Author: alecjhancock

Ground 7A of Schedule 2 to the Housing Act 1988 is a highly effective yet often overlooked tool for social landlords, where the appropriate situation arises. Condition 1 of Ground 7A is a mandatory possession after a tenant’s conviction for a “serious offence” in the area, offering landlords a straightforward route to possession. For social housing providers dealing with persistent, high-risk anti-social behaviour, relying on Condition 1 can avoid substantive dispute and lengthy possession proceedings. 

Despite its importance, Ground 7A can be missed at the early stages of a case. Sometimes this happens because housing officers are understandably focusing on immediate safety measures such as injunctions, rather than the precise categorisation of the offence.

It also won’t be within their knowledge and will depend on third parties, such as the police and CPS, to provide that information. In other cases, the focus has not been on the serious offence, but the anti-social behaviour. Without a breach of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, Ground 14 regarding anti-social behaviour is a discretionary ground for possession. 

This post explains why landlords should always consider Ground 7A Condition 1 as soon as a prospect conviction occurs, and what to do if the opportunity to plead it at the outset has been missed. 

Verify the actual offences; you cannot assume Ground 7A Condition 1 does or does not apply

Ground 7A Condition 1 applies only if the tenant has been convicted of a ‘serious offence’ as listed in Schedule 2A of the Housing Act 1985. The schedule sets out a long list of various offences which will meet the criteria for Condition 1.

When relying on this ground, it is essential to request the evidence in support (the charge sheet, confirmation from the CPS, or a PNC printout to verify the prosecution details). Some Landlord Solicitors rely on emails from the police confirming the offence. Whilst not the ‘best evidence’, Courts seem to accept these emails. It is also important to confirm the exact statutory provision cited and ensure that the offence matches the criteria in Schedule 2A, both at the time of the offence and at the hearing.

A possible pitfall is that many anti-social behaviour offences may not be classified as serious offences under Ground 7A condition 1, which can lead to incorrect application of this ground. The alternative is that offences that are classified as serious offences are overlooked, and therefore, Ground 7A is not utilised when it should be.

Confirm the Ground 7A conditions: location, victim and context

Break down condition 1(a)–(b): determine whether the act was committed within the locality, against someone who resides or works there, or against the landlord or housing officer.

It is, of course, insufficient that a ‘serious offence’ was committed. All limbs must be satisfied in order for the court to be compelled to order possession. The required limbs to be met are as follows:-

(a)the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence, and

(b)the serious offence—

(i)was committed (wholly or partly) in, or in the locality of, the dwelling-house,

(ii)was committed elsewhere against a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or

(iii)was committed elsewhere against the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and directly or indirectly related to or affected those functions.

The second limb then has three potential options; it is not required that all three be met. The first limb is very likely to be identifiable from the outset. Whilst the tenant is easily identifiable, it is possible that it is someone who resides there but is not a tenant.

Where it was committed again can be relatively clear on the face of it, or it can be more ambiguous yet still fall within the scope of the statutory limb (b)(i).

The meaning of locality can be adopted from the authorities used in Ground 14. In Manchester City Council v Lawler and McMillan [1999] 31 HLR 119. The council appealed after a tenant was refused a committal order for breaching an agreement not to harass or cause nuisance in the locality of her home. The judge found she had broken the agreement, but did not commit her because ‘in the locality’ was unclear about the area involved. The Court of Appeal decided the meaning was clear and that her breach occurred within the area near her home. It described the location as being about three roads away, within easy walking distance of the estate, specifically near Haveley Circle and Haveley Road.

The next alternative, second limb is (b)(ii) should also be quite clear. The offence can take place other than in the vicinity, but against a person who lives nearby or has a right to live in housing in that area, including neighbours, other tenants (whether with the same or different landlords), local residents, and people entitled to occupy housing locally, such as social housing tenants.

The final possible second limb, (b)(iii) is when the offence is committed against landlords, including private landlords, housing associations, local authorities, and related personnel such as letting agents, housing officers, contractors, security staff, or anyone acting on behalf of the landlord.

Once it has been established that both limbs are met, the landlord can then take the next step, ensure the Notice to Seek Possession under Ground 7A has been validly served.

Validly serve or ensure the Ground 7A Notice is validly served

Under section 8 and Ground 7A, certain legal requirements must be met. First, the correct prescribed form must be used to ensure compliance with official procedures. The ground for the application must be accurately stated to reflect the specific reasons for the action. 

A minimum notice period of 28 days must be provided to the tenant before proceedings can be issued. Service of documentation must occur within 12 months of the conviction (or the failure/abandonment of an appeal), in accordance with s8(4D).

It is also crucial to recognise the importance of contractual clauses that permit service at the last-known address, even if an exclusion injunction is in place. These clauses can ensure that notices are effectively delivered, respecting the legal requirements and safeguarding procedural validity. This can be a topic for another post.

Once the 28 days post-deemed service have passed, the Landlord can issue possession proceedings.

Ground 7A was not pleaded in the Claimant? It’s not over yet

The issue, as above, is that sometimes it becomes apparent after the proceedings have been issued that the evidence or knowledge of a Ground 7 condition 1 offence has been committed. Sometimes, it has occurred after the proceedings have been issued.

Can you possibly add these cases to the current proceedings? At first glance, s8 would prevent this because the Court cannot entertain proceedings for a ground where hte notice required time has not expired.

Brent London Borough Council v Hajan; Poplar Housing and Regeneration Ltd Community Association v Kerr [2024] EWCA Civ 1260 concerned the Ground 7A equivalent of the Housing Act 1985, where by the Court cannot certain proceedings begun before ‘specified date’ after which proceedings may begin. The Claimant service notice regarding Ground s83ZA and then sought to amend the claim, rather than starting a new claim and the consolidating. The Defendant appealed.

The Court of Appeal dismissed the appeal, holding that purpose of the mandatory ground is to expedite fiction where a conviction already proves the anti-social behaviour. Therefore, where the term ‘proceedings’ was used in the 1985 Act, it would also include amendments:-

52. ”But in oral submissions Mr Grundy argued that the amendments themselves could be regarded as “proceedings” and that they are “begun” at some point in the process of obtaining permission to amend and making the amendment. He proposed various dates for the date when proceedings are “begun,” but his final position was that proceedings are “begun” when the landlord applies for permission to amend……. In my judgment there is considerable force in that point. Moreover, all that the order does is to permit the applicant to amend. The applicant may choose not to take up that permission.”

Whilst Brent applies to the 1985 Act, it application can be applied to the 1988 Act.

Concluding remarks

The approach above may very well be adopted by landlords in cases where current proceedings are being pursued on discretionary grounds, and the Renter’s Rights Act 2025 may introduce an alternative, mandatory ground for possession which is preferable.

The same rules apply; if the appropriate notice is served and the relevant time has passed before proceedings can be issued, then the landlord may be able to apply to amend the proceedings to add the new ground, rather than incurring more court time and resources. Issuing separately and looking to consolidate the claims.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

The talk of the town has been Mazur (or its official title, given the number of interveners, Chartered Institute of Legal Executives (CILEX) & Ors v Mazur & Ors [2026] EWCA Civ 369), which is relevant for the question of litigation carried out by those not authorised to conduct litigation. Another topic was discussed briefly in both the submissions and the Court of Appeal’s judgment.

56. As I have already mentioned, the parties placed significant reliance on paragraphs 1(7) and 1(8) of schedule 3, which provides an exemption in relation to rights of audience, as follows: 

“1 Right of audience 

(1) This paragraph applies to determine whether a person is an exempt person for the purpose of exercising a right of audience before a court in relation to any proceedings (subject to paragraph 7). 

[…] 

(7) The person is exempt if–

(a) the person is an individual whose work includes assisting in the conduct of litigation,

(b) the person is assisting in the conduct of litigation–

(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii) under the supervision of that individual, and

(c) the proceedings are not reserved family proceedings and are being heard in chambers—

(i) in the High Court or county court, or

(ii) in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices).

(8) This sub-paragraph applies to–

(a) any authorised person in relation to an activity which constitutes the conduct of litigation;

(b) any person who by virtue of section 193 is not required to be entitled to carry on such an activity.”

57. This exemption applies to individuals whose work includes assisting in the conduct of litigation. If individuals satisfy two conditions, they have a right of audience for proceedings in the High Court or county court heard “in chambers” or for certain family court proceedings. The expression “in chambers” is an out-of-date reference to hearings held in the High Court or county court which were not held in public and were often procedural in nature. They were in the judge’s room, the judge often being a Master (in the High Court) or District Judge (in the county court or District Registry).
58. The two conditions in paragraph 1(7)(b) were that the individual must be working under instructions given by another individual and under that individual’s supervision (paragraph 1(7)(b)(i) and (ii)). The individual giving instructions and supervision is defined in paragraph 1(8), which includes the particular unauthorised persons mentioned in section 193(2) of the 2007 Act in relation to the conduct of litigation. Notably the instructions may be given “in relation to the proceedings” or “generally”. The latter in this context must refer to instructions of a more general nature not specific to the proceedings. 
59. Paragraph 2 of schedule 3 concerns the conduct of litigation. Paragraph 2(3) comprises an exemption for those having a right to conduct litigation under any “enactment” as follows:

This is a topic that has been considered by the Courts, no higher than a Circuit Judge. It could have been considered by the Court of Appeal, but it was remitted back to the County Court to be considered as they believed it to be too academic. Following Mazur, I wonder if the Court of Appeal would be slow to make such a decision.

