action must be assessed and recov-
ered once and for all.693 Secondly, statute bars attempts to re-litigate in England certain foreign
judgments.694 But this bar can be displaced by agreement, estoppel by convention, or acquies-
cence.695 Finally, a court can strike out as an abuse of process an unjustified collateral attack by
civil action upon a criminal conviction696 or civil judgment697 if ‘such re-litigation would . . . bring
the administration of justice into disrepute’.698 In Smith v Linskills Sir Thomas Bingham MR
examined the various policies which support this aspect of the abuse of process doctrine.699
M. Enforcement700
Judgment creditors must choose from the portfolio of enforcement methods.701 Some credi- 22.125
tors might already have extensive knowledge of the defendant’s assets. Others will remain in
the dark. For these the next two paragraphs might be illuminating. Judgment creditors can
apply for an order compelling a judgment debtor (or in the case of a company, one of its
officers) to attend the court and to supply information concerning the debtor’s means and
EWHC 1431, Eady J; and discussion cited in Ruttle Plant Hire Ltd v The Secretary of State for the Environment,
Food and Rural Affairs [2007] EWHC 1773 (TCC); for radical comment, G Watt, ‘The Danger and Deceit
of the Rule in Henderson v Henderson: A New Approach to Successive Civil Actions Arising from the Same
Factual Matter’ (2000) 19 CJQ 287 and KR Handley, ‘A Closer Look at Henderson v Henderson’ (2002) 118
LQR 397. G Spencer Bower and KR Handley, Res Judicata (4th edn, 2009) ch 26.
689 [2002] 2 AC 1, 22, 59, HL; see also Gairy v Att-Gen of Grenada [2001] UKPC 30, [2002] 1 AC 167,
PC, at [26], [27].

690 As for the genesis of this doctrine, see Nomihold Securities Inc v Mobile Telesystems Finance SA [2012]
EWHC 130 (Comm), at [42].

691 (1843) 3 Hare 100, 115, Wigram V-C.
692 [2002] EWCA Civ 90, [2003] QB 528, at [6], per Lord Woolf.
693 Brunsden v Humphrey (1884) 14 QBD 141, 147, CA; LA Collins (1992) 108 LQR 393, 394 (case
note); Republic of India v India Steamship Co Ltd (‘The Indian Grace’) [1993] AC 410, 420–421, HL; Rowner
v Allen & Sons (1936) 41 Com Cas 90; Jaggard v Sawyer [1995] 1 WLR 269, 284, CA; Deeny v Gooda Walker
Ltd [1995] 1 WLR 1206, 1214 (offering postponement of assessment of damages); but on the need for cau-
tion in applying this rule, Barrow v Bankside Agency Ltd [1996] 1 WLR 257, 269, CA; Cachia v Faluyi [2001]
1 WLR 1966, CA, at [18]–[20].
694
Civil Jurisdiction and Judgments Act 1982, s 34; Black v Yates [1992] 1 QB 526; on the necessity for
this provision, Republic of India v India Steamship Co Ltd (‘The Indian Endurance No 1’) [1993] AC 410,
417, HL; for the sequel, Republic of India v India Steamship Co Ltd (‘The Indian Endurance No 2’) [1998]
AC 878, HL.
695
‘The Indian Endurance No 2’ [1998] AC 878, HL.
696
The leading case is Hunter v Chief Constable of West Midlands Police [1982] AC 529, HL.
697 Conlon v Simms [2006] EWCA Civ 1749, [2008] 1 WLR 484 (containing a long review of
authorities).
698 Arthur JS Hall & Co v Simons [2000] UKHL 38, [2002] 1 AC 615, 685, HL.
699 [1996] 1 WLR 763, 773, CA.
700 C Sandbrook, Enforcement of a Judgment (11th edn, 2011).
701 CPR 70.2(2).
1381
financial commitments.702 If the judgment debtor is a company, CPR Part 71 enables an

