Author: alecjhancock

Credit hire is a significant aspect of road traffic accident claims in England and Wales. Although the topic can be contentious, it offers Claimants a legitimate option to hire a replacement vehicle on credit when their own vehicle is damaged or written off, pending the resolution of their claim. These claims are typically encountered in small claims track trials, fast track trials, and even multi-track trials. The MOJ portal plays a vital role in managing low-value personal injury claims, including those that involve credit hire.

In this article, I will explore how credit hire operates within the MOJ portal, its importance, and some common issues faced by Claimants and Defendants.

Credit hire

For those who do not know, credit hire is a legal arrangement that enables a non-fault party in a road traffic accident to obtain a replacement vehicle on credit, rather than paying upfront. The Claimant doesn’t need to pay for the hire vehicle until their claim is settled, and the cost is typically recovered from the at-fault party’s insurer.

Credit hire agreements can be essential for individuals who rely on their vehicle for work, family, or other personal needs and cannot afford the immediate cost of a hire car. These agreements are offered by credit hire companies, which provide the vehicle on the understanding that the cost will be reclaimed from the at-fault insurer.

The issues that usually are raised are:-

1. Is the agreement an enforceable contract for which gives rise to a legitimate claim by the Claimant against the Defendant for those costs?
2. Did the Claimant have actual need for the hire vehicle and/or for that particular vehicle hired?
3. Was the duration of the hire period reasonable and necessary?
4. Was the Claimant impecunious and unable to pay for hire up front that it warranted the increase daily rates provided for under the credit hire agreement?
5. If the Claimant was pecunious, was there a mainstream or reputable local provider of hire in the Claimant’s geographical area that could have provided hire at a lower rate?

The cost of hire agreements is understandably subject to scrutiny and criticism. For decades, the credit hire industry has continued to grow, with no clear indication that this trend will slow. It does not delve into the pros and cons of credit hire. This is about how credit hire works in the MOJ portal.

The MOJ Process

The MOJ Portal was introduced in 2013 2010 (thanks to Lee Kipling for pointing out my error) to streamline the process of handling low-value personal injury claims, particularly those under £25,000. The portal covers claims related to RTA, employer liability and public liability claims. It is designed to make the claims process faster and more efficient by setting time limits for key stages, reducing the need for litigation, and encouraging early settlement.

As the MOJ Portal was intended to streamline matters, it also means that the adversarial process is streamlined. If the parties cannot resolve matters, then the claim proceeds to a final Stage 3 hearing under Part 8. This means no live evidence and is submissioned based.

So, how does it impact dealing with credit hire disputes, which turn predominantly on evidence of the Claimant being controverted by way of cross-examination?

How Credit Hire works within the MOJ Portal

When an RTA claim is initiated on the MOJ Portal, and liability is admitted, the Claimant will look to submit a ‘Stage 2 Settlement Pack’ containing the heads of loss they are claiming. The Claimant’s legal representatives will submit supporting documents, including the credit hire agreement. The Defendant insurer will assesses the claim for reasonableness of charges. Either the parties can resolve the issues or it proceedings to a Stage 3 hearing.

However, once the consideration period ends (the period of time during Stage 2 during which the parties negotiate) neither party cannot adduce further evidence. It is therefore important that the parties ensure that they have the correct evidence obtained and disclosed during Stage 2 to support the elements of credit hire.

Credit hire evidence in Stage in the MOJ

Credit hire claims generally (and not limited to claims within the MOJ portal) require the Claimant to prove various elements, including the rates charged by credit hire companies, which insurers will argue are excessively high compared to standard market prices. 

The Claimant must demonstrate that the hire agreement is enforceable, or alternatively, that there is a valid right to damages. This can be established by providing a copy of the hire agreement. Additionally, the Claimant needs to show that they had a legitimate need to hire a vehicle, which is typically addressed in a witness statement. They may also need to prove that they specifically required a particular type of vehicle.

The duration of the hire period is often a contentious issue in credit hire cases. This will be discussed in the witness statement, but can also be supported by other documents that justify the length of the hire. A crucial factor for the Claimant is proving that they are ‘impecunious,’ meaning they could not afford to pay for the hire upfront, along with the costs of repairs or purchasing a replacement vehicle, without risking significant financial hardship. This will require bank statements, wage information and, if self-employed, profit and loss information/tax returns. 

Defendants will want to adduce evidence to challenge the rate of the hire, by providing evidence of mainstream or reputable local providers of car hire that would have been available geographically to the Claimant. If they do not provide such evidence, then the Claimant’s hire rates may prevail, even if the Claimant cannot establish impecuniosity. 

Although this is a streamlined system designed to handle low-value cases, the principle remains that the party making a claim must provide evidence to support it. Therefore, the Claimant is required to present evidence for their claims, while the Defendant must also provide arguments to support their position regarding the Claimant’s alleged failure to mitigate damages.

Stage 3 hearings

Stage 3 hearings can be beneficial for claimants and detrimental to defendants in credit hire matters. Neither party can produce new evidence to support their positions, and the defendant is not in a position to be able to cross-examine the claimant. Whatever is said in the witness statement is uncontroverted unless other evidence served at stage 2 contradicts or undermines that position.

I see Claimants seeking credit hire quite often without witness statements, adducing the necessary evidence in support of various factors, such as need or period. I have also seen defendants not put forward any BHR evidence to support alternative rates.

Both parties really need to be able to be in a position where the advocates representing their clients at the Stage 3 hearing can make substantive arguments with the evidence before the Court.  This is no different from what would be expected in a Part 7 claim (regardless of track).

Concluding remarks

Understanding credit hire nuances early can help avoid litigation risks and costs for both parties. When personal injury claims go through the MOJ process, Defendants save on legal fees by avoiding part 7 fast-track proceedings. However, they have limited ability to challenge the Claimant’s evidence. Conversely, Claimants recover less in legal costs but have a better chance of getting a substantial percentage of the hire costs.

It is surprising how many cases lack the evidence in support of the relevant elements that need to be established by either party. Preparing evidence for Stage 2 negotiations always ensures that if matters cannot be resolved, your party’s position will be much stronger at a Stage 3 hearing. The nature of Stage 3 hearings does not excuse a failure to meet the evidential burden of proving a loss.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Undertaking the higher rights of audience written training and assessment was strange because it didn’t accord with the skills and knowledge I have ascertained over the years of litigation and advocacy practice. 

A question came up in the training sessions and it was something on the lines of the following:-

Your opponent commences with their opening speech when they refer to a document you know to be privileged, has not been disclosed or provided for inspection and is in your opponent’s client’s favour.

My instant response was “I’d rely on CPR 31.21 and prevent them from relying on it”. Apparently, the correct response was “this has triggered a collateral waiver and you seek disclosure of all related documents”.

I could understand why it was relevant but for me, from a tactical perspective, questioned why I’d want to invite further disclosure and potentially assist the Defendant in getting permission to rely on the documents in the possibility that something may come out of the collateral disclosure, when I already know that the one document is not helpful for my client. 

CPR 31.21 says “a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission“. How does this accord with litigation and advocacy? Where is it beneficial to rely on it.

CPR 31.21 – failure to disclose and/or inspect

The first point that usually causes confusion is that the act of disclosure is discernibly different from the act of providing copies for inspection. This is quite an important distinction.

CPR 31.2 defines disclosure to mean to disclosure that a document exists or has existed. The purpose of the disclosure list is to also to explain why a document that used to exist no longer exists.

A standard disclosure list of documents contains the following statements:-

• I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.
• I have control of the documents numbered and listed here, but I object to you inspecting them (and I object because….)
• I have had the documents numbered and listed below, but they are no longer in my control.

In holiday sickness litigation, Defendants often requested specific documents, some of which never existed. I would usually mention that in a final paragraph or covering letter, clarifying their absence. The client may have uploaded photographs to Facebook and deleted the originals, which contained important metadata about when they were taken. I would include these original photographs in the ‘no longer in my control’ section and explain why.

Undertaking an exercise to ask your client for documents that they used to have but no longer have in their control is more likely to bring to light documents that the client forgot about, rather than several months later saying “I’ve just found this document, is it important?”.

Ongoing duty of disclosure v CPR 31.21

It’s essential to understand that litigators often mix up their ongoing duty to disclose information with the need to allow the opposing party to inspect documents. This distinction is crucial, as compliance with disclosure obligations does not automatically grant the other party the right to rely on specific documents during the trial. Maintaining clarity on these elements plays a pivotal role in why CPR 31.21 should be utilised more often.

The ongoing duty of disclosure is as follows:-

Duty of disclosure continues during proceedings

31.11

(1) Any duty of disclosure continues until the proceedings are concluded.

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.

This duty does not circumvent CPR 31.21. Quite often in litigation, I would face third-party solicitors providing late disclosure and inspection of a documents after the deadlines and shortly before trial. They would give the explanation that it had not been previously disclosed because they weren’t aware of it, but now that it had been disclosed, they complied with their overriding duty.

CPR 31.21

There is no commentary in the white book for CPR 31.21, including the latest 2025 version. I have previously written about what it means when a rule says ‘unless the court gives permission’. The case of Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506, where the Court of Appeal considered what the wording within CPR 32.10 meant when it said ‘unless the court gives permission’.

In the case of McTear & Anor v Engelhard & Ors (Rev 1) [2016] EWCA Civ 487, the appellant appealed the Judge’s refusal of extensions of time related to disclosure and witness statements. The appellant disclosed witness statements 50 minutes late, which included 700 pages of documents, some not previously disclosed and therefore late. The judge denied their applications and barred their witnesses from trial, suggesting the statements were an attempt to obscure the presence of new documents. 