There have been a flurry of cases, including but not limited to:-

• Shane v Lincoln [2016] (MOJ Stage 3 Hearing)
• Ellis v Larson [2016](MOJ Stage 3 Hearing)
• National Westminster Bank Plc v Smith [2019] (summary judgment application)
• Halborg v Apple (UK) Limited & Another [2022] (which was originally leapfrogged to the Court of Appeal – my commentary on it is here)
• Vehicle Control Services Ltd v Langley [2026] EWCC 1 (which I have written about here)

Today, Cost Lawyer Richie Young published the reserved Judgment of his case of Smart Parking v Young [2026] where, as the Defendant, he successfully argued that the advocate attending did not have a right of audience and secured his costs upto and after the Claimant filed a notice of discontinuance under the unreasonable conduct trigger of CPR 27.14(2)(g).

Facts of the case

The claim involved an alleged parking charge incurred by Mr Young at Cardiff Gate Retail Park on 27^th September 2020, with Smart Parking claiming Mr Young overstayed and initially issued a £60 charge, which was later increased to £170 when unpaid. Mr Young stated he only became aware of the debt on 7^th June 2025, upon receiving a letter dated 29^th May 2025, nearly five years after the alleged breach. Following correspondence, Smart Parking agreed to reduce the charge to £60, which Mr Young paid on 7^th August 2025, with both parties accepting this as full and final settlement.

Despite settling the debt, Direct Collection Bailiffs Ltd (DCBL) was either unaware of the settlement or chose to ignore it and continued chasing Mr Young. On 24^th September 2025, the Defendant warned the Claimant about the consequences of further action, including the possibility of seeking costs. Smart Parking had already issued court proceedings on 8^th September 2025, before resolving Mr Young’s queries or acknowledging the settlement, and these proceedings were premature, related to nearly five-year-old events, and pursued despite evidence that the debt was settled. Smart Parking later filed a Notice of Discontinuance on 28th November 2025, two months after Mr Young’s warning.

On the 15th December 2025, Mr Young applied to set aside the discontinuance, strike out the claim as an abuse of process, and recover his LIP costs on an indemnity basis.

Hearing

The matter appeared before DDJ McKay and Mr Young challenged the Claimant’s advocate (Mr Razza) right to appear in the matter. Mr Razza did not have a party present, and therefore could not rely on the The Lay Representatives (Rights of Audience) Order 1999. Therefore Mr Razza attempted to rely on the exemption in Sch 3 Legal Services Act 2007.

For the avoidance of doubt, the Claimant was represented by DCBL’s legal department, which instructed Elms Legal Limited. The Judge correctly identified the test within Sch 3 (7):-

The person is exempt if—

(a)the person is an individual whose work includes assisting in the conduct of litigation,

(b)the person is assisting in the conduct of litigation—

(i)under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and

(ii)under the supervision of that individual, and

(c)the proceedings are not reserved family proceedings and are being heard in chambers—

(i)in the High Court or county court, or

(ii)in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices)

The first step was the Judge’s acceptance that Mr Razza was assisting in the conduct of the litigation. He was acting under instructions from Mr Shoreham-Lawson, a qualified solicitor and the principal of ELMS.

The next step was to determine whether the assistance that Mr Razza provided was under the instructions and supervision of someone who was authorised to conduct litigation. This is where Smart Parking hit a roadblock.

ELMS produced a practice note which stated that a person has the right of audience if they are an authorised advocate (such as a solicitor, barrister, or Chartered Legal Executive¹) or an exempt person. Edmund Shoreham-Lawson, the Principal of ELMS Legal Ltd, is a qualified solicitor and can act as an advocate. It set out the principle of supervision. However, the Judge was not satisfied that the arrangements of Elms and Mr Shoreham-Lawson were sufficient to establish appropriate supervision. 

The Judge made the following observations:-

In my judgement the arrangements created by ELMS Solicitors and similar operators have the potential to undermine the integrity of the legal system. To allow unqualified persons to routinely represent parties in Court if they cannot properly be said to be supervised and are not accountable to any regulated professional body is an unsafe practice and is not permitted by the Legal Services Act 2007. I doubt that Mr Razza has ever met Mr Shoreham-Lawson or ever had a proper supervision session with him. If I am wrong about that, then it is for Mr Shoreham-Lawson to satisfy the Court that he has a proper system of supervision in place. In paragraph 195 of the judgement of Lord Justice Brooke in Hollins v Russell, he says that the Court of Appeal would not wish to be prescriptive about the form which the supervision should take, provided that an appropriate system has been set up. The practice note from ELMS Legal says that all advocates having been accepted to take instructions are provided with the requisite letters of instruction, training and support and are required to provide comprehensive attendance notes for supervisory purposes.  In my judgement, this paragraph is too light on detail. The Judge is entitled to be re-assured that a proper system of supervision is in place before he permits an unqualified advocate to address him. I have no idea how many unqualified advocates are supervised by Mr Shoreham- Lawson. It could be dozens or even hundreds. I have no idea of how Mr Shoreham- Lawson arranges training and support for the advocates. He should provide sufficient information for the Court to be satisfied that the person appearing is entitled to an exemption. He has not done so in this case.   I am therefore justified in not allowing Mr Razza rights of audience.

The Judge went on to consider the application for unreasonable conduct costs without hearing from Mr Razza. This article is limited to the issue of right of audience. Given the limited time remaining, the Judge reserved his judgment which was recently handed down.

Compared with DJ Pratt’s VCS Limited v Langley [2026]

As with VCS Limited v Langley, this is a county court first-instance decision that is not binding and, at best, would be persuasive. Even DDJ Mckay said, “although a decision at District Judge level is not binding on me, the judgment is a comprehensive analysis of the law and the issue.” As I’ve said previously, when the Court of Appeal decided that Halborg v Apple was ‘too academic’ to be considered despite HHJ Backhouse’s order to leapfrog the matter to the Court of Appeal, it would have led to the start of the collating of first-instance decisions and would become another ‘Battle of the transcripts²’. 

It’s notable that the judge followed Judge Backhouse’s approach to what constitutes assisting in litigation, namely that advocacy falls within this category. I understand this principle well. Chamber advocacy typically involves case management hearings, including interim applications, which would qualify as assisting in the conduct of litigation since court involvement has advanced the matter.

Additionally, this aligns with the purpose of the schedule 3 exemption, which allows authorised persons to instruct unapproved employees to attend hearings on their behalf.

Imagine a solicitor or CILEX Lawyer (with the proper practice rights) in the office planning to handle a case management hearing. Suddenly, an urgent matter appears on their desk. They sigh heavily, then notice their paralegal walking by. They call the paralegal into their office and inform them that they will be going to court to handle the case management hearing. The paralegal is given instructions and provided with the case files to review before the hearing. Although the paralegal may not be directly involved in this specific case, they are assisting in the litigation process since the case management hearing is needed to assess progress.

The question of adequate evidence of supervision can be seen as an unnecessarily harsh criticism, akin to my issue with DJ Pratt when he suggested that there should be evidence of materially substantial assistance in the conduct of litigation.

Differences between the principal law firm and within the agency law firm

If the approach by McKay and Pratt were combined and adopted, it could be argued that those within the law firm directly representing the party (rather than those within the agency law firm instructed by the principal law firm) can establish prima facie that they were properly supervised and assisted in conducting the litigation.

Imagine tomorrow morning a District Judge begins to work through their list. The first hearing is a CMC and the Claimant is represented by counsel and the Defendant is represented by a paralegal within the law firm who are on record acting for the Defendant.

Prima facie, unless there was doubt that the paralegal actually worked at the law firm that is on record, there would be no reason to doubt that the paralegal was both appropriately supervised and assisting in the conduct of litigation. It would seem perverse that the supervisor would need to be present in court; otherwise, it would be counterintuitive to the purpose of the exemption. The supervisor would simply conduct the hearing themselves. 

It would be unreasonable to use Pratt’s method to determine whether the paralegal has been assisting in the conducting of litigation because it would require evidence that this specific paralegal has helped in this case, such as by writing letters or signing documents. If McKay’s approach to assisting in conducting litigation is simply the process of conducting this particular type of advocacy.

