PART 3

CPR 3
THE COURT’S CASE AND COSTS MANAGEMENT POWERS
Contents
I. Case Management
3.1 The court’s general powers of management . . . . . . . . . . . . para.3.1
3.1A Case management—unrepresented parties . . . . . . . . . . . . . para.3.1A
3.2 Court officer’s power to refer to a judge . . . . . . . . . . . . . . . para.3.2
3.3 Court’s power to make order of its own initiative . . . . . . . . . para.3.3
3.4 Power to strike out a statement of case . . . . . . . . . . . . . . . para.3.4
3.5 Judgment without trial after striking out . . . . . . . . . . . . . . . . para.3.5
3.5A Judgment without trial after striking out a claim in the para.3.5A
County Court Money Claims Centre . . . . . . . . . . . . . . . .
3.6 Setting aside judgment entered after striking out . . . . . . . . . para.3.6
3.6A ............................................ para.3.6A
3.7 Sanctions for non-payment of certain fees by the claimant . . para.3.7
3.7A1 Sanctions for non-payment of the trial fee by the claimant . . para.3.7A1
3.7A Sanctions for non-payment of certain fees by the defendant . para.3.7A
3.7AA Sanctions for non-payment of the trial fee by the defendant, para.3.7AA
where proceedings continue on the counterclaim alone . .
3.7B Sanctions for dishonouring cheque . . . . . . . . . . . . . . . . . . . para.3.7B
3.8 Sanctions have effect unless defaulting party obtains relief . . para.3.8
3.9 Relief from sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . para.3.9
3.10 General power of the court to rectify matters where there para.3.10
has been an error of procedure . . . . . . . . . . . . . . . . . . .
3.11 Power of the court to make civil restraint orders . . . . . . . . . para.3.11
II. Costs Management
3.12 Application of this Section and the purpose of costs para.3.12
management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.13 Filing and exchanging budgets and budget discussion para.3.13
reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.14 Failure to file a budget . . . . . . . . . . . . . . . . . . . . . . . . . . . para.3.14
3.15 Costs management orders. . . . . . . . . . . . . . . . . . . . . . . . . para.3.15
3.15A Revision and variation of costs budgets on account of para.3.15A
significant developments (“variation costs”) . . . . . . . . . . .
3.16 Costs management conferences . . . . . . . . . . . . . . . . . . . . para.3.16
3.17 Court to have regard to budgets and to take account of para.3.17
costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.18 Assessing costs on the standard basis where a costs para.3.18
management order has been made . . . . . . . . . . . . . . . .
III. Costs Capping
3.19 Costs capping orders—General . . . . . . . . . . . . . . . . . . . . . para.3.19
3.20 Application for a costs capping order . . . . . . . . . . . . . . . . . para.3.20
3.21 Application to vary a costs capping order . . . . . . . . . . . . . . para.3.21
Practice Direction 3A—Striking Out a Statement of Case . . . para.3APD.1
Practice Direction 3B—Sanctions for Non-Payment of Fees . para.3BPD.1
Practice Direction 3C—Civil Restraint Orders . . . . . . . . . . . para.3CPD.1
Practice Direction 3D—Mesothelioma Claims . . . . . . . . . . . para.3DPD.1
Practice Direction 3E—Costs Management . . . . . . . . . . . . . para.3EPD.1
Practice Direction 3F—Costs Capping . . . . . . . . . . . . . . . . para.3FPD.1
Practice Direction 3G—Requests for the Appointment of an para.3GPD.1
Advocate to the Court . . . . . . . . . . . . . . . . . . . . . . . . . .

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Editorial introduction
3.0.1 Section I of this Part (Case Management) (rr.3.1 to 3.11) provides the court with the powers
which it is essential for the court to have in order to undertake active case management. The pow-
ers fall into five main categories:
D General powers, including notably, power for the court to make orders of its own initiative
(rr.3.1, 3.2, 3.3 and 3.10);
D Coercive powers (rr.3.1(3) and (5), 3.4, 3.5 and 3.7);
D Power to give relief against sanctions (rr.3.6, 3.8 and 3.9).
D Power to make civil restraint orders against parties abusing the court’s process (r.3.11,
added by SI 2004/2072);
D Costs management powers to ensure that parties are not required to incur costs which are
disproportionate to the matters in issue (rr.3.12 to 3.19, added by SI 2013/1974).

Related sources
3.0.2 D Part 24 (summary judgment)

Forms
3.0.3 The number of court forms is vast. A selection of forms concerned with case management is
listed below.
D N19 Limited Civil Restraint Order
D N19A Extended Civil Restraint Order
D N19B General Civil Restraint Order
D N244 Application Notice
D PF 52 Order in the Queen’s Bench Division for case management and costs management
directions in the Multi-Track
D PF 52A Shortened PF 52 in the Queen’s Bench Division for multi-track case and costs
management directions in Mesothelioma and Asbestosis claims
D CH1 Case Management Directions for normal use in Chancery Division (replaces Proc01A)
D CH2 Full Draft Case Management directions (replaces Proc01)
D PF 84A Request for Judgment on failure to comply with an order made under r.3.5(1)
(previously PF 85A)
D PF 84C Application for entry of judgment on failure to comply with an order made under
r.3.5(1) (r.3.5(5))
D PF 85A Application for order arising on failure to comply with a condition imposed under
r.3.1(3)

Practice Directions
3.0.4 Section I of this Part is supplemented by PD 3A (Striking Out a Statement of Case) (see
para.3APD.1), PD 3B (Sanctions for Non-Payment of Fees) (see para.3BPD.1), PD 3C (Civil
Restraint Orders) (see para.3CPD.1), and PD 3D (Mesothelioma Claims) (see para.3DPD.1).
Section II is supplemented by PD 3E (Costs Management) (see para.3EPD.1). Practice Direction
3F (Costs Capping) supplements the rules in Section III.
By CPR Update 104 (February 2019), PD 3G was added (with effect from 6 April 2019). It
inserted as a Practice Direction the text of a Memorandum of Understanding agreed by the At-
torney General and the Lord Chief Justice, dated 19 December 2001, on the appointment of an
Advocate to the Court (amicus curiae). The Memorandum was published in previous editions of
the White Book at paras 39.8.1 to 39.8.4.

I. Case Management

The court’s general powers of management1

3.1 3.1—(1) The list of powers in this rule is in addition to any powers given to
the court by any other rule or practice direction or by any other enactment or
any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may—
(a) extend or shorten the time for compliance with any rule, practice
direction or court order (even if an application for extension is
made after the time for compliance has expired);
(b) adjourn or bring forward a hearing;
(bb) require that any proceedings in the High Court be heard by a
Divisional Court of the High Court;
(c) require a party or a party’s legal representative to attend the court;

1 Amended by the Civil Procedure (Amendment No.3) Rules 2006 (SI 2006/3435), the Civil

Procedure (Amendment) Rules 2013 (SI 2013/262), the Civil Procedure (Amendment No.7) Rules
2013 (SI 2013/1974), the Civil Procedure (Amendment No.4) Rules 2015 (SI 2015/1569) and the
Civil Procedure (Amendment No.2) Rules 2017 (SI 2017/889).

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(d) hold a hearing and receive evidence by telephone or by using any

other method of direct oral communication;
(e) direct that part of any proceedings (such as a counterclaim) be
dealt with as separate proceedings;

CPR 3
(f) stay(GL) the whole or part of any proceedings or judgment either
generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a
preliminary issue;
(ll) order any party to file and exchange a costs budget;
(m) take any other step or make any other order for the purpose of
managing the case and furthering the overriding objective, includ-
ing hearing an Early Neutral Evaluation with the aim of helping
the parties settle the case.
(3) When the court makes an order, it may—
(a) make it subject to conditions, including a condition to pay a sum
of money into court; and
(b) specify the consequence of failure to comply with the order or a
condition.
(3A) Where the court has made a direction in accordance with paragraph
(2)(bb) the proceedings shall be heard by a Divisional Court of the High
Court and not by a single judge.
(4) Where the court gives directions it will take into account whether or
not a party has complied with the Practice Direction (Pre-Action Conduct)
and any relevant pre-action protocol(GL).
(5) The court may order a party to pay a sum of money into court if that
party has, without good reason, failed to comply with a rule, practice direc-
tion or a relevant pre-action protocol.
(6) When exercising its power under paragraph (5) the court must have
regard to—
(a) the amount in dispute; and
(b) the costs which the parties have incurred or which they may incur.
(6A) Where a party pays money into court following an order under
paragraph (3) or (5), the money shall be security for any sum payable by that
party to any other party in the proceedings.
(7) A power of the court under these Rules to make an order includes a
power to vary or revoke the order.
(8) The court may contact the parties from time to time in order to moni-
tor compliance with directions. The parties must respond promptly to any
such enquiries from the court.
Rule 3.1: Effect of rule
The powers listed in r.3.1(2) enable the court to carry out its duty to actively manage cases 3.1.1
(r.1.4(1)) so as to further the overriding objective (r.1.1). The list of powers is not exhaustive (see
r.3.1(1) and r.3.1(2)(m)).
Rule 3.1(2)(a): Extending (or shortening) time limits
Under r.3.1(2)(a), the court may make an order extending or shortening the time for compliance 3.1.2
with any rule, practice direction or court order and may grant such an order retrospectively, i.e.
even after the time limit in question has expired. As to the parties’ power to vary time limits by
written agreement, see r.2.11 and the commentary thereto. In the Commercial Court, if the parties
agree an extension of time in writing, the claimant must notify the court (in writing, giving brief
reasons) and the court may make an order overriding the agreement (PD 58 para.7, and see also
Griffin Underwriting Ltd v Varouxakis [2018] EWHC 3259 (Comm); [2019] 1 W.L.R. 2529).
The court’s power under r.3.1(2)(a) to extend time does not come to an end with the drawing

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and entry of an order, even a final order such as an order made at trial (Omega Engineering Inc v
Omega SA [2003] EWHC 1482 (Ch); The Times, 29 September 2003 (Pumfrey J). The court’s power
under r.3.1(2)(a) is separate and distinct from its power under r.3.1(7) to vary or revoke an order,
and the authorities relevant to r.3.1(7) cannot be applied directly, although the same factors might
be relevant (Re Kingsley [2020] EWHC 2017 (Ch)).

