Category: AJH Advocacy

The Civil Procedure Rules encourage parties to identify and narrow the issues in dispute as early as possible. Admissions play an important role in supporting the overriding objective: they can help avoid unnecessary litigation, reduce costs, and keep cases moving efficiently.

Once an admission has been made, though, it usually cannot be withdrawn as of right. The court carefully considers any attempt to change an admission, since other parties may have relied on it and the justice system depends on cases proceeding efficiently and reaching a clear conclusion.

Nature and effect of admissions

An admission may relate to the whole or part of an opponent’s claim or case. An admission can concern liability, causation, quantum, or any other issue in dispute. CPR 14.2(11) provides:

“The court’s permission is required to amend or withdraw an admission.”

Similarly, under CPR 14.1(2)(b), a party who has made a pre-action admission may apply for permission to withdraw it after proceedings have commenced. The rationale is obvious. A party who has received an admission is entitled to proceed on the basis that the issue admitted need not be investigated further. Significant prejudice may arise if that position is later altered.

CPR 14.5 says:

“In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case.”

The rule then identifies the following factors:

(a) The grounds for withdrawal

(b) New evidence

(c) The parties’ conduct.

(d) Prejudice

(e) Stage reached by the proceedings

(f) Prospects of success

(g) Interests of the administration of justice

This broad factor permits consideration of finality, proportionality, efficient case management and public confidence in the litigation process. The list is expressly non-exhaustive. No single factor is determinative.

Types of admissions

CPR 14 deals with three types of admissions;

• Pre-action admissions (CPR 14.1);
• Admissions made after proceedings have commenced (CPR 14.2); and
• Admissions made under certain personal injury protocols (CPR 14.3).

Pre-action admissions

Pre-action admissions are binding on the party that has made them, pursuant to CPR 14.1, and can be either a whole or a partial admission. Such admissions can only be withdrawn pre-action if the other party to whom the admission was made agrees.

Otherwise, the party who made the admission must apply to the Court for permission to withdraw it. This will usually be apparent from the Defence once the Claimant seeks to rely on the admission, but the Defendant must still make a formal application to resile from it.

Post-issue admissions

Once court proceedings have begun, CPR 14.2 allows a party to formally admit all or part of another party’s claim. In monetary claims, a Defendant can admit liability for a specific amount, admit liability for an amount yet to be determined, or make an offer to settle the claim for a particular sum. These admissions can help narrow the issues in dispute and, in some cases, bring the litigation to an early conclusion.

Where a Defendant admits liability for all or part of a claim, the Claimant is generally entitled to request judgment from the court. The court will usually enter judgment in accordance with the admission, including any agreed costs. If the parties have agreed terms for payment, such as instalments or deferred payment, the judgment will normally reflect that agreement. Where no agreement has been reached, the court may determine the payment terms or, in some circumstances, order immediate payment.

If liability is admitted but the amount of damages remains disputed, the court will determine the value of the claim before entering judgment. Similarly, where a defendant offers a sum in settlement but the Claimant does not accept it, the court will decide the amount payable. The rules therefore distinguish between admissions of liability and admissions relating to the value of the claim.

CPR 21 applies where a Claimant or Defendant is a child or protected party. Any settlement, compromise or acceptance of payment requires the approval of the court. In addition, once an admission has been made, it cannot simply be withdrawn or amended at will; the party seeking to do so must obtain the court’s permission. This reflects the importance of admissions in civil litigation and ensures fairness and certainty for all parties involved.

Certain pre-action protocol admissions

CPR 14.3 contains specific provisions governing admissions made during the pre-action stages of Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”), and the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“the RTA Small Claims Protocol”). These rules recognise that admissions are often made before formal court proceedings are issued and set out the circumstances in which they can be withdrawn.

In cases governed by the RTA, RTA Small Claims Protocol or EL/PL Protocols, a Defendant may withdraw an admission of causation before proceedings are commenced during the protocol’s initial consideration period (or any agreed extension). An admission may also be withdrawn at any time before proceedings if the Claimant agrees. Once court proceedings have started, however, the position becomes more restrictive: withdrawal is only possible with the consent of all parties or with the court’s permission following a formal application.

For claims proceeding under the RTA Small Claims Protocol, admissions can be withdrawn in accordance with the specific provisions contained within that protocol. The CPR therefore preserves a separate regime for low-value road traffic claims falling within the small claims framework.

The rules also address other types of pre-action admissions. After proceedings have been issued, any withdrawal of a pre-action admission generally requires either the agreement of all parties or the permission of the court. This reflects the importance of admissions in narrowing the issues between the parties and promoting the efficient resolution of personal injury litigation, while ensuring that admissions are not withdrawn without good reason once legal proceedings are underway.

How the Courts treat admission withdrawals applications

The authorities consistently emphasise that the court’s discretion is broad and highly fact-sensitive.

The predecessor provision was paragraph 7.2 of Practice Direction 14. Although that Practice Direction has since been revoked, CPR 14.5 substantially reflects the same approach. Accordingly, the earlier authorities remain of considerable persuasive value and continue to provide important guidance on the exercise of the court’s discretion.

Woodland v Stopford [2011] EWCA Civ 266

The Defendant sought to withdraw a pre-action admission of liability in a personal injury claim. The admission had been made on an incorrect basis by those acting on the defendant’s behalf. The Court of Appeal permitted withdrawal. Moore-Bick LJ stressed that the appearance of genuinely new evidence is only one factor among many. The court is not confined to cases where fresh evidence emerges.

• The court must evaluate all circumstances, including:
• why the admission was made;
• why it is now challenged;
• whether there is a real issue to be tried; and
• the prejudice to each side.

The case remains one of the leading authorities demonstrating that an admission may be withdrawn even absent new evidence where there has been a genuine mistake.

Wood v Days Healthcare UK Ltd [2017] EWCA Civ 2097

Loss adjusters admitted liability on behalf of insurers. Subsequently, previously undisclosed evidence came to light fundamentally altering the nature and value of the claim. The Court of Appeal permitted withdrawal. The court regarded the newly discovered evidence as transforming the litigation. What had originally appeared to be a relatively modest claim had become something materially different.

The case demonstrates that where significant new evidence fundamentally changes the claim, withdrawal is likely to be favoured.

Royal Automobile Club v Wright [2019] EWHC 913 (QB)

The employer admitted liability on the assumption that the claim would be worth approximately £25,000. The claim later proved potentially to exceed £1 million. Permission to withdraw was refused.

The court held that a mistaken assessment of value was not sufficient justification. The claimant had relied heavily on the admission, substantial investigations had been undertaken, and interim payments had been made.

Turner J emphasised that:

• the Claimant was not responsible for the Defendant’s mistake;
• clear admissions had been relied upon;
• withdrawal would undermine confidence in pre-action admissions.

This authority illustrates that mere “buyer’s remorse” concerning the financial consequences of an admission is generally insufficient.

Moore v Worcestershire NHS Trust [2015] EWHC 1209 (QB)

The Defendant sought to withdraw a pre-action admission. The court considered the impact of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; and Denton v TH White Ltd [2014] EWCA Civ 906.

The court held that applications to withdraw admissions should be approached robustly in light of modern case-management principles. However, it also recognised that CPR 14 applications are not identical to relief from sanctions applications under CPR 3.9.

The authorities on sanctions inform the exercise of discretion, but CPR 14.5 remains the governing test.

Kojima v HSBC Bank plc [2011] EWHC 611 (Ch)

Briggs J considered an application to withdraw admissions after judgment had already been entered upon them. The court held that the public interest in finality is a powerful consideration.

Once judgment has been entered:

• the threshold becomes substantially higher;
• the court will be reluctant to revisit matters; and
• efficient administration of justice favours certainty.

The decision demonstrates that timing is critical.