order to be made for information to be supplied by the company’s officers. But the House of
Lords held in Masri v Consolidated Contractors International Co SAL that CPR Part 71 does
not enable an order for examination to be made against an officer who is outside the jurisdic-
tion, and that CPR Part 6 provides no basis for service out of the jurisdiction of any such
order, had it been possible to make one.703
22.126 Parliament has enacted, but has not implemented, changes in this field. The Tribunals, Courts
and Enforcement Act 2007 (TCE 2007), Parts 3 to 5, which received Royal Assent on 19 July
2007, contains provisions which profoundly alter the law of enforcement, but these Parts of
the Act have yet to be implemented at the time of writing. However, minor provisions within
those Parts have been implemented (sections 93, 94, and 108).
22.127 Money judgments can be enforced by:
(i) a writ of fieri facias or warrant of execution;704 this involves the claimant and the enforce-
ment officer taking steps (a) to seize or physically secure the debtor’s goods and (b) to sell
them at public auction, or threaten to sell them (c) in order to satisfy the judgment debt
(to be re-named ‘writs of control’ and ‘warrants of control’ by the TCE );705
(ii) a third party debt order;706 previously known as a ‘garnishee order’, this form of enforce-
ment enables a judgment creditor to divert or intercept money payable to the judgment
debtor, eg money held to his order in a bank or building society;707 the procedure con-
cerns ‘any amount of any debt due, or accruing due, to the judgment debtor from the
third party’;708 the court must make both an interim709 and a final order;710 the process
is not exercisable against debts ‘situated’ outside England and Wales,711 even if the for-
eign jurisdiction is within the Brussels or Lugano jurisdictional system;712 the relevant
non-party must also be ‘within the [English] jurisdiction’;713
(iii) a charging order (against land), stop order (against securities or funds in court), or a stop
notice (against securities);714 this type of order can be made in respect of a money judg-
ment, including one expressed in terms of a foreign currency;715 CPR Part  governs
charging orders against the judgment debtor’s land or interest in land; or ‘stop orders’
702
CPR Part 71; PD (71).
703
[2009] UKHL 43, [2010] 1 AC 90.
704 RSC Ord 46 and 47 and CCR Ord 26, in CPR Schs 1 and 2.
705 TCE 2007, ss 62–70, Schs 12 and 13.
706 CPR Part 72.
707 CPR 72.1(2): provided the bank or building society ‘lawfully accepts deposits in the United Kingdom’;
banks and building societies can become subject to obligations to reveal details of all accounts which the judg-
ment debtor holds with them: CPR 72.6; for money in court standing to the credit of the judgment debtor,
CPR 72.10; on the threshold level of proof that a bank etc account exists, Alawiye v Mahmood [2006] EWHC
277 (Ch), [2007] 1 WLR 79.
708 CPR 72.2(1)(a).
709 Alawiye v Mahmood [2006] EWHC 277 (Ch), [2007] 1 WLR 79.
710 CPR 72.2(2).
711 Kuwait Oil Tanker Company SAK v UBS AG [2003] UKHL 31, [2004] 1 AC 300 (third party debt—a
bank account in defendant’s name—‘situated’ in Switzerland; English judgment debt; third party bank hav-
ing branch in London); Société Eram Shipping Company Ltd v Hong Kong and Shanghai Banking Corporation
Ltd [2003] UKHL 30, [2004] 1 AC 260 (third party debt—also a bank account—‘situated’ in Hong Kong;
French judgment debt, recognized in England; third party bank having branch in London); reasoning criti-
cized by P Rogerson [2003] CLJ 576.
712
As in the Kuwait case [2003] UKHL, [2004] 1 AC 300.
713
CPR 72.1(1).
714
CPR Part 73.
715
Carnegie v Giessen [2005] EWCA Civ 191, [2005] 1 WLR 2510, CA (English judgment payable in
US dollars; valid charging order).
1382
M. Enforcement
preventing various dealings in respect of securities or funds in court; or ‘stop notices’