[Link] Applications for the extension of a time limit before it has expired—An application for an extension
of any time limit set by the CPR must be decided in accordance with the overriding objective of
enabling the court to deal with the case “justly and at proportionate cost” (r.1.1(1)). Dealing with a
case in accordance with the overriding objective “includes, so far as is practicable … (f) enforcing
compliance with rules, practice directions and orders” (r.1.1(2)). Sub-paragraph 1.1(2)(f) indicates a
new regime in which courts are now less tolerant of litigants who fail to comply with procedural
requirements. However, the robustness with which the courts should enforce compliance depends
to some extent upon the stage in the proceedings at which an application for an extension of time
is made. In applications made before the relevant time limit has expired the court should not
refuse reasonable extensions of time which neither imperil hearing dates nor otherwise disrupt the
proceedings (Hallam Estates v Baker [2014] EWCA Civ 661; [2014] 4 Costs L.R. 660). In Jalla v Shell
International Trading and Shipping Co Ltd [2021] EWCA Civ 1559, an application to vary the
substance of a case management direction as well as a time limit imposed therein was refused.
Coulson LJ summarised the principles to be applied on the in-time application for an extension of
time made in that case as follows: (i) the court will grant a reasonable extension if it does not
impact on hearing dates or otherwise disrupt proceedings; (ii) the fact that a refusal to extend time
would in practice mean the end of the claim is a factor to be weighed in the balance, but it cannot
of itself warrant the grant of relief; and (iii) a claimant’s entitlement to sue a defendant is not an
absolute right, and does not permit that claimant to fail to comply with court orders, or delay and
disrupt the administration of justice ([29] and see further, para.3.9.11).

[Link] Applications for the extension of a time limit after it has expired—Rule 3.1(2)(a) expressly confirms
the court’s power to extend time limits even after they have expired. However, in such cases, the
court decides what, if any, extension of time to allow in accordance with the principles in Denton v
TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3926; see (R. (Hysaj) v Secretary of State for the
Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472; [2015] 2 Costs L.R. 191. As to the
Denton principles generally, see the commentary under r.3.9.

[Link] Extending time limits imposed by consent orders—Pre-CPR, a distinction was made between two
types of consent order: orders in which the words “by consent” evidenced a real contract between
the parties (i.e. a contract excluding the jurisdiction of the court to extend time) in which case the
court would permit an alteration to the order only upon the same grounds upon which it would
permit an alteration to any other contract. In other cases the words “by consent” were taken to
mean “the parties hereto not objecting”. In the latter case there was no real contract and the court
was willing to vary the order in the same circumstances as it would vary any other order (Siebe Gor-
man & Co Ltd v Pneupac Ltd [1982] 1 W.L.R. 185; [1982] 1 All E.R. 377, CA). However, in Safin
(Fursecroft) Ltd v Badrig’s Estate [2015] EWCA Civ 739, the Court of Appeal, after reviewing the pre-
and post-CPR caselaw, held that the CPR has given the court a wide power to extend any time limits
in all consent orders, including an order which resolved the substantive dispute between the parties
and even where the parties have stated expressly that time is of the essence. Moreover, the discre-
tion is not limited to the existence of “unusual circumstances”. Rather, the weight to be given to the
fact of the parties’ agreement will depend on all the circumstances, of which the fact that the
agreement was one disposing of the substantive dispute rather than a case management decision
will always be highly important and often decisive. Safin was followed in Riordan v Moon Beevor
Solicitors (A Firm) [2018] EWHC 1452 (QB); see also para.3.1.8, below.
In Safin the Court of Appeal neither approved nor disapproved earlier case law on the power of
the court to discharge or vary undertakings given to the court. Di Placito v Slater [2003] EWCA Civ
1863; [2004] 1 W.L.R. 1605, in which the Court of Appeal considered Eronat v Tabbah [2002]
EWCA Civ 950 and especially the observations of Mance LJ at [20] and [21] of that case, is author-
ity that the discretion of the court to discharge or modify a time limit contained in a voluntary
undertaking can only be exercised if there are “special circumstances”.

[Link] Time limits which cannot be extended by applications under r.3.1(2)(a)—The court’s power under
r.3.1(2)(a) cannot be invoked to extend a time limit imposed by statute, for example, the time limit
for an appeal to the High Court from an extradition order made by a magistrates’ court imposed by
the Extradition Act 2003 s.26(4), unless of course the statute so provides (Mucelli v Government of
Albania [2009] UKHL 2; [2009] 1 W.L.R. 276, HL); see PD 52D para.3.5.
Rule 3.1(2)(a) does not empower the court to extend the time for serving a claim form. This is
because rule 3.1(2) gives the court powers “except where these Rules provide otherwise” and rule
7.6(3), by its inclusion of the words “only if” does provide otherwise (Vinos v Marks & Spencer Plc
[2001] 3 All E.R. 784, CA). A claimant cannot circumvent the restrictions in r.7.6(3) by applying
under r.3.9 (Relief from Sanctions) or r.3.10 (general power of the Court to rectify matters where
there has been an error of procedure) (Kaur v CTP Coil Ltd [2001] C.P. Rep. 34; Elmes v Hygrade
Food Products Plc [2001] EWCA Civ 121). Contrast the regime which applies to particulars of claim:

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although they must be served “no later than the latest time for serving a claim form” (r.7.4(2)) an
extension of time for service may be granted even after that latest time has passed (Totty v Snowden
[2001] EWCA Civ 1415; [2002] 1 W.L.R. 1384; [2001] 4 All E.R. 577).
The court has no jurisdiction under r.3.1(2)(a) to extend time for payment under a Part 36 offer
as Pt 36 is a self-contained code; Titmus v General Motors UK Ltd [2016] EWHC 2021 (QB) (Elizabeth

CPR 3
Laing J).
The court’s general case management powers under r.3.1(2)(a) to extend time periods specified
in an Order of the court are not cut down by r.3.8 (sanctions to have effect unless defaulting party
obtains relief): a time limit in an order imposing sanctions for delay can be extended even if no ap-
plication is made under r.3.8 for relief from sanctions; see Marcan Shipping (London) Ltd v Kefalas
[2007] EWCA Civ 463; [2007] 1 W.L.R. 1864; and see 3.8.1.
As to the criteria to be applied on applications under r.52.15 to extend the time for appealing,
see paras 52.12.3 and 52.15.3.
For discussion of the defendant’s ECHR art.6(1) right to a fair trial within a reasonable time in
the context of an application by a claimant to extend time, see Woodhouse v Consignia Plc [2002]
EWCA Civ 275 at [43]–[44]; [2002] 1 W.L.R. 2558 and Price v Price [2003] EWCA Civ 888 at [34]–
[35]; [2003] 3 All E.R. 911. ECHR art.13 requires the state to provide an effective domestic law
remedy to allow a claimant to complain about a failure to provide a hearing within a reasonable
time: Kudla v Poland App.30210/96 (2002) 35 E.H.R.R. 11, ECtHR.

Extending time limits imposed by unless orders—An unless order is an aggressive form of [Link]
conditional order (see further, para.[Link]) which is used where parties are being given one final
chance to comply with some obligation previously imposed upon them; it debars parties from
pursuing their claim, defence or counterclaim unless, within a specified period of time, they meet
the terms of the order. It is more difficult to get relief from sanctions in respect of a breach of an
unless order than it is from the breach of a simple conditional order (see Khandanpour v Chambers
[2019] EWCA Civ 570 noted in para.3.9.4).
In Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078 (TCC); [2019] 4 W.L.R. 107 an ap-
plication was made to extend a deadline imposed by an unless order shortly before that deadline
had been reached; it was held that, in these circumstances, the court should follow the approach
taken in Hallam Estates v Baker (see above) rather than Denton v TH White (see above) but should
also take into account the powerful public interest there is in ensuring compliance with unless
orders.
“An in-time application made shortly after the ‘unless’ order was first imposed is likely to be
treated differently from one made just before the time allowed for compliance was about to
expire. However, that factor may carry less significance in a case where the period for compli-
ance was already short” (at [40]).
In British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] EWCA Civ 153; [2016] 1 W.L.R. 4530,
CA, an application was made to extend a deadline imposed by an unless order shortly after that
deadline had passed; the Court of Appeal applied the principles in Denton v TH White (see above)
and, in doing so, took into account, not just the breach of the order itself, but also the underlying
breach which had led to the making of the order; this turned the breach into a major breach and
relief from sanctions was withheld (see further, para.3.9.4).

Rule 3.1(2)(b): Adjourning (or bringing forward) hearings

In determining whether to grant an adjournment the court must have regard to the overriding 3.1.3
objective. Therefore the court should deal with appellant’s case in a manner which saves expense, is
proportionate to the amount of money involved and allocates to it an appropriate share of the
court’s resources (Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516; (court proceed-
ing to hear appeal where appellant made late application for adjournment on basis that it would
refuse an adjournment if it concluded that the appeal had no prospect of success, rather than
simply putting the point off to a future occasion)). For an example of circumstances in which a trial
judge’s (1) refusal to grant a defendant an adjournment of a trial, with the result that the trial
proceeded in their absence, and (2) subsequent refusal to set aside that judgment under r.39.3(3),
were upheld on appeal, see National Westminster Bank v Aaronson [2004] EWHC 618 (QB); (Royce J)
(neither decision exceeded the generous ambit within which a reasonable disagreement is possible).
A refusal to adjourn a hearing pursuant to r.3.1(2)(b) was unsuccessfully challenged in Daisystar
Ltd v Woolwich Plc, 16 March 2000, unrep., CA. See also Lloyds Bank Plc v Dix, 26 October 2000,
unrep., CA (adjournment would have made no material difference to the outcome of the litigation
in view of the weakness of the appellants’ case) and Serene Construction Ltd v Barclays Bank Plc
[2016] EWCA Civ 1379, CA (upholding a refusal to grant more than a brief adjournment of the
defendants’ summary judgment application; although formal notice of it had not been served 14
days before the hearing (as required by r.24.4(3)(a)) the claimant had received informal notice
several weeks earlier).
In Bowden v Homerton University Hospital NHS Foundation Trust [2012] EWCA Civ 245, liability
had been admitted and trial on quantum was fixed to take place on 12 January 2012. On 21
December 2011 an order was made that the claimant’s solicitors come off the record. On 29
December 2011 the claimant, acting as a litigant in person, issued an application to adjourn the