Now, consider that the next hearing is a similar hearing where the Defendant is represented by an agent advocate from an agency law firm, following the same principle. It is fair to say that automatic prima facie adoption would not occur. However, based on my previous discussion about Langley, the agency law firm is regarded as the principal law firm, retaining both control and liability. Interestingly, that interpretation aligns with the Court of Appeal’s decision in Mazur about the authorised individual who can delegate the task to a non-authorised individual.

ChatGPT and I had a bit of a falling out as I tried to carefully explain what I wanted, which was a visual illustration to demonstrate the above. After some back and forth, I got somewhere which broadly represents the above:-

In my view, it would seem that McKay was more willing to accept the possibility of agency advocacy (which is a bona fide service that has been around since the 1800s³), but absolutely wanted there to be the appropriate safeguards to ensure protection when it involved unauthorised advocates.

Concluding remarks

I think there is another particular issue regarding Sch 3 that could be quite a challenge. I intend to sit back, get the popcorn and see if that issue arises.

Without a binding authority, we will likely see ongoing inconsistency at the first instance and an increasing number of persuasive but non-binding decisions, culminating in a ‘battle of the transcripts’ on the rights of audience. It is not going to have the same impact or urgency as Mazur and the point regarding litigation, but I suspect that there will be many who will feel uneasy with the increased attention this issue is getting. 

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

1. The current situation is somewhat unclear. Previously, you couldn’t obtain litigation rights without also having chamber advocacy rights. This raises the question: if you are a CILEX Litigatory rights, can you supervise someone else’s litigation and allow them to use the Schedule 3 exemption? Additionally, a Fellow of CILEX without practice rights can participate in a small claims case without relying on the Schedule 3 exemption because PD27A para 3.1 grants them a right of audience on the small claims track, provided they are employed by a solicitor or someone authorised under the Legal Services Act 2007 to act as a litigator or advocate. This suggests that supervision might be possible if you only have litigation rights. I realise this has shifted from a footnote to a more personal stream of consciousness. Apologies for the digression…consider yourselves fortunate this isn’t in person, and you can’t stop me from talking! ↩︎
2. I can’t claim to have ‘coined a phrase’ or copyright it, but I would like to think that when HHJ Saggerson adopted the phrase from me in his judgment of Aminu-Edu v Esure Insurance Company [2024] Lexis Citation 356, that has some authority to say it’s mine…. I suspect that has little weight. ↩︎
3. Re Pomeroy & Tanner [1897] 1 CH 284, it should also be noted that when law firms renew their PII policies, when asked about the type of work they will be doing, an advocacy agency is an option. It’s not the advocacy agency that is the issue, but the use of unauhtorised advocates unless there is sufficient superivsion ↩︎

This article isn’t entirely about Chartered Institute of Legal Executive (CILEX) & Ors v Mazur & Ors [2026] EWCA Civ 369, it’s more about what people in the legal industry should do following the Court of Appeal decision.

I’ve seen some commentary about how it has gone back to ‘as it was’ and others saying it has not, or at least not in the same way that some have suggested. I have seen CILEX Fellows saying that they are considering whether to abandon their pursut of litigation rights and I think realistically, it would be sensible to speak about the practical realities.

I shouldn’t assume, but if you’re reading this and unaware, before I became a Barrister, I was a CILEX Higher Rights Advocate and Litigator in Civil Proceedings (technically, I still am, thanks to a waiver from the BSB). I’ve been through the process myself, so I speak from experience.

What has the Court of Appeal decision of Mazur actually done?

Prior to Mazur, the main position (at least imposed by Sheldon J’s decision) was that unauthorised individuals could provide assistance but were not permitted to conduct or carry out litigation, even with supervision. Going against what the legal industry had taken to be an acceptable practice for decades. As I said in a recent post on Linkedin, it was very likely that most if not all authorised individuals had been in breach of Legal Services Act 2007 when following Sheldon J’s interpretation.

This meant that unauthorised fee earners, from paralegals to CILEX Fellows (who did not have practice rights) were left in a position where they were limited in how they could carry out work, especially when there was significant ambiguity as to what was deemed to be ‘assisting’ litigation and what was ‘conducting’ or ‘carrying out’ litigation.

Hence the scramble for so many CILEX Fellows to acquire the right to conduct litigation, something that was simply not availble to those who were not a Fellow of CILEX.

The Court of Appeal clarified the issue. The main question is not whether an unauthorised individual performs tasks related to litigation. It is about who, legally, is responsible for those activities. The authorised individual is the person who is conducting the litigation. The unauthorised individual can undertake tasks, even if they amount to conducting litigation, but ultimately they do so on behalf of and under the supervision of the authorised individual. 

I think this is best expressed at paragraph 187:- 

vii) The judge was wrong to distinguish between (a) supporting or assisting an authorised solicitor in conducting litigation, and (b) conducting litigation under the supervision of an authorised solicitor. Both activities are lawful in the circumstances I have explained. It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person.

[emphasis added]

In my view, given how many have conducted litigation as fee earners, with the conduct of the matter supervised, I think the Court of Appeal’s decision will most certainly (from a materially regulatory perspective) imply that when an unauthorised individual conducts litigation, they do so without autonomy. After all, if the authorised individual is the person who takes the responsibility and liability if something goes wrong, they have every right to dictate everything that happens.

For many, this wouldn’t be a problem. They would simply be very happy to continue their work on the High Court decision. For many, regulatory red tape is just something they have to accept.

There is still a juxtaposition. A CILEX Fellow can be a partner of a law firm, without the right to conduct litigation, but they do not have the right to run a case as if it is their own, they have to do so on behalf of a regulated individual.

So why is obtaining practice right still important?

I still believe that CILEX Fellows should acquire their practice rights.

Previously, those who did not pursue practice rights before the High Court decision in Mazur chose not to do so, understandably because they had no need. It wasn’t as if they planned to start their own law firm or run a department without anyone above them to oversee.

The position has shifted somewhat following the Court of Appeal’s clarification. While most issues have been resolved, including arguments about costs incurred by unauthorised individuals, a CILEX Fellow will still be cautious, wondering if they are truly compliant with regulations. The SRA clarified that anyone who might have breached the Legal Services Act 2007 would have a valid defence against a s14 allegation. During the hearing, the Court of Appeal emphasised that once their decision was issued, everyone involved needed to carefully review it to ensure they were in compliance.

Therefore, having the right to conduct litigation would remove that uncertainty or stress. It comes with additional security in their employment and future career prospects.

I know many were insulted by the fact that they were expected to undertake an example or prepare a portfolio when they had been doing the job, sometimes even decades. That’s an understandable frustration. However, that is a regulatory complaince that the delegated regulator approved everyone by the same standard. It cannot simply be a rub stamp process, otherwise it would completely undermine the entire purpose of regulation and standing of an authorised person.

Although steps have been taken to make the process more streamlined and easier to complete, it ultimately depends on the concessions granted by the LSB, who control the process for authorisation.

What about non-CILEX Fellows fee earners?

It is not straightforward for those who have been in the industry for some time, doing the job exceptionally well, but have not acquired any formal legal qualifications, such as CILEX Fellows. Whilst the process has been incredibly demanding, stressful and at times demeaning to CILEX Fellows, at the very least they had an Ave that they could utilise to get practice  rights.

Fortunately, the legal industry does have a relatively broad range of regulated lawyers all with various qualification process is and, more importantly specialism in certain areas.

For example, someone who has been working in the costs industry would be better suited to qualify as a cost lawyer rather than a CILEX lawyer or Solicitor. Someone who is working in trade mark disputes might be better suited qualifying through the trademark attorney regime. 

I previously wrote an article titled “It’s ok Legal Cheek, I’ve got this“, which discusses all types of regulated lawyers, their rights available to them and the broad qualification process. This provides greater flexibility in choosing a path that is better suited to the individual and the practice they intend to undertake.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

April Fools!!!

In the modern era, supermarkets do more than sell groceries. They now produce their own products under their own labels. Of course, they don’t actually produce these products, but they acquire them, put their logos on them, and sell them as their own.

With great branding power comes great legal responsibility.

In particular, I refer to the Consumer Protection Act 1987, where the supermarket is treated as being the producer under the Act, even if the actual manufacturer is identifiable. This article explains why own-brand supermarkets fall within the statutory definition of ‘producer’, and why liability cannot be avoided by identifying the underlying manufacture

Who is the ‘producer’?

The 1987 Act implements strict liability for defective products. Unlike contractual claims (such as the Consumer Rights Act 2015), the 1987 Act creates non-fault liability against certain categories of defendants collectively referred to as “producers”.

S2(2), which gives rise to damages to an individual who sustains injury as a result of a defective product:-add

This subsection applies to—

(a) the producer of the product;

(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;

(c) any person who has imported the product into the United Kingdom in order, in the course of any business of his, to supply it to another.

[emphasis added]

It’s clear that when a supermarket markets a product as its own brand, it is implying that they are the producer of that product. It is irrelevant that they did not physically make it. The reasoning is simple. From a consumer’s point of view, the supermarket acts as the producer. The actual manufacturer’s identity is often hidden or considered unimportant to the final user.