Clark v Braintree Clinical Services Ltd [2015] EWHC 3181 (QB)

The Defendant sought withdrawal of a conditional admission contained within a defence. Permission was refused. The court attached particular significance to:

• delay in making the application;
• the parties having conducted litigation on the basis of the admission; and
• prejudice to the Claimant.

The Defendant would suffer little prejudice if refused, while the Claimant would suffer considerable prejudice if withdrawal were allowed.

This case demonstrates the importance of acting promptly.

Bayerische Landesbank v Constantin Medien AG [2017] EWHC 131 (Comm)

This case highlights a preliminary but important issue is whether the statement actually an admission. Popplewell J emphasised that not every assertion made within litigation qualifies as a CPR admission.

Before considering withdrawal, the court must first identify:

• whether the impugned statement truly constitutes an admission; or
• whether it is merely a pleading point or averment capable of amendment.

The distinction may be decisive.

Moyses Stevens Flowers Ltd v Flower Station Ltd [2024] EWHC 4 (Ch)

This recent authority applied similar reasoning.

Master Brightwell held that an agreed recital within a court order was not an admission for CPR Part 14 purposes but merely an averment.

Accordingly, the CPR 14 withdrawal regime did not apply.

The case serves as a reminder that parties must identify precisely what they seek to withdraw before invoking CPR 14.5.

Practical considerations

Admissions should not lead parties to relax their approach to evidence. Claimants who continue to preserve evidence and investigate their case will be better placed to demonstrate prejudice if withdrawal is later sought.

For Defendants, the authorities emphasise the importance of careful investigation before making an admission. A change in litigation strategy or a reassessment of the claim’s value is unlikely, without more, to justify withdrawal.

Timing is also critical. The sooner an application is made after new evidence emerges, the greater the prospect of success. Delay increases the likelihood that the court will find that the parties and the litigation process have come to rely upon the admission.

The court’s approach

The authorities demonstrate that admissions are not treated as provisional positions that can be withdrawn whenever circumstances become less favourable. They are important procedural steps which promote the efficient resolution of disputes and the effective management of litigation.

Ultimately, the court’s task is to balance the interests of justice between the parties while giving effect to the overriding objective. The stronger the reliance placed upon an admission, the more compelling the reasons required to permit its withdrawal.

Information

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

The law can be all-consuming. Between preparing cases, drafting documents, and navigating the inevitable pressures of practice, it is easy to forget the value of stepping away from the desk for a few hours. One of my preferred ways to do that is through cooking. Unlike litigation, there is something wonderfully straightforward about taking a handful of ingredients, following a recipe, and ending up with something tangible and satisfying at the end.

For this edition of Take a Break, I decided to try Jamie Oliver’s A Cracking Burger. The recipe is simple, approachable, and promises a homemade burger packed with flavour. Overall, the result was excellent: juicy burgers, plenty of texture, and a meal that proved far superior to anything I could have picked up from a takeaway.

That said, if I were making it again, I would make one small adjustment. The recipe calls for 12 Jacob’s crackers mixed into the beef. Whilst they certainly help bind the burgers together, I found they muted the beef flavour more than I would have liked. For those who prefer a stronger, meatier burger, I would suggest reducing the number of crackers and allowing the quality of the beef to take centre stage.

Sometimes the best way to recharge is not through a holiday or a day off, but through an hour in the kitchen, a good recipe, and the satisfaction of creating something with your own hands. With that in mind, let’s get cooking.

Information

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

Around this time, civil pupils in their first six months will start visiting various courts with their pupil supervisors and other barristers. They’ll hear cost terminology and may wonder what it means. This can be quite overwhelming, especially when you see the size of the ‘Friston on Costs’ and ‘Cook on Costs’ textbooks.

This article addresses a few of the various costs terms and phrases you may hear during your first six, some more common than others.

Standard costs and fixed recoverable costs

When you hear about costs being recovered from another party, it will either be on a ‘standard costs’ basis or ‘fixed recoverable costs basis’.

Standard costs is better described as assessed costs. They arise where the court orders one party to pay another party’s costs and the amount recoverable is determined by reference to the costs actually incurred by the receiving party. The receiving party must therefore establish the costs it has incurred through a bill of costs, schedule or summary assessment, and the court then determines what amount is recoverable from the paying party.

Those costs may be assessed on either the standard basis or the indemnity basis. The standard basis is the default position under CPR 44.3. On a standard basis assessment, the court will only allow costs which are both reasonably incurred and proportionate, and any doubt is resolved in favour of the paying party. By contrast, an indemnity basis assessment is more generous to the receiving party. The requirement of proportionality does not apply in the same way and any doubt is resolved in favour of the receiving party. As a result, indemnity assessments typically produce a higher recovery than standard basis assessments.

Accordingly, when practitioners refer to “standard costs” or “conventional inter partes costs”, they are generally referring to costs that are assessed by reference to the work actually undertaken, as opposed to fixed recoverable costs. Those assessed costs can then be subject to either a standard basis assessment or, in exceptional circumstances where the court considers it appropriate, an indemnity basis assessment.

By contrast, fixed recoverable costs (FRC) are not assessed by reference to the costs actually incurred by the receiving party. Instead, the Civil Procedure Rules (CPR) prescribe in advance the amount that may be recovered for particular stages of litigation and particular categories of case. The court is therefore not ordinarily concerned with how much time was spent on the case, what hourly rates were charged, or whether the receiving party’s actual costs were higher or lower than the amount recovered. This represents a fundamental departure from conventional inter partes costs. Under a standard or indemnity basis assessment, the court examines the costs actually incurred and determines what amount should be recovered. Under the FRC regime, there is generally no such assessment because recoverability is determined by the relevant CPR tables. The successful party recovers the prescribed figure regardless of whether the actual costs incurred exceed or fall below that amount.

Indemnity principle

The indemnity principle is a fundamental rule of costs law which provides that a receiving party cannot recover from its opponent more by way of costs than it is liable to pay its own legal representatives. In simple terms, a costs order is intended to indemnify a litigant against a liability it has incurred, not to allow it to make a profit. The court is therefore concerned not merely with what costs are reasonable and proportionate, but also with whether the client is actually liable to pay those costs under the terms of the retainer.

The practical importance of the principle is that recoverability depends upon the solicitor-client relationship as much as upon the litigation itself. If a solicitor agrees to act entirely free of charge, the client has no liability and there is ordinarily nothing to indemnify. Equally, where a retainer limits the client’s liability to a fixed fee, the indemnity principle may prevent recovery from the paying party beyond that amount, even if the work undertaken would justify a higher assessment. The principle therefore frequently arises in disputes concerning retainers, conditional fee agreements, pro bono work and fixed fee arrangements.

The key question in most indemnity principle cases is deceptively simple: what was the client contractually liable to pay? If there is a genuine liability, even where the client is impecunious and unlikely ever to satisfy it, costs will usually remain recoverable. If there is no liability, or the liability is capped by the retainer, recovery may be restricted accordingly. As a result, costs lawyers often say that one of the most important documents in any costs dispute is not the bill, the budget or the costs order, but the retainer itself.

The exception to the indemnity principle

An important exception to the indemnity principle arises in cases that fall within a FRC. Ordinarily, a successful party cannot recover more from its opponent than it is liable to pay its own lawyers. However, in Butt v Nizami [2006] EWHC 159 (QB), the High Court held that the indemnity principle does not apply to the fixed costs prescribed by CPR Part 45. The Court concluded that entitlement to those costs derives from the rules themselves, rather than from the existence or extent of the client’s liability to its solicitors.