It would therefore follow that a party who discloses and provides a document late, even if part of their ongoing duty to disclose, must seek relief from sanction.The Court of Appeal granted the appeal. Firstly, they determined that the Judge wrongly to combined the witness statements and disclosure applications. They found that the late-disclosed documents were of limited relevance, and there was no evidence of intentional obstruction by the appellants. The delay was trivial, and excluding the appellants from giving evidence was not just, especially regarding serious allegations made within the case.

They also found that the Judge also mistakenly approached the disclosure issue only as a matter of sanctions. The appellants had some justification for not producing the documents earlier, as they were recently discovered (rather than sat on them). The respondents could manage these documents at trial, and the Judge would have allowed their admission if considered separately

34.  The second point that needs to be underlined in this case is that one cannot see every aspect of every case in terms only of relief from sanctions. Disclosure of documents is a case in point. CPR Part 32.11 provides that “(1) [a]ny duty of disclosure continues until the proceedings are concluded” and “(2) [i]f documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party”. These obligations do not excuse the breach of an order for disclosure that is limited in time, but in considering the extent of any permitted usage of documents that are found after such an order has expired, the court does have to take these duties into account.

46.  Undoubtedly, the safest course would have been to apply for an extension of time for compliance with both disclosure orders, if necessary for relief from sanctions, and for permission to rely on the new documents. That application ought, as the judge said, to have been supported by an explanation of why the documents had not been disclosed in the first place.

47.  The judge relied on CPR Part 31.21 which only provides that a “party may not rely on any document which he fails to disclose … unless the court gives permission”, but by the time of the hearing the defendants had not failed to disclose the new documents; they had served a list in respect of them. 

48.  The question, therefore, is whether the judge was right to treat the application in relation to the new documents as purely one for relief from sanctions. I do not think that he was. The important question was whether, in all the circumstances, the defendants were to be permitted to rely upon them at the forthcoming trial. That depended, amongst other things, on considerations including whether the claimants would have wished to rely on them, the circumstances in which they had not been disclosed before, and their relevance to the issues.

49.  I accept also that the failure to produce the documents at the initial disclosure stage was a significant breach. Parties must take seriously the need to conduct proper searches for documents in response to an order for standard disclosure by a fixed date. But here there was an excuse, albeit one that was not very well explained in the 2nd application. The documents had been thought to have been destroyed, but were discovered when new counsel emphasised the need to look for them. In these circumstances, the most important question was whether the claimants could properly deal with them at the forthcoming trial. In my judgment, they could have done so. They were not very important, had probably already been for the most part in the possession of the claimants, and did not require any significant work for accountants to digest. In my judgment, the documents ought to have been admitted. I emphasise, however, that if the judge had been justified in thinking that the defendants had been trying to “bury” or disguise significant documents by exhibiting them to a witness statement rather than openly disclosing them, he might have been justified in excluding them. In my judgment, however, the judge was not right to infer impropriety from the defendants’ conduct. They did not behave correctly as I have explained, but that is a different matter.

50.  The judge’s error was to regard the applications concerning the statements and the disclosure as inextricably linked. They were connected but the issues ought to have been considered separately. I have no doubt that the appropriate course was to consider the statements first. Had the judge concluded that the defendants’ witnesses should have given evidence, as I think he ought, he would also have concluded that the new documents should be admitted for the reasons I have given.

So, whilst it is correct that the application is one of relief from sanction, the Court of Appeal recognised in certain circumstances that the breach is not intentional, and therefore, the focus is different. In McTear, the appellant thought the documents no longer existed. So when the list was created, the disclosure was correct. However, their ongoing duty was to disclose. The focus was, therefore, more focused primarily in all the circumstances could the trial proceed with the new documents.  It would be different if the appellant knew or ought to have known the documentation existed.  

Where should a party utilise CPR 31.21?

When discussing a party ‘utilising’ CPR 31.21, it’s important to note that it’s not mandatory. The challenge lies in that most litigators compile a trial bundle containing all documents, which, per PD 32 para 27.2, is regarded as accepting those documents as admissible. Consequently, if a disclosed document is included in the bundle, its admissibility under CPR 31.21 may exceed the court’s jurisdiction. If there’s a refusal to include a document in an agreed trial bundle, CPR 31.21 should be cited.

Parties should consider that such applications under CPR 31.21 are, for all intents and purposes, a relief application, that consideraition should be given to what the Court of Appeal said in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906:-

43. The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11.  If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget.

Parties may choose to indicate to the other party that they need permission from the Court without consenting or objecting, leaving the decision to the Court. For example, in McTear, if documents are deemed insignificant and were initially reported as lost but later found, the Court may allow them in. Conversely, if the documents are highly relevant, never disclosed, and could compromise the trial, the Court may be less inclined to admit them.

In considering late disclosures in litigation, the Court must weigh whether one party is being opportunistic or if the delayed information poses a genuine risk of causing significant detriment. This includes assessing whether the party receiving the documents would have made different decisions if they had been disclosed on time. There is also the possibility that the affected party could be compensated through costs, potentially allowing for a resolution without going to trial.

Litigators must carefully consider these factors when invoking CPR 31.21 to object to the other party receiving relief. The key situations arise when evidence is highly prejudicial but does not entirely undermine a party’s case. If the disclosure could have led to an earlier resolution, its late introduction may jeopardise the case.

Ultimately, the Court will undertake a balancing act, and the party wishing to rely on the disputed document must be mindful of not investing undue time and resources in challenging a piece of evidence that may not be central to the core issues to be decided.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

The fixed cost regime is a strange creature. A highly prescriptive framework designed to provide certainty in the allocation of costs. To achieve this, it relies on a wealth of specific rules and mechanisms, minimising the need for discretion and flexibility. It also means that the fixed costs rules can appear to be very overwhelming.

This structure leads to a clear conclusion: when a rule explicitly outlines situations in which costs can be directed to be paid, the Court has the authority to enforce that direction. Conversely, if such a rule is not present, the Court lacks the ability to grant costs. Overall, this self-contained system aims to clarify the circumstances under which costs can be awarded, ensuring that all parties understand the parameters.

I recently wrote an article about an instruction where I was for the Claimant arguing that the Judge had no jurisdiction toward pre-issue costs, even if the Judge came to the conclusion that the Claimant acted unreasonably in issuing proceedings. Whilst the Judge did find that the Claimant did not meet the threshold of unreasonable behaviour, the Judge also concluded that he did not have the jurisdiction to make an award for anything other than post-issue pre-allocation costs.

Prior to this hearing, I had a very similar argument at the Stage 3 hearing, where the Defendant sought to limit the Claimant’s costs to what would have been awarded on the Small Claims Track.

Stage 3 MOJ rather than OIC Quantum hearing

As with many RTA claims, this matter began life in the OIC portal. The rules make it clear that the Claimant can withdraw from the portal and re-commence in the MOJ  portal (which was, for all intents and purposes, claims that were suitable for the fast track). This Claimant did so for an injury that later transpired to not meet the £5,000 threshold for the fast track concerning whiplash from an RTA. The totality of PSLA ended up being £3,250. We had beaten our Part B offer, but had a Judgment that was less than the Defendants Part B offer. The usual rules would say that the Claimant is entitled to their stage 1/2/3 fixed costs and disbursements.

My opponent kindly put me on notice that he was going to argue that the fixed costs of £80 (plus issue fee and medical report fees) would be the order sort because even the Claimant’s best PSLA was lower the fast track allocation threshold. 

The costs argument and the reverse uno card

I raised with the Judge that my opponent would contest the costs being claim. Rather boldly, I acknowledged that the claim would not have exceeded £5,000 and, therefore, should not have ever been submitted onto the MOJ portal. I argued that despite this, the Defendant did not object to proceeding with Stage 3 under Part 8; instead, they accepted the Court’s jurisdiction without requesting a transfer to Part 7, where they could have argued for a limitation on costs.

I referenced CPR 45x.20 (x makes reference to pre-1^st October 2023 version of Part 45), which outlines that if the Claimant surpasses the Defendant’s protocol offer, the Court is obligated (due to the use of the phrase ‘must’) to order the Claimant’s costs for Stages 1-3, along with disbursements, to be paid by the Defendant. The Judge seemed taken aback by my concession, so I elaborated on the prescriptive nature of the protocol and Part 45 costs, stating that unlike the normal Part 36, which allows for some discretion if deemed unjust, these costs are fixed.

I used CPR 45.29 M to demonstrate that the possibility of restricting costs arises only if Part 7 proceedings are initiated. Therefore, if the matter proceeds via Part 7, the Court would have the discretion to award costs as if on the small claims track, for example, because the value of the damages means it is better suited for the OIC portal process.

I highlighted the irony that if the Defendant had contested the use of Part 8 and sought to transfer it to Part 7, we would be bound by 45x.29M, which imposes limitations. The Judge inquired about the costs under the OIC process, to which I explained they would be around £80 instead of £1,200. When asked what would happen if a final hearing was needed, I clarified that nothing would be awarded as it fell under the SCT costs rules, which surprised the Judge, as it is expected that Claimants under OIC bear their advocacy costs.