Can a supermarket delegate liability if they provide the identity of the actual manufacture?

The answer is no.

The act does not have a mechanism to transfer liability. Firstly, the closest mechanism is s2(3), which is aimed at sellers (distinguishable from producers) who are made responsible for the damage unless they are able to identify the identity of one or more persons to whom s2(2) applies.

This means that a seller (which could be the supermarket) can provide details of a producer, but that in their capacity of a seller. If they are deemed to be the producer of the product as per s2(2)(b), then they could still refer to the underlying manufacturer, but this does not extinguish their own liability under s2(2)(b). This can be seen by virtue of s(2)(5):-

Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be joint and several.

The supermarket cannot rid itself of liability on the basis it can identify the actual manufacturer.

What if the supermarket refuses to deal with the claim?

The supermarket would be in difficulty. They are still liable as they fall within the definition of a producer as per s2(2)(b). Whilst the underlying manufacturer could be brought in, they would be jointly and severally liable.

There are statutory defences and the Claimant must still satisfy the Court that, on balance, the product is not as safe as people are generally entitled to expect, and the defective nature was is in keep with s3 of the 1987 act. Once established, strict liability applies.

Conclusion

The Act intentionally establishes overlapping liability categories. It broadly defines “Producer” to include various actors in the supply chain, such as own-branders, making supermarkets their own producers rather than just fallback defendants. Rooted in consumer protection policy, the CPA 1987 aims to ensure injured consumers have a clear and accessible Defendant to hold liable, without relying on complex supply chains or cross-border manufacturing.

This prevents supermarkets from avoiding liability by simply pointing to manufacturers, which would create unnecessary barriers for consumers, especially when dealing with overseas or hard-to-pursue manufacturers. It is entirely different from supermarkets that are wholly suppliers. They can be held liable, but only until they reveal the manufacturer’s identity. This rule does not apply to supermarkets that sell their own branded items.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

When a lawyer seeks ‘wasted costs’, they are not asking for their client’s costs to be paid by the other party; they are seeking to have the costs paid by the other party’s legal representatives.

The term wasted costs is usually, and erroneously, interchanged. It is likely that the Court appreciates what is actually being sought, but it is a pet hate of mine.

What is a wasted costs order?

CPR 46.8 regulates the court’s authority to impose “wasted costs orders” against legal representatives under s51(6) Senior Courts Act 1981. It addresses the personal liability of lawyers, including solicitors and barristers, but also any regulated lawyer. This is a discretion available to the courts that is invoked to compensate parties for costs wasted due to misconduct of legal representatives.

A wasted costs order can disallow costs or permit the recovery of costs from the legal representative instead of the party. This is particularly important in situations where recovering costs from the party is impossible, such as under QOCS, but the conduct of the legal representative caused the costs.

The Ridehalgh v Horsefield test

In Ridehalgh v Horsefield [1994] Ch. 205, CA, the Court of Appeal examined the jurisdiction to award wasted costs under the Courts and Legal Services Act 1990. It emphasised that litigants should not suffer financial prejudice from unjustified conduct by their own or their opponent’s lawyers. Courts must also be cautious when awarding wasted costs to avoid creating a costly new form of satellite litigation.

Before ordering a wasted costs order, a three-stage test should be applied: 

(a) Did the legal representative in question act improperly, unreasonably, or negligently?

(b) If so, did this conduct cause the applicant to incur unnecessary costs? 

(c) If yes, was it appropriate, considering all circumstances, to order the legal representative to compensate the applicant fully or partially?

The test in Ridehalgh was later adopted as the acid test for unreasonable conduct costs awards in the small claims track CPR 27.14(2)(g) in the case of Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269.

Was the conduct improper, unreasonable, or negligent?

These terms are broadly interpreted but with important nuances. “Improper” conduct encompasses not only behaviour that deserves professional discipline but also significant deviations from proper standards. “Unreasonable” conduct covers actions that are vexatious or intended to harass rather than support the case, even if driven by excessive enthusiasm. “Negligence” is understood in a general sense, meaning a failure to meet the standards of a reasonably competent professional.

Causation between the conduct and the loss

There must be a causal link between that conduct and the costs incurred. The court must be satisfied that the legal representative’s actions caused unnecessary costs to be incurred or rendered previously incurred costs wasted. Without such causation, no order can be made. I once made an argument where the Judge was with me on the conduct point, but found that the costs incurred would have been incurred in any event.

Is it reasonable in all the circumstances to make the Order?

Even where fault and causation are established, the court must consider whether it is just in all the circumstances to impose liability. This reflects the discretionary nature of the jurisdiction and ensures that wasted costs orders are not imposed automatically.

‘Show cause’ opportunity

CPR 46.8(2) promotes fairness to legal representatives by providing a mechanism that prevents a wasted cost order from being made immediately, often because the representative did not anticipate such an argument. They must be given a reasonable chance to respond, either in writing or at a hearing, before any order is issued. The court can decide the amount of wasted costs itself or direct a costs judge to assess it.

Additionally, the court may require that the representative’s client be informed of the proceedings or any resulting order. In practice, courts usually follow a two-stage process.

The first stage involves assessing whether there is a strong prima facie case justifying further investigation and whether pursuing the matter would be proportionate. If these criteria are met, the second stage involves a thorough review of the legal representative’s conduct after providing them with an opportunity to respond. This is informally referred to as showing ‘just cause’ and once the prima facie has been established, it is for the respondent to such an application to demonstrate why such a costs order should not be made. It is not for the respondent to demonstrate in thre is no prima facie case. CPR 46.8 is intended to be an exceptional costs direction.

Courts are wary of allowing wasted costs applications to turn into complex, satellite litigation. Therefore, applications are often postponed until after the trial and may be denied if they require detailed factual investigation or if the costs of the application are disproportionate.

Conclusion

Seeking your ‘wasted costs’ when you actually mean the costs of and occasioned by an event, or costs thrown away, is unlikely to lead to any complications. Judges will question whether you meant seeking your client’s costs from the other party and I doubt that it will lead ot an unitended consequence.

Just remember that when you instruct counsel to seek, or invite the court to make a wasted costs order, you are asking the Court to make a legal representative personally liable for costs caused by their improper, unreasonable or negligent conduct. It is a high threshold test.

Whilst Ridehalgh was adopted as the acid test in Dammerman, the application of those cases in CPR 27.14(2)(g) is different. In those circumstances, you are still seeking costs from the other party, but you are asking the court to exercise discretion to allow costs not usually allowed in the small claims track.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

I have decided to make a Tetralogy regarding the deductions from a child’s personal injury damages. consisting of:-

• Chapter 1 – ATE premiums
• Chapter 2 – Success fees
• Chapter 3 – Costs shortfall contribution 
• Chapter 4 – Payments out

Success fees are probably the most common deduction from a child’s damages. I am not sure why I didn’t write about it first. Nevertheless, it is an important topic.

What is a success fee?

A success fee is an additional liability that was made available to Solicitors who entered into a conditional fee agreement to account for the additional risk they took for taking on a case, whereby the Solicitors may not get paid for the work they undertake unless their client is successful.

The client instructs a solicitor on a CFA basis, so there are no upfront payments (although the firm may request money for disbursements). If the claim is lost, then no costs are charged by the Solicitors. If successful, the success fee is raised alongside the basic charges.

The percentage of the success fee could not exceed 100%, but the success fee had to be justified, usually by attributing the percentage to the risk. For example, a case which has low risk and high prospects with an early admission is not going to attract the same litigation risk as a highly complex and contested accident with both facts and law in dispute. In order to determine this, a solicitor would carry out a risk assessment at the outset of the claim.

However, who paid that success fee has changed as a result of the Jackson reforms.

Pre 1st April 2013

The success fee was an additional liability that was recoverable from the third party upon a successful case, leading to a right to recover costs. For these reasons, a Notice of Funding had to be filed with proceedings,, otherwise the Claimant would be unable to recover the success fee from the paying party. Once the right to costs came about, the bill of costs was drafted, which would include the success fee.

The success fee was usually a percentage of the base costs. So if a Claimant’s solicitors had incurred £6,000 of costs, and the success fee was 100%, then the success fee would be £6,000. Understandably, there would be circumstance whereby the Claimant’s success fee percentage would be challenged by the paying party. The cherry on top is that any CFA entered into between the Claimant and their instructed counsel was also subject to a success fee.

However, that changed following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which applied to any CFA entered into on and after 1st April 2013.

Post 1st April 2013

Since LASPO, success fees are not recoverable from the Defendant in personal injury claims where the CFA is entered into after 1^st April 2013. Instead, they are usually deducted from the claimant’s damages. Any deduction is restricted by the LASPO and the Conditional Fee Agreements Order 2013. Essentially, any deduction or contribution from the Claimant’s damages must not exceed 25% and cannot be deducted from anything other than from PSLA and past losses.