The practical consequence is that, unlike a conventional costs assessment, recovery is not dependent upon demonstrating an equivalent solicitor-client liability. A receiving party may recover the fixed sums allowed by the rules even if the amount recoverable exceeds the costs actually incurred or payable under the retainer. As the court recognised in Butt v Nizami, the purpose of the fixed costs regime is to provide certainty and avoid the technical disputes that would arise if parties were required to investigate retainers and solicitor-client liabilities in every case.

For practitioners, the distinction is critical. A fixed fee retainer may engage the indemnity principle and potentially cap recovery. Fixed recoverable costs, by contrast, are generally recoverable because the CPR says they are recoverable, not because they precisely reflect the client’s contractual liability to their solicitor. Therefore, it does not matter how little work has been done, the party would be able to recover the fixed recoverable costs amount and would not be in breach of the indemnity principle.

Wasted costs orders

A real irritation is the interchanging of ‘wasted costs’ and ‘costs occasioned and/or thrown away’. One party claiming the costs have been incurred as a result fo the other party’s conduct. That is the costs occasioned and/or thrown away as a result of that conduct. A wasted costs order is an inherently different order.

Wasted costs orders are an exceptional jurisdiction under s.51 of the Senior Courts Act 1981, enabling the court to order a legal representative personally to pay costs incurred as a result of their improper, unreasonable or negligent conduct. The leading authority is Ridehalgh v Horsefield [1994] Ch 205, where the Court of Appeal emphasised that the jurisdiction is compensatory rather than punitive. Its purpose is to protect litigants from unnecessary expense caused by lawyers, whilst ensuring that advocates and solicitors are not deterred from advancing their clients’ cases robustly through fear of personal liability. A wasted costs order is therefore not justified simply because a lawyer was unsuccessful, made an error of judgment, or pursued a difficult argument. The court applies a three-stage test. First, it considers whether the representative acted improperly, unreasonably or negligently. Secondly, it asks whether that conduct caused identifiable costs to be wasted; there must be a direct causal connection between the conduct complained of and the costs sought. Thirdly, even where misconduct and causation are established, the court must decide whether it is just in all the circumstances to make a personal costs order.

The jurisdiction is discretionary, and the applicant bears the burden of proving each stage. Applications frequently fail because causation cannot be established or because the court concludes that a wasted costs order would be disproportionate. The courts repeatedly stress that wasted costs orders should remain a remedy of last resort and should not generate extensive satellite litigation. Particular caution is exercised where issues of legal professional privilege arise, since a lawyer may be unable fully to explain their conduct without revealing privileged instructions. The overarching question is whether the representative’s conduct was sufficiently serious, caused identifiable loss, and makes it fair for the lawyer, rather than the client, to bear the resulting costs.

What is the difference between an assessment of costs on a standard and indemntiy basis?

The difference between a standard basis assessment and an indemnity basis assessment lies in the approach the court takes to scrutinising the receiving party’s costs.

On a standard basis assessment, which is the default position under CPR 44.3, the court will only allow costs that are both reasonably incurred and proportionate to the matters in issue. Any doubt as to whether a particular item of cost was reasonably incurred or reasonable in amount is resolved in favour of the paying party. The receiving party therefore faces two hurdles: reasonableness and proportionality.

By contrast, on an indemnity basis assessment, the proportionality test does not apply in the same way and the court adopts a more generous approach to recovery. Costs need only be reasonably incurred and reasonable in amount, and any doubt is resolved in favour of the receiving party. As a result, indemnity assessments typically produce a significantly higher level of recovery than standard basis assessments.

In practical terms, a standard basis assessment starts from a position of caution and restraint, reflecting the fact that one party is being ordered to pay another’s legal costs. An indemnity basis assessment is intended to provide a more complete recovery where the paying party’s conduct justifies a departure from the norm. The key distinction is often summarised as follows: on the standard basis, doubts favour the paying party and proportionality applies; on the indemnity basis, doubts favour the receiving party and proportionality is largely removed.

When will the court assess on an indemnity basis?

Indemnity costs are the exception, not the rule. The starting point is that costs are awarded on the standard basis. A party seeking indemnity costs must therefore usually show conduct or circumstances that take the case “out of the norm”. The Courts have repeatedly stressed that there is no exhaustive checklist and that the jurisdiction is highly fact-sensitive. The question is whether the conduct of the litigation or the surrounding circumstances was sufficiently unreasonable to justify departing from the usual standard-basis assessment.

Examples where indemnity costs may be awarded include cases involving dishonesty, deceit, abuse of process, failure to make full and frank disclosure, pursuit of speculative or hopeless claims, advancing unjustified allegations of fraud, maintaining untenable defences, pursuing litigation for ulterior motives, or conducting proceedings in an unreasonable and disproportionate manner. The courts have also awarded indemnity costs where a party has pursued claims known to be false, discontinued serious allegations without explanation, or taken opportunistic procedural points contrary to the overriding objective. A contractual entitlement to legal costs may also justify an indemnity basis assessment, and CPR Part 36 expressly provides for indemnity costs in certain circumstances where a claimant beats its own Part 36 offer.

However, there is no presumption that indemnity costs follow merely because a party loses, advances an unsuccessful argument, fails to beat an offer, or even loses allegations of fraud. Something more is generally required. The courts consistently stress that the key question is whether the conduct falls outside the ordinary and reasonable conduct of litigation. Where indemnity costs are awarded, the practical benefit is significant: proportionality does not apply, any doubt as to reasonableness is resolved in favour of the receiving party, and approved costs budgets do not constrain the assessment.

Bullock and Sanderson Orders

Bullock and Sanderson orders are special costs orders available in multi-defendant litigation where a claimant has reasonably sued more than one defendant but succeeds against only one of them. Their purpose is to protect a claimant who, through no fault of their own, could not identify before trial which defendant was legally responsible.

A Bullock order permits the successful defendant to recover its costs from the claimant, but also allows the claimant to recover those costs from the unsuccessful defendant as part of the claimant’s own costs. The claimant therefore remains primarily liable to the successful defendant but is indemnified by the losing defendant.

By contrast, a Sanderson order goes further and requires the unsuccessful defendant to pay the successful defendant’s costs directly, thereby avoiding the need for the costs to pass through the claimant. A Sanderson order is often regarded as the more convenient and efficient remedy where the circumstances justify it. Both orders are exceptional departures from the ordinary rule that costs follow the event and are generally made only where it was reasonable for the claimant to sue both defendants and the uncertainty as to liability was not of the claimant’s making.

Qualified One-Way Cost Shifting (QOCS)

Qualified One-Way Costs Shifting (QOCS) is a costs protection regime that applies primarily to personal injury claims, fatal accident claims and certain claims arising from death or personal injury. Introduced following the Jackson reforms, its purpose is to protect claimants from the risk of adverse costs orders if their claim fails. In broad terms, a defendant may still obtain a costs order against an unsuccessful claimant, but the ability to enforce that order is significantly restricted. The regime reflects a policy decision that claimants should be able to pursue genuine personal injury litigation without the fear of facing a substantial costs liability if they lose.

QOCS does not prevent the court from making costs orders. Rather, it limits their enforcement. Under CPR 44.14, a defendant can generally enforce an adverse costs order only up to the value of damages, interest and costs recovered by the claimant in the claim. Consequently, a claimant who recovers nothing will often face no practical liability for the defendant’s costs. However, the protection is not absolute. The regime can be displaced where a claim is struck out on specified grounds, where the claim is found to be fundamentally dishonest, or in certain situations where the claim is brought for the benefit of someone else or includes claims falling outside the scope of QOCS.

Importantly, QOCS is a protection against enforcement, not against the making of costs orders. Courts should still determine liability for costs in the usual way and, where appropriate, assess those costs. The practical effect is that whilst an unsuccessful claimant may technically owe costs to the defendant, the defendant’s ability to recover those costs is restricted unless one of the exceptions to the QOCS regime applies.