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trial to allow him to obtain fresh representation. The judge refused that application on 4 January
2012. The Court of Appeal held that the judge had failed to give adequate weight in the balancing
of prejudice to the extremely difficult position that the claimant would be in if they had to
represent themselves. The overriding factor was the dilemma into which the claimant had been
placed shortly before Christmas in circumstances which the judge expressly said were not his fault.
If, at a hearing, the court makes a decision in respect of which one party wishes to request that
court’s permission to appeal, the request for permission must be made immediately, i.e., at the
hearing at which the decision is made (r.52.3(2)(a)). Parties seeking more time in which to request
permission to appeal, from the court which made the decision, can make an oral application for an
adjournment of the hearing (see PD 52A para.4.1(a)).
In Cook v Cook [2011] EWHC 1638 (QB); [2011] P.I.Q.R. P18, Eady J, a personal injury claim,
the long term prognosis for the 10-year-old claimant was speculative and uncertain. There was
expert evidence that there were too many uncertainties and risk factors to attempt a final prognosis.
Whilst recognising that it was a very exceptional course to take, Eady J, exercising the court’s pow-
ers under r.3.1, directed that the forthcoming quantum trial should be confined to the determina-
tion of damages up to the claimant’s 16th birthday, with the assessment of longer term losses being
adjourned until such time as solid evidence becomes available, so avoiding the need for speculation
and achieving a more accurate and realistic assessment of the claimant’s actual needs.
Where a litigant in person requests an adjournment on the ground of ill-health the court should
be slow to refuse, provided that it is their first request and their case has some prospect of success:
Fox v Graham Group Ltd, The Times, 3 August 2001, Neuberger J. It is to be noted that the court had
evidence to show real grounds for thinking that the application for an adjournment was genuinely
based.
The principles upon which a court should proceed when faced with an application to adjourn
on medical grounds are helpfully rehearsed in the decision of Warby J in Decker v Hopcraft [2015]
EWHC 1170 (QB). The court must carefully scrutinise the medical evidence in support of an ap-
plication to adjourn.
“Such evidence should identify the medical attendant and give details of his familiarity with
the party’s medical condition (detailing all recent consultations), should identify with
particularity what the patient’s medical condition is and the features of that condition which
(in the medical attendant’s opinion) prevent participation in the trial process, should provide
a reasoned prognosis and should give the court some confidence that what is being expressed
is an independent opinion after a proper examination. It is being tendered as expert evidence.
The court can then consider what weight to attach to that opinion, and what arrangements
might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is
bound to accept expert evidence: even a proper medical report falls to be considered simply
as part of the material as a whole (including the previous conduct of the case).” per Norris J,
in Levy v Ellis-Carr [2012] EWHC 63 (Ch).
Norris J’s approach was expressly approved by the Court of Appeal in Forrester Ketley v Brent
[2012] EWCA Civ 324 at [26] and in Mohun-Smith v TBO Investments Ltd [2016] EWCA Civ 403;
[2016] 1 W.L.R. 2919 at [25]; and see also General Medical Council v Hayat [2018] EWCA Civ 2796
at [38].
In Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101; [2018] 1 Costs L.R. 103 it was held that a
trial judge had been wrong to refuse the defendant’s application to adjourn a trial. The trial judge
had given no sufficient reason for disregarding the defendant’s comprehensive medical evidence
and the refusal to adjourn was unfair. The Court of Appeal cited with approval the guidance given
by Peter Gibson LJ in Teinaz v Wandsworth LBC [2002] EWCA Civ 1040; [2002] I.C.R. 1471, which
was to the effect that, given ECHR Art.6, a litigant whose presence is needed for the fair trial of a
case, but who is unable to be present through no fault of his own, will usually have to be granted
an adjournment, however inconvenient it may be to the tribunal or court and to the other parties.
But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is
genuine, and the onus is on the applicant for an adjournment to prove the need for such an
adjournment (and see further, para.[Link], below). If the court has doubts about the medical
evidence in support of an application to adjourn, the court has a discretion to give to give direc-
tions to enable the doubts to be resolved; such as: that further evidence be provided promptly; or
(according to Peter Gibson LJ) that the party seeking the adjournment should be invited to authorise
the legal representatives for the other side to have access to the doctor giving the advice in question.
All must depend on the particular circumstances of the case.

Rule 3.1(2)(bb): Assigning High Court cases for hearing by a Divisional Court of the High
Court
3.1.4 If a direction is made under r.3.1(2)(bb) the proceedings will be heard by a Divisional Court of
the High Court and not by a single judge (r.3.1(3A)). A Divisional Court is simply a court,
constituted of not less than two judges, to conduct such business of the High Court as is (by rules
of court or by statute) required to be heard by a Divisional Court (Senior Courts Act 1981 s.66(1)
and (3); Vol.2 para.9A-245). In times past, Divisional Courts have been convened to hear cases of
great complexity or public importance, and to exercise the High Court’s appellate or supervisory
jurisdictions over inferior courts. Many judicial review hearings are allocated to a Divisional Court

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of the Queen’s Bench Division. Although Divisional Courts may be constituted in each of the divi-
sions of the High Court (i.e., the Chancery Division, the Family Division and the Queen’s Bench
Division) every judge of the High Court is qualified to sit in any Divisional Court (Senior Courts
Act 1981 s.66(4)).
Rule 3.1(2)(bb) states expressly what was previously regarded as implicit in the general powers of

CPR 3
the court, namely, the power to require proceedings to be heard by a Divisional Court in appropri-
ate circumstances where this will further the overriding objective by enabling the court to deal with
cases justly and at proportionate cost. In particular, the court may direct a High Court matter to be
heard by a Divisional Court of the High Court or of a Division of the High Court. Any Divisional
Court may be constituted of judges drawn from a specified Division of the High Court, or indeed
from different divisions of the High Court; for example, proceedings concerning matrimonial
property raising complex issues that require the expertise of judges of both the Family and
Chancery Divisions.
Rule 3.1(2)(c): Requiring a party or a party’s legal representative to attend the court
Rule 3.1(2)(c) gives the court a power to require the attendance at court of a party’s legal 3.1.5
representative where the court considers such attendance necessary having regard to the overriding
objective of dealing with a case justly and at proportionate cost (as to which, see further r.1.1). In
cases allocated to the multi-track, the attendance obligations of a represented party are specified in
a rule: if a party has a legal representative, all case management conferences and pre-trial reviews
must be attended by a representative who is familiar with the case and who has sufficient authority
to deal with any issues that are likely to arise (see below, r.29.3(2) and the commentary thereto).
If it considers it appropriate to do so the court may also require the personal attendance of a
party in addition to that party’s legal representative. Such a direction may be appropriate, having
regard to the overriding objective (see above) where the court wishes to facilitate settlement if the
court takes the view that the case before it is one which the parties should strive to settle (Tarajan
Overseas Ltd v Kaye [2001] EWCA Civ 1859; and see Baron v Lovell [2000] P.I.Q.R. P20, at P27).
Such a direction may also be appropriate if the court wishes to ensure that the party knows and
understands the manner in which the claim is being conducted and the possible costs consequences
thereof. Making a direction for the personal attendance of a represented party may be appropriate
where the court presently considers that the approach being taken in the conduct of that party’s
case is unrealistic (and see further as to this, r.44.8 and para.44.8.1). An order for personal attend-
ance will usually also be appropriate where the court has made an order for early neutral evalua-
tion (as to which, see para.[Link] and Lomax v Lomax [2019] EWCA Civ 1467 at [31]). If an order
is made which simply directs a party to attend, that party may attend either in person or by counsel
(see Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch) (para.3.9.13)).
Rule 3.1(2)(d): Conducting hearings by telephone or by any other method of direct oral
communication
Nearly all district registries of the High Court and County Court hearing centres have facilities 3.1.6
to deal with interim applications by telephone. For such courts PD 23 para.6.2 states a general rule
that all interim applications, case management conferences and pre-trial reviews will be conducted
by telephone if they have a time estimate of less than one hour. Guidance as to arranging and
conducting hearings by telephone is set out in PD 23 para.6.9 (para.23APD.6).
Applications falling within PD 23 para.6.2 (see above) may be conducted by telephone whether
or not all or any parties consent. Practice Direction 23A para.6.4 states the procedural steps to be
taken by a party who wants such a hearing to be conducted in person: on receipt of a letter to the
court explaining why a telephone hearing is unsuitable (for example, the application demands the
exercise of judgment in a difficult factual matrix, where the consequences are likely to be very
significant) the court will decide whether or not to have a hearing by telephone without requiring
the attendance of the parties.
Practice Direction 23 para.6.3 provides a list of cases excepted from the general rule in favour
of telephone hearings stated in PD 23 para.6.2 (see above): an application made without notice to
the other party, or where all the parties are unrepresented, or where more than four parties wish to
make representations at the hearing (for this purpose where two or more parties are represented by
the same person, they are treated as one party).
Rule 3.16(2) states that most hearings convened solely for the purposes of costs management (see
para.3.12.2) will be conducted either by telephone or in writing.
Copies of documents any party wishes to rely upon at the hearing must be filed and served at
least two days before the hearing. In multi-track cases the applicant must also file a case summary
and a draft order by the same deadline (PD 23A paras 6.11 to 6.13).
Hearings other than those listed in PD 23A para.6.2 may also be heard by telephone. The ap-
plicant can make that request on the application notice. Any other party can also apply. Normally
the court will make such an order only if all the parties consent (PD 23 para.6.5).
On an application being heard by telephone, neither a party, nor a party’s legal representative,
can attend the judge in person unless every other party to the application has agreed (PD 23A
para.6.9).
Guidance as to arranging and conducting hearings by video-conferencing is set out in Annex 3
to PD 32 (and see further, para.32.3.1).