preventing various dealings in respect of securities;716 a judgment debtor’s interest in
jointly held real property can be the subject of a charge;717 a charging order can also be
applied against the proceeds of sale of land held under a trust for sale;718 in all these situ-
ations, the procedure involves an interim and a final order; the criteria for making a final
charging order include:719 ‘(a) the personal circumstances of the debtor and (b) whether
any other creditor would be likely to be unduly prejudiced by the making of the Order;’
no final order will be made if the judgment debtor becomes insolvent after the interim
order; this is because such an order in that situation would disturb the insolvency legisla-
tion’s scheme of distribution;720 for this reason Floyd J, in Monte Developments Ltd (in
administration) v Court Management Consultants Ltd,721 set aside a charging order which
a Master had finalized even though it had become apparent that the defendant company
had become insolvent. Final orders against interests in land should be registered;722
(iv) by appointment of a receiver;723 the court can make a receivership order before com-
mencement of proceedings, during proceedings, or on or after judgment; this is a residual
procedure because it can be used only if the other modes of enforcement are inadequate
or unavailable; it enables the judgment creditor to catch sources of revenue accruing to
the debtor which are not amenable to other enforcement proceedings;724 receivership
orders can apply to future debts or other payments, ie duties to pay which have not yet
accrued and become demandable;725 eg, receivership can enable the judgment creditor
to catch the following and to pay these towards discharge of the judgment debt: (i) rent
received from time to time by the judgment debtor from his tenants; or (ii) income
which he derives from a trust fund;726 or (iii) a legacy payable to the debtor;727 or
(iv) proceeds from the sale of land;728 the court can appoint receivers to take control of
assets situated outside the jurisdiction;729 as for general principles governing this form
of enforcement, Arnold J inUCB Home Loans Corpn v Green730 noted Lawrence Collins
LJ’s discussion in Masri v Consolidated Contractors International Co SAL;731
716 Charging Orders Act 1979, s 2(2)(a)–(c), respectively; CPR 73, Sections I–III; notable decisions on
trusts, subrogation and restitution law in this context are Boscawen v Bajwa [1996] 1 WLR 328, CA; Banque
Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, HL; for the types of disposition prevented by
stop orders, CPR 73.13 (funds in court) and 73.14 (securities); for the types of dealing prevented by stop
notices, see CPR 73.18 (securities).
717 Charging Orders Act 1979, s 2(1)(b)(iii).
718 National Westminster Bank Ltd v Stockman [1981] 1 WLR 67.
719 Charging Orders Act 1979, s 1(5).
720 Roberts Petroleum Ltd v Bernard Kenny [1983] AC 192, HL.
721 [2010] EWHC 3071 (Ch), [2011] 1 WLR 1579, [2011] 1 BCLC 368, [2011] 2 Costs LO
163, Floyd J.
722 On the effect of registration, Clark v Chief Land Registrar [1994] Ch 370, CA.
723 Senior Courts Act 1981, s 37; County Courts Act 1984, ss 38, 107; RSC Orders 30 and 51, in CPR
Sch 1, which apply both in the High Court and county courts; for examination of the power to appoint
receivers under Senior Courts Act 1981, s 37(1); Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and
Trust Co (Cayman) Ltd [2012] UKPC 17, [2012] 1 WLR 1721; CPR Part 69; PD (69); on the expenses and
remuneration of receivers, Capewell v Customs & Excise Commrs [2007] UKHL 2, [2007] 1 WLR 1721.
724 Soinco case [1998] QB 406, Colman J, contains a wide-ranging survey of the case law; see also UCB
Home Loans Corp v Green [2011] EWHC 851 (Ch).

725 Soinco case [1998] QB 406.
726 Webb v Stenton (1883) 11 QBD 518, 530, CA; approved by Lawrence Collins LJ in Masri v Consolidated
Contractors [2008] EWCA Civ 303, [2009] QB 450, at [172].

727 Manicoll v Parnell (1887) 35 WR 773.
728 Levermore v Levermore [1979] 1 WLR 1277, Balcombe J.
729 Derby & Co Ltd v Weldon (No 6) [1990] 1 WLR 1139, 1150–1152, 1155, CA.
730 [2011] EWHC 851 (Ch), at [46].
731 [2008] EWCA Civ 303, [2009] QB 450, at [136]–[184], esp at [167].
1383
(v) attachment of earnings orders732 (confined to county courts); and