Information

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

In October 2023, the extension of the Fixed Recoverable Costs (FRC) regime introduced complexity bands within the Fast Track and Intermediate Track. Assigning a case to a complexity band is now a key procedural step, as it affects the amount of fixed costs the successful party can recover.

However, a key question has arisen in housing litigation: should residential possession claims, housing disrepair claims, and unlawful eviction claims be categorised into a complexity band?

In my view, the answer is no. Whilst some Courts continue to assign complexity bands to these claims, there is a compelling argument that the Civil Procedure Rules do not require banding where the claim is expressly excluded from the Fixed Recoverable Costs regime.

The purpose of complexity bands

Complexity bands were introduced as part of the expansion of the FRC regime. Their purpose is straightforward:

• to categorise cases according to complexity;
• to identify which FRC table applies; and
• to determine the amount of fixed costs recoverable at each stage of litigation.

The bands therefore have a costs function. They were not created as a case management tool in their own right.

CPR 45.1(4) states:

“Section VI and Section VII of this Part do not apply to a claim or counterclaim which relates, in whole or in part, to a residential property or dwelling and which, in respect of that property, includes a claim or counterclaim for:

(a) possession;

(b) disrepair; or

(c) unlawful eviction.”

The language could hardly be clearer.

Where a claim concerns residential property and includes possession, disrepair or unlawful eviction, the FRC provisions contained within Sections VI and VII of Part 45 are disapplied Accordingly, such claims remain subject to conventional costs principles rather than the FRC regime.

The question is, therefore, if fixed recoverable costs do not apply to a claim, what purpose is served by assigning a complexity band?

CPR 26.7 – Complexity Bands Only “Where Applicable”

CPR 26.7 provides that the Court shall:

“allocate the claim to a track and, where applicable, assign it to a complexity band…”

The phrase “where applicable“ appears repeatedly throughout the rule. Those words must mean something. If every Fast Track and Intermediate Track claim must invariably be assigned a complexity band, there would have been no need to include the words “where applicable”. The rule could simply have required allocation and banding in every case.

A natural interpretation is that complexity band assignment is only required where it serves a purpose within the FRC regime. If CPR 45.1(4) excludes the claim from Sections VI and VII entirely, complexity banding ceases to be applicable.

CPR 26.7(7) – Bolsting the point

An often-overlooked provision is CPR 26.7(7), which provides:

“When, in a claim to which Section VI or Section VII of Part 45 applies…”

The court must consider certain issues relating to multiple claimants and Part 45. The opening words are noteworthy. The rule specifically contemplates complexity-band decisions being made in claims:

“to which Section VI or Section VII of Part 45 applies”.

Housing possession, disrepair and unlawful eviction claims are claims to which Sections VI and VII expressly do not apply. Whilst CPR 26.7(7) does not determine the issue conclusively, it strongly supports the view that complexity banding was intended to operate only within the FRC framework.

The Difficulty Created by CPR 26.14

It is clear why the Judiciary feel compelled to allocate a complexity band, and the reason is CPR 26.14. That rule provides that when a claim is allocated to the Fast Track or Intermediate Track, the court must assign it to a complexity band, subject to limited exceptions.

Many judges understandably view this wording as mandatory… because it is mandatory language, after all. As a result, courts frequently continue to assign complexity bands even to claims that fall outside FRC altogether.

However, doing so creates an obvious anomaly. The court is assigning a complexity band which:

• does not determine recoverable costs;
• does not affect entitlement to costs;
• does not alter the assessment process; and
• has no obvious procedural consequence.

The result is an administrative exercise with no legal effect.

A better interpretation and why it matters

The better interpretation is that CPR 26.14 must be read together with CPR 26.7 and CPR 45.1(4). When the rules are read as a whole:

1. CPR 26.7 requires banding only “where applicable”;
2. Complexity bands exist to operate the FRC regime;
3. CPR 45.1(4) excludes possession, disrepair and unlawful eviction claims from that regime; and
4. Accordingly, complexity band assignment is not applicable in those cases.

This interpretation gives meaning to all provisions of the CPR without requiring courts to undertake a purposeless exercise.

Initially, the issue may seem academic but raises practical concerns. Once a complexity band is assigned, parties might wrongly assume it indicates FRC applicability, cost consequences, displaced rules, or that future applications should follow the FRC regime, which is incorrect under CPR 45.1(4). Unnecessary complexity bands can obscure this key point.

Conclusion

There is a strong and principled argument that residential possession, housing disrepair and unlawful eviction claims should not be assigned to a complexity band. CPR 45.1(4) expressly excludes such claims from Sections VI and VII of Part 45. Complexity bands exist to operate those very provisions. CPR 26.7 requires assignment only “where applicable”, and CPR 26.7(7) reinforces the link between banding and claims falling within the FRC regime.

Whilst CPR 26.14 is frequently treated as requiring banding in all Fast Track and Intermediate Track cases, that approach arguably overlooks the wider structure and purpose of the rules.

Until a higher or appellate Court considers the issue or the Civil Procedure Rule Committee clarifies it, practitioners should carefully consider whether complexity banding serves any legitimate purpose in possession, disrepair, and unlawful eviction claims that Parliament has already excluded from the FRC regime.

However, why would anyone appeal such a point?

Information

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

Assessing costs can be expensive for the loser, even if they are on the receiving end. However, if a hearing is held solely to assess costs, the aftermath can lead to additional expenses.

Following the implementation of the Jackson reforms in July 2013 and the introduction of a more robust fixed cost regime, it was assumed that disputes over costs would become rare and, if they did occur, would be resolved efficiently. However, as with any new system, technical issues and oversights led to unforeseen consequences.

This post compares how fixed recoverable costs disputes are resolved, distinguishing between the regimes before and after 1st October 2023.

Pre-1st October 2023 regime

Imagine a fixed-cost personal injury case settles by way of Part 36. The accident predates the 1st October 2023 regime. CPR 36.20 says that the Claimant becomes entitled to:-

• The applicable fixed recoverable costs under Part 45; and
• The recoverable disbursements allowed by CPR 45.29I

The parties attempt to agree on the amount of fixed costs, which is usually straightforward, and any disputed disbursements. If they cannot agree on costs, CPR 36.20(11) allows the Court to determine the issue. This is a determination by application rather than through a form bill of costs for a detailed assessment.

The Court of Appeal in Doyle v M&D Foundations & Building Services Limited [2022] EWCA Civ 927 held the obiter view that the Part 45 fixed costs regime is a self-contained code and is distinct from the summary and detailed assessment procedures in CPR 44.6. Phillips LJ expressly stated that detailed assessment is not the mechanism for determining costs and disbursements under the Part 45 FRC regime.

The practical consequences are:-

• No bill of costs is required.
• No Points of Dispute and Replies procedure.
• No line-by-line assessment.
• The court simply determines entitlement under Part 45.

The matter goes to an application hearing where any remaining issues are resolved. The question that follows is: How are the costs of that determination hearing calculated?

Parsa v DS Smith plc and Another [2019] Costs LR 331 shows that, when adopting the position of Sharp v Leeds City Council [2017] EWCA Civ 33, the ‘main proceedings’ commence once the CNF is sent and end upon conclusion of the main action, i.e. trial or settlement. In respect of settlement, if a determination hearing is needed then it takes place outside the fixed costs regime.

On this basis, the costs of a fixed costs determination hearing are, ironically, subject to cost being assessed on the standard basis.

Post-1st October 2023 regime

The new regime has now dealt with the laguna which is the absence of a fixed cost regime for dealing with the determination of fixed costs of the main action.

CPR 45.64 now provides a streamlined procedure for resolving disputes about costs and disbursements only where the parties have already reached a written agreement on all other issues in a claim governed by this Part. If liability and all substantive matters have been settled, but the parties cannot agree on the amount of recoverable costs or disbursements, the receiving party may ask the court to determine that outstanding amount.