Claimants can challenge the costs, and in turn, the success fee, by virtue of s70 Solicitors Act 1974. However, the question comes to success fees when they are children and are subject to CPR 21.10.

Herbert v HH Law Limited [2019] EWCA Civ 527

The first question is whether the litigation friend (who has entered into the CFA in order to pursue the child’s claim) has consented to the success fee. The relevant case is Herbert v HH Law Limited.

Ms Herbert instructed HH Law under a CFA after an RTA. The CFA allowed for a 100% success fee, limited by a 25% cap on damages. The claim settled for £3,400, with the solicitors deducting £829.21 for a success fee, plus an ATE insurance premium from her damages. Ms Herbert challenged these costs under s70 of the Solicitors Act 1974, claiming she wasn’t informed about the success fee and that it was unreasonable.

The Court of Appeal stated that “approval” under CPR 46.9(3) means informed approval, which requires a proper explanation to the client. The solicitors did not demonstrate informed approval for the 100% success fee because it was set as standard without considering litigation risk. This unusual practice should have been explained. As a result, the success fee was reduced to 15%.

Duffield v WM Morrisons Supermarket Limited

HHJ Monty KC, sitting in the County Court at Central London, heard an appeal from DDJ Walton regarding the deduction of the cost of the ATE premium and success fee. This article will focus solely on the ATE premium element.

The DDJ had allowed some of the success fee, but refused the ATE premium in its entirety. The Judgment of the DDJ was short and given verbatim in the Circuit Judge’s judgment. Whilst the DDJ was willing to find that there was risk, despite the criticism of the risk assessment, he found that the appropriate deduction should be 10% based on Simmons v Castle [2012] EWCA Civ 1039, which increased PSLA general damages to account for the additoinal libailities that must now be deducted from the Claimant’s damages.

The Circuit Judge allowed the appeal on the success fee because the success fee was a contractual agreement between the Solicitors and the litigation friend. It was wrong for the Judge to use Simmons v Castle as a starting point because that was in relation to the measurement of damages, not to solicitor-client assessment of costs.

Further, the Circuit Judge referred to the approach in Herbert v HH Law as the correct approach under CPR 46.9, ensuring informed consent from the litigation friend and applying the presumption of reasonableness to costs incurred with the client’s approval, unless evidence suggests otherwise. In this case, the litigation friend understood and approved the CFA, confirming the reasonableness of the success fee.

Very similar to the approach of ATE, CPR 46.9(3) has a presumption that the costs are reasonably incurred. There is a mechanism in place to challenge the costs if there are any concerns.

How are basic charges determined for a CFA?

In most CFAs, the basic charges are determined by the hourly rates and the amount of time spent progressing the matter. Therefore, if a firm spent £3,500 on conducting the matter, then the success fee would be £3,500 at 100%. However, some firms would define basic charges as the costs that can be recovered from the third party where the fixed costs regime would apply.

This would make it easier for a client to understand the likely liability for a success fee on the basis that the fixed cost regime was prescriptive to a certain extent (for example, any costs determined by the value of damages would be speculative, but a case that settles in the MOJ portal would have a prescribed set of fixed fees.

This reduces the size of the success fee, and would not take into account any complexities that would require more time. Whilst it would be considered fairer for Claimants who would require the success fee to be paid out of their damages, it would penalise firms who did significantly more work, but did not get remunerated for that time because of the fixed costs regime.

The percentage of success fee and cap on deductions from the damages are not interchangeable

A Litigation Friend, who incurs a success fee (for example) of 75% does not have that success fee reduced to 25%, but the cap of the pool of the damages that can be deducted from is limited to 25%.

So imagine a Litigation Friend’s solicitor has settled the Claimant’s case for £6,000 for PSLA only. The amount of work undertaken is £8,000 and the success fee is 75%, equating to £2,000. The success fee maybe £2,000, but the cap is £1,500. Therefore, the cap prevents more than £1,500 being deducted from the damages.

I have had many Judge states that a ‘25% success fee is being sought’, when that is not the case and interchange damages cap and success fee when they should not.

The approval process.

CPR 21.12 dictates how deductions from a child’s damages can be made and under what circumstances. Whilst costs that are to be deducted from the damages are usually to be assessed on detailed basis, CPR 21.12(2)(c) says that the detailed assessment can be dispensed with in accordance with CPR 46.6(5):-

(5) Where the costs payable comprise only the success fee claimed by the child’s or protected party’s legal representative under a conditional fee agreement or the balance of any payment under a damages based agreement, the court may direct that—

(a) the assessment procedure referred to in rule 46.10 and paragraph 6 of Practice Direction 46 shall not apply; and

(b) such costs be assessed summarily

This means the Court can summarily assess the costs that are to be used as a basis for determining the success fee.

The Litigation Friend, in accordance with CPR 21.12, must also file a statement setting out, so far as a applicable, the following:-

(a) the nature and amount of the costs or expenses and the reason they were incurred;

(b) a copy of any conditional fee or damages based agreement;

(c) a copy of any risk assessment by reference to which any success fee was determined;

(d) the reasons why the particular funding model was selected;

(e) the advice given to the litigation friend on funding arrangements;

(f) a copy bill or informal breakdown of the solicitor and own client base costs incurred;

(g) details of any costs agreed, recovered or fixed costs recoverable by the child; and

(h) an explanation of the amount agreed or awarded for—

(i) general damages for pain, suffering and loss of amenity; and

(ii) damages for past financial loss, net of any sums recoverable by the Compensation Recovery Unit or the Department for Work and Pensions.

This ensures the basis for the success fee can be reviewed by the Judge to ensure it is compliant. As it is a contractual agreement between the Solicitor and the Litigation Friend, there is a presumption that the costs are reasonably incurred and reasonable in amount.

So how should the Court consider the success fee for the purposes of approving any payment out for the same?

The Court must start by considering whether CPR 21.12(10) has been complied with and whether the appropriate documentation has been provided. If any documents vital to determining the success fee are missing, no success fee deduction should be allowed.

If the Solicitors have defined the basic charge for the success fee calculation as their hourly rates and work in progress, then, without a breakdown of those costs, the Court cannot possibly consider whether the success fee is correct/accurate/reasonable/proportionate.

The starting point would be to consider the success fee percentage and whether there was informed consent. If there is sufficient evidence of informed consent, then the Court should not touch the success fee.

If informed consent is doubtful, then the Court must consider whether the success fee is justified by the risk assessment. If it were a blanket 100% with no consideration of the risk, then the rebuttable presumption that it was reasonable and proportionate falls away. The court can then consider the appropriate success fee.

The same approach applies to the costs incurred. If informed consent is doubtful, are the costs unusual in nature and amount to displace the rebuttable presumption? If so, the Court can carry out a summary assessment of those costs because CPR 46.4(5) can allow the costs to be summarily assessed, rather than subject to detailed assessment.

In low-value personal injury cases, these possible reductions in the success fee percentage and summary assessment of costs may very well have no influence on the deduction. If 25% of the damages is £600 and the success fee is reduced from £3,000 to £1,000, the cap is still £600 and the assessment becomes an academic exercise. However, that may not alwasy be the case.

Why should the success fee be paid out of a child’s personal injury damages?

Success fees should be capable of being deducted from a child’s personal injury damages because solicitors acting under a conditional fee agreement assume a significant financial risk in pursuing claims on a CFA basis (at their own detriment).

If the claim is unsuccessful, the solicitor receives no payment for the work undertaken and absorbs the cost of the litigation risk. The litigation friend, who is responsible for conducting the claim on behalf of the child, knowingly enters into the CFA and thereby accepts the contractual liability for the success fee in the event that the claim succeeds. The rules allow that success fee to be recovered from the child’s damages.

Allowing a reasonable success fee to be deducted from damages therefore reflects the commercial reality that solicitors must be incentivised to take on such cases, particularly where there is uncertainty as to liability or quantum.

Importantly, this does not leave the child unprotected. The Court retains supervisory jurisdiction over settlements involving minors, and there are established mechanisms, such as detailed assessment and the court’s approval process, to scrutinise costs that appear unusual in amount or nature and to ensure that only fair and reasonable deductions are permitted. However, that mechanism is where there is doubt about the informed consent.

Whilst many say that this seems unfair on the Claimant child, remember that they would have no damages at all but for the financial risk undertaken and incurred by both the Solicitors and the Litigation Friend.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Dogs have long been companions and workers, and many families in the UK love having dogs as pets. People value their loyalty, intelligence, and emotional bond. I never knew how much satisfaction it brings to have a dog until I had one myself. However, dogs can sometimes cause harm or damage; it is a sad reality we must all accept, even if more often than not (or the majority at large) are very safe. The law aims to balance loving dogs with keeping the public safe and protecting property.

The Animal Act 1971 is the usual mechanism relied on by those who have sustained injury as a result of a dog-related incident. This article considers this Act and the relevant elements with respect to dogs.

Who is the keeper of the dog?