(vi) ‘administration orders’733 (also confined to county courts; Part  of the TCE  intro-
duces various categories of protection for debtors).
22.128 Non-money judgments can be enforced as follows: goods, by warrants of specific delivery
or delivery (in county courts)734 and writs of specific delivery or of delivery (in the High
Court);735 land, by warrants of possession (in county courts);736 and writs of possession (in
the High Court)737 (possession orders in respect of land were examined in Bank of Scotland
plc v Zinda).738
22.129 A person will be guilty of contempt of court if he breaches an injunction addressed to him.739
A contemnor can be committed (ie, become subject to committal proceedings) for contempt
of court. Civil contempt is classified as a quasi-criminal wrong. In these various situations,
non-compliance need not be deliberate or calculated.740 It is normally enough that the act
or omission is not accidental.741 A party who disobeys an injunction will be guilty of con-
tempt even if he later persuades the court to set aside the relevant order or injunction.742
A company is in contempt of court if it breaches an order because of the conduct of its
employee in the course of his employment, even if the company expressly prohibited such
conduct.743 Contempt also arises where a person fails to comply with an order for disclo-
sure of assets within a freezing injunction,744 or fails to honour an undertaking to the court
(whether express or implied).745 Furthermore, a non-party who receives notice of an injunc-
tion is guilty of contempt if he aids or abets breach of that injunction, or acts independently
to undermine it746 (the so-called ‘Spycatcher principle’).747 It is an open issue (as noted by
the Neuberger Committee on Super-Injunctions, 2011)748 whether a first instance decision
732
CCR Ord 27, in CPR Sch 2.
733
County Courts Act 1984, s 112; such an order prevents named creditors from petitioning for bank-
ruptcy against the judgment debtor, and makes provision for payment of creditors by instalments; the order
can last for three years.
734 CCR Ord 26, r 16 in CPR Sch 2.
735 RSC Ord 45, r 4 in CPR Sch 1.
736 CCR Ord 26, r 17 in CPR Sch 2; or by summary proceedings for the recovery of land against trespass-
ers, CCR Ord 24 (see CPR Sch 2) and CPR Part 55.
737 RSC Ord 45, r 3 in CPR Sch 1.
738 [2012] EWCA Civ 706, [2012] 1 WLR 728.
739 RSC Ord 52, CPR Sch 1; CCR Ord 29, CPR Sch 2; D Eady and ATH Smith, Arlidge, Eady and Smith
on Contempt (4th edn, 2011).

740 Miller v Scorey [1996] 3 All ER 18; Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31.
741 Heatons Transport (St Helens) Ltd v Transport and General Workers Union [1973] AC 15, 109, HL;
applied in Z Bank v D1 [1974] 1 Lloyd’s Rep 656, Colman J; Director General of Fair Trading v Pioneer
Concrete Ltd [1995] 1 AC 456, 478, HL; in Bird v Hadkinson The Times 4 March, 1999, Neuberger J refused
to follow the test of deliberate breach adopted in Irtelli v Squatriti [1993] QB 83, CA.
742
Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752, [2004] 1 WLR 113, at
[148]–[156] (considered in Raja v Van Hoogstraten [2004] EWCA Civ 968, [2004] 4 All ER 793).
743 Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456, HL; on corporate criminal liability,
Attorney-General’s Reference (No 2) of 1999 [2000] QB 796, CA.

744
JSC BTA Bank v Solodchenko (No 2) [2011] EWCA Civ 1241, [2012] 1 WLR 350, esp at [55] and
[56], per Jackson LJ.
745
eg Miller v Scorey [1996] 3 All ER 18; Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31; Cobra
Golf Inc v Rata [1998] Ch 109, 128, 163, per Rimer J.
746 Seaward v Paterson [1897] 1 Ch 545; Elliott v Klinger [1967] 1 WLR 1165; Z Ltd v A-Z and AA-LL
[1982] QB 558, CA (containing a good survey of the principles); Attorney-General v Times Newspapers Ltd
[1992] AC 191, HL; Att-Gen v Punch Ltd [2003] 1 AC 1046, HL; Jockey Club v Buffham [2003] QB 462.
747 Attorney-General v Times Newspapers Ltd [1992] AC 191, HL.
748
Report of the Committee on Super-Injunctions (Super-Injunctions, Anonymised Injunctions and
Open Justice), on 20 May 2011 <http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-
injunction-report-20052011.pdf> para 2.33.
1384
M. Enforcement
was correct to disapply this principle where the relevant injunction is not interim but final
(Jockey Club v Buffham)749 but doubts were expressed in Hutcheson v Popdog Ltd:750 ‘it can-
not be safely assumed that the conclusion in Jockey Club (2003),751 that the Spycatcher
principle does not apply to final injunctions but only applies to interim injunctions, would
be approved by this court.’
In the case of both individuals752 and companies, the court can order ‘sequestration’ of their 22.130
assets.753 This involves ‘sequestrators’ (officers of the court, often appointed specially for the
present case) seizing the contemnor’s property, including land,754 and eventually selling it.755
A person found guilty of contempt can be imprisoned for up to two years756 or fined (and
see the Court of Appeal’s discussion in JSC BTA Bank v Solodchenko (No 2)). For sentencing
purposes the courts have articulated a range of factors: (i) whether the contemnor has ‘con-
tumaciously’ flouted the law;757 (ii) whether it has become evident that he will not accept
the court’s authority; (iii) the contemnor has already received adequate punishment;758
(iv) or he has ‘purged’ his contempt;759 (v) whether his conduct or omission was deliberate or
negligent.760 As for this last consideration, inadvertent breach of an injunction will not nor-
mally justify punishment.761 The court might instead make a disciplinary costs order;762 or
strike out the contemnor’s claim or defence; or bar him from bringing an appeal,763 although
in these last two respects caution is now required.764 The Court of Appeal in JSC BTA Bank
v Ablyazov765 acknowledged that it is not possible to cumulate contempt proceedings for
749 [2003] QB 462; cf Eady J’s so-called final injunction operating contra mundum in OPG v BJM [2011]
EWHC 1059 (QB).