Where proceedings are already in hand, the receiving party must make the application within those proceedings under Part 23, subject to the modifications contained in this rule. If proceedings have not yet been started, the receiving party must commence costs-only proceedings under rule 46.14 and seek determination through that process.

Unless the court orders otherwise, the application must be supported by evidence served at the same time as the application. That evidence must include the written settlement agreement (or written confirmation of it) and a completed Precedent U, setting out the costs and disbursements claimed and any additional claims under rules 45.9, 45.10 or 45.13 where relevant.

The paying party must then file and serve any evidence in response, together with a completed response to Precedent U, within 21 days. The 21-day period runs from service of the application where proceedings have already been commenced, or from filing an acknowledgement of service where proceedings have not yet been started.

The court will ordinarily determine the application without a hearing. The only costs recoverable in relation to the application are those prescribed by Table 17 of Practice Direction 45, together with any applicable court fee.

After considering the papers, the court records its decision by annotating Precedent U, noting its determination against each item claimed. The annotated Precedent U is then served on the parties with a notice explaining that any party wishing to challenge any aspect of the determination must request a hearing.

A party seeking reconsideration must file and serve a written request for a hearing within 21 days of service of the notice. The request must specify which parts of the determination are challenged and provide a time estimate for the hearing. If no request is made within that period, the court’s determination becomes binding on the parties.

Where a hearing is requested, the court will list it and give at least 14 days’ notice. The hearing is not intended to provide a cost-free second opportunity to argue the case. The general rule is that the party requesting the hearing must pay the costs of and incidental to that hearing unless they obtain an improvement in their own favour of at least 20% of the amount originally determined by the court.

For the purpose of any costs order arising from the hearing, the matter is treated as an interim application under rule 45.8. The costs payable in respect of the hearing are assessed summarily by the court at the hearing itself.

Comparison

The pre-1 October 2023 fixed recoverable costs regime had the advantage of procedural simplicity when determining entitlement to fixed costs and disbursements because disputes were resolved by application rather than through the detailed assessment process, avoiding bills of costs, Points of Dispute and line-by-line scrutiny. However, the regime contained a significant anomaly. Where the parties required a hearing to determine fixed costs, the costs of that determination hearing fell outside the fixed costs regime and were themselves recoverable on the standard basis. This created the potential for disproportionate satellite litigation concerning relatively modest costs disputes.

By contrast, the post-1 October 2023 regime introduced CPR 45.64, which provides a dedicated and streamlined procedure for resolving costs-only disputes under the fixed recoverable costs scheme. Determinations are ordinarily made on paper using Precedent U, with tightly controlled recoverable costs and a deterrent costs consequence for parties who unsuccessfully seek reconsideration at a hearing. The principal advantage is greater certainty, proportionality and cost control. A potential disadvantage, however, is that parties have less procedural flexibility and may perceive a reduced opportunity to fully contest disputed items, particularly given the default paper-based determination process and the risk of adverse costs consequences when requesting a hearing. It also means that the cost of undertaking a fixed-cost determination hearing is not proportionate to the sums of money recoverable to warrant appropriate challenges, even when the party believes they are correct in terms of position.

Conclusion

The fixed recoverable costs regime remains a somewhat strange creature. It was never designed to achieve perfect justice in every case, but rather to provide a rough-and-ready framework which delivers certainty, proportionality and predictability across the board. As with any system based upon fixed figures, there will inevitably be winners and losers. The underlying philosophy is one of swings and roundabouts: parties may recover more than would be justified on a detailed assessment in some cases and less in others, but the overall benefit is the reduction of costs litigation and the promotion of proportionality. In the vast majority of cases, no determination is required because the recoverable costs are apparent from the rules themselves. However, disputes will occasionally arise, whether over the recoverability of a particular disbursement or over the proper interpretation of the rules. In that respect, fixed costs disputes are no different in principle from arguments which arise on summary or detailed assessment.

Prior to 1 October 2023, the absence of a bespoke procedure for determining such disputes created the potential for costly satellite litigation which was often disproportionate to the sums in issue. The introduction of CPR 45.64 has sought to cure that defect by providing a streamlined paper-based process, with any oral hearing carrying cost consequences for a party who fails to improve upon the court’s provisional determination by at least 20%. Whether there will in practice be many reconsideration hearings remains to be seen. The combination of a paper determination process and the risks associated with seeking an oral hearing may discourage challenges. Equally, the relatively modest costs at stake may mean that the regime does not always provide a sufficiently strong incentive or deterrent. What is clear, however, is that practitioners must remain alive to the new procedural framework and its consequences. If the reforms achieve anything, it is hoped that parties will adopt more careful and realistic positions on costs disputes from the outset, thereby avoiding the very satellite litigation which the fixed costs regime was intended to eliminate. 

Information

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

It is something that I discuss quite often with instructing litigators, opponents and others in general.

It is understandable why practitioners will conflate disclosure and inspection. When one talks about disclosure, one thinks documents and the provision. In standard disclosure, the process of disclosure informs the other party of a document’s existence, while inspection allows examination or copying. Disclosure can occur without inspection, such as under legal professional privilege. If standard disclosure is inadequate, parties typically make a precise written request, seek to narrow the issue, and, if that fails, submit an evidence-supported application for specific disclosure or inspection under CPR 31.12.

Whilst there are cases where the disclosure regime of standard disclosure does not apply (small claims track and matters subject to PD 57AD, for example), understanding the role of disclosure is important for any practitioner.

The standard disclosure process

As above, lawyers and litigants using everyday court language often refer to the entire process as “disclosure,” which includes finding documents, listing them, sharing copies, and reviewing what the other side has provided. The CPR, however, uses the term more specifically. Pursuant to CPR 31.2, a party discloses a document simply by acknowledging that it exists or has existed. This step is about identifying the document, not necessarily producing it.

The N265 list of documents (or something with a similar construction) is the method of allowing a party to disclose what is available, not available because it no longer exists (and why), what exists and what exists but inspection is objected to (such as privliged documents).

Next, inspection takes place. As per CPR 31.3, the party who has received the document usually has the right to look at it. Then, CPR 31.15 provides the process. Written notice is given, inspection should generally be allowed within seven days, and if requested and reasonable copying costs are covered, a copy should typically be provided within seven days.

The right to inspect is not absolute. It can be withheld if the document is outside the disclosing party’s control, if there is a legal privilege, or if inspection would be disproportionate and procedural requirements are met. A list may still be complete even if some documents are not open to inspection.

What is standard disclosure?

Standard disclosure is a specific category, rather than a blanket invitation to request every potentially relevant document. CPR 31.6 invites parties to share only those documents they rely on, those that may negatively impact their own case or another party’s case, or support someone else’s case. Additionally, the obligation covers even unhelpful documents. It’s important to note that this requirement isn’t just about sharing materials that strengthen the disclosing party’s position; it encompasses all relevant documents within this scope.

There are three stages to disclosure:-

• Reasonable search – CPR 31.7 requires a reasonable search for documents falling within CPR 31.6(b) or (c). Reasonableness depends on the number of documents, the nature and complexity of the case, the ease and expense of retrieval, and the likely significance of what may be found.
• Control – Under CPR 31.8, the duty is limited to documents that are or have been in the party’s control: physical possession, a right to possession, or a right to inspect or take copies.
• Proportionality and case management – The court may dispense with standard disclosure, order it, or adopt another tailored form of disclosure. The actual order and any written agreement between the parties must be read before assuming that CPR 31.6 defines the task.