My opponent argued that it was the Claimant’s error in choosing the wrong protocol, and was now attributing blame to the Defendant for not correcting it. He contended the Court has general discretion over costs and that the Claimant should not profit from a mistake. The Judge acknowledged the validity of my opponent’s point regarding the error on our side, but I countered that fixed costs are governed separately from assessments where discretion exists. I cited that while there are rules allowing for discretion under non-MOJ portal cases, the clear stipulations under the protocol are mandatory, leaving no room for discretion.

The Judge read out that CPR 45x.29M applies if the Claimant fails to adhere to the protocol. I clarified that 45x.29M also identifies that this holds true only if Part 7 proceedings are issued. Therefore, had the Defendant objected to Part 8 leading to a transfer to Part 7, the application of CPR 45x.29M would come into effect.

Outcome

Ultimately, the Judge agreed with my reasoning, confirming that he had no discretion in the matter. He allowed the £1,200 for costs along with the claimed disbursements, including the relevant disbursements. 

It is understandable that the Defendant thought they had the Claimant cornered with their ‘Pick up four cards’ card, but ultimately the uno reverse card led to the Claimant securing Stage 3 fixed costs, when it would never have done so if it remained and proceeded via the OIC portal.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200. 

In a case, you represent a claimant who has incurred injuries due to the negligence of the defendant. The claim began life in the MOJ low value portal, exited due to a time out before the defendant admits liability. The damages for PSLA amount to more than £10,000 but less than £25,000. Collecting the necessary evidence for the claim proves to be challenging. This difficulty arises from the need to wait for medical treatment to be completed and for recovery times to unfold. Additionally, there may be errors within the medical reports that require clarification from the expert instructed.

You then get to a position where imitation is approaching and you have to do the necessary thing to protect your client’s position which is to issue a protective claim form. You are finally in a position where you could advise your client that it’s appropriate to disclose the evidence and invite office from the defendant. The conundrum that you face is the defendant is arguing that you have been unreasonable in leaving evidence to be served at the last minute and have now caused the fixed cost regime to fall into the post-issue pre-allocation section of the prescribed fixed costs. They are now arguing that you should only be eligible to pre issue costs.

In this example this is a case where the accident happened before 1st October 2023. You apply to the court for an order for your fixed costs to be paid by the defendant. The defendant argues that the court has the power and should exercise the power to limit you to pre-issue costs. Should the court? Can the court?

This was the situation last week where I was instructed by a claimant to make submissions that the Court could only award the post-issue, pre-allocation costs. 

The parties’ positions

IIt was the claimant’s position that the fixed costs regime is a self-contained system which is inherently different from a summary and detailed assessment of standard costs.

In this situation it meant that the court had very little power to grant costs Order other than the ones that the rules ordered. If there was a rule that allowed court to do something or the discretion to do something then that was OK. If the rules did not include such a rule, then the court did not have that power. The claimant also argued that the conduct of the matter was within the keeping of the spirit of the pre action protocol and that limitation prevented settlement as the claimant was not quite in the position. 

The hearing

We appeared before a regional costs Judge and I made the argument. I provided the Judge with an example where there was a rule for discretion:-

Failure to comply or electing not to continue with the relevant Protocol – costs consequences

45.24

(1) This rule applies where the claimant –

(a) does not comply with the process set out in the relevant Protocol; or

(b) elects not to continue with that process, and starts proceedings under Part 7.

(2) Subject to paragraph (2A), where a judgment is given in favour of the claimant but –

(a) the court determines that the defendant did not proceed with the process set out in the relevant Protocol because the claimant provided insufficient information on the Claim Notification Form;

(b) the court considers that the claimant acted unreasonably –

(i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7;

(ii) by valuing the claim at more than £25,000, so that the claimant did not need to comply with the relevant Protocol; or 

(iii) except for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued; or

(c) the claimant did not comply with the relevant Protocol at all despite the claim falling within the scope of the relevant Protocol, the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19. 

I went on step further and directed the Judge to new Post-1st October 2023 rules, specifically CPR 45.13:-

Unreasonable behaviour

45.13.—(1) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made in favour of a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be reduced by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.

(2) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made against a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be increased by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.

(3) In this rule—

(a)unreasonable behaviour is conduct for which there is no reasonable explanation; and

(b)“fixed recoverable costs which would otherwise be payable” does not include—

(i)VAT;

(ii)any additional amounts under rules 36.17 or 36.24; or

(iii)any disbursements.

I submitted that this showed the new CPR had further discretion that was available ot the court, which did not exist in the relevant pre-1st October 2023 rules.

I went on to argue about how the unexpected, longwinded nature of personal injury litigation meant the conduct was not unreasonable.

My opponent argued that the conduct of the claimant during the pre-issue stage (and subsequent issuing of proceedings) violated the Personal Injury Protocol, and the court has the discretion, in accordance with CPR 44.2, to restrict the claimant’s costs to those that would have been permissible prior to the commencement of the action. It was argued that there was nothing within 45x.29E that hindered the court’s ability to exercise its discretion under CPR 44.2.

My opponent referred to Williams v The Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852, which was argued to demonstrate how Part 44 and Part 45 complimented each other and, therefore, the court did have the power to exercise Part 44.2 in a Part 45 case. It was accepted that the fixed costs that the defendant could ask the court to restrict to must be what was available at the pre-issue stage, but the claimant’s conduct warranted the exercising of such power.

In a brief response, I reminded the court that Williams was, in fact, a case that never started in the low-value protocol and was therefore, as a starting point, subject to standard costs. What the defendant in that case argued was that the court should limit the costs to what should have been had it correctly started in the portal. There, the court had the power of Part 44.2 to emulate the fixed costs rule of 45.24. I said this is not the same here and Part 45 cannot emulate Part 44.2.

Judgment

The judge determined that the claimant’s position was correct. He found that:-

• The fixed costs are self-contained, with certain exceptions; however, none of those exceptions applied here. The fact that there is now a new regime that allows for a 50% increase and decrease for unreasonable conduct was relevant.
• If simply referencing Rule 44.2 was the solution to everything, what was the need for the new rules?
• He was not being asked to disallow costs, but allow costs rules from one section apply to another. 
• To allow that would introduce uncertainty 
• Williams was about how Part 45 cannot restrict when outside the ELPL protocol and outside the portal aspect, but the Part 44 can replicate Part 45 in Part 44 circumstances. This was not the case here.

He also went on to say that even if he was not wrong, the circumstances were not the most ideal, but appreciated the ongoing symptoms meant not being in a position to settle. Whilst there was criticism of ‘suboptimal’ engagement with the defendant, it would not have amounted to unreasonable conduct.

Comments

I have dealt with many fixed costs arguments, where the prescriptive nature has led to certainty save for the fact that one party has either not appreciated it or has hoped to circumvent it. My next article will be about how that applies to stage 3 hearings which the outcome meant that the claim should have commenced within the OIC whiplash portal, yet stage 3 costs apply.

I appreciate that it may seem perverse, and to some extent it is, but the prescriptive nature of Part 45 has had advantages and disadvantages for both claimants and defendants (Aldred v Cham being one that specifically comes to mind). The new Part 45 has more flexibility and discretion for the court, but it is still in its infancy (in comparison, the pre-1^st October 2023 Part 45 is twelve years old in July).  

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

In my early litigation years, I instructed counsel to attend a Fast Track Trial for an employers’ liability personal injury trial in Dudley. My client’s accident happened on the 1st October 2013, so had his accident happened the day before, the s69 Enterprise and Regulatory Reform Act 2013 wouldn’t have applied, and a breach of the H&S regulations would have been a breach of duty of care.

My client had to prove negligence. However, I got a call from Counsel at lunchtime advising me that her opponent had made a halftime submission and the claim had been dismissed. Brand. New. Information.

What was this half time submission?

No case to answer

A no case to answer submission is made at the end of the Claimant’s case. A judge’s consideration of such a submission is similar to a summary Judgment under CPR Part 24, but there is an important distinction.

With summary Judgment, whilst the Judge must not conduct a mini-trial, the Judge would have some consideration as to what evidence would likely be heard a final hearing. Instead, the Judge would have heard the Claimant’s evidence. The Claimant’s evidence is all the Judge would consider. 

However, there is an additional caveat.

Electing not to call evidence

Unlike in criminal cases, the Defendant must risk not being able to call any evidence when making a submission of ‘no case to answer’. This is potentially to ensure the power is used sparingly.

Boyce v Wyatt Engineering [2001] EWCA Civ 692 was a case where a Claimant appealed the dismissal of his personal injury claim against three Defendants. The trial judge concluded, without hearing the Defendants’ evidence, that the Claimant had no chance of success. The Court of Appeal overturned the decision, stating that if CPR granted the Judge the power to give summary judgment or strike out a claim without the Defendant’s evidence, such power should be used sparingly. Allowing an appeal would give the Claimant a chance to prove his case but could increase costs and delay. If the appeal was dismissed, the Claimant would face judgment based on unchallenged evidence. The Court of Appeal upheld the view that it was improper for a judge to express an opinion before all evidence was heard. In this case, the judge wrongly decided that the Claimant was entirely to blame for the accident causing his injuries.

Therefore, if the Defendant gambles and it is unsuccessful, they lose their chance to challenge the Claimant’s evidence with their own. It is extremely risky unless you are quite certain. 

However, that does not mean that a Court will always compel a Defendant to elect not to call evidence.

Difference between electing and not electing

The case of Miller v Cawley  [2002] EWCA Civ 1100 deals with the practical difference of electing and not electing (when a Court exercises discretion to not require the Defendant to elect).