750 Hutcheson (formerly WER) v Popdog Ltd (formerly REF) [2011] EWCA Civ 1580, [2012] 1 WLR 782,
at [26] (iv)(b).
751 Jockey Club v Buffham [2003] QB 462.
752 Raja v Van Hoogstraten [2004] EWCA Civ 968, [2004] 4 All ER 793, at [71]ff; although the court has
such jurisdiction against individuals who are contemnors, the order was procedurally defective on the facts,
see [105].
753 CPR Sch 1, at RSC Ord 45, rr 3 (1)(c), 4(2)(c), 5(1)(b)(i)(ii); RSC Ord 46, r 5; on the court’s inherent
power, Webster v Southwark London Borough Council [1983] QB 698.

754 Mir v Mir [1992] Fam 79.
755 On sequestrators’ potential liability for negligence, IRC v Hoogstraten [1985] QB 1077, CA; and see
Raja v Van Hoogstraten [2007] EWHC 1743 (Ch).

756 Harris v Harris [2001] EWCA Civ 1645, [2002] Fam 253, CA, at [12]–[14], noting Contempt of
Court Act 1981, s 14(1); Lexi Holdings plc v Luqman [2007] EWHC 1508 (Ch), at [182]ff; UK (Aid) Ltd v
Mitchell [2007] EWHC 1940.
757 Bhimji v Chatwani [1991] 1 WLR 989; good illustrations are X v Y [1988] 2 All ER 648, 666 and
Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31; on the question when a litigant’s defiance in open
court of a judicial or court order will justify imprisonment for contempt, Bell v Tuohy [2002] EWCA Civ 423,
[2002] 3 All ER 975, CA, at [60]–[66].
758 Re Barrell Enterprises [1973] 1 WLR 19, CA; RSC Ord 52, r 8, CPR Sch 1.
759
The court’s flexibility is not without limit: Harris v Harris [2001] EWCA Civ 1645, [2002] Fam 253,
CA (court lacks power to permit release of contemnor from prison on condition that he does not commit
fresh contempt).
760
Guildford BC v Valler, The Times 15 October 1993, CA.
761
eg Adam Phones Ltd v Gideon Goldschmidt (unreported, 9 July 1999) (innocent failure to comply with
a court order for delivery up of materials).
762
Miller v Scorey [1996] 3 All ER 18; Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31.
763
Raja v Van Hoogstraten [2004] EWCA Civ 968, [2004] 4 All ER 793, at [81]–[83], [112]; and see
the authorities (not all of which were cited in the Raja case), noted at NH Andrews, English Civil Procedure
(2003) 39.63.
764
Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752, [2004] 1 WLR 113, at [81]–[83];
Days Healthcare UK Ltd v Pihsiang MM Co Ltd [2006] EWHC 1444 (Comm), [2007] CP Rep 1.
765
[2011] EWCA Civ 1386, [2012] 1 WLR 1988, at [23] ff.
1385
separable but related acts of contempt. Failure to comply (including failure to comply fully)
with injunctions will render the respondent liable to punishment for contempt of court, but
the court has additional powers to ‘debar’ a party from continuing proceedings, in accord-
ance with ‘unless’ and ‘debarring’ orders, or to permit judgment to be entered in default.766
For example, in Blue Sky One Ltd v Mahan Air767 the Court of Appeal noted that failure by
a party to comply with a court order had been sanctioned by dismissal of its counterclaim.
Another consequence of contempt is that the court might order a passport (or passports) to
be impounded, as explained by Mostyn J in Young v Young.768
22.131 In JSC BTA Bank v. Ablyazov Moore-Bick LJ held that the court should not impose a condi-
tion that the contemnor must deliver himself into custody before being permitted to appeal
from a finding of contempt.769There is an unqualified right of appeal, without the need to
gain permission, if there has been a decision to commit a person to imprisonment for con-
tempt.770 An innocent party who is dissatisfied with the court’s decision on contempt made
in respect of the opponent contemnor can appeal, at any rate if the court has refused at first
instance to issue a custodial sentence: eg, in JSC BTA Bank v Solodchenko (No 2) the Court of
Appeal substituted a custodial sentence.771
N. Proceedings under the Arbitration Act 1996772