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Rule 3.1(2)(e): Directing that part of any proceedings (such as a counterclaim) be dealt with
as separate proceedings
3.1.7 A claimant may use a single claim form to start two or more claims “which can be conveniently
disposed of in the same proceedings” (r.7.3). A defendant may, without the court’s permission,
make a counterclaim against the claimant provided that he files it with his defence (r.20.4(2)(a)).
Rule 3.1(2)(e) gives the court power to divide those proceedings as if into separate proceedings if it
considers that their joinder into a single proceeding will lead to inconvenience.
Rule 3.1(2)(f): Staying proceedings
3.1.8 The term “stay” is defined in the Glossary (see Section E). The making of a stay imposes a halt,
not only upon proceedings, but also upon the expiration of any time limit in those proceedings
which had not expired when the stay was imposed. An order staying proceedings applies to every
step otherwise required by the CPR, including the obligation to serve a claim form issued before
the stay was imposed. When the stay is lifted, or the stay expires, the position as between the parties
is the same as it was at the moment that the stay was imposed. The parties (and the court) pick up
where they left off at the time of the imposition of the stay (Grant v Dawn Meats UK [2018] EWCA
Civ 2212).
The circumstances in which a stay may be appropriate are many and various (see further, Vol.2
paras 9A-176 to 9A-196 and, as to stays of proceedings on the grounds of improper collateral
purpose; see para.3.4.9). As to the court’s jurisdiction to stay the effect of a consent order, see
Riordan v Moon Beevor Solicitors (A Firm) [2018] EWHC 1452 (QB) in which Foskett J adopted and
applied the principles applicable to the court’s power to grant an extension of any time limits in
consent orders (as to which, see Safin (Fursecroft) Ltd v Badrig’s Estate [2015] EWCA Civ 739, noted
in para.[Link], above).
Rule 3.1(2)(f) expressly refers to the court’s power to stay judgment, that is to say, the enforce-
ment or execution of a judgment. However, this power is limited by the opening words of r.3.1(2):
“Except where these Rules provide otherwise”. Rule r.3.1(2)(f) does not apply to applications to stay
a money judgment since they are governed by r.83.7; The court’s discretion under that rule is
exercisable only where the court is satisfied that “(a) there are special circumstances which render it
inexpedient to enforce the judgment or order; or (b) the applicant is unable from any reason to pay
the money …” (r.83.7(4); Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 55); [2017] 1
W.L.R. 3069.

[Link] Stay of proceedings—pending medical examination—In a personal injury action, the court has the
power under its inherent jurisdiction and under r.3.1(2)(f) to order the stay of proceedings until
such time as the claimant has agreed to an examination by the defendant’s medical experts or until
they have undergone medical tests. The decision whether to grant a stay involves the exercise of the
court’s discretion. A refusal to undergo an ordinary examination is likely to result in a stay; see
Starr v NCB [1977] 1 W.L.R. 63; [1977] 1 All E.R. 243, CA. Where the examination involves
discomfort or risk of injury the question of whether a stay should be granted is more difficult. In
Laycock v Lagoe [1997] P.I.Q.R P518, CA; (defendant seeking MRI scan—stay refused), Kennedy LJ
set out the approach which the court should adopt on an application for such a stay. There is a two-
stage test:
“First, do the interests of justice require the test which the defendant proposes? If the answer
to that is in the negative, that is the end of the matter. If the answer is ‘yes’, then the court
should go on to consider whether the party who opposes the test has put forward a substantial
reason for that test not being undertaken; a substantial reason being one that is not imaginary
or illusory. In deciding the answer to that question, the court will inevitably take into account,
on the one hand the interests of justice in the result of the test and the extent to which the
result may progress the action as a whole; on the other hand, the weight of the objection
advanced by the party who declines to go ahead with the proposed procedure, and any asser-
tion that the litigation will only be slightly advanced if the test is undertaken. But if the
[claimant], for example, has a real objection, which he articulates, to the proposed test, then
the balance will come down in his favour.”
Rule 3.1(2)(g) and (h): Consolidating proceedings or directing the trial of two or more claims
on the same occasion
3.1.9 The effect of the consolidation of proceedings is to combine two or more claims so that they will
proceed thereafter as one claim (r.3.1(2)(g)). Whether or not the several proceedings are ultimately
tried together, this can bring the benefits of avoiding the costs and delays involved in a multiplicity
of pleadings, of pre-trial steps taken by the parties, and of interlocutory applications. The achieve-
ment of this objective (reflecting the overriding objective) is more likely to be accomplished if the
order for consolidation is made early in the proceedings. Where an application is made late in the
development of the proceedings to be consolidated the costs involved (e.g. in re-drafting the plead-
ings) may be sufficiently substantial to tip the scales against an order, especially where the principal
advantages sought to be gained by an order (e.g. the admissibility of the evidence in one case in
another) could be gained by an order that the two claims should be tried together (r.3.1(2)(h)).
Aspects of the overriding objective other than those concerned with cost and delay may also be
engaged in the question whether consolidation should be ordered (e.g. ensuring that the parties are
on an equal footing and dealing with the case in ways which are proportionate). Upon investigation

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it may be recognised that the advantages sought to be achieved by an application for consolidation
may be achieved by an order under r.3.1(2)(h) for the several claims to be tried on the same occa-
sion and that an order for consolidation is neither desirable nor necessary.
An application for consolidation should be made as soon as it becomes apparent that it is neces-
sary or desirable to make it and it should be made so that it can be considered at any other hearing

CPR 3
for which a date has already been fixed or is about to be fixed; see: PD 23A para.2.7 and 2.8. Most
typically this is likely to be at the case management conference.
Two claims cannot be consolidated where the claimant in one claim is the defendant in the
other, unless one claim can be ordered to stand as a Pt 20 claim in the other.
Where there are co-claimants in a claim, if they are legally represented they must be jointly
represented by the same legal representatives unless it is specially ordered otherwise, or is expressly
provided otherwise (e.g. PD 57 (Probate) para.17 (Separate representation of claimants with
conflict of interests)). If separate representation were permitted, many difficult problems could
arise, especially at trial (Lewis v Daily Telegraph (No.2) [1964] 2 Q.B. 601, CA, at 620–621 per
Pearson LJ; see also Black King Shipping Corp v Massie (1984) 134 N.L.J. 887). This rule can cause
complications where the effect of the consolidation of several proceedings would be to bring
together as co-claimants in the single claim parties represented by different firms of solicitors and
counsel. Where consolidation is ordered, usually one firm of solicitors will be given the conduct of
the claim on behalf of all claimants thus maintaining the rule of joint representation. Where there
are several proceedings brought by different claimants, with different legal representation, in
which damages are claimed for personal injuries occasioned in the same accident, it may be pos-
sible to consolidate the proceedings up to the point where the issue of liability is decided, giving
the conduct of the proceedings up to that point to one claimant’s solicitors, and leaving the
proceedings separate upon the issues as to the quantum of damages payable to the several claim-
ants (Healey v A. Waddington & Sons Ltd [1954] 1 W.L.R. 688, CA). The better course may be for
the court not to order such “partial consolidation”, but to order that one claimant’s claim should
proceed to the trial of liability with the other claimants’ claims being stayed pending the outcome,
especially where the other claimants are prepared to consent to an order that they should be bound
by the decision on liability.

Rule 3.1(2)(i): Directing a separate trial of any issue

In McLoughlin v Grovers (A Firm) [2001] EWCA Civ 1743; [2002] Q.B. 1312 at [66], David Steele 3.1.10
J gave the following guidance: (i) only issues which are decisive or potentially decisive should be
identified; (ii) the questions should usually be questions of law; (iii) they should be decided on the
basis of a schedule of agreed or assumed facts; (iv) they should be triable without significant delay,
making full allowance for the implications of a possible appeal; (v) any order should be made by
the court following a case management conference.
As to (i) (see above, issue should be decisive or potentially decisive), trying one issue separately
can sometimes lead to huge savings in costs and delays if that issue is or may be determinative of
the whole proceedings, or if a court decision upon it is likely to assist the parties to resolve other
issues by means of settlement or ADR. However, there is always a risk that an order directing a
preliminary issue will lead to unnecessary expense and delay if a decision on that issue will not be
decisive of the litigation either way (because, for example, there are other bases of claim independ-
ent of it; Woodland Trust v Essex CC [2013] UKSC 66; [2014] A.C. 537 at [2]) or if the preliminary
issue is drafted in terms which are too vague to reveal the precise issue the court has to decide
(FPH Law (A Firm) v Brown [2018] EWCA Civ 1629; [2018] Costs L.R. 823).
As to (ii) (see above, preliminary issues should usually relate to questions of law), although they
are intended to short circuit proceedings, separate trials may actually increase the time and cost of
resolving the underlying dispute, for example, if witnesses called to the first trial also have to be
called to the second trial. “Preliminary points of law are too often treacherous shortcuts. Their
price can be, as here, delay, anxiety and expense” (Tilling v Whiteman [1980] A.C. 1, Lord Scarman).
Issues frequently identified for separate trial include limitation defences, questions of construction
of a document and disputes as to the validity and effect of exclusion clauses. In Lachaux v Independ-
ent Print Ltd [2017] EWCA Civ 1334; [2018] E.M.L.R. 1; [2018] 2 W.L.R. 387; [2018] Q.B. 594,
the Court of Appeal stated that in a defamation case the courts should be slow to direct a
preliminary issue involving substantial evidence on a dispute as to whether serious reputational
harm had been caused or was likely to be caused by a published statement. The court was evidently
concerned about the risk of preliminary issues running up costs in a way inimitable to the overrid-
ing objective. Lachaux was cited in Hope Not Hate Ltd v Farage [2017] EWHC 3275 (QB), Warby J,
but, on the facts, the trial of such an issue was directed as the circumstances were unusual and
exceptional, the evidential investigation was likely to be modest, and the parties had previously
agreed to a preliminary issue hearing.
In Sharn Panesar Ltd v Pistachios in the Park Ltd [2020] EWHC 194 (QB), a judge conducting a
trial of certain preliminary issues of fact, made findings as to those issues and also as to issues of
fact upon some other matters (the “extraneous issues”). On an appeal to the High Court, Murray J
ruled that the order made at the preliminary trial should be quashed and the matter should be
remitted for a full trial of all issues before a different judge. The conduct of the preliminary trial
had been unjust due to serious procedural irregularity: there had not been a proper hearing as to