The Defendant appealed a decision regarding a contract for building works at her home with the Claimant. She argued that the judge wrongly required her to make an election after the Claimant’s evidence, and after choosing not to present evidence, the judge should have assessed whether the Claimant proved his case on the balance of probabilities, not just on the likelihood of success.

The Court allowed the appeal, stating that while judges can entertain no case submissions sparingly, the correct standards apply depending on whether the Defendant is put to election. If the Defendant is asked to elect not to call evidence, then the test is whether the Claimant has proven on balance of probability their case. However, if they are not required to elect to not call evidence, then the test is whether the Claimant has no real prospect of success. This means when a Defendant does not elect, the test is a higher threshold to meet (fanciful rather than real Swain v Hillman [2001] 1 All E.R. 91). 

Is it worth making the submission?

The question will be whether the Defendant is being put to election. The Court ought not to allow a halftime submission without election unless it is clear on the face of it that the Claimant’s case is weak or that the evidence that could be provided by the Defendant would make very little influence. However, such a position still requires the Defendant to establish that the Claimant has no prospect of success. It would essentially be akin to a summary judgment application which, prior to the evidence being test, was borderline and, upon testing the evidence of the Claimant, crossed the threshold. 

A Claimant can have a reasonable prospect of success but fail to establish on the balance of probability to prove their pleaded case. However, it is such a risk to elect to establish that on the balance of probability, the Claimant has failed to prove their case.

If, for example, the Claimant makes a concession that cannot be remedied and will lead to the conclusion that the Claimant could never prove the necessary element on the balance of probability, then with the client’s instruction, one could make the application.

Given that the Court is the determiner of whether to accept or reject evidence, after careful consideration, it maybe that the Court determines that the evidence as it stands is finely over the evidential threshold for proving the element. On that basis, one should be very confident that the Judge will not come to an adverse conclusion that eradicates the Defendant’s ability to controvert the Claimant’s evidence. 

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

I attended a Stage 3 hearing where the Defendant had requested an oral hearing in the acknowledgment of service. However, no one appeared on behalf of the Defendant. The hearing consisted solely of myself and the Judge, during which I presented my submissions regarding the quantum of the case.

For those who do not know, the Claimant and Defendant have made offers to each other on each of the heads of loss claimed by the Claimant (Stage 2). It might be that some heads of loss are agreed. If at least one head of loss remains in dispute, then a Court Proceedings Pack complied with the Part A including the agreed heads of loss and the ‘initial’ Stage 2 offers in the pack.

(It is quite the misconception that the parties’ final offers are placed within the Court Proceedings Pack. However, this is not correct because the best offer is, in fact, what goes into the Part B of the Court Proceedings Pack is the final offers, which the Court does not see until it has made the determination).

In this case, it was my view that the Claimant’s Part A offer for PLSA was slightly on the low side and I could make submissions that could increase the value of the PSLA (which would help to beat the Part B figures and entitle the Claimant to Part 36 consequences.

At the closing of my submissions for PSLA, the Judge put the proposition to me that the Claimant was restricted to what was claimed in the Court Proceedings Pack.

I made my submissions (which this post addresses) and the Judge gave a Judgment for the exact sum claimed by the Claimant. He made it clear in his Judgment that he accepted my submission and that he could make an award above the figure in the Court Proceedings Pack, but was of the view that the amount was adequate to compensate the Claimant.

Why could the Judge (in my submission) make an award higher than what was in the Court Proceedings Pack?

Nature of PSLA damages

I submitted that PSLA is an unspecified damage, and therefore, the Claimant was bound by any open non-without prejudice offer in the Court Proceedings Pack. 

There is a distinction between general and special damages. General damages are presumed by law to arise from the torts and do not require detailed pleading, although Claimants must still plead that such damages are being claimed. On the other hand, special damages refer to specific losses tied to the unique circumstances of a case and must be explicitly detailed in the pleadings to prevent surprises during the trial.

In usual Part 7 proceedings, PSLA would not be given an actual figure (although the pleaded value of the claim may give an indication of the limitation that the Claimant expects in terms of PSLA. This is important due to the fact PSLA is awarded based on the value at the time of assessment, not the loss. This can be elicited from the introduction of the 17^th edition of the JC Guideline, which states the following:-

One of the tasks of the editorial team for each new edition of the Guidelines is to apply an inflationary increase to the figures contained in the previous edition. For that purpose, it has always been the practice to use the Retail Prices Index (RPI) and, for the reasons explained in the Introduction to this seventeenth edition, it is the index which will continue to be used unless and until the Courts decide otherwise.

There is, unfortunately but unavoidably, quite a long gap between the editorial team finalising its work and the Guidelines appearing in print. For example, as explained in the Introduction to the sixteenth edition, the editorial team based the figures in that edition on RPI as it stood in September 2021, but the guidelines were not actually published until April 2022. Thus, even at the date of publication, the figures for every edition of the Guidelines are already somewhat out of date. In times of higher inflation (and particularly when dealing with larger awards), the difference can be significant. To our surprise, the issue of whether to apply inflationary increases between editions still seems to attract some controversy when, in accordance with conventional practice and procedure, it should not. We have noted that in some cases judges have applied inflation only from the date of publication of the Guidelines but in circumstances where it appears the delay between calculation of the figures and publication was not drawn to their attention. For the reason explained above, this is incorrect. For the avoidance of doubt, an inflationary increase to the Guideline figures should be applied to ensure that figures remain up to date.

This situation arose for parties after the introduction of the 17th edition of the JC Guidelines. The value of PSLA increased significantly due to inflation, leading to a devaluation of approximately 22% for these PSLA propositions. To adhere to the guidance that parties should not determine damages and that it is the Court’s responsibility to make this determination, the Court needed to assess the value of PSLA based on the damage amounts as they stood at the time of the hearing. This applied even when the Court chose not to follow the guidelines specifically (after all, they were guidelines and not tramlines).

Rules do not compel parties to be bound by offers

I explained to the Judge there was nothing within the rules that suggested that the parties were bound by their offers. 

The RTA and EL/PL Protocols (low-value protocols )were specifically designed to streamline the handling of low-value personal injury claims, aiming to reduce both the time and costs involved in their resolution. Its structure indicates that in these cases,. Unlike other Pre-Action Protocols (save for the RTA Small Claims Protocol, which mimics the other low-value protocols), the low-value Protocols are more prescriptive and function as a largely self-contained system.

The protocol includes specific directions for users, outlining certain actions they must take. If there is no rule indicating that something needs to happen, it can be understood that it is not a requirement.

There are no rules that say that a party’s Part A figure is binding on themselves.  However, agreements of individual heads of loss must be binding.Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a case where the Court of Appeal determined it was improper for the trial judge to allow an issue to be determined which had, for all intents and purposes, been agreed upon by the parties.

At paragraph 71 of the Judgment, the Court of Appeal reminded itself that in our adversarial justice system, it is essential for parties to clearly define the issues in litigation, allowing each side to respond effectively. Therefore, if the parties agree the head of loss, it is no longer an issue that falls within the jurisdiction. However, if remaining in dispute, the Court can determine it and, as above, it is an unspecified damage for the Court to determine, not the parties.

Therefore, in my view, the Claimant cannot limit their claim for PSLA purely on the basis that their first offer at Stage 2, was a lower figure than what the Could value PSLA to be at the final hearing. 

Conclusion

There is a caveat to this point. It works both ways. A defendant could make submissions at a final hearing that PSLA should be a figure lower than what was offered during the stage 2 negotiations.  It is quite common in my experience to find that the determination of damages for PSLA usually fits somewhere between the two parties’ valuations in the Court Proceedings Pack.

However, if parties utilised the Stage 2 negotiations more sensibly then the parties would be more likely to obtain Part 36 benefits, as per my previous post.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Please note this a combination of previous posts consolidated into one post, with some minor updates/adjustments

Success fees & Shortfall Contributions in Infant Personal Injury Cases – Why are cost schedule so important?

A claim for a success fee deduction does not necessitate the preparation of a formal bill, as outlined in CPR 21.12(10)(f). Whether the Claimant’s Solicitors plan to deduct from the damages for a successful outcome or for a contribution to the shortfall (the difference between the costs received and the base costs incurred), they must provide details of the incurred costs.

While the White Book and CPR do not define it, CPR distinguishes between a copy bill and an informal breakdown. Therefore, it can be as simple as:

Base costs  20 hours @ £111        = £2,220

                   VAT @ 20%                 = £444

                   Total                             = £2,664

This allows the judge to review the hours worked and rates charged, providing an informal breakdown that improves the solicitor’s chances of receiving payment.

The success fee is calculated on the base costs, not the amount of damages. Prior to 2013 the success fee was recoverable from the Defendant and was calculated on the base costs, for example: –

RTA   Base costs + VAT = £5,500

Success fee 50% + VAT = £2,750

Total costs = £8,250

The “cap” on general damages and past losses is a limit on the amount that can be deducted from the damages awarded to the Claimant. It is not used as a formula for calculating the success fee because the party cannot charge a success fee that exceeds the base costs that the Claimant is liable for (known as the “indemnity principle”). the damages.

For example, imaging an RTA claim settles for £3,000 at stage 2 with a 50% success fee.

Damages	Fixed Costs	Base Costs
£3,000 (PSLA)	£600 (inclusive of VAT)	£1,800 (inclusive of VAT)

25% of the damages is £750. That is the ‘cap’, the maximum that can be deducted from the Claimant’s damages.