22.132 Part 1 of the Arbitration Act 1996 applies when the ‘seat’773 of the arbitration proceedings
is in England and Wales. Even if the seat is not England and Wales or ‘no seat has been des-
ignated or determined’ the 1996 Act will apply to various matters, notably: (i) the grant of
a stay of legal proceedings,774 and (ii) enforcement of an award.775 The Commercial Court
is the main court appointed to oversee issues arising under the Arbitration Act 1996. But
766 Tarn Insurance Services Ltd v Kirby [2009] EWCA Civ 19, [2009] CP Rep 22; JSC BTA Bank v
Ablyazov [2011] EWHC 470 (Comm), Christopher Clarke J; Marcan Shipping (London) Ltd v Kefelas [2007]
EWCA Civ 463, [2007] 1 WLR 1864, [14], [28]–[30], [33]–[36].
767 [2011] EWCA Civ 544, at [12] and [40].
768 [2012] EWHC 138 (Fam), [2012] 3 WLR 266.
769 [2012] EWCA Civ 649, at [31] noted C Crifò (2013) CJQ 14.
770 For these last two propositions, Masri v Consolidated Contractors International Co SAL [2011] EWCA
Civ 898, [2012] 1 WLR 223, on CPR 52.3(1)(i).

771 [2011] EWCA Civ 1241, [2012] 1 WLR 350. Applicants bring contempt proceedings to try and pro-
cure more extensive disclosure of assets: JSC BTA Bank v Ablyazov [2011] EWCA Civ 1386, [2012] 1 WLR
1988, at [34], noting Dadourian Group Internatioal Inc v Simms (No 2) [2006] EWCA Civ 1745, [2007] 1
WLR 2967, at [16].
772
Andrews on Civil Processes: Arbitration and Mediation (vol 2) (2013), C Ambrose, K Maxwell, and
A Parry, London Maritime Arbitration (3rd edn, 2010); H Heilbron, A Practical Guide to International
Arbitration in London (2008); D Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (2nd
edn, 2010); M Mustill and S Boyd, Commercial Arbitration: Companion Volume (2001) (updating Commercial
Arbitration (2nd edn, 1989); R Merkin, Arbitration Law (2006); D StJ Sutton, J Gill and M Gearing, Russell
on Arbitration (23rd edn, 2007); J Tackaberry and A Marriott (eds), Bernstein’s Handbook of Arbitration and
Dispute Resolution Practice (4th edn, 2003); P Turner and R Mohtashami, A Guide to the LCIA Arbitration
Rules (2009); A Tweeddale and K Tweeddale, Arbitration of Commercial Disputes: International and English
Law and Practice (2005; paperback 2007).
773 Arbitration Act 1996, s 3; Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc
[2001] CLC 173.