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the extraneous issues. That irregularity had tainted the whole of the hearing; it was impossible to
be sufficiently confident that the findings made upon the extraneous issues had not materially
influenced the findings made upon the preliminary issues themselves.
As to (iii) (see above, preliminary issues should be decided on the basis of a schedule of agreed
or assumed facts), the first draft of the schedule is often prepared by the claimant and sent to the
defendant for agreement or amendment. Before directing a preliminary issue the court should
consider how much effort will be involved in identifying the relevant facts. The greater the effort
the less likely it is that the preliminary issue will lead to a saving in costs. If there are serious
disputes of fact giving judgment at a trial of the preliminary issue may be unsafe or useless (see
generally Steele v Steele [2001] C.P. Rep 106 in which Neuberger J (as he then was) declined to give
judgment at a separate trial previously directed by a deputy judge of the High Court).
As to (iv) (see above, triable without significant delay, making full allowance for the implications
of a possible appeal) in Re Kenyan Emergency Group Litigation [2016] EWHC 600 (QB) (in which a
direction for the trial of preliminary issues was allowed in part only) one of the factors considered
was that, in the event of an appeal on one of the preliminary issues sought, the trial of all remain-
ing issues might be delayed by three or four years by which time most of the lay witnesses for both
sides (who were very elderly) may not have been capable of giving evidence.
As to (v) (see above, any order should be made by the court following a case management
conference), it is important to formulate a preliminary issue with care and precision (Lahey v Pirelli
Tyres Ltd [2007] EWCA Civ 91; [2007] 1 W.L.R. 991 at [5]).
Detailed guidance as to preliminary issues is given in the Technology and Construction Court
Guide (Vol.2 para.2C-43; and see also the Chancery Guide (Vol.2 para.1A-159), the Queen’s Bench
Guide (Vol.2 para.1B-59), the Admiralty and Commercial Courts Guide (Vol.2 para.2A-108)).

Rule 3.1(2)(j), (k) and (l): Deciding the order in which issues are to be tried, excluding an
issue from consideration and dismissing or giving judgment on a claim after a decision on a
preliminary issue
3.1.11 In practice the case management powers mentioned in subparas (j), (k) and (l) of r.3.1(2) are
usually left for exercise by the court conducting a pre-trial review or conducting the trial itself or
the trial of a preliminary issue (as to which, see para.3.1.10, above).
In Crown House Technologies Ltd v Cardiff Commissioning Ltd [2018] EWHC 323 (TCC), acting
under r.3.1(2)(k), Coulson J made an order limiting one of the claimant’s claims (a claim for
supervision costs) to the sum of £9,702.65, that being a sum less than one tenth of the full sum
claimed (over £200,000). That order was also made in consequence of the court’s inherent powers,
and as part of the claimant’s application for relief from sanctions (for failing to comply timeously
with an order for disclosure). In respect of the claim for supervision costs, the claimant’s disclosure
list (served late) revealed invoices amounting to the limited sum only, and the claimant had failed
to explain how the full sum had been calculated and had admitted that it would not file evidence
in support of the full sum by the deadline previously fixed for exchanging witness statements.

Rule 3.1(2)(ll): Ordering any party to file and exchange a costs budget
3.1.12 A case management power to order a party to exchange and file a budget (r.3.1(2)(ll)) was first
added to r.3.1(2) in 2005 (the original wording being to “file and serve an estimate of costs”). The
rule-maker’s intention at that time was to encourage the judge exercising case management powers
to set a cap on the amount of costs which one party may recover from their opponents should they
later obtain a costs order in their favour. Such orders (then called “prospective costs cap orders”
(see Leigh v Michelin Tyre Plc [2003] EWCA Civ 1766; [2004] 1 W.L.R 846; [2004] 2 All E.R. 175))
were intended to have a significantly beneficial effect in keeping costs within bounds and
concentrating minds on keeping costs proportionate throughout the litigation. However this expres-
sion of the court’s case management powers has, since 2013, been largely overtaken by Pt 3 Section
II (Costs Management) which makes the control of the recoverability of costs between parties an
integral part of case management in almost all cases provisionally allocated to the multi-track and
also in any other case in which the court makes a costs management order (see further para.3.12.1).

Rule 3.1(2)(m): Making other orders for the purpose of managing the case and furthering the
overriding objective, including hearing an Early Neutral Evaluation
3.1.13 As to procedural matters, r.3.1(2)(m) codifies, or at any rate duplicates, the court’s inherent
jurisdiction to make any order which it is necessary to make if the court is to act effectively (see
further Vol.2, para.9A-68). The case of Bradbury v Paterson [2014] EWHC 3992 (QB) Foskett J, il-
lustrates the potential breadth of r.3.1(2)(m). In this case, the Official Solicitor applied to be
discharged as litigation friend for the first defendant, a protected party, on the basis that the
anticipated source of funding for the Official Solicitor’s costs had ceased to be available. This left
the question of how the claim was to proceed without a litigation friend. Foskett J, stated that the
court had the power under its general case management provisions under r.3.1(2)(m) and/or the
inherent jurisdiction of the court to direct that one or more of the parties to the litigation should
fund the Official Solicitor’s costs of instructing lawyers for the first defendant, the initial outlay to
be recoverable as part of the costs of the litigation in due course.
In Agents Mutual Ltd v Moginnie James Ltd [2016] EWHC 3384 (Ch) Master Marsh held that

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r.3.1(2)(m) gave the court power to permit amendments to be made to application notices (see
further, para.17.0.1).
In XYZ v Various Companies [2013] EWHC 3643 (QB); [2014] 2 Costs L.O. 197, the claimants in
group litigation applied for an order that one of the defendant companies provide information as
to the nature and extent of its liability insurance cover in respect of its potential liability in these

CPR 3
proceedings pursuant to Pt 18 or r.3.1(2)(m). Thirlwall J held that there was no jurisdiction to
make the order sought under Pt 18 as the company’s insurance position was not a matter of dispute
in the proceedings. However, having found that the company might not be able to fund the litiga-
tion to trial or meet any award of damages or costs, the judge held that r.3.1(2)(m) gave the court
the power to order the company to provide a witness statement setting out whether it had adequate
insurance to fund its participation in the litigation to the conclusion of the trial and any appeal.
That knowledge would permit the court to case manage the litigation on the basis of adequate
information which was in accordance with the overriding objective. However, whether or not the
claimants could enforce an award for damages or costs was not a matter of case management. Ac-
cordingly, the judge declined to use r.3.1(2)(m) to order that the company to provide information as
to whether it could meet an award of damages or costs.

Early Neutral Evaluation—Reference to Early Neutral Evaluation (ENE) was inserted into r.3.1(2)(m) [Link]
by the Civil Procedure (Amendment No.4) Rules 2015 (SI 2015/1569) and came into force on 1
October 2015. ENE is a form of dispute resolution which involves an independent person, with
relevant expertise, expressing an opinion about a dispute, or an element of it. Although that
opinion does not bind either party, it may assist them to settle the whole or part of the case (see in
particular the decision of HH Judge Birss as he then was in Fayus Inc v Flying Trade Group Plc
[2012] EWPCC 43).
For some years now ENE has been a major component in the Financial Dispute Resolution
(FDR) appointment, practised in the Family Division (as to which, see further, Family Procedure
Rules 2010 r.9.17 and Family Dispute Resolution Appointments: Best Practice published by the Family
Justice Council in December 2012 ([Link]
dispute_resolution.pdf [Accessed 3 February 2022])). It is not appropriate for the judge conducting an
FDR appointment to determine heavily disputed issues of fact. Also, if settlement is not reached,
the judge hearing the FDR appointment has only a very limited role in any further proceedings in
the matter.
In Lomax v Lomax [2019] EWCA Civ 1467; [2019] 1 W.L.R. 6527, the Court of Appeal ruled
that the wording of r.3.1(2)(m) did not contain a requirement for the parties to consent to ENE and
it would be contrary to the overriding objective to imply one. ENE was a process which assisted
with the fair and sensible resolution of a case. The court ruled as incorrect the statements made in
several court guides to the effect that ENE cannot be ordered unless all relevant parties consent.
An ENE hearing is not an obstruction to parties’ access to the courts; it is part of the court process
(Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 and Seals v Williams [2015] EWHC
1829 (Ch) considered). If an order for ENE is made it will usually be appropriate to include an
order for the personal attendance of the parties so that they will hear directly the judge’s evalua-
tion of the case ([31]). In Telecom Centre (UK) Ltd v Thomas Sanderson Ltd [2020] EWHC 368 (QB)
Master McCloud gave guidance on the approach to be taken to ENE in the Queen’s Bench Division
in the absence of guidance in the Queen’s Bench Division Guide. The Master also annexed to her
judgment a template draft ENE order for use in the Queen’s Bench Division.
Rule 3.1(3): Making orders subject to conditions
In order to encourage a party to carry out their duty to help the court to further the overriding 3.1.14
objective (r.1.3) an order may be made subject to conditions and may specify the consequence of
failure to comply with an order or a condition (r.3.1(3)). The court is not required to impose an
express sanction for failing to comply with an order or condition. Even if no express sanction is
stated the court may later strike out all or part of a statement of case of a party who fails to comply
with the order (see further r.3.4).
Any conditions imposed should be expressed clearly and precisely (Morgans v Needham, Times 5
November 1999, CA). The condition must be one which is capable of being complied with; an
impecunious party should not be ordered to pay a sum of money which they are unlikely to be able
to raise (MV Yorke Motors v Edwards [1982] 1 W.L.R. 444; [1982] 1 All E.R. 1024, HL). The
principles to be applied here were reconsidered and re-stated by the Supreme Court in Goldtrail
Travel Ltd v Aydin [2017] UKSC 57; [2017] 1 W.L.R. 3014:
(i) The court should not impose a condition upon a party which has the effect of stifling
that party’s continued participation in the proceedings. The burden of proof as to the
stifling effect of a condition falls upon the party alleging it.
(ii) In order to prove the stifling effect of a financial condition, a party must establish, on
the balance of probabilities, that he does not have the means to comply with the condi-
tion and cannot raise the necessary sums from friends, relatives or business associates
willing to help him in his hour of need.
(iii) Where a company and its owner or majority shareholder refute a submission that funds
would be made available, the court should not take the refutation at face value. It should
judge the probable availability of the funds by reference to the underlying realities of the