The definition of a keeper can be found in the 1971 Act, s6(3) and s6(4) say that a keeper can be:-

1. The person who owns the dog.
2. The person who possesses the dog.
3. The ‘head of the household’ is the person who owns or has possession of the dog if the person is under 16 years of age. 
4. The previous person who owned or possessed the dog until someone becomes the keeper within the meaning of the act. 

A person is not a keeper if they take and keep the dog into their possession to prevent it from causing damage or until it can be returned to its owner.

Can a dog fall within the definition of a dangerous species?

Strict liability for dangerous species, as per s1 and s2(1) of the 1971 Act, means a keeper is automatically liable for damage caused by the animal. The Claimant only needs to prove the keeper and injury, with no need for negligence or fault. Liability applies even if the keeper was cautious and unaware of the danger.

The definition of a dangerous species is found in s6(2) of the 1971 Act:-

(2)A dangerous species is a species—

(a)which is not commonly domesticated in the British Islands; and

(b)whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.

A dog is a species that is commonly domesticated in the British Islands and therefore cannot fall within the definition of a dangerous species.

What would need to be proven to establish liability under s2(2) in respect of a dog?

There are three limbs to s2(2) that need to be met for injury that has been caused by an animal that does not belong to a dangerous species.

1. The damage is of a kind which the dog, unless restrained, would likely to cause or which, if caused by the dog, it was likely to be severe 
2. The likelihood of the damage or of its being severe was due to characteristics of the dog which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances
3. Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the dog (falling within the definition of ‘keeper’).

A Claimant must meet all three of these limbs to establish liability. The 1971 Act is well known to be difficult and contradictory and therefore is not a simple question. 

Likelihood of damage

There are two ways to establish limb one of s2(2)(a), either was it the kind of damage that, if the dog was unrestrained, was likely to be caused or if it caused damage, the damage was likely to be severe.

It is an ‘either/or’ approach, and the Claimant needs to establish only one. It is likely that dogs with a history of attacking other dogs would, if unrestrained, cause injury to people who may intervene. The possibility of the damage a dog could cause (and damage, as per s11 of the 1971 Act, includes death of/or injury to any person) was likely to be severe.

S2(2)(a) is establishing the foreseeability element of the dog. In other animals, the test may not be so easily established, such as horses in horse-riding accidents (leading to fact-specific analysis by the Court as per (Turnbull v Warrener [2012] EWCA Civ 412). 

Due to the particular characteristics

The mere fact that a dog could cause severe injuries or could have caused injury if unrestrained is not, of itself, sufficient. There needs to be something about the dog’s characteristics that is either not seen in other dogs or not at all, except at a particular time or in particular circumstances. As domesticated animals are not usually known to attack without any sort of provocation, that would be a particular characteristic not normally found

The example given in Mirvahedy v Henley [2003] UKHL 16 really helps to explain this point.

Para 46

Some forms of accidental damage are instances where this requirement could operate. Take a large and heavy domestic animal such as a mature cow. There is a real risk that if a cow happens to stumble and fall onto someone, any damage suffered will be severe. This would satisfy requirement (a). But a cow’s dangerousness in this regard may not fall within requirement (b). This dangerousness is due to a characteristic normally found in all cows at all times. The dangerousness stems from their sheer size and weight. It is not due to a characteristic not normally found in cows ‘except at particular times or in particular circumstances‘.

So, if a dog that tended to attack other dogs rushed towards another dog to carry out such an attack and knocked the claimant over, causing injuries, this could be said to be caused by a characteristic not normally seen in dogs. However, that logic may not apply to dog breeds that have that characteristic. Generally, just because a trait or characteristic is rare does not mean it is abnormal. For it to be a normal characteristic, it ought occur with some frequency or predictability (Welsh v Stokes [2007] EWCA Civ 796). 

In Gloster v Chief Constable of Greater Manchester Police [2000] All ER (D) 389, a police constable was bitten by a trained German Shepherd police dog during a pursuit when the handler slipped and the dog broke free. The central issue was whether the dog’s police training amounted to a “characteristic not normally found” in German Shepherds under s 2(2)(b), thereby triggering strict liability. The Court of Appeal dismissed the appeal, deciding that the dog was acting based on training, not abnormal behaviour, and there was no evidence that the damage was due to an abnormal characteristic. The requirements of s 2(2) were not satisfied.

Then we come to the point of particular times or in particular circumstances. 

In the case of Curtis v Betts & Anor [1990] 1 ALL ER 769, the Defendants owned a large, usually calm Alsatian dog, which was territorial and guarded its home. The Claimant was walking with his mother past the house. The dog, which was behind a gate in the front yard, got out and attacked the boy on the street, causing serious injuries to his face. The evidence suggested that the dog was not generous viicious, but it did bark and growl at passers-by and was protctive of its terriority

The Defendants appealed on the basis of whether a dog exhibiting territorial aggression would qualify as a characteristic under s2(2)(b). The Court of Appeal dismissed the appeal, finding that the territorial aggression characteristic could be common in dogs generally, but manifested in particular circumstances would satisfy the second limb of s2(2)(b). The limb of s2(2)(c) would be the next part of the test.

We know our dogs can, as they get older for example, start to act differently due to general wear and tear like we do. As we get affected by arthritis and other symptoms, so do our dogs. Therefore, dogs may start to respond more aggressively in particular circumstances when they never done so before.

The characteristics were known to the keeper

The final limb of s2(2) is intended to ensure that the Court is satisfied that the characteristics are known to the keeper. This can sometimes be a very strong defence for the keeper, as the Claimant bears the burden of discharging it. In practice, this can be evidence in the form of veterinary records (with reports that the dog had shown the aforementioned characteristic) or a police report following an incident. A Claimant might seek to contact nearby neighbours to see if they are able to shine any light on the characteristic being known to the keeper.

It is important to note that the type of knowledge is based on which of the two limbs is utilised in s2(2)(b). Returning to Curtis, the Court of Appeal was satisfied that the keeper knew the dog was territorial and defensive, barking and growling at passers-by and guarding the house. It was not necessary to predict the exact attack or fully understand the risk, the Claimant only had to show that the keeper knew the dog’s tendencies.

Statutory defences

As s2(2) is a strict liability mechanism, meaning once all three limbs are satisfied, the liability will only be defeated if one of the few statutory defences are utillised. They are:-

• Proving that the damage was wholly the fault of the Claimant (s5(1) of the 1971 Act).
• Voluntarily accepting the risk of damage (s5(2) of the 1971 Act)
• Trespass (if the dog is not kept there for the protection of persons or property or if so, keeping it there for that purpose was not unreasonable) of property (s5(3) of the 1971 Act)

Whiltst I do not intend to go into any detail on the above, it would sensible to point out that if the fault of the Claimant is only partial, then liability is not defeated because s10 and s11 allow for the Law Reform (Contributory Negligence) Act 1945 to apply.

The strongest case would be to demonstrate that the Claimant has failed to satisfy any or all limbs of the s2(2) test.

Conclusing remarks

This article only touches upon the 1971 Act in some very vague detail. The s2(2) is contradictory and complicated and there is significant wiggle room for interpretation thanks to the various Appellant decisions. Whilst broadly speaking the test can be relatively easy to explain, there is always grounds to consider whether or not the claimant has or can sufficiently established the necessarily elements for a strict liability claim.

Whilst dogs can easily satisfy s2(2)(a), it can be much more difficult to establish the remainder and it is of course on the Claimant to discharge the evidential burden.

I leave you with a very old photo (clearly shown by the fact that I have hair) with my dog when he was a little puppy!

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Judicial conscience on the District Bench can quite often follow a reticent approach when it comes to deductions from a child’s personal injury damages. They see a child who has sustained injury as a result of another person or organisation’s negligence. Any reasonable person can see why there would be hesitancy in making such a direction, even where the litigation friend has consented. There can be some circumstances where there is no good reason but generally speaking, litigation is expensive and is not without risks.

Having worked on files that originated in a pre-Jackson universe, I am well-versed in After The Event (‘ATE’) insurance and its role in personal injury litigation, both pre- and post-Jackson reforms.

It has most certainly given me a better understanding as to why ATE premiums, that are no longer recoverable from the Defendant, ought to be deducted from the Claimant’s damages.

What is ATE insurance?

For those who do not know, ATE insurance is a policy that is tailored for litigation. Whilst many enjoy the benefits of, what is commonly referred to as Before The Event (‘BTE’) insurance through policies such as home insurance or credit credit benefits, many do not have access to such policies (or the policy does not cover the intened action).

Ultimately, if insurance doesn’t exist, the Conditional Fee Agreement (‘CFA’) system (introduced to cover the removal of legal aid in personal injury) cannot function, as CFAs will only protect the client against their liability for legal fees.; not the disbursements and any prospective third party fees.

CFAs would usually say somethign on the line of :-

If you lose, you do not pay our basic charges or success fee, but we will require you to pay our disbursements.