As the success fee is 50%, the maximum success fee is £900 (50% of the base costs incurred). However, as the maximum you can deduct from the Claimant is £750, you cannot deduct the full £900.

Therefore, a Court must see at the very least, an informal cost schedule.

Imagine the same scenario, but base costs are £1,000 inclusive of VAT: –

Damages	Fixed Costs	Base Costs
£3,000 (PSLA)	£600 (inclusive of VAT)	£1,000 (inclusive of VAT)

With the 50% success fee the maximum success fee is £500 inclusive of VAT. Therefore, if you try to seek the full 25% deduction of £750 you are breaching the indemnity principle by £250 because the maximum success fee is £500.

In this situation, even though the maximum deduction can be £750, you can only deduct £500 (unless your CFA allows for the deduction of monies to contribute towards the shortfall – discussed later).

Therefore, the rules (and the Courts) are reluctant to allow deductions without a cost schedule.

The Court may still reduce the amount you can deduct from the Claimant’s deductions, because: –

• They may deem the success fee is too high (so for example they may say the risk from the outset did not warrant a 100% success fee, and reduce it to 20%)
• They may deem that the base costs are too high and are unlikely to be what a Judge would award if they were to assess the base costs by way of summary or detail assessment.

The second situation is less likely to be an issue because the rules allow for an informal breakdown. In my view, the Court is more concerned in making sure the Solicitors are not claiming a success fee purely on the basis that it amounts to 25% of the damages.

So now imagine that your client’s case proceeds to an IAH. 

Damages are £6,000 

Base costs are £2,000 inclusive of VAT 

Success fee is 100%.

You file your informal schedule setting out the base costs incurred. 25% of the damages is £1,500. That is fine because if your success fee is 100% of your base costs (£2,000) so there is no breach of the indemnity principle. Even if your success fee was 75%, that would still be £1,500 so again, no breach of the indemnity principle.

The Judge at the hearing considers the risk assessment and determines that 100% success fee was wrong because the Claimant was a passenger in a car but recognises the other litigation risk and decides to allow a 50% success fee.

50% of your base cost is £1,000 inclusive of VAT. Therefore, the Court will not allow the full deduction of £1,500 because at a 50% success, you are only entitled to up to £1,000.

If the Court did not have the cost schedule, they would not be able to tell whether the deduction sought was not in breach of the indemnity principle. Therefore, not filling a cost schedule means you are more likely to end up with nothing.

Can’t the success fee be based on the amount fixed costs received?

The recoverable fixed costs under Part 45 were never intended to reflect the base costs. They were determined to be a reasonable sum for the likely work incurred. However unlikely success fees, fixed costs do not breach the indemnity principle (Butt v Nizami [2006] EWHC 159 (QB)). This means that if a firm has only done £900 worth of work, they can still receive £1,800 in fixed costs.

I had conduct of a holiday sickness case where I had six Claimants, had recorded around £5,000 + VAT of base costs in total for all six Claimants, but as each Claimant was able to recover £2,600 + VAT the amount of fixed costs we were entitled to recover in total was £15,960 + VAT!!!

This is the same reason why a Court should not calculate a success fee based on the fixed costs (with the exception to retainers that expressly state the base costs are calculated on the fixed recoverable cost regime – see below)

Imaging there is an IAH where the RTA claim settled at Stage 2: =

Damages are £8,000

Base costs are £800 including VAT 

Success fee is 100%

The fixed recoverable costs £1,200 inc. VAT (Stage 1, 2, 3A, 3B and 3C). 25% of the damages will be £2,000. The Solicitors acting for the Claimant seek a success fee for £1,200 because they say that it is 100% of the costs recovered from the Defendant but is less than the 25% of the damages.

I have seen a variation of Conditional Fee Agreements, but they all state the same thing: –

The success fee is set at 100% of our basic charges, where the claim concludes at trial; or up to 100% where the claim concludes before a trial has commenced.

Some firms, however, do have express terms that state that the base costs equate to the fixed recoverable costs that are payable by the Defendant in accordance with what the Court or rules state.

This means that if a claim settles where the fixed recoverable costs are £1,200, with a success fee of 25% then the success fee will not exceed £300. This is actually welcomed by some judges, noting that providing the client has been explained the likely fixed costs at each stage, the client will be able to know what their potential liability will be compared with standard costs.

What is the shortfall approach?

A shortfall approach is a lesser-known approach even though all Conditional Fee Agreements will include provisions that state that the Claimant is liable for any shortfall. The case of Belsner v Cam Legal Services Limited [2022] EWCA Civ 1387 is one of the main authorities where it was determined what was informed consent to a shortfall contribution.

Pretend that for the moment the Claimant is a company who has instructed you to pursue a Defendant for a breach of contract and the sum sought is over £10,000. You succeed on behalf of your client and the Defendant has agreed to pay 90% of the costs. You then issue a bill to your client for the full amount, giving credit for the 90% received by the paying Defendant and then your client pays the remainder.

What some personal injury lawyers sometimes forget is that this is the basis of a Conditional Fee Agreement. The terms of the agreement mean that if you are unsuccessful, you waive your costs. There is usually a term that expressly states the client will be responsible for any shortfall.

What some Solicitors will do is limit the shortfall responsibility to 25% of the Claimant’s damages. An RTA client’s case, where liability was denied, and the matter settled after trial was listed but before trial in the sum of £5,000.

25% of the damages is £1,250

Fixed costs recovered is £4,386 inc. VAT

Base costs are £8,000 inc. VAT

The firm, instead of looking to recover a success fee, allocate the £1,250 deduction as contribution to the shortfall. There is a shortfall because: –

The base costs are £8,000

The costs recovered amount to £4,386

The remaining balance is £3,614

This means that the £1,250 would be lawful because the terms and conditions state the Claimant would be responsible for any shortfall. Relying on the 25% cap of damages increases the prospects of a Court approving the same.

There is a caveat that I fell into before a DDJ in the County Court at Exeter. CPR 21.12(2) states that deductions for infant cases are limited to:-

(a) costs which have been assessed by way of detailed assessment under rule 46.4(2);

(b) costs incurred by way of success fee under a conditional fee agreement or sum payable under a damages based agreement in a claim for damages for personal injury where the damages agreed or ordered to be paid do not exceed £25,000, where such costs have been summarily assessed under rule 46.4(5), or

(c) costs incurred where a detailed assessment of costs has been dispensed with under rule 46.4(3) in the circumstances set out in Practice Direction 46.

It is important to note that according to Part 46, a detailed assessment can only be disapplied for a success fee assessment. If you are seeking a shortfall, the assessment must be carried out during the hearing. Providing an informal cost schedule could potentially prevent you from being able to recover a shortfall contribution.

Can a shortfall and success fee deduction be used together?

There is nothing to suggest you cannot. Imagine a situation where the Judge at the approval hearing either determines that the success fee was too high and only awards 10% of the sought deduction. If the remainder of the deduction did not exceed the difference between the fixed costs received and the base costs incurred, then you could then ask the Judge to approve the remainder as a shortfall contribution.

The shortfall and success fee are two entirely different deductions and could be claimed concurrently to ensure a maximum deduction.

Cannot produce a schedule of costs?

I have had some fee earners advise that they have no access to the number of units incurred etc. to be able to prepare an informal schedule. That should not be able to stop you drafting a very basic N260.

An N260 may seem like a very complicated document to complete but for straightforward matters it is quite easy to prepare are:-

A fee earner need only count the amount of units in telephone calls, emails/letters sent to the Claimant, Defendant, and any other person/party (such as medical agencies, counsel etc.) in the appropriate sections. Once you have done this, then you type the contents of the memos in the ‘schedule of work done on documents’ to ensure the remaining work carried out is included such as considering the medical report etc. Brief example below: –

Attendances on Claimant
Personal Attendances	0 units
Letters/email out	25 units		£11.1 per unit		£277.50
Telephone calls	0 units
Attendances on the Defendant
Personal Attendances	0 units
Letters/email out	10 units		£11.1 per unit		£111.00
Telephone calls	0 units
Attendances on others
Personal Attendances	0 units
Letters/email out	0 units
Telephone calls	0 units
Schedule of work done on documents
Description of work	Number of units		At £ per unit		Total
Preparing CNF	5 units		£11.1		£55.50
Considering medical report	10 units		£11.1		£111
Instructions to Counsel re Quantum	5 units		£11.1		£55.50
Total costs		£610.50
VAT		£122.10
Grand Total		£732.60

The costs state above do not exceed the costs which the Claimant is liable to pay in respect of the work which this statement covers. 

Signed……………………………………….

Dated………………………………………..

Name ……………………………………….

Name of Firm…………………………………………………….

The N260 suggests that it must be signed by a partner but PD44 para 9.5(3) makes it clear that it can be signed by the party or the party’s legal representative. The definition of legal representative in Part 2.3(1) is: –

(a) barrister.

(b) solicitor.

(c) solicitor’s employee.

(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985⁹; or

(e) person who, for the purposes of the Legal Services Act 2007¹⁰, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),

…. who has been instructed to act for a party in relation to proceedings.

Therefore, a fee earner who is employed by a Solicitor, is a legal representative and can sign the N260. What the fee earner must do is ensure they only include units for work they can see have been incurred. Providing they do this, then it is likely the N260 will only include costs that the Claimant would be responsible for.

One does not have to even complete a N260 as PD44 states that if it follows as closely as possible the N260 (i.e., has the same content) then it will be sufficient for summary assessment.