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company’s financial position; and by reference to all aspects of its relationship with its
owner or majority shareholder, including the extent to which he was directing its affairs
and had supported it in financial terms.
(iv) In the case of a corporate party, the shareholder’s distinct legal personality (which has
always to be respected save where he has sought to abuse the distinction: Prest v Prest
[2013] UKSC 34; [2013] 2 A.C. 415, 487, at [34]) must remain in the forefront of its
analysis. The question should never be: can the shareholder raise the money? The ques-
tion should always be: can the company raise the money?
(v) If it is established that the owner or majority shareholder of a party will not advance the
necessary funds it is wrong to consider whether that person nevertheless has the means to
do so. On this point the Supreme Court unanimously disapproved certain statements
made in earlier Court of Appeal cases (Hammond Suddard Solicitors v Agrichem International
Holdings Ltd [2001] EWCA Civ 2065; [2002] C.P. Rep. 21; Société Générale SA v Saad Trad-
ing, Contracting and Financial Services Co [2011] EWCA Civ 695) to the effect that, in
exceptional cases, it was appropriate to consider whether a shareholder could advance the
necessary funds even though it had been proved that he would not do so.
In Goldtrail, the appellant company’s permission to appeal had been made subject to conditions
requiring, amongst other things, the payment into court of a sum equal to the judgment debt it was
seeking to appeal from. Subsequently the respondent applied for an order dismissing the appeal
for non-performance of the conditions imposed on the permission to appeal and the appellant ap-
plied for an order discharging the condition in relation to the judgment debt. Patten LJ refused the
appellant’s application and granted the respondent’s application. On the appellant’s appeal against
those decisions, the Supreme Court decided by a majority (Lord Wilson, Lord Neuberger and Lord
Hodge) to allow the appeal and to remit the case back to the Court of Appeal to re-determine the
applications by reference to the correct criteria. Lord Clarke and Lord Carnwath, dissenting,
agreed as to the criteria to be applied but expressed the view that, on the evidence before the Court
of Appeal, the appellant had failed to prove that the condition would in fact stifle the appeal. On
re-hearing the applications remitted to him, Patten LJ again refused the appellant’s application and
granted the respondent’s application (Onur Air Tasimacilik AS v Goldtrail Travel Ltd [2017] EWCA
Civ 1830).
In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119, the Court
of Appeal, applying Goldtrail, stated that courts had to be cautious about making conditional orders
requiring security for all or most of the sum claimed as a condition of being allowed to defend.
They should identify the purpose of imposing the condition and be satisfied that it represented a
proportionate and effective means of achieving that purpose. They should also give defendants a
reasonable opportunity to adduce evidence of their means. Even though the CPR expressly
contemplated the possibility of payment conditions being imposed, Anglo Eastern Trust Ltd v
Kermanshahchi (No.2) [2002] EWCA Civ 198, established that it was not incumbent on defendants
to adduce evidence of resources where there had been no prior notice that the claimant was seek-
ing a conditional order. Although Gama Aviation concerned the imposition of a condition in the
context of a summary judgment application, the same principles apply whenever a court is consider-
ing making any order including a condition to pay money into court.
Goldtrail was followed in Harbour Castle Ltd v David Wilson Homes Ltd [2019] EWCA Civ 505,
noted in para.3.4.8.
In Athena Capital Fund SICAV-FIS SCA v Crownmark Ltd [2020] EWHC 2945 (Comm), in proceed-
ings in the Commercial Court involving a claim and counterclaim, the defendant subsequently
entered into a creditors’ voluntary liquidation. The Commercial Court granted a stay of proceed-
ings for a period after which there would be a CMC unless the proceedings had by then settled. At
that CMC no appearance was made on behalf of the defendant and an order for disclosure was
made against it which it did not comply with. Subsequently a further order was made against the
defendant in the unless form. A few days before the deadline for disclosure expired the defendant
applied for a variation, extending the deadline, on the basis that one of the defendant’s creditors
had now volunteered to fund the defendant’s defence and counterclaim. Jacobs J, applying the
principles explained in Goldtrail (see above), drew a distinction between the defendant and its fund-
ing creditor; the defendant company itself was impecunious and had previously been unable to
fund its defence and counterclaim. The liquidator could not be blamed for the failure of this credi-
tor to offer funding at the time of the CMC. The creditor’s late decision to offer funding amounted
to a material change of circumstances since the Unless order had been made. The circumstances of
this case (including the early stage at which disclosure had been ordered, with no timetable yet in
place for steps to trial) were such as to outweigh the powerful public interest in ensuring compli-
ance with an Unless order. (The order made in this case was later reversed on different grounds:
subsequent events proved that the creditor had had no real intention to fund the defendant and,
therefore, there had been no material change of circumstances and the order for disclosure was
never complied with; [2021] EWCA Civ 414.)
In Price v Price [2003] EWCA Civ 888; [2003] 3 All E.R. 911 the Court of Appeal encouraged
the wider use by the courts of the power to impose conditions upon extensions of time: C had
delayed serving particulars of claim for over 15 months and had failed to supply information to D
despite repeated requests for it; the Court of Appeal granted an extension allowing C a further 28

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days to serve particulars of claim on condition that no claim was made for compensation other than
what might be substantiated by the medical evidence which was available when the claim form was
issued. See also Southern & District Finance Plc v Turner [2003] EWCA Civ 1574, where the Court of
Appeal made observations on the usefulness of the court’s power under r.3.1(3) to impose condi-
tions on orders made under r.3.1(2)(a); and Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162;

CPR 3
[2003] 3 E.G.L.R. 55; [2004] C.P. Rep. 10 (condition that appellant’s costs of hearing should be ir-
recoverable imposed when granting an extension of time).
The scope and effect of r.3.1(3) and the authorities thereon were examined and explained by
the Court of Appeal in Huscroft v P & O Ferries Ltd (Practice Note) [2010] EWCA Civ 1483; [2011] 1
W.L.R. 939, CA. The court noted that the rule is drafted in quite general terms and declined to lay
down any hard and fast rules about the circumstances or manner in which the power contained in
it should be exercised. The fact that it allows the court to make an order subject to conditions
shows that the rule is concerned with the basis on which the proceedings will be conducted in the
future, and that remains the case even when the condition is imposed in order to make good the
consequences of some kind of previous misconduct. The court said that, before exercising the
power, the court should identify the purpose of imposing a condition and satisfy itself that the
condition it has in mind represents a proportionate and effective means of achieving that purpose,
having regard to the order to which it is to be attached. The rule does not give the court a general
power to impose conditions on one or other party whenever it happens to be making an order, and
the power should not be exercised only if there is a history of repeated failures to comply with
orders of the court or the party in question is not conducting the litigation in good faith. The
specific power given to the court under r.3.1(5) to order a party to pay a sum of money into court,
in the circumstances provided for therein, is quite distinct from the general power granted by
r.3.1(3) to impose conditions.
Huscroft v P&O Ferries (above) was applied in Shagang Shipping Co Ltd v HNA Group Co Ltd [2014]
EWHC 2241 (Comm). In respect of an application to amend a defence in a charterparty dispute, in
which the charterer sought to add a new defence relating to newly discovered evidence of bribery,
the claimant failed in its contention that the defendants should only be given permission to amend
if, as a condition of doing so, they paid into court the claimant’s estimated costs in dealing with the
bribery defence. The claimant’s contention that the evidence had been obtained by untoward
means was not supported by evidence, and the aim of securing its costs was not a proper purpose
when considering applications under CPR r.3.1(3). The defence was arguable and the defendants
had acted as quickly as they possibly could and entirely properly in only putting forward any allega-
tions of bribery when they were in a position properly to do so.
In Deutsche Bank AG v Unitech Global Ltd [2016] EWCA Civ 119; [2016] 1 W.L.R. 3598, the Court
of Appeal (1) noted that the Huscroft v P&O Ferries case (above) provides authority for the proposi-
tion that, where there is a specific rule in the CPR which deals with a particular type of applica-
tion, r.3.1(3) cannot be relied upon as a means of circumventing the requirements of that specific
rule, (2) explained that, where on an application for summary judgment under Pt 24 the court
makes a conditional order requiring a party to pay money into court and providing that “that
party’s claim will be dismissed or his statement of case struck out if he does not comply”, the
court’s power to make such an order is not derived from any specific rule in Pt 24 but is derived
from r.3.1(3), and (3) held, accordingly, that the court below erred in considering the claimant’s ap-
plication for a conditional order, first in reliance on Pt 24 and then, separately, under r.3.1(3). (See
further para.24.6.6.) Huscroft was cited with approval in IPCO (Nigeria) Ltd v Nigerian National
Petroleum Corp [2017] UKSC 16; [2017] 1 W.L.R 970, at [44].
The power of the court under r.3.1(3)(a) to include in an order a condition to the effect that, if
the condition were subsequently satisfied, the order would automatically be discharged, was al-
luded to in Knowsley Housing Trust v White [2008] UKHL 70; [2009] 1 A.C. 636, HL at [100] and
[107] per Lord Neuberger (proleptic order for discharge as condition of suspended possession
order).

Award of interest on debt or damages as condition

The court’s discretion as to the award of interest on debts or damages granted by the Senior [Link]
Courts Act 1981 s.35A and the County Courts Act 1984 s.69 (see Vol.2 paras 9A-122 and 9A-554),
extends to (1) reducing the period for which interest is payable on an award, or (2) altering the rate
at which interest is calculated, or both, in the light of the manner in which a party has conducted
the litigation. Since the coming into effect of the CPR, the court’s powers in this respect have been
emphasised for the purpose of demonstrating the range of conditions which the court may attach
to a procedural order (r.3.1(3)) and, especially, conditions in the form of procedural sanctions
(r.3.8) imposed for the purpose of dealing with delay, whether caused by a claimant or a defendant
(see Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; The Times, 15 November 2000, CA). Note also
r.36.17 (interest consequences for defendant where claimant does better than they proposed in
their Part 36 offer). As to awards of interest generally, see Notes on Awards of Interest at
para.16AI.1.