The practicality

There are practical points to consider, and these can arise quite often in everyday practice. This is a non-exhaustive list of practical points:-

A document is absent from the list. This is potentially a disclosure problem. The question is whether the document falls within the operative disclosure order, whether it is or was within the party’s control, and whether a reasonable search should have found it. The problem is that if the document never existed and it was not a document at the forefront of their mind, of course it wouldn’t be in the list. A sensible approach would be to indicate to the other party early and ask them to explain that in a short, signed document, as the N265 does not have a section for documents that have never existed.

A document is listed, but no copy has been provided. This is generally an inspection or production problem, not necessarily a failure to disclose. The receiving party should identify the listed document, give written notice under CPR 31.15 and request a copy, while addressing any stated objection. Quite often, parties will not specify individual documents but more broadly. One example would be medical records, but it doesn’t specify where from and what period.

A document is listed in the privileged section. The document has been disclosed, but inspection is withheld. The issue is whether the asserted right or duty to withhold inspection is valid and adequately stated. A challenge falls under CPR 31.19(5), not simply CPR 31.12. There is also the risk that a document has been provided for inspection that is privileged and should not have been disclosed. I discuss this issue in my post here.

A disclosed category is said to be too disproportionate to inspect. CPR 31.3(2) permits this position for documents in a category or class disclosed under CPR 31.6(b), provided the disclosure statement says inspection will not be permitted on proportionality grounds. The appropriate remedy may be an order for specific inspection under CPR 31.12(3). This would be an issue for Claimants to consider when the issue in dispute and the voluminous disclosure requested do not warrant the same.

A document is mentioned in a statement of case, witness statement, witness summary or affidavit. CPR 31.14 creates a separate route to inspection. The first step should normally be a focused written request identifying the passage and document; if inspection is not provided, an application may follow. In any event, it should be correct that a witness evidences the document in their statement to make it admissible.

What to do if the list is inadequate?

A specific disclosure application should focus on an identified gap, not a general claim that the opponent must have more documents. Compare the issues and disclosure order with the documents listed and produced, then explain what is missing and why it matters.

Before applying, the request should:-

• link the documents to a specific issue;
• describe them narrowly, using dates, people, accounts or subjects where possible;
• explain why they likely exist and were under the other party’s control;
• show that they fall within the disclosure order or CPR 31.6;
• identify any weakness in the search, list or response;
• suggest a proportionate solution, such as a limited search or staged disclosure; and
• set a reasonable deadline and invite discussion.

Clear correspondence can narrow the dispute, support any later application and affect costs. This reflects the emphasis on cooperation and proportionality in CPR 31.5 and Practice Direction 31A. Much of the time, documents are omitted not maliciously but simply by mistake and misunderstanding.

Specific disclosure application

CPR 31.12 allows courts to order specific disclosure or inspection, requiring respondents to disclose identified documents or conduct specified searches. A specific inspection, under CPR 31.3(2), is narrower, focusing on withholding inspection of disclosed categories as disproportionate. Practice Direction 31A states that an application can be made if disclosure is inadequate; supporting evidence and clear reasons are required.

The court considers all circumstances, especially the overriding objective, and will usually order proper compliance if inadequacy is proven.

Common mistake can include:-

• Assuming that standard disclosure applies automatically, read your directions Order
• Disclosure and inspection should not be treated as interchangeable, as the appropriate remedy depends on whether a document has been omitted from the list, access has been refused, privilege is claimed, proportionality is disputed, or the document is mentioned in evidence.
• Avoid demanding every relevant document, since CPR 31.6 is narrower than general relevance and only requires a reasonable and proportionate search.
• Not reviewing the list of documents carefully, as information about custodians, locations, date ranges, search terms and omitted categories may expose a deficiency or resolve the concern.
• Where documents are outside another party’s control, the correct procedure must be used, as pre-action disclosure, non-party disclosure and orders under CPR 31.12A have different requirements.
• Jumping straight into satellite litigation with an application when a focused request may actually acheive the outcome you desire.
• Take care with using the correct approach when it comes to documents subject to privilege.

Conclusion

Disclosure is about noting the existence of documents within the scope of the duty, while inspection is about allowing access to those documents, with certain recognised limits. Standard disclosure involves a straightforward and fair approach, including a reasonable search, a clear list, and honest disclosure. If that process isn’t enough, CPR 31.12 offers a specific remedy.

The disclosure process seems straightforward, but it is a very complicated process when one looks at the underlying features and law. This article may seem comprehensive, but I can assure you it is not. In fact, I probably spent more time attempting to simplify without losing meaning.

However, many disclosure issues can be resolved and avoided by taking care and being cooperative. CPR 31.12 should be a tool of last resort, rather than a response to the absence of disclosure or documents for inspection at the disclosure stage.

Information

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

I haven’t done a ‘take a break’ post for a while, so I’ve decided to use the opportunity to make a pizza. I used Jamie Oliver’s pizza dough recipe, which can be found here. I was introduced to Portal Pizza in Exeter last month when our chambers had its AGM. I could not get over how tasty the pizza was (if a certain someone wasn’t too busy dropping the pizza into their lap during the AGM lol) and, in particular, the Nennellla, which consisted of tomato, mozzarella, piquante peppers, mixed mushrooms and… tenderstem broccoli.

This pizza is going to be a homage to the Nennella, but with focus on the tenderstem broccoli.

Getting the dough to the right consistency was very difficult, but adding a little 00 flour helped. It really does pay to let it rise for an hour or so in the fridge unless you are looking for the Italian-style flat crust.

Once the dough had risen, I gently stretched it out by hand (although I did use the rolling pin to ensure the dough was stretched evenly). It keeps a little more air in the dough and gives you those lovely puffed-up crusts. It wasn’t perfectly round, but that’s part of the charm of homemade pizza.

For the topping, I kept things simple. A generous layer of tomato puree, cheese and, the star of the show…. the tenderstem broccoli. I lightly blanched it beforehand so it would cook through in the oven without drying out, then finished it with a drizzle of olive oil and a pinch of salt.

I was tempted to add mushrooms and piquante peppers to stay true to the Nennella, but I wanted the broccoli to be the main event. Sometimes the best pizzas are the simplest ones.

I cook on a pizza stone in the oven, which helps with overall cooking, as it heats evenly and the base is just like a takeaway pizza. It also gives the crust a nice crisp finish while keeping the centre light and airy.

The finished result was far better than I expected. The tenderstem develops a slight char on the tips, giving it a lovely roasted flavour that works surprisingly well with the puree and the cheese. While I don’t think I’ll be putting Portal Pizza out of business any time soon, it certainly satisfied the craving.

Making pizza from scratch is one of those recipes that’s as much about the process as the end result. If you’ve never tried making your own dough before, I’d definitely recommend giving it a go.

Until the next “Take a Break” post, happy cooking!

Information

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

Modern civil litigation is very document-heavy, with trial bundles frequently containing large numbers of documents, ranging from medical records to emails and photographs. Litigators can fall into the trap of assuming that if a document makes its way into a trial bundle, its contents will prove the case. That can sometimes be the case, but on many occasions it will not.

I recently conducted a fast-track possession claim (in which a reserved judgment was recently handed down) that required the Claimant landlord to prove an intention to undertake substantial redevelopment. The landlord relied upon an impressive collection of documents; planning permission, architects’ plans, contractor quotations and evidence of funding. Yet there was one glaring omission. The landlord did not provide a witness statement and did not give evidence. The Court was not satisfied that the burden of proving genuine intention had been discharged. For this reason (and a particular legal argument, for which I thank my chamber colleague, Vincent Mulcock, who provided it to me) the possession claim was dismissed.

The case illustrates a simple but fundamental proposition that documents rarely speak for themselves. Someone usually has to speak for them.

For ease, I will use my possession claim as an example to illustrate the point.

Pleadings do not amount to evidence

Whilst it is probably common sense, it is important to remind ourselves that the statement of case defines the issues, they do not prove the issues themselves. Facts pleaded remain allegation unless admitted or found by the Court to be established by evidence.