N260 is by no means an informal schedule, but it is very easy to complete and therefore likely to increase recovery of deductions from infant Claimant cases.

Why some PI firms are changing to success fees based on Fixed Recoverable Costs, rather than hourly rates

I have had instructions in the past where the instructing firm ask me to seek a deduction from a child’s damages in respect of the success fee. Naturally, whilst Judges and clients might find this to be a harsh request, personal injury firms take financial risks on both cash flow and profit when taking on cases on a CFA.

Whilst the biggest bugbear by the Judiciary is the generic risk assessment, it is usually the size of the statement of costs of hourly rate undertaken. A Judge needs to assess the basic costs undertaken on the matter because the success fee is based on the basic costs.

If the percentage of the success fee is not reduced, the basic costs may be reduced and this will limit how much the success fee will be. In some cases, I have solicitors calculate the success fee based on the fixed recoverable costs when the CFA expressly states basic costs are calculated on an hourly rate basis. This meant the Judge could easily dismiss the request for a deduction for the success fee because no hourly rate costs schedule had been provided. However, some firms actually have specific terms in their CFAs that base their basic costs on what is recoverable in Fixed Recoverable Costs at the time settlement.

I will discuss why this is a good idea, especially with the extension of the Fixed Recoverable Costs regime.

Pre Jackson Success Fees

I started working in personal injury just before the introduction of the Jackson Reforms. I actually became a fee earner with a case load with 85/15% post-Jackson reform cases so I dealt with success fees where it was recoverable from the Defendant. It is easy for me to understand how success fees were calculated.

I very much appreciate that junior fee earners today may not know or understand how success fees are calculated. They simply understand the concept that a success fee comes from deductions from the compensation and are up to 25% of damages. It does cause problems. I will receive instructions and I try to get the evidence to justify the success fee arranged but sometimes I am asked to simply ‘do my best’.

For those junior fee earners with no pre-Jackson reform experience. Your success fee would be calculated on the standard costs you’ve incurred. So if your client goes to trial, succeeds and you’ve got 100% success fee and £12,000 costs, then your success fee is £12,000.

Nothing changed post-Jackson reforms, merely that the Claimant could not recover the success fee from the Defendant and the maximum deduction from the damages was 25% of the PSLA and past losses.

Why base costs based on fixed costs works better?

Basing your basic costs on fixed recoverable costs, rather than hourly rates, give certainty to both the claimant and the law firm. There is no need to prepare a bill of costs (alternatively informal costs schedule or N260), there is no need for an assessment of costs and those costs will be proportionate to the stage of the proceedings.

Imagine you have a case which is pre issue, the medical reports are relatively straightforward and negotiation is quick and painless. If you submit a £4,000-£5,000 Phil, seeking a 50% success fee then you are going to be faced with the proposition of justifying that amount on assessment. That is before the consideration of whether or not a 50% success fee is reasonable.

Instead what happens is that you spell out in your client retainer the level of costs at each stage of the proceeding. You set out the range of success fees depending on the circumstance and you decide to justify a 25% success fee at it settles ex portal pre issue for £3,000 (RTA). That’s £840 in costs and the success fee is £210 inclusive of VAT. If proceedings are issued then it is £2,112 and the success fee will be £528.

These are moderately low sums and but one has to remember that with £3,000 (presuming this is not made up of any future costs) the maximum deduction is £750. Whilst a Judge could still reduce the success fee from 25%, the overall amount is modest and is more likely to be accepted as reasonable.

Of course it is also representative of the value of the case. Yes, you will have limited success fee on a £20,000 case that settles in the portal compared with if it exits. However, the client is full informed, it is proportionate and will reasonably top up the overall profit costs.

Whilst most instructions I receive are base costs calculated on hourly rates/units, I am seeing more and more CFAs using the fixed recoverable costs base cost model.

It may be preferable to seek either a success fee or a shortfall contribution, rather than both.

I typically wouldn’t be able to read the variety of conditional fee agreements (‘CFA’) of other law firms. However, I have received instructions from a wide range of law firms when seeking approval for a deduction in an infant approval case. This gives me the opportunity to consider them.

Although the fundamentals remain the same for ensuring compliance with CFA, there are some differences, mainly in the remuneration sought by the law firm from the Claimant’s damages.

When seeking approval for deductions from a child’s damages under CPR 21.12, instructing firms often fail to comply with CPR requirements, resulting in the deductions being disapproved before the starting pistol is even pulled. However, there are issues once the ‘race’ has commenced.

The variations

The remuneration usually comes in the form of either a success fee or a shortfall contribution. For ease, I will use the term ‘damages cap of 25%’, but it is of course only applicable to past losses and PSLA.

A combination of both

What some law firms will do is seek a combination of both, which the CFA allows for. It is accepted by the Claimant law firm that the total amount the can be deducted cannot 25% of damages.

So let’s presume a case where the fixed recoverable cost regime takes place, the success fee is limited to 10% and the CFA allows for a recovery of both a success fee and shortfall contribution.

Damages £15,000

Base costs £3,000

Fixed costs recovered £1,740

25% damages cap £3,750

10% success fee on base costs £300

Shortfall between base costs and fixed costs recovered £1,260

10% success fee + shortfall contribution £1,560

In some cases, the shortfall may provide a reasonable top-up and in other instances fill the gap where a success fee has been reduced considerably. The difficulty I have faced is that quite often, the Judiciary take issue with the combination of both. Sometimes it has been inappropriately described (at least, in my view) as a backdoor attempt to get around issues with the success fee.

I have found that success fees and shortfall contributions are more effective when pursued separately, rather than as a package deal. It is common for me to receive instructions with CFAs that include both provisions, but typically the law firm representing the Claimant chooses to rely on one deduction over the other.

I do find that my success in a combination of both is few and far between. That is not to say there is no success in such an appropriate, but Claimant law firms need to ensure CPR 21.12(10) is complied with, and the amounts are appropriately justified.

Can the Court reduce or refuse to allow the success fee – Duffield v WW Morrison Supermarkets Ltd [2025] EWCC 35

The case concerned a child (Master Brendan Duffield), who was injured at a Morrisons supermarket in April 2022. His mother, Ms. Matuleviciute, served as his litigation friend. The claim commenced with the litigation friend entering into a Conditional Fee Agreement (CFA) with a 100% success fee uplift, along with an After The Event (ATE) insurance policy costing £650 plus IPT (12%).

The Judge approved a damage settlement of £2,250. Whilst the Judge allowed a success fee, they had reduced the success to £225 and refused the ATE Premium, given the following Judgment:-

1. Therefore, there are two separate deductions from the Claimant’s agreed sum of damages that I am asked to consider. The first is a success fee of £450 under a form of conditional fee or damages based agreement. The second is a premium under a costs based insurance policy of £675.

2. Under CPR 21.12, a Litigation Friend who incurs costs or expenses on behalf of a child is entitled to recover the amount of any such cost or expense to the extent that it has been reasonably incurred and is reasonable in amount. In deciding whether any cost or expense was reasonably incurred and reasonable in amount, I am required to have regard to all the circumstances of the case including the factors set out in CPR 44.4(3) and 46.9.

3. However, stepping back and focusing on the broader picture, I am presented with a situation where the Claimant acting through his Litigation Friend has accepted an award of damages of £2,250 and yet I am being asked to approve deductions from those damages which amount to approximately 50% of the total sum of the Claimant’s damages. As mentioned, that is £450 for a success fee and £675 for an ATE premium.

4. In relation to the deduction constituted by the proposed success fee of £450, I have taken into account the requirements of CPR 21.12 (10) which I found are met, although I focussed particularly on the risk assessment form which, as I have said, does not appear to be a particularly comprehensive risk assessment. It seems to say what has not been done rather than what has been considered. However, I am willing to accept that a risk assessment in name, albeit not a particularly helpful or considered one, has been provided for the purposes of CPR 21.12 (10).

5. So, in considering the amount of the success fee that is proposed as a cost deduction, I take into account the general approach of Simmons v Castle [2012] EWCA Civ 1039 and allow the deduction of a success fee, but, in the circumstances, I will limit that success fee to 10% of the agreed damages. That is 10% of damages which will be £225.

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. This was 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.

9. Therefore, I will allow the deduction from the Claimant’s damages of a £225 success fee but not a deduction of £675 for the premium for a costs based insurance policy.

The Judge essentially did what many Judges do (and some Solicitors might argue alternatively): reducing the success fee to 10% of the damages because Simmons v Castle increases PSLA to account for the Jackson reforms. The Judge clearly believed the total amount sought was ‘50%’ of the Claimant’s damages and therefore that the deductions were excessive. Whilst the Judge was satisfied there was a risk assessment, they also said it was not helpful for the purposes of CPR 21.12, but did not say in their decision why, just simply focusing on Simmons v Castle. 

The Judge boldly stated that this was a case in which it would have been reasonable to expect Morrisons to settle. This, along with the usual QOCS point, led to the ATE premium not being allowed. She also alluded to the fact that the solicitors got paid regardless as a factor for refusing the ATE premium.

The litigation friend appealed and HHJ Monty KC heard the appeal in the County Court at Central London.

Appeal 

The litigation friend appealed on the grounds that the judge wrongly reduced the success fee from the agreed contractual terms, the ATE premium was reasonably incurred and should have been allowed, and the appeal was unopposed, which is understandable given the Defendant had no vested interest at all in how the damages were to be utilised. Judge Monty KC allowed the appeal and set aside the first judge’s order.