Unless orders
An unless order is a conditional order which causes the dismissal of a claim or counterclaim or [Link]
the debarring of a defence unless the order is complied with (and see further, para.3.9.4). It is

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considered to be one of the most powerful weapons in the court’s case management armoury and
should not be deployed unless its consequences can be justified. As to the drafting of unless orders,
PD 40B para.8.2 provides two examples: in the first, a particular date and time for compliance is
specified, whereas in the second, the period is defined by reference to the date of service of the
order. However, the court is not required to use only these alternatives. In Poule Securities Ltd v
Howe [2021] EWCA Civ 1373, the Court of Appeal refused to construe an order specifying a
period running “from the date of this order” as if it meant “from the date of service of this order”.
In Al-Subaihi v Al-Sanea [2020] EWHC 3206 (Comm) the second claimant (“C2”) failed to comply
fully with an order for disclosure and the defendants sought a further order in the unless form.
Cockerill J ruled that C2’s breach had been unrepentant and uncontrite and, had the circumstances
remained unchanged, she would have had little or no hesitation in imposing an unless order.
However, the circumstances had altered in two respects. C2 now accepted that he had been at fault
and had expressed his willingness to provide the remaining disclosure. Also, C2 had recently been
taken into detention in Saudi Arabia which plainly gave rise to the possibility of difficulties even
though C2 believed that he could provide the disclosure sufficiently speedily. An order in the un-
less form was therefore disproportionate and inappropriate. However, if the non-compliance
continued, an unless order would be made on a renewed application unless C2 could then establish
an extraordinarily good excuse.
In Ogiehor v Belinfantie [2018] EWCA Civ 2423; [2018] 6 Costs L.R. 1329 the claimant, acting in
person, caused the adjournment of a two-day trial, by revealing to the court the terms of a without
prejudice offer made by the defendant, despite the several warnings not to do so which had been
given to him by the trial judge and other persons present. Directions were given that the trial
should be re-commenced before a different judge and the claimant should pay the defendant’s
costs thrown away by the adjournment and should make an interim payment in respect of those
costs in the sum of £10,000. It was further ordered that unless that sum was paid within a period
of four months the claim would be struck out. On the first appeal the time for payment was
increased to a period of six months. The claimant’s second appeal to the Court of Appeal was
dismissed. The order made on the first appeal had been entirely proper. There had been significant
previous failures by the claimant, some of which he could have been expected to remedy, even
though unrepresented. In deciding to require the claimant to make the interim payment before
permitting him to continue to pursue his claim, the lower courts had correctly taken in account
certain severe problems in the merits of the claim, the very large amount of costs already incurred
by the defence and the claimant’s ability to pay the sum ordered (including the possibility that he
might raise the money from others) and had also allowed him a long time for the deposit of the
money.

Stays or unless orders for non-compliance with interim orders for costs
[Link] Where a party refuses to comply with an order to pay costs which they have the means to pay the
court may make an order debarring them from taking any further part in the proceedings unless,
by a date stated in the order, they comply with the previous order (Days Healthcare UK Ltd v Pihsiang
Machinery Manufacturing Co Ltd [2006] EWHC 1444 (QB); [2006] 4 All E.R. 233, QB. An
intentional failure to comply with an order made in proceedings the litigant seeks to participate in
may also amount to a contempt of court (Days Healthcare UK Ltd, above).
In Michael Wilson & Partners Ltd v Sinclair [2017] EWHC 2424 (Comm); [2017] 5 Costs L.R. 877
Sir Richard Field, sitting as a deputy judge of the High Court, considered earlier decisions on the
making of unless orders as a means of enforcing interim costs orders, and stated the following
principles:
“(1) The imposition of a sanction for non-payment of a costs order involves the exercise of a
discretion pursuant to the court’s inherent jurisdiction.
(2) The court should keep carefully in mind the policy behind the imposition of costs
orders made payable within a specified period of time before the end of the litigation,
namely, that they serve to discourage irresponsible interlocutory applications or resist-
ance to successful interlocutory applications.
(3) Consideration must be given to all the relevant circumstances including: (a) the potential
applicability of Art.6 of ECHR; (b) the availability of alternative means of enforcing the
costs order through the different mechanisms of execution; (c) whether the court mak-
ing the costs order did so notwithstanding a submission that it was inappropriate to
make a costs order payable before the conclusion of the proceedings in question; and
where no such submission was made whether it ought to have been made or there is no
good reason for it not having been made.
(4) A submission by the party in default that he lacks the means to pay and that therefore a
debarring order would be a denial of justice and/or in breach of Art.6 of ECHR should
be supported by detailed, cogent and proper evidence which gives full and frank
disclosure of the witness’s financial position including his or her prospects of raising the
necessary funds where his or her cash resources are insufficient to meet the liability.
(5) Where the defaulting party appears to have no or markedly insufficient assets in the
jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the
court ought generally to require payment of the costs order as the price for being al-
lowed to continue to contest the proceedings unless there are strong reasons for not so
ordering.
(6) If the court decides that a debarring order should be made, the order ought to be an
unless order except where there are strong reasons for imposing an immediate order.”

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These principles are analogous at least in some respects to applications based on non-compliance
with orders to provide security for costs and other mandatory orders requiring the payment of
money (Aramco Trading Fujairah FZE v Gulf Petrochem FZC [2021] EWHC 2650 (Comm) at [18]).
And see also Siddiqi v Aidiniantz [2020] EWHC 699 (QB) and Axnoller Events Ltd v Brake [2021]
EWHC 2308 (Ch).

CPR 3
Rule 3.1(4): Courts to take into account whether or not a party has complied with the
Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol
Rule 3.1(3) together with r.3.5(5) (see below) put beyond doubt the court’s power to make orders 3.1.15
penalising any party who fails to comply with the PD on Pre-action Conduct (see paras C1-001 to
C1-010 below) or any relevant pre-action protocol (see the list of protocols set out at para.C1-010).
Guidance as to how the court will deal with any such non-compliance is given in paras 13 to 16 of
the PD on Pre-action Conduct (see para.C1-008).

Rule 3.1(5), (6) and (6A): Ordering security

A party has, without good reason, failed to comply with a rule, practice direction or a relevant 3.1.16
pre-action protocol may be ordered to pay a sum of money into court (r.3.1(5)); see Olatawura v
Abiloye [2002] EWCA Civ 998; [2003] 1 W.L.R. 275; [2002] 4 All E.R. 903, CA. The sum of money
will be security for any sum payable by that party to any other party in the proceedings (r.3.1(6A)).
An order such as this can be made against a claimant or a defendant. In exercising this power the
court must have regard to the amount in dispute and the costs incurred and to be incurred
(r.3.1(6)).
In the case of claimants, an order under r.3.1(5) significantly broadens the court’s powers to
order security for costs (as to which, see generally CPR Pt 25 Section II). As to defendants and
defendants to counterclaims they may be ordered to give security for costs and also for any money
remedy claimed against them. Although r.3.1(5) does not give the court power to deal with non-
compliance with court orders, other rules can be used in such cases, in particular r.3.1(3) (as to
which see further Huscroft v P & O Ferries [2010] EWCA Civ 1483; [2011] 1 W.L.R. 939, noted in
para.3.1.14, above).
The circumstances in which it is appropriate to order a party to pay a sum of money into court
are limited. In Olatawura (above) Simon Brown LJ suggested that a party only becomes exposed to
an adverse order for security under r.3.1(5) once they can be seen either to be regularly flouting
proper court procedures or otherwise to be demonstrating a want of good faith—good faith for this
purpose consisting of a will to litigate a genuine claim or defence as economically and expedi-
tiously as reasonably possible in accordance with the overriding objective. See also: CIBC v Mellon
Trust Co v Mora Hotel [2002] EWCA Civ 1688; [2003] 1 All E.R. 564, CA; and Ali v Hudson [2003]
EWCA Civ 1793; [2004] C.P. Rep. 15, CA.
In Olatawura the point was also made that before ordering security for costs in any case (i.e.
whether or not under Pt 25) the court should be alert to the risk that by making such an order it
may be denying the party concerned the right to access to the court. It was said that whether or not
the person concerned has (or can raise) the money will always be a prime consideration given the
terms of Article 6; see [22] of the judgment.
In Ali v Hudson [2003] EWCA Civ 1793; [2004] C.P. Rep. 15, the Court of Appeal set aside an
order made which, because of the appellant’s delay, stayed an appeal pending the provision of
security for the costs of the appeal. In his judgment, with which the other two lords justices agreed,
Clark LJ quoted passages of the judgment of Simon Brown LJ in Olawatura (see above) and stated:
“Those principles show that the power to order security for costs in a case of this kind should
be exercised with great caution. The correct general approach may be summarised as follows:
(i) it would only be in an exceptional case (if ever) that a court would order security for costs
if the order would stifle a claim or an appeal; (ii) in any event, (a) an order should not
ordinarily be made unless the party concerned can be shown to be regularly flouting proper
court procedures or otherwise to be demonstrating a want of good faith; good faith being
understood to consist (as Simon Brown LJ put it) of a will to litigate a genuine claim or
defence (or appeal) as economically and expeditiously as reasonably possible in accordance
with the overriding objective; and (b) an order will not be appropriate in every case where a
party has a weak case. The weakness of the party’s case will ordinarily be relevant only where
he has no real prospect of succeeding.”
See also, Ford v Labrador [2003] UKPC 41; [2003] 1 W.L.R. 2082 and para.3.4.18. In this case an
order requiring the appellant to pay costs before proceeding further was set aside as the order
impeded the appellant’s right of access to the court. As to the principles applicable on the issue
whether an order for security will stifle a party’s continued participation in proceedings, see also
Goldtrail Travel Ltd v Aydin [2017] UKSC 57; [2017] 1 W.L.R. 3014, noted in para.3.1.14, above).
Rule 3.1(6A) provides that money paid into court under rr.3.1(3) or 3.1(5) “shall be security for
any sum payable by [the party who made the payment into court] to any other party in the
proceedings”. It is wrong to assume that the party who made the payment into court will be
automatically entitled to an order for payment out once the reason which led to the payment in
ceases to apply, see; CMA CMG Marseille v Petro Broker International [2011] EWCA Civ 461.
In Lazari v London & Newcastle (Camden) Ltd [2013] EWHC 97 (TCC); [2013] B.L.R. 313; [2013]