774 Arbitration Act 1996, s 2(2)(a), referring to ss 9–11.
775 Arbitration Act 1996, s 2(2)(b), referring to s 66.
1386
N. Proceedings under the Arbitration Act 1996
some arbitration matters will come before the mercantile courts, and the Technology and
Construction Court,776 or the Chancery Division,777 and county courts.778
The parties’ consensual autonomy is a leading feature of the 1996 Act, section 1 of which 22.133
states: ‘the parties should be free to agree how their disputes are resolved, subject only to such
safeguards as are necessary in the public interest’. But this is qualified by the ‘mandatory’
provisions listed in Schedule 1 to the 1996 Act.779
Section 7 of the 1996 Act, adopting the concept of ‘separability’ (or ‘severability’),780 pro- 22.134
vides that the main contract’s invalidity does not necessarily entail the invalidity of the arbitra-
tion agreement.781 The Court of Appeal in Sulamerica Cia Nacional de Seguros SA v Enesa
Engenharia SA held that the arbitration agreement will be subject to the law of the seat
unless the parties have expressly or impliedly nominated a different law to govern that agree-
ment.782 In Jivraj v Hashwani783 the Supreme Court held that the appointment of arbitrators
is not governed by the European employment provisions prohibiting selection by reference
to religion.
A party to an arbitration agreement (‘the applicant’) can apply to the court for a stay of 22.135
English court proceedings if such proceedings have been brought against him.784 An anti-
suit injunction is also available to counter breach of an arbitration agreement, eg, in C v D
where the party in breach had brought court proceedings in New York, contrary to a ‘London
arbitration’ clause.785 The European Court of Justice in Allianz SpA etc v West Tankers, ‘The
Front Comor’786 held that English courts can no longer issue ‘anti-suit injunctions’ to restrain
a party to an arbitration from continuing such wrongful judicial proceedings in the courts
of a member state within the EU jurisdictional zone (ie, the member states governed by the
Brussels Regulation).787 Mantovani v Carapelli Spa788 and CMA CGM SS v Hyundai Mipo
Dockyard Co the Hyundai case789 demonstrate that breach of an arbitration agreement can
render the guilty party liable to pay compensatory damages.
776 (1) CPR 62.1(3): ‘Part 58 (Commercial Court) applies to arbitration claims in the Commercial Court,
Part 59 (Mercantile Court) applies to arbitration claims in the Mercantile Court and Part 60 (Technology and
Construction Court claims) applies to arbitration claims in the Technology and Construction Court, except where
this Part provides otherwise’; (2) PD (61), para 2.3(2); (3) Admiralty and Commercial Courts Guide (9th edn,
2011) Section O; (4) High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996,
SI 1996/3215.
777 PD (61), para 2.3(2): matters ‘relating to a landlord and tenant or partnership dispute must be issued
in the Chancery Division of the High Court’.

778 High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996, SI 1996/3215.
779 These include (other matters within Sch 1 are not mentioned here): Arbitration Act 1996, ss 9–11 (stay
of legal proceedings); s 24 (power of court to remove arbitrator); s 29 (immunity of arbitrator); s 66 (enforce-

ment of award); ss 67 and 68 (challenging the award: substantive jurisdiction and serious irregularity).
780 JSC BTA Bank v Ablyazov [2011] EWHC 587 (Comm), [2011] 2 Lloyd’s Rep 129, at [44]; N Blackaby
and C Partasides (eds), Redfern and Hunter’s International Arbitration (5th edn, 2009) 2.89ff. For the separa-
bility of an arbitration clause see Fiona Trust and Holding Corporation v Privalov [2007] UKHL 40, [2008]
1 Lloyd’s Rep 254.
781 Fiona Trust and Holding Corporation v Privalov [2007] UKHL 40, [2008] 1 Lloyd’s Rep 254, esp at
[17]–[19].
782 [2012] EWCA Civ 638, [2012] 1 Lloyd’s Rep 671.
783 [2011] UKSC 40, [2013] 1 WLR 102.
784 Arbitration Act 1996, s 9(1).
785
C v D [2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep 239.
786
Allianz SpA etc v West Tankers, ‘The Front Comor’ (C-185/07) [2009] 1 AC 1138.
787
Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters’.
788
[1980] 1 Lloyd’s Rep 375, CA.
789
[2008] EWHC 2791(Comm), [2009] Lloyd’s Rep 213.
1387
22.136 The 1996 Act imposes duties upon both the arbitral tribunal and the parties to ensure fair-
ness, efficiency, and an appropriate degree of speediness.790 The 1996 Act also emphasizes
that English courts should not interfere excessively in the conduct of the arbitration proc-
ess.791 However, in cases of urgency the court can provide injunctive relief for the purpose
of preserving evidence or assets.792 By sections 67–68 of the 1996 Act, the High Court can
hear a challenge to an award where it is alleged that the tribunal lacked jurisdiction or there
has been a ‘serious irregularity affecting the tribunal, the proceedings or the award’. Neither
section 67 nor 68 can be excluded by agreement. However, the House of Lords in Lesotho
Highlands Development Authority v Impreglio SpS noted that a ‘mere’ error of fact or law within
the tribunal’s jurisdiction does not justify resort to section 68.793 Although there can be no
appeal from an English award to the High Court on a point of foreign law,794 section 69
permits an appeal to occur on a matter of English law,795 if the court itself gives permission.
Careful wording is required to exclude section 69.796
22.137 Michael Wilson & Partners Ltd v Emmott797 confirms that an implied obligation of confiden-
tiality governs all documents ‘prepared for’, ‘used’, and ‘disclosed during’ arbitration proceed-
ings governed by English law; and the Privy Council in Associated Electric & Gas Insurance
Services Ltd v European Reinsurance Co of Zurich798 held that issue estoppel can arise in arbi-
tration, and this will be binding on a second arbitration panel seised with a matter on a related
topic between the same parties.
790
Arbitration Act 1996, ss 33, 40(1); Mustill & Boyd, Commercial Arbitration: Companion Volume
(2001) 30–37.
791
As noted in Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 WLR 3555,
3571, at [61].
792
Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618, [2005] 1 WLR 3555, 3571, at [61]; see also
AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ
647, [2012] 1 WLR 920, at [96], [97], [107], and [203]–[205].
793
[2005] UKHK 43, [2006] 1 AC 22.
794 Arbitration Act 1996, s 46(1).
795 Arbitration Act 1996, ss 45(1), 69.
796 Shell Egypt West Manzala GmbH v Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm).
797 [2008] EWCA Civ 184, [2008] 1 Lloyd’s Rep 616; K Noussia, Confidentiality in International
Commercial Arbitration (2010).