ATE insurance is not front-loaded. Therefore, a premium isn’t charged or payable from the outset. In fact, if the case were unsuccessful, the premium wouldn’t be charged at all, and it would pay out for the liability, finally protecting the client. However, if successful then the premium is charged.

Understandably, this meant that ATE Insurers would usually only insure cases where there was a good prospect of success. So how did this work in the pre- and post-Jackson world?

In the pre-Jackson personal injury world

Before the term ‘Qualified One-Way Cost Shifting’ was thrown around the PI world as both a sword and shield, personal injury cases just followed the usual cost consequences; costs follow the event, the Claimant would usually pay the Defendant’s costs up to the date of discontinuance and liabilities such as success fees and ATE premiums were recoverable from the Defendant.

ATE and BTE insurance policies were an absolute must. A Claimant couldn’t possibly risk proceeding with the risk. The cost of ATE premiums was high because they would have to cover not only the Claimant’s own disbursements but also the Defendant’s costs and disbursements. Given that the cases were primarily subject to standard costs, these costs could be high even on a fast-track matter.

Before the introduction of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), the Claimant would be able to recover the ATE premium, providing the could demonstrate that they had exhausted all other options, such as BTE insurance policies.

An interesting side note, ATE insurers tended to require advice on liability to demonstrate that the prosepcts of success were sufficient to warrant indemnity by the ATE premium. In a way, it would vet cases to ensure those with good prospects proceed. However, the insurance industry was concerned about the cost of covering ATE premiums for cases (in addition to the standard costs).

Further, it was an important clause that the insurer was to be advised of any Part 36 offers received from the Defendant. If the insurer believed the Part 36 was too much of risk, they would end indemnity.

Then the 1st April 2013 arrived.

The post-Jackson personal injury world.

LASPO removes the recoverability of the ATE premium from the Defendant. The cost of the premium is now borne by a Claimant (or the litigation friend), but (subject to a finding of FD or another reason for the Court to disapply QOCS) the Defendant cannot recover any costs from the Claimant where the Claimant is unsuccessful.

In Jackson LJ’s opinion (as set out in his reports), the need for ATE would be practically eradicated thanks to QOCS (whilst recognising the need for protection from own disbursement liability). However, the actual reality is that QOCS merely controls the enforcement of a cost order. The moment that damages and costs are agreed or ordered by the Court¹, any Order to pay the Defendant’s costs becomes enforceable. Given that this would usually be set off against any liability to the Claimant, this would reduce the damages and costs recovered by the Claimant.

Having an ATE policy in a post-Jackson world is important regarding the liability of one’s own disbursments. However, it is also important to cover the Defendant’s cost liability where the Claimant’s damages or costs give rise to the Defendant’s costs becoming enforceable.

So how does ATE play a role in children cases?

Funding of claims for children

I was once asked, at an infant approval hearing in the context of seeking a deduction from the Claimant’s damages, if I was acting for the Solicitors or the Claimant. In my view, the advocate is technically acting for the Litigation Friend.

An individual is considered an adult at 18, and prior to that age, they are classified as a “child” and do not have the legal capacity to conduct proceedings. They cannot enter into a legally binding contract. So when one looks at the CFA, it is not with the Claimant, it is the Litigation Friend.

CPR 21.4(3)(c), which is titled ‘who may be a Litigant Friend without a court order’, says that where the child or protected party is a claimant, [the Litigation Friend may act as a Litigation Friend if they] undertake to pay any costs that the Claimant is Order to pay, subject to any right to be repaird from teh assests fo the child or protected party.”

What this tells us is that the Litigation Friend actually bears the financial responsibility of the claim being pursued, both for the Claimant’s own solicitors by virtue of the CFA, and the other party’s costs by virtue of CPR 21.4(3)(c).

So how can the Litigation Friend progress the Claimant’s claim on their behalf without exposing themselves to financial risk? With an ATE policy, which they take out because they are the ones who are financially responsible, even if the claim is on trust and for the benefit of the Claimant.

Can the Court refuse to allow the ATE policy?

The mechanism of CPR 21.10 is to protect the Claimant, along with the right to assessment of any costs under the Solicitors Act 1974. However, as identified in Herbert v HH Law Ltd [2019] EWCA Civ 527, an ATE premium is not a disbursement because it is a premium on a policy of insurance under which the client is the insured, pursuant to a contract of insurance made between the insurer and the client.

This is also confirmed by CPR 21.12(3), which says an expenses may include a premium in respect of a costs insurance policy (as defined by section 58C(5) of the Courts and Legal Services Act 1990).

As such, it is an expense that has been incurred by the Litigation Friend on behalf of a child and as per CPR 21.12(1), the Litigation Friend is entitled to recover the amoutn pay out of any money recoverd or paid into the Court on benefit of the Claimant to the extent that:-

• it has been reasonably incurred, and
• it is reasonable in amount.

So, how does one consider whether they were reasonably incurred?

CPR 21.12(5) says ‘in deciding whether the costs or expenses were reasonably incurred and reasonable in amount, the court will have regard to all the circumstances of the case including the factors set out in rule 44.4(3) and 46.9.‘

We then turn ot CPR 46.9:-

46.9

(1) This rule applies to every assessment of a solicitor’s bill to a client except a bill which is to be paid out of the Community Legal Service Fund under the Legal Aid Act 1988 or the Access to Justice Act 1999 or by the Lord Chancellor under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

(2) Section 74(3) of the Solicitors Act 1974 applies unless the solicitor and client have entered into a written agreement which expressly permits payment to the solicitor of an amount of costs greater than that which the client could have recovered from another party to the proceedings.

(3) Subject to paragraph (2), costs are to be assessed on the indemnity basis but are to be presumed –

(a) to have been reasonably incurred if they were incurred with the express or implied approval of the client;

(b) to be reasonable in amount if their amount was expressly or impliedly approved by the client;

(c) to have been unreasonably incurred if –

(i) they are of an unusual nature or amount; and

(ii) the solicitor did not tell the client that as a result the costs might not be recovered from the other party.

(4) Where the court is considering a percentage increase on the application of the client, the court will have regard to all the relevant factors as they reasonably appeared to the solicitor or counsel when the conditional fee agreement was entered into or varied.

Therefore, the expense is presumed to be reasonably incurred and reasonable in amount if approved by the client, either expressly or implicitly, unless they are unusual in nature or amount and the solicitors did not tell the Litigation Friend that the costs might not be recoverable from the third party.

Of course, the Court still needs to take CPR 44.4(3) into account:-

The court will also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done; and

(h) the receiving party’s last approved or agreed budget.

However, the ‘8 pillars of wisdom’ will be relevant to costs rather than expenses. So how can the Court tell if it is unusual in nature or amount? HHJ Monty KC gave some guidance in the County Court appeal of Duffield v WM Morrisons PLC [2025] EWCC 35.

Duffield v WM Morrisons PLC

HHJ Monty KC, sitting in the County Court at Central London, heard an appeal from DDJ Walton regarding the deduction of the cost of the ATE premium and success fee. This article will focus solely on the ATE premium element.

The DDJ had allowed some of the success fee, but refused the ATE premium in its entirety. The Judgment of the DDJ was short and given verbatim in the Circuit Judge’s judgment. The relevant sections of the DDJ’s judgment is as follows:-

6. In relation to the ATE premium, whilst an expense may include all or part of a premium in respect of a costs insurance policy, I do need to consider whether it was an expense that was reasonably incurred and reasonable in amount having regard to all the circumstances and the factors set out in CPR 44.4(3) and 46.9.

7. I am not persuaded that, in the circumstances of this case, it was reasonable to incur a premium of £675 in relation to a costs insurance policy. This issue is not with the amount of the premium but with the fact that it was incurred at all. Thiswas an accident that Brendan unfortunately suffered on the premises of Morrisons when he pulled a loose cabinet on to his foot. This is a personal injury case in which Qualified one-way cost shifting would apply. In the circumstances, it is difficult to see what, if any, risk could arise of the Claimant being required to pay the Defendant’s costs. The Claimant’s solicitors will have separately recovered an agreed amount of their costs from the Defendant. In addition, in a case such as this, it would be reasonable to expect that Morrisons would settle the case, which indeed they have.

8. So, any potential risk to the Claimant that might have been covered by a costs based insurance policy is not a risk that would, in the circumstances of this case, be one for which it would be reasonable to incur a premium for a costs based insurance policy. In the circumstances, there would be no reasonable expectation of the Claimant being at risk of paying the Claimant’s costs and it is therefore, difficult to see how such a deduction from the Claimant’s damages would have been reasonably incurred.