Judge Monty KC noted that the Judge had clearly found the success fee to be reasonably incurred, but disapproved with the amount. Judge Monty KC correctly stated that the 10% uplift as per Simmons v Castle had nothing to do with the success fee calculations. He also went further and considered CPR 46.9

36.         The court must also have regard to CPR 46.9 and thus the fact that were there to be an assessment between the solicitor and the litigation friend, it would be on an indemnity basis.  This means, in my view, that if the court departs from CPR 46.9, it renders the litigation friend vulnerable to being personally liable for costs which are not permitted under CPR 21.12 but are not open to challenge as between the litigation friend and the solicitor.  In so finding, I am agreeing with, and adopting the words of, HHJ Lethem in Hennes at [13]: 

“Thus the effect of that recognition is that the Court is likely to start from a presumption that providing the litigation friend has approved the costs, they have been reasonably incurred and are reasonable in amount. Secondly, the judge is likely to start from the assumption that the costs are proportionate.”    

37.         Returning to the success fee, I really cannot understand how it could be appropriate to quantify the success fee by reference to (a percentage of) the damages.  Even taking into account the “eight pillars of wisdom”, against the background of (a) a contractual arrangement between the solicitors and Ms Matuleviciute (b) which provides for an uplift on costs not damages (c) in circumstances where Ms Matuleviciute entered freely into the contract and understood its terms, it strikes me as wrong in principle to depart from the contractual provisions, which base the uplift on costs not damages.  In any event, the Simmons 10% uplift is to do with damages, not costs as between the litigation friend and the solicitors.

38.         It seems to me that the judge was wrong in principle about the quantum of the success fee.  This is not a disagreement about the exercise of a discretion.  It seems to me that the judge failed to apply the presumptions and assumptions in CPR 46.9.  In particular, there is a presumption that solicitor and own client costs have been reasonably incurred if they were incurred with the express or implied informed approval of the client.  That was the position here, on Ms Matuleviciute’s evidence.  There was nothing to rebut that presumption.  

He then referred to Herbert v HH Law Ltd [2019] EWCA Civ 527 and found that as the litigation friend had inforemed consent, the success fee could be reduced by reference to the 10% uplift.

With respect of the ATE premium, the Judge referred to West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 and said that ATE premiums’ reasonableness is judged by market norms, not case-by-case assessment. He further went on to say that QOCS does not negate the need for ATE insurance, especially when risks like adverse costs orders remain, and (something I have reiterated time and time again), disbursements which are not indemnified by a CFA. The outcome was the success fee and ATE premium was allowed in full. 

48.         In my view the judge was wrong in the reasons given for disallowing the premium.  These are as follows:

(1)          Qualified One-Way Costs Shifting (“QOCS”) applies.  As Ms Crorie says, QOCS relates to enforcement, not the principle, of a costs order.  Even where QOCS applies, a child claimant is at risk of losing their damages if an adverse costs order is made against them.  

(2)          It was difficult to see how there was any risk of the Claimant having to pay costs.  I also agree with Ms Crorie that the risks against which protection is provided by an ATE go further than an adverse costs order, and may include liability for other disbursements such as second opinion medical reports.  I further agree that an adverse costs risk is present notwithstanding QOCS – for example, the effect of any Part 36 offer.  A similar point was made in BXC v DTA [2021] EWHC B27 (Costs)at [87].  This point also seems to me to ignore the general risk inherent in all litigation.

(3)          Express Solicitors have separately recovered their costs.  That is incorrectly looking at matters as at the hearing, rather than at the time the ATE was taken out.

(4)          It would have been reasonable to expect the case to settle.  I am not at all convinced by that.  Liability had been denied.  I do not think it possible to say with certainty that it was bound to settle.

49.         I have no doubt that the ATE was reasonably entered into, and that the judge’s conclusion to the contrary was not just an exercise of discretion with which I disagree, but was wrong.  Having assessed the success fee at 10%, that meant that there was a risk attached to the litigation which meant that the cost of the premium was deductible.  That being so, I have no hesitation in concluding that the premium ought to have been allowed as a deduction in full.

Commentary

While this decision clearly advances beyond my earlier discussions on judges’ refusal to approve ATE premiums or their reductions in success fees, the core principle remains unchanged: success fees are often misunderstood. Many overlook that the 25% deduction is a cap, and that the amount deducted from damages to cover the success fee can be as high as 100%. It could be 30%, for example. However, if these success fees, when applied to the base costs, amount to more than 25% of the damages, then only 25% can be allowed.

When I make submissions, I always begin by explaining how the success fee is calculated and what it could be, since the base costs might be assessed and reduced beforehand. After that, I consider whether the full success fee can be deducted, given that only 25% of the damages can be deducted.

This judge clearly indicated that deducting 50% of the damages overall was inappropriate. They initially held the view that the costs were not proportionate or reasonable. Instead of presuming that costs are reasonable, the presumption is that they are unless evidence suggests otherwise. 

I have always found ATE premiums to be easily justifiable because the main arguments revolve around QOCS issues. Some costs are reasonably incurred with the ATE insurers’ approval and can be indemnified by the policy if damages are awarded or agreed upon, making the order enforceable. However, some costs may be negligently or inappropriately incurred and would not be covered by the ATE. My primary argument for ATE is that the cost of the premium, which the litigation friend would pay if the case is unsuccessful, is usually much lower than the overall disbursement liability. Judge Monty’s reliance on West helps distinguish the premium from a disbursement, since it is an expense directly incurred by the litigation friend and therefore not subject to the same court scrutiny as costs and disbursements.

No doubt, Claimant solicitors and their instructed advocates will be relying on these points going forward. 

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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Quite often I am against non-barrister, yet qualified advocates, such as solicitors and solicitors advocates. There are many authorised advocates such as CILEX Advocates, Costs Lawyers, Trade Mark Attorneys and Patent Attorneys.

Typically, court attire consists of business suits; however, there may be occasions when formal court dress is required. 

For instance, civil practitioners might need to wear robes when appearing before a Circuit Judge or Recorder. Specific hearings, such as contempt applications under the CPR mandate that lawyers wear robes. In these cases, even District Judges will be required to robe.

Criminal advocates such as Solicitor Advocates (and possibly soon, Criminal CILEX Higher Rights Advocates) who appear in the Crown Court would also need to robe. Although, those advocates will be more familiar with court dress for those reasons.

All qualified advocates need to be alive to the circumstances where they are required to robe. This is because as per Practice Direction (Court Dress) (no 4) [2008], authorised advocates will wear court dress in the same circumstances where barristers will.

A good example of this is Aaron Wood. He is a Trade Mark Attorney, who appeared in the Court of Appeal in Extreme Networks Limited v Extreme E Limited [2024] EWCA Civ 1386. He was required to robe, and he also opted to wear a short wig as the 2008 Practice Direction allowed him to do so. 

I often get told by non-barrister advocates that they lack knowledge about how to robe for court hearings, should that circumstance ever arise. Barristers typically learn this when they receive their wig and gown when being called to the bar or from their pupil supervisors.

Since I have learned from various sources, I thought it sensible to provide some guidance for non-barrister advocates on how to robe for court.

Whilst I have demonstrated how to put on a typical male court dress, and I will address that generally there are ‘male’ and ‘female’ options, it is not the case that they remain strictly gendered. In fact, I am aware of many female barristers using the ‘male’ wing collar dress. However, for this guide, I will for ease label them ‘male’ and ‘female’ court dress.

Typical male court dress for non-barrister advocates

• Gown (see below)
• Court Bands https://www.stanley-ley.co.uk/acatalog/court-band-tie-standard.html#SID=18
• Wing collar https://www.stanley-ley.co.uk/acatalog/windsor-wing.html#SID=28
• Tunic shirt https://www.stanley-ley.co.uk/acatalog/white-easy-care-tunic.html#SID=3
• Collar studs https://www.stanley-ley.co.uk/acatalog/full-set-studs.html#SID=13

Typical female court dress for non-barrister advocates

• Gown (see below)
• Collarette https://ivyandnormanton.com/products/classic-lace-collarette
• or collar with bands https://ivyandnormanton.com/products/collars-with-bands

Ivy & Normanton offer both collarettes and wing collar options for their female market.

What does a Solicitors’ gown look like?

It is not surprising that many would not know the difference between a Barrister’s gown and a Solicitor’s gown. Not many would have any reason to know what the difference is.

The Barrister’s gown is the one on the left, with the distinctive feature being the mourning hood that hangs down at the back. So all non-Barrister advocates will adopt the Solicitor’s gown.

How to attach the detachable wing collar for court dress?

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

It can be confusing for many who work within the legal sector to understand exactly what rights of audience they may have.

In particular, even members of CILEX do not know their own rights of audience. I also find that, in particulars, one should know and understand where there rights of audience comes from.

Siobhan Tatun of the CPS gave me the idea to set out those rights of audience in an easy and accessible table.