798 [2003] UKPC 11, [2003] 1 WLR 1041, PC, at [14] and [15].
1388

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22

A. Introduction 22.01 H. Experts 22.71

(2) Sources of English Civil Procedure11

(b) Judicial decisions

(c) Other sources

B. Stages in the Course of a Civil Action

(2) Commencement, Service, and Pleadings

(3) Evidence Gathering and the Exchange of Information

(4) Trial, Appeal, and Enforcement

(2) Service of Process

J Sorabi [2007] CJQ 168.

(4) Limitation of Actions 91

in the court oﬃce’.

D. Accelerated and Interim Relief

a cynical way, or by absconding from the jurisdiction. A freezing injunction is an in per-

[2012] 1 WLR 219, Robert Knowles QC.

‘Freezing injunctions’,135 formerly called Mareva injunctions, can normally136 be granted

A respondent will be in contempt of court if he breaches an injunction (generally on con- 22.24

Relief ) Order 1997, SI 1997/302.

(2) Preservation of Evidence: Civil Search Orders176

at [26]ﬀ; noted T Rutherford (2006) NLJ 837.

(3) Security for Costs191

(4) Interim Payments195

(5) Interim Injunctions 201

(ed), Commercial Litigation: Pre-emptive Remedies (updated service), Part A, section 1.

(6) Preliminary Issues213

(7) Summary Judgment219

(8) Striking Out Claims or Defences

(9) Default Judgment250

(2000) 19 CJQ 19.

(2) Case Management in the Commercial Court

Civ 1389, [2006] CP Rep 11, per Brooke LJ.

(3) Sanctions and Procedural Discipline

(1) Pre-Action Orders

(2) Disclosure Against Non-Parties

(3) Disclosure of Documents During the Main Proceedings

G. Legal Advice and Litigation Privileges

(2) Privilege and ‘Conﬁdentiality’ 359

(3) Legal Advice Privilege362

(4) Litigation Privilege 391

[13]–[16], [40]–[41], [49]–[52].

(2) Assessors 425

(3) Single, Joint Expert System

Liddell v Middleton [1996] PIQR P36, 43.

(4) Party-Appointed Experts

approving a comment in Liddell v Middleton [1996] PIQR P36, 43.

[2001] EWCA Civ 1456, [2002] CP Rep 10.

(Civil Justice Council, 2005) 13.

EWCA Civ 1390, [2007] QB 462, discussed later.

220, at [36], per Waller LJ.

(5) Discussions Between Experts and ‘Concurrent’ Expert Evidence at Trial

(6) Witness Immunity

I. Settlement and Mediation

(2) Mediation Agreements 527

(3) Privileges Protecting Mediation and Settlement Negotiations

(4) Settlement Oﬀers and Costs Incentives to Compromise

Colman J; extra-judicial comment in A Colman ‘ADR: An Irreversible Tide?’ (2003) 19 Arbitration

(2nd edn, 2011) 7.24–7.27.

(5) Judicial Inﬂuence upon Settlement

J. Trial, Evidence, and Appeal

[2006] EWHC 2924 (TCC), Ramsey J.

footage rendering trial by jury inappropriate).

M Taruﬀo, American Civil Procedure (1993) 128ﬀ.

(2) Evidence at Trial558