The Circuit Judge overturned the DDJ’s submission. He considered West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 para 56-57:-

• Disputes over the reasonableness and recoverability of ATE insurance premiums are not decided on a case-by-case basis. Instead, they are determined broadly by looking at general trends and the overall ATE insurance market, not by the specifics of individual cases.
• Reasonableness concerns extend beyond individual cases to include unavoidable features of the ATE insurance market.
• District judges and cost judges lack the expertise to judge the reasonableness of a premium except in very general terms. The ATE market could be harmed if they see themselves as better suited than the underwriter to assess the insurer’s financial risk without expert evidence.
• The paying party should raise a genuine issue about the reasonableness of the premium, which usually requires expert evidence to resolve.

The Circuit Judge found that refusing the ATE premium was wrong. The starting point was that allowing [part of] a success fee but rejecting ATE creates a contradiction, as both exist due to litigation risk. The Circuit Judge recognised that QOCS limits risk, but it not remove risk as damages can still be lost. ATE covers other risks, not just costs. You can’t judge an ATE reasonableness case-by-case based on claim simplicity, per the Court of Appeal decision of West. His conclusion was that the DDJ wrongly relied on hindsight, ignoring the time when insurance was taken out.

Concluding thoughts

The understandable knee-jerk reaction to anyone reasonable would be “why on earth would I endorse the reduction of this child’s damages?” The inevitable truth is litigation is expensive, and a Litigation Friend will conduct a child’s claim for no financial gain and with the financial risk.

QOCS can only protect a Claimant to an extent in terms of third-party liability when there is no enforceability (damages or costs awarded or agreed), and most certainly not their own liability to disbursements. In my time as a self-employed CILEX Advocate, I acted for various law firms on infant approvals, and I saw the range of ‘paper-based’ submissions they made to justify the deductions.

The starting point is that the ATE policy was reasonably required in a reasonable amount unless it appears unusual in nature or amount, or the Litigation Friend was not advised it would be unrecoverable in amount. I would say there has to be a very compelling reason why an ATE policy was unusual, and without expert evidence, the Court cannot be in a position to find that the ATE premium was unusual in amount.

So, to answer the question of why the ATE premium should be deducted from the child’s damages, one has to remember that ultimately the Litigation Friend is incurring the time, the expense and the financial risk for absolutely none of the reward. The child would have no damages but for the efforts of the Litigation Friend. Save for CPR 46.9(3)(c), there should be no good reason to refuse the deduction from damages to pay for the ATE premium.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

1. It is important to note that cases issued before 6th April 2023 would have been subject to the old version of QOCS, which limited enforcement only to the damages that the Court had agreed. ↩︎

Disclosure is an important stage of litigation, and sometimes parties can be prohibited by the fact that the disclosure they need or ought to obtain and disclose is not within their physical possession but held by a third party.

I remember in my litigation days that when you sued a tour operator regarding an accident or illness at a hotel abroad, the tour operator would metaphorically shrug when you sought disclosure of certain documents, as the records were held at the hotel abroad and were not the tour operator’s documents. However, it was not always as simple as that.

This article considers this issue in more detail.

To what extent can a litigant be responsible for acquiring documents held by third parties?

CPR 3.8 says the following:-

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if –

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it; or

(c) he has or has had a right to inspect or take copies of it.

It is really easy for a party to know what is within its physical possession.  The question is to what extent is the right to possess and the right to inspect and take copies of it. A straightforward example is a person’s medical records. A Claimant would be entitled to both the right to possess, inspect or take copies of it.  

What about bank statements? The same principle would apply as it would to medical records, you have a right to your own bank statements. However, what happens if the spouse of the Claimant potentially has bank statements that could influence the case? That was a point considered by Knowles J in the High Court appeal of Morgan-Rowe v Woodgate [2023] ALL ER (D) 02 (Oct).

The first instance decision was considered by a Recorder who determined that liability should be at 50% due to the Claimant’s contributory negligence, but the real battleground was the credit hire being claimed by the Claimant. The Recorder found that the Claimant was impecunious based on the financial evidence given by the Claimant and relied on in support of the assertion that she was impecunious.

The Defendant appealed to the High Court because they were of the view (amongst other arguments on the issue) that the claimant had failed to disclose all financial records and therefore should be barred from being able to rely on impecuniosity. The argument centred on bank accounts believed to belong to the Claimant’s husband, revealed indirectly through a transaction on a joint HSBC account. The Defendant argued that there must have been other accounts and credit cards, that these statements should have been disclosed, and that failure to do so meant the Claimant should be considered poor.

The Recorder had found that the accounts in question were in the husband’s sole name and when considering CPR 31.8, could not make the finding that there was a failure to disclose. 

Knowles J did not disturb the Recorder’s findings. He said there was no evidence that the Claimant possessed her husband’s bank statements, had any legal right to them, or had the right to inspect or copy them, meaning none of the requirements of CPR 31.8(2) were met. Knowles J explained that a married couple with separate bank accounts do not automatically control each other’s financial records. Therefore, the husband’s statements were not within the claimant’s control, were not part of standard disclosure, and there was no breach of the disclosure order.

Is the right to possession, inspect or take copies a straightforward question?

No, it is not. Courts don’t apply CPR 31.8 only to whether there’s a strict legal right. They look at the true relationship between the litigant and the third party with the documents. Even if there’s no formal legal right to possess them, documents may still be considered within a party’s control if the relationship suggests they can access them.

In the case of North Shore Ventures Limited v Anstead Holdings Inc [2012] ALL ER (D) 89 (Jan) the Claimant had a US$35 million after securing a Judgment against the Defendants. After the judgment, the Defendants put assets into family trusts, where they and their families were beneficiaries. The Claimant suspected the trusts were used to hide assets and prevent enforcement. It asked for a Court order to see trust documents, even though the trustees held them. The Defendants claimed they did not have the documents and had no legal right to access them, so they were not in their “control” under CPR 31.8. The Defendants appealed the order.

The Court of Appeal was asked to consider whether documents held by third-party trustees could nevertheless be treated as being in the Defendants’ “control” for the purposes of CPR 31.8. The Court of Appeal dismissed the appeal.

They confirmed that CPR 31.8 is not limited to strict legal rights. When documents are held by a third party, the Court looks at the true relationship between the litigant and the holder. Even without a legal right, documents may still be under a party’s control if, in practice, the third party acts on their instructions or there’s an understanding that documents will be provided on request.

The Court said it can find documents within a party’s control based on the situation, not just law. In this case, the Judge believed the trusts were set up to protect assets and that the trustees weren’t acting independently. They followed the defendants’ requests. This meant the documents held by the trustees were considered controlled by the defendants because they created the trusts, their families benefit, and the setup looked like an attempt to avoid enforcement. The court inferred strong practical control.

A document can be in a party’s control if they can realistically get it, the holder usually acts on their wishes, or there’s an informal understanding for access. A strict legal right is not necessary.

This Contrasts with Morgan-Rowe, where the court found that the husband’s bank accounts were genuinely independent and there was no evidence of control. Whereas in North Shore the trustees followed the Defendants’ instructions. 

Third parties and third-party applications. 

In Morgan-Rowe, the Recorder highlighted that it was open to the Defendant to make a third-party application under CPR 31.17. The test is substantially higher than that for a pre-action disclosure application. Under CPR 31.17 the applicant must show:-

• That the documents are likely to either support or adversely affected the case, and
• It must be necessary to fairly dispose of the claim or safe costs

Once the applicant gets over that high threshold, the Court then has the discretion to balance the factors to consider whether to exercise its power to order a third party who is not a part of the proceedings to disclose.  

Further, as with PAD applications, the presumption is the applicant will pay the Third Party’s costs of complying with the Order and the application itself (although, as per CPR 46.1, the Court can consider making a different Order when considering the reasonableness of opposing the application).

In April 2026, CPR 31 is going to be amended to include the following:-

31.12A.  The court may order a party to request any person to produce for disclosure and inspection any document which may support the case or adversely affect the case of any party to the proceedings

This will not force a third party to disclose documents, but it ensures that parties have asked third parties for relevant documents. I am uncertain whether this would require a party to sign a statement of truth explaining their efforts to obtain the evidence or whether it would significantly affect the likelihood of a third-party disclosure application and the 31.17.

Concluding remarks.

Disclosure held by a third party is not a new principle. It’s been relevant for many years and the mechanisms have been widely available to parties where it is necessary. However, it doesn’t always mean it can be utilised.

Even if Knowles J found that CPR 31.8 could mean the Claimant had failed to comply with the credit hire debaring Order in Morgan-Rowe, would that mean that a spouse’s financial position is relevant to determining whether or not the Claimant was impecunious?

Third-party disclosure is a useful but controlled tool. The Courts won’t allow wide-ranging searches (amounting to fishing expeditions) but will intervene if outside documents are genuinely needed to resolve issues.

Whether through CPR 31.17 applications or by viewing documents as within a party’s control under CPR 31.8, the emphasis will be on substance over form. Who actually has the evidence and who can access it? Practitioners should define requests only when the evidence is necessary and be ready to explain who owns the documents.

Whether CPR 31.12A’s introduction in April will assist this issue on standard disclosure is something that practitioners will no doubt find out.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.