It can be understood why there would be that presumption. After all, the statement of case must be endorsed by a statement of truth. Practice Direction 16 includes particular information that must be included in particular cases, such as personal injury or credit hire.

In the Particulars of Claim for the possession claim, the following was pleaded:-

“These documents evidence that the Claimant has a genuine intention to carry out the works at the Property along with evidence that the works will be able to commence shortly after possession is obtained in granted by the Court.”

The pleading is not, of itself, evidence of intention. Reliance on the same in submissions cannot. However, it asserts that the documents evidence the genuine intention.

Documents proving some things, but not others

There are going to be some occasions where a document will prove something and does not require witness evidence.

Pratice Direction 32 para 27.2 states that:-

All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –

(1) the court orders otherwise; or

(2) a party gives written notice of objection to the admissibility of particular documents.

So if a document goes into a trial bundle, then it is deemed to be accepted as admissible evidence. However, that still requires the Court to include as much evidence as it sees fit, especially since documents are, for all intents and purposes, hearsay.

So at the possession trial, I could not submit that the documents were not admissible. They were in the bundle (as they were annexed to the Particulars of Claim. However, I argued they did not get the Claimant over the evidential threshold. I submitted that, as per Edwards v Thompson [1990] 2 EGLR 71, there were both objective and subjective tests. The objective test could be met with the documentation, i.e., whether it was feasible that the Claimant could undertake the work. He seemed to have the funds; he had the relevant permission to do the work, etc. He has acquired estimates. I contended that what he could not do was prove that he had the necessary intention with these documents. Instead, he needed to give evidence himself.

The documents could not demonstrate motive, intention, understanding, knowledge, belief, or state of mind. These aspects typically need evidence from an individual. This distinction is especially critical when the legal test involves a subjective element. If the Claimant’s intention is in question, the most straightforward and direct evidence usually comes from that party. As the Judge recognised in the Judgment, the Defendant contested the Claimant’s intention in her Defence, even before she instructed legal representation.

The problem for the Claimant was that it was they who proposed that both parties did not file witness statements and had no oral evidence at trial. This followed the resolution of a separate issue in the Claimant’s favour, which led them to believe oral evidence was unnecessary.

With no actual evidence from the Claimant, the Court found difficulty in finding intention.

The Wisniewski Problem

The absence of a key witness can do more than leave an evidential gap. evidential gap; it may permit the Court ot draw an adverse inference. I relied on the authority of Wisniewski v Central Manchester Health Authority [1998] PIQR 324. The Court of Appeal confirmed that adverse inferences may be drawn where a witness capable of giving material evidence is not called. In particular:-

• a Court may draw adverse inferences from the absence of a material witness;
• the inference may weaken the defaulting party’s case;
• there must be evidence capable of supporting the issue in the first place, and;
• there must be no satisfactory explanation for the witness’s absence.

In Wisniewski, the key witness was Dr Renninson, who was not in attendance (having gone to Australia after obtaining an appointment at a cancer centre there). Therefore, the Court drew adverse inferences in their absence. The Court of Appeal endorsed the approach. It was not about punishing the Defendant hospital, but about acknowledging that if the one person best placed to explain important facts does not give evidence, then the Court can legitimately question why that is. Further negative inferences were made as Dr Renninson could have attended remotely.

In the possession case, the Claimant’s intention was entirely absent. Ironically, he too was in Australia and was given permission to attend remotely. However, when the Claimant successfully established that the interest in the property was obtained from his brother without consideration whilst the Defendant was a tenant, the Claimant must have believed that oral evidence was not required. He did not even file a statement. He opted not to.

The Court simply could not infer from the documents, the Claimant’s intentions.

Why witness statements still matter?

A witness statement does more than exhibit documents (which is, of course, important for demonstrating the admissibility of the document. For example, being able to explain the genesis of the document or how it came into existence). There will be times when it is vital to add context to such documents to the extent that the document in turn bolsters or corroborates the evidence.

A witness statement provides the narrative that connects the documentary evidence, explains why particular decisions were made, and records the witness’s state of mind, what they intended, understood, or believed at the relevant time. It also provides accountability, as the witness signs a statement of truth and subjects themselves to cross-examination. The evidential value of witness oral evidence often lies not merely in what is said, but in the witness’s willingness to stand behind their account under oath and to have it tested in cross-examination.

In previous times, credit hire ‘basic hire rates’ evidence, it consisted of actual research elements that required the author to explain how the evidence was obtained. For example, this included calling particular car hire companies and inquiring about specific vehicles and availability. In these circumstances, witnesses would be required to attend court to be cross-examined. Now, with most evidence being captured in real time by software, it is usually the case that any witness statement simply adduces it to make it admissible but does not require the witness to attend.

Tips and tricks

Do not assume documents are enough

Always ask what fact a document actually proves. Documents may establish that something was said or done, but they do not always explain why it happened or what the parties understood at the time.

Identify subjective issues early

Where intention, belief, knowledge, understanding, or motive is in issue, documentary evidence alone is rarely sufficient. Witness evidence will often be essential.

Who are the key witnesses?

Identify the person best placed to answer the central factual question. If such a witness exists, think very carefully before choosing not to call them.

Use documents through witnesses

Documents are often most persuasive when explained by the person who created, received, or acted upon them. Context frequently determines weight.

Concluding remarks

Never underestimate the purpose of a witness statement when it comes to adducing and evidencing documentary evidence. When I undertook the CILEX Lower Rights of Audience course, the process of evidencing documents and other exhibits was best explained using a criminal law example. A knife is first adduced by the witness who discovered it. The next witness gives evidence as to how the knife was secured and transferred to the forensic laboratory. The forensic expert then gives evidence of their examination and findings. Piece by piece, the evidential chain is established until the court can properly conclude that the knife is connected to the alleged offender.

The same principle applies in civil litigation. Simply placing documents into a trial bundle is insufficient. Whilst their inclusion in the bundle makes them admissible, it does not follow that the court will attach the weight to them that the party intends. Documentary evidence does not speak for itself. A witness statement should explain what the document is, how the witness came to possess or create it, why it is relevant, and, where appropriate, what it demonstrates in the context of the issues before the court. Without that evidential foundation, a document may amount to little more than an unexplained piece of paper.

This is particularly important where a party seeks to rely upon correspondence, emails, invoices, contracts, photographs, or records. Unless a witness identifies those documents and explains their provenance and significance, the court may give them little or no evidential weight. The bundle is merely the repository of the evidence; the witness statement is what breathes life into the documents it contains. It is the mechanism by which documentary evidence is authenticated, contextualised and linked to the factual issues the court must determine.

Information

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

The first time I had even considered this rule was when I was instructed on a tenancy deposit case and the Claimant had been granted a dispensation for the other tenant not to be joined to the proceedings. I suppose, being from a personal injury background, where parties would have their own remedy, the consideration of the point only came into my orbit when the causes of action were united and the Courts would look to consolidate matters, using one case as a lead case.

A prime example of shared remedies would be a housing disrepair case. What if one tenant wants to pursue the claim for damages and the other one does not? How does the matter proceed if at all? CPR 19.3 deals with this.

Pre CPR

The Court of Appeal considered consolidation (or as the case may be, deconsolidation) in the matter of Lewis and Another v Daily Telegraph Ltd (No. 2) [1964] 2 QB 601 (CA), which was a libel case of John Lewis and Rubber Improvement Limited against Daily Telegraph and Associated Newspapers. There were, essentially, four cases. The pleadings were effectively identical, and the two Defendants admitted publication but denied the defamatory meanings alleged. The four cases were consolidated into two cases (against each publisher) and at trial were awarded. The publishers appealed, seeking that the cases be deconsolidated.