Membership standing	Right of Audience (Law/Statute that provides that right of audience)
Non-Fellow CILEX member	Civil and family hearings  Any hearing that is considered to be ‘in chambers’ providing that:-  -The work includes assisting in the conduct of litigation -That assistance is under instructions generally or in relation to those proceedings by an individual  -That individual is supervising   (for family matters, it cannot be before a bench including any lay magistrates) In accordance with schedule 3 of the Legal Services Act 2007 (para 7)  Civil small claims track hearings  Any small claims hearing where the client attends, it is not a hearing that takes place after a Judgment or in respect of a county court appeal brought against any decision made by a District Judge in the proceedings. In accordance with the Lay Representatives (Rights of Audience) Order 1999.    Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Fellow	Civil small claims track hearings  All matters within the small claims track (not limited to the Lay Representatives (Rights of Audience) Order 1999) as per PD27A paragraphs 3.1 and 3.2  3.1  In this paragraph: (1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor or any other person authorised under the Legal Services Act 2007 to act as a litigator or advocate; and  3.2 (1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him. (2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:– (a) where his client does not attend the hearing; (b) at any stage after judgment; or (c) on any appeal brought against any decision made by the district judge in the proceedings.  Civil and family hearings  Any hearing that is considered to be ‘in chambers’ providing that:-  -The work includes assisting in the conduct of litigation -That assistance is under instructions generally or in relation to those proceedings by an individual  -That individual is supervising   (for family matters, it cannot be before a bench including any lay magistrates) In accordance with schedule 3 of the Legal Services Act 2007 (para 7)  Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Advocate/CILEX Advocate and Litigator in Civil	Can appear in all matters in the County Court save for family (because they are, for all intents and purposes, heard in the ‘Family Court’ not the County Court).   Can also appear in the High Court ‘in chambers’, the magistrates court’ for civil and enforcement matters only Tribunals listed in Schedule 6 of the Tribunals, Courts and Enforcement Act 2007  In addition, the Coroner’s Court  This is in accordance with the power under s13(2), schedule 2 and schedule 4 of the Legal Service Act 2007 which grants CILEX Regulation Limited the power to authorise advocates particular rights of audience Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Advocate/CILEX Advocate and Litigator in Family	Can appear in chambers in hearings in both Family Court and High Court, specifically in all family-related proceedings. Also appear in the Family Court and including hearings before a lay bench.   In addition, the Coroner’s Court  This is in accordance with the power under s13(2), schedule 2 and schedule 4 of the Legal Service Act 2007 which grants CILEX Regulation Limited the power to authorise advocates particular rights of audience   Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Advocate/CILEX Advocate and Litigator in Criminal	Can appear in adult Magistrates’ Courts and Youth Courts for any criminal matters. They also have the right to appear in the Crown Court or High Court for bail applications and appeals from lower courts, provided they previously represented the defendant.   The Coroner’s Court This is in accordance with the power under s13(2), schedule 2 and schedule 4 of the Legal Service Act 2007 which grants CILEX Regulation Limited the power to authorise advocates particular rights of audience Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Immigration Practitioner	Appear in First-Tier and Upper Tribunal (Immigration and Asylum Chamber) save for Judicial Review hearings, which are reserved to higher rights advocates. This is in accordance with the power under s13(2), schedule 2 and schedule 4 of the Legal Service Act 2007 which grants CILEX Regulation Limited the power to authorise advocates particular rights of audience Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Higher Rights Advocate/CILEX higher Rights Advocate and Litigator in Civil	Everything that a CILEX Advocate/CILEX Advocate and Litigator in Civil proceedings can do, but they can also:- Appear in the High Court in civil matters, the Court of Appeal and Supreme Court Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6
CILEX Higher Rights Advocate/CILEX Higher Rights Advocate and Litigator in Criminal	Everything that a CILEX Advocate/CILEX Advocate and Litigator in Civil proceedings can do, but they can also:- Appear in the Crown Court, High Court in civil matters, the Court of Appeal and Supreme Court Employment hearings  Any employment tribunal hearing up to and including the Employment Appeals Tribunal in accordance with s6(1)(c) of the Employment Tribunals Act 1996 s6

A brief reminder that there is definition of ‘in chambers’ in either CPR or FPR. Instead, practitioners use the only guidance currently available is the decision of Halborg v Apple (UK) Limited & Another [2022].

After the Court of Appeal remitted the appeal back to County Court (after determining that the appeal was purely academic) HHJ Backhouse, who has since retired, determined that the courts should follow the definition of what was ‘in chambers’ in accordance with the County Court Rules 1981. Essentially, all applications, save for where Ordered or the rules stated otherwise (such as injunctions) were heard in chambers.

Members who rely on the schedule 3 exemptions should always be cautious, but appreciate that applications and CMC have regularly been attended by unqualfied fee earners with no issues on the presumption that schedule 3 applied in those circumstances.

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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

In my heavy litigation days (especially as a consultant) I was always faced with a dilemma where the third-party solicitors disclosed something late and I objected to them relying on the document at trial. It was usually met with “we are complying with our ongoing duty of disclosure“, which is correct. However, I would point out that the ongoing duty of disclosure was not the same as being able to rely on a document at trial. That was met with ‘there is no express sanction‘, in such a way that I could imagine my opponent had their thumb on their nose saying “na na na na na”.

I would then point to CPR 31.21:-

Consequence of failure to disclose documents or permit inspection

31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

The question then became whether ‘unless the court gives permission’ meant that it did not require an application and that the court would simply need to advise the parties at trial that the party could rely on it.

My point was that this actually was reinforcing a sanction that required relief from sanction. This post explains why.

Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506 

Fergies had appealed the decision of Globe J, who granted relief from sanction for the failure to serve witness statements.

One issue that the Court of Appeal considered was what did the wording within CPR 32.10 mean when it said ‘unless the court gives permission’.

24.  It can therefore be seen that CPR 32.10 provides its own sanction for failure to serve a witness statement within the time specified by the court: that is, that the witness may not be called to give oral evidence unless the court gives permission. Since the rules have determined the applicable sanction (unless the court gives permission) there can accordingly be no available argument that the sanction prospectively to be imposed is of itself unjust or disproportionate. As stated in paragraph 45 of Mitchell (cited below):

“On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective.”

The question thus is not whether the sanction prescribed by CPR 32.10 is of itself disproportionate or unjust but whether the sanction should be disapplied in the particular case.

25.  For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1 . It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9 : just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.

26.  I observe that in the notes to CPR 32.10 in the White Book (2014 ed.) it is suggested that:

“However, where before trial a party requests the court to exercise its powers under r.3.1(2)(a) to extend the time for serving their witness statements it could be argued that r.3.9 does not apply because at that stage the sanction imposed by r.32.10 has not had ‘effect’ within the meaning of r.3.8 .”

27.  I can see the argument on a narrow and literal approach to the wording. But in my view it is not correct: a broader reading is called for. Were it otherwise, an application to extend time for service of a witness statement made before trial could stand on a significantly different footing from an application for extension and relief from sanction made at trial when the witness is actually to be called. In my view, the sanction provided in CPR 32.10 is to be taken as having effect once the time limit for serving the witness statement has expired. It would be contrary to the overall purpose of the rules, and could lead to arbitrariness, were it otherwise.

Therefore, it fair to approach the phrase as an indicator of where relief from sanctions were needed.

Other examples of ‘unless the court gives permission’.

The approach in Chartwell can be seen in other areas of CPR, such as the following:-

• CPR 8.4 – where a Defendant fails to file an acknowledgement of service of Part 8 proceedings, the Defendant can attend the final hearing but cannot take part ‘unless the court gives permission’
• PD27B – where a Defendant fails to file an acknowledgement of service of Part 7 RTA Small Claims Track proceedings, the Defendant can attend the final hearing but cannot take part ‘unless the court gives permission’
• CPR 32.7 – if, upon an application, the Court grants permission for an Order for the cross-examination of a witness, but that witness does not attend, the party relying on that witness may not rely on that witness’ evidence ‘unless the court gives permission’.
• sdfsdf

Where ‘unless the court gives permission’ is not a sanction.

There is an exception to the “unless the court gives permission” rule. If the request is aimed at correcting an omission, it is likely to be considered a relief from sanctions. However, if it involves taking positive steps to achieve something, it is unlikely to qualify as an application for relief from sanctions.

A good example of this is CPR 31.20, which says:-

Restriction on use of a privileged document inspection of which has been inadvertently allowed

31.20 Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

The party here who needs the court’s permission is the party who has received a privileged document that was inadvertently disclosed, not the party who has (for all intents and purposes) made the error.

This is because it is not a relief from sanctions application. Instead, the recipient will make an application to court. For the purposes of CPR 31.20, an application would refer to the test within Al Fayed & Others v Commissioner of Police of the Metropolis and Others [2002] EWCA Civ 780, where the Court would consider whether the recipient of the disclosure believed it to have been intentional and whether it would be unjust and inequitable to allow the recepient to rely on the documents.

CPR 3.9 and the Denton test is not considered in such an application.

Quite often, there is a direction seen in the rules that the Court can alter a position but only with their permission. Again, an application would not be a relief from sanctions application, such as CPR 19.3:-

Provisions applicable where two or more persons are jointly entitled to a

remedy

19.3—(1) All persons jointly entitled to the remedy claimed by a claimant

must be parties unless the court orders otherwise. (2) If any such person does not agree to be a claimant, he must be made a

defendant, unless the court orders otherwise.

(3) This rule does not apply in probate proceedings.

An example would be a tenancy deposit claim with multiple tenants. The primary position is that all tenants have to share the tenancy deposit penalty equally (Gladhurst Properties Limited v Hashemi & Another [2011] EWCA Civ 604). However, if one tenant is refusing to participate, the other Claimants may wish to apply under CPR 19.3. It is a positive step, rather than remedying an omission.

Look out for ‘unless the court directs otherwise’ or similar wording.

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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.