The Court of Appeal held that the actions should remain consolidated because the issues were substantially the same and could be tried more conveniently together. The Court also held that co-plaintiffs must normally have the same solicitor and legal representation unless the Court orders otherwise. The appeal for deconsolidation was therefore dismissed.

CPR 19.3

CPR has a specific rule dealing with this:-

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.

So what does this mean? CPR 19.3 aims to ensure that the handling of litigation involving jointly owned rights is handled jointly. When multiple individuals share a single legal remedy, the Court should resolve their rights through a single set of proceedings rather than multiple actions. This rule helps prevent duplicate cases on the same issue, avoid conflicting decisions, ensure all affected parties are present, and promote fairness and efficiency in the judicial process. By requiring all joint owners to participate, the rule safeguards both parties and the Court from undertaking fractured litigation.

A person is jointly entitled to a remedy when the law gives multiple individuals an indivisible legal right. This right belongs to them collectively, not separately. Examples include joint property owners seeking possession or damages, co-contracting parties enforcing contractual rights, co-trustees acting for a trust, and co-owners of intellectual property pursuing infringement relief. The remedy belongs to all joint owners together, confirmed by recent.

In housing, this is can be damages for housing disrepair, or even a tenancy deposit breach under s214 Housing Act 2004.

So how does it work in practice?

CPR 19.3(1) states that all persons jointly entitled must be joined as parties unless the Court orders otherwise. This follows the common law that all sharing a joint cause should litigate together. Not joining all parties may lead to procedural issues and prevent full relief. However, the phrase “unless the court orders otherwise” allows the Court discretion to proceed without some parties if justice requires.

Where a prospective Claimant does not want to sue

Practical difficulties can occur when one joint entitled person refuses to participate in litigation. CPR 19.3(2) requires that unwilling joint owners be joined as Defendants, unless the Court says otherwise. This achieves two goals: it gives the Court jurisdiction over all joint rights holders and allows the willing claimant to proceed without obstruction. Joining an unwilling person as a Defendant does not mean wrongdoing; it is simply a procedural step to include all necessary parties.

The exception to the rule is where the matter is probate, as it has its own rules under CPR 57.

Step by step guide

Step 1 – the first step is to determine whether CPR 19.3 applies by establishing if the parties have a joint legal entitlement, which exists when the law recognises an indivisible right shared by multiple persons, such as joint landowners, co-contracting parties, co-trustees, or joint copyright, patent, or trademark owners pursuing infringement claims. Courts have confirmed that CPR 19.3 only applies when there is a genuine joint legal remedy.

Step 2 – Identify every prospect Claimant who is entitled to the remedy once CPR 19.3 applies. Before starting, check documents like titles, contracts, trust deeds, partnership agreements, and company records to find all legal owners. Missing any may cause delays or prevent the court from granting full relief.

Step 3 – Verify if all joint owners are prepared to act as Claimants. The next step is to confirm each joint owner’s willingness to participate. If everyone agrees, list them as Claimants on the Claim Form.

Step 4 – If someone with a joint right doesn’t want to be a Claimant, they must be added as a Defendant unless the court says otherwise. This is just a procedural step, not an accusation of wrongdoing. The reluctant party is joined because they have a legal interest in the case, allowing the Claimant to proceed and ensuring the Court can hear everyone involved.

Step 5 – When issuing proceedings, list every willing joint owner as a Claimant and any unwilling joint owner as a Defendant. Identify the substantive Defendant in the usual way and ensure that the Particulars of Claim explain why the unwilling joint owner has been joined as a Defendant pursuant to CPR 19.3(2). It is good practice to include a short explanation confirming that the party has been joined solely because CPR 19.3 requires their participation.

Step 6 – Sometimes proceedings may have already commenced before it becomes apparent that another jointly entitled person should have been included. In those circumstances, the party must be added under the Court’s powers contained within CPR Part 19, particularly CPR 19.2 and CPR 19.4. Depending upon the stage of proceedings, the parties may consent to the addition, an application may be required, or the Court may order the addition of the necessary party on its own initiative where appropriate. The objective is to ensure that all jointly entitled persons are before the Cour before final judgment.

Step 7 – Consider whether the Court may dispense with joinder. CPR 19.3 includes the qualification “unless the Court orders otherwise,” which grants the court discretion in exceptional cases. The Court may determine that joining every jointly entitled person is unnecessary or inappropriate when justice requires an alternative approach. Nonetheless, the general rule remains that all jointly entitled persons should participate unless the Court explicitly directs otherwise.

Conclusion

CPR 19.3 is a procedural rule that is easily overlooked but can have significant consequences if ignored. Before proceedings are issued, practitioners should always consider whether the remedy sought is jointly owned and, if so, ensure that all persons jointly entitled are before the Court, whether as Claimants or, where necessary, Defendants. Taking the time to address joinder issues at the outset can avoid unnecessary applications, delays, and challenges later in the litigation. Ultimately, the rule reflects the overriding objective by promoting fairness, efficiency, and finality, ensuring that disputes involving joint rights are resolved in a single, coherent set of proceedings rather than through fragmented litigation. 

Information

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

Transferring to the bar meant I didn’t walk into chambers naïve regarding what it would be like to be a self-employed advocate. My first hearing was like any other court hearing, except I was nearly late because of an accident on the M5 during my coffee break. How I appeared in court was no different, and using a different title instead of the usual one had no impact whatsoever.

The main difference I value most is being part of chambers. Over the past eight years, I have mostly been self-employed and worked alone. While I interacted with people, it was mainly through phone calls or emails.

12th July 2026 means I have been a practising member of the Bar and a tenant at Magdalen Chambers for six months. It might as well have been six years. I do not think I’ve ever felt so stable in terms of my career and, whilst that should perhaps feel disconcerting, this has been the most content I have ever felt. It’s better not to have any regrets.

What I did not appreciate before joining was just how much I had been missing. Looking back, I had become so accustomed to working independently that I had accepted it as normal. I never realised quite how fulfilling it could be to belong somewhere.

For the first time in my professional life, I feel genuinely supported. Chambers is not simply a collection of self-employed advocates who happen to share an address; it is a community of people who are invested in one another’s success and wellbeing. There is always someone willing to offer guidance, to sense-check an idea, to answer what feels like a daft question, or simply to reassure you that you’re approaching something in the right way. Equally, there are opportunities to do the same for others, and there is something about being able to give back in the same way that others have given to me.

Sometimes it is not even about the law. It is knowing that someone will happily answer the phone, listen for as long as you need them to, and spend two hours talking through a case and whatever is on your mind simply because they care that you’re alright. These things don’t appear on chambers’ profiles or on a fee note, but they are the moments that have mattered most. They are the quiet reminders that you are not expected to navigate this profession alone, despite being a profession where you are very much alone.

When I joined chambers, I never intended to practice housing law; I had no interest and expected my career to go elsewhere. However, as I became involved, I grew to appreciate the intellectual challenging/nuanced arguments. I found myself almost addicted to developing these arguments. Ironically, the law I aimed to avoid became the most absorbing area of my practice. I even found myself joining Advocate to help out on a pro bono basis and becoming legal aid registered so I can accept instructions from those eligible for legal aid.

When I look back at where I was six months ago, I realise this was never simply a change of profession. It was finding where I was meant to be.

There is strange comfort in finally feeling settled. Six months in, I have no doubt that joining Magdalen Chambers was the best professional decision I have ever made. More than that, it has been one of the best personal decisions too. I have found purpose, friendship, support and a sense of belonging that I never knew I was missing until I experienced it.

For the first time, I am exactly where I should be. And, if I’m fortunate enough to have the choice, I hope it is where I will remain. Someone said they can’t imagine a world where they weren’t practising at the bar. I wholeheartedly agree.

N.B….. Funny how six months can change your perspective more than six years ever could.

Information

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