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CP Rep. 26, Olatawura and Huscroft were applied and the defendant building developer, which had
belatedly admitted liability for defects, was ordered to pay £30,000 into court under r.3.1(5) and
r.25.7 (Interim Payments) given that it had failed to comply with the rules of court and the overrid-
ing objective. Akenhead J, stated that in the instant case r.3.1(5) and r.25.7 informed each other
and made the point that an order for payment into court did not have to be classified as security
for costs. An underlying consideration was the need for the court to exercise a degree of control
over the future conduct of the litigation. The expectation of the judge that the payment into court
would encourage the parties to some form of ADR is to be noted.
In Alba Exotic Fruit SH PK v MSC Mediteranean Shipping Co SA [2019] EWHC 1779 (Comm)
(Judge Rawlings) on the facts, the judge declined to strike out the claim for the claimant’s breach of
PD 59 in having failed to apply to fix a case management conference four years and seven months
after filing its claim form. Instead, it was held that an order under r.3.1(5) that the claimant
provide security for the defendant’s costs in an amount representing 79% of the defendant’s
incurred and estimated costs. While 79% was more than the court might award on an application
made under r.25.12, it was a proportionate sanction.

Rule 3.1(7): Court’s power to vary or revoke an order

3.1.17 Rule 3.1(7) states that “a power of the court under these Rules to make an order includes a
power to vary or revoke the order”. It is an omnibus provision. It may be that that is the sole
purpose of r.3.1(7) and that it was introduced in an effort to avoid repetition elsewhere. However, it
should be noted that, in terms, r.3.1(7) is not restricted to procedural orders. It should also be
noted that the rule refers to “order” and not to “judgment or order”, which is the formulation used
in other provisions permitting revocation and variation (see further below). In certain contexts, the
distinction between “judgment” and “order” can be important (see para.40.1.1).
In Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch), Patten J, noted
that r.3.1(7) is not confined to procedural orders and that there was no real guidance to be found
within the rule or elsewhere as to the possible limits of the jurisdiction. Subsequent cases have
defined the limits of the operation of r.3.1(7). As will be seen below, a distinction has to be drawn
between interim and final orders.

Varying or revoking interim orders

[Link] The term “interim orders” is used here in contradistinction to the term “final orders”. Interim
orders do not finally decide anything as of right between the parties: they include case manage-
ment decisions which govern the procedure by which those rights will be determined (Prestney v
Colchester Corp (1883) 24 Ch. D. 376, CA at 384, per Cotton LJ) and also orders providing parties
with some interim remedies or protections pending that determination such as orders granting
interim injunctions, interim payments and security for costs (as to which, see generally Pt 25). Final
orders determine between the parties the issues which are the subject matter of the litigation and
which give rise to a cause of action estoppel between those parties.
Even in respect of matters not giving rise to an estoppel, a party cannot fight over again a battle
which has already been fought unless there are good grounds; see Chanel Ltd v FW Woolworth & Co
Ltd [1981] 1 W.L.R. 485; [1981] 1 All E.R. 745. In Woodhouse v Consignia Plc [2002] EWCA Civ
275; [2002] 1 W.L.R. 2558; [2002] 2 All E.R. 737, it was said that there is a public interest in
discouraging a party who makes an unsuccessful interlocutory application from making a
subsequent application for the same relief, based on material which was not, but could have been,
deployed in support of the first application.
In the leading case of Tibbles v SIG Plc [2012] EWCA Civ 518; [2012] 1 W.L.R. 2591, the Court
of Appeal reviewed the authorities (which are not rehearsed here) and stated that although the
discretion under r.3.1(7) was apparently broad and unfettered, considerations of finality, and the
need to avoid undermining the concept of appeal, pushed towards “a principled curtailment” of an
otherwise apparently open discretion. Rix LJ, giving the leading judgment, said (at [39]) that the
cases all warn against an attempt at an exhaustive definition of the circumstances in which a
principled exercise of the discretion may arise. Subject to that, however, the jurisprudence had laid
down firm guidance as to the primary circumstances in which the discretion may, as a matter of
principle, be appropriately exercised, namely normally only (a) where there has been a material
change of circumstances since the order was made, or (b) where the facts on which the original
decision was made were (innocently or otherwise) misstated. There was room for debate in any
particular case as to whether and to what extent misstatement may include omission as well as posi-
tive misstatement, or concern argument as distinct from facts. This was said to be a matter of
discretion for the judge in each case. Questions might arise as to whether the misstatement (or
omission) is conscious or unconscious; and whether the facts (or arguments) were known or
unknowable. These too were factors going to discretion but where the facts or arguments are
known or ought to have been known as at the time of the original order, it is unlikely that the
order can be revisited, and that must be still more strongly the case where the decision not to men-
tion them is conscious or deliberate. Rix LJ concluded that it ought normally to take something out
of the ordinary to lead to variation or revocation of an order, especially in the absence of a change
of circumstances in an interlocutory situation.
Rix LJ also stated that there is room within CPR r.3.1(7) for a prompt recourse back to a court to

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deal with a matter which ought to have been dealt with in an order but which in genuine error was
overlooked (by parties and the court) and which the purposes behind the overriding objective,
above all the interests of justice and the efficient management of litigation, would favour giving
proper consideration to on the materials already before the court. This would not be a second
consideration of something which had already been considered once (as would typically arise in a

CPR 3
change of circumstances situation), but would be giving consideration to something for the first
time. On that basis, the power within the rule would not be invoked in order to give a party a
second bite of the cherry, or to avoid the need for an appeal, but to deal with something which,
once the question is raised, is more or less obvious, on the materials already before the court. Rix
LJ emphasised the word “prompt”. The court would be unlikely to be prepared to assist an ap-
plicant once much time had gone by. With the passing of time is likely to come prejudice for a
respondent who is entitled to go forward in reliance on the order that the court has made.
In Thevarajah v Riordan [2015] UKSC 78; [2016] 1 W.L.R. 76, SC, the defendant’s first applica-
tion for relief from sanctions had been refused. The Supreme Court held that r.3.1(7), and the Tib-
bles criteria, applied to a second application for relief from sanctions so that the defendant had to
show that there had been a material change in circumstances since the first application. The
defendant had failed to do so. A party’s compliance with an unless order after a debarring order
has been made cannot amount to a material change of circumstances unless accompanied by other
facts.
The court may, in its discretion, refuse an application to vary an order on the basis of misstate-
ment where the misstatement in question was made by the applicant itself and could not have been
reasonably made. In Catalyst Management Services v Libya Africa Investment Portfolio [2018] EWCA Civ
1676; [2018] 4 Costs L.R. 807 Andrew Baker J refused an application for variation upon this (and
other grounds) and his decision was upheld by the Court of Appeal.
As to what may amount to a material change of circumstance and its effect upon an application
to vary an Unless order, see Athena Capital Fund SICAV-FIS v Crownmark Ltd [2020] EWHC 2945
(Comm) (Jacobs J) noted in para.3.1.14.
It may, in principle, be an abuse of process for a party to seek to reopen an interim order on the
basis of a material change of circumstances relying upon a development that was wholly within that
party’s control. In deciding whether it is an abuse the court should take a broad, merits-based ap-
proach; it must take into account the public and private interests involved and all the facts of the
case, focusing attention on the crucial question whether, in all the circumstances, a party is misus-
ing or abusing the process of the court (JSC VTB Bank v Skurikhin [2020] EWCA Civ 1337; [2021]
1 W.L.R. 434 at [47]–[56]; Oyston v Rubin [2021] EWHC 448 (Ch), variation allowed; Walton Family
Estates Ltd v GJD Services Ltd [2021] EWHC 464 (Comm), variation refused; and see further,
para.3.4.17).

Varying or revoking final orders

The term “final order” is used in this paragraph to describe an order which determines between [Link]
the parties the issues which are the subject matter of their litigation and which give rise to a cause
of action estoppel between them. Whether an order is final or not depends upon the nature of the
order itself, not upon the nature of the hearing (if any) at which it was made (Sangha v Amicus
Finance Plc [2020] EWHC 1074 (Ch) at [26]). The interests of justice, and of litigants generally,
require that a final order remains final unless there are proper grounds for an appeal, or unless
there are exceptional grounds for varying or revoking it without an appeal. As to the latter, the
CPR expressly provides for the variation or revocation of some final orders, for example, Pt 13
(“Setting aside or varying default judgment”) and r.39.3 (“Failure to attend the trial”); see further
para.[Link].
In Roult v North West Strategic Health Authority [2010] 1 W.L.R. 487; [2009] EWCA Civ 444;
[2009] P.I.Q.R. 18, the Court of Appeal gave the following guidance as to the court’s power to vary
or revoke an order under r.3.1(7). The grounds for invoking the power generally fall into one or
other of two categories: (i) the original order was made on the basis of erroneous information
(whether accidentally or deliberately given); and (ii) subsequent events, unforeseen at the time the
order was made, have destroyed the basis on which it was made. In the context of case management
decisions, further developments as to information or events may well justify variations in any
orders previously given. However, proof of facts establishing either category may not justify any
variation or revocation of a final order. This is because r.3.1(7) does not give judges, in effect,
power to hear an appeal from themselves in respect of a final order relating to the whole or part of
a claim. In Roult on the first day of the trial of a clinical negligence claim, a settlement was made
which the judge approved on behalf of the claimant (C), a protected party. The settlement had
been reached on the basis that C’s best interests lay in him being cared for in a group home
provided by the local authority and therefore a schedule setting out costs claimed in respect of
independent care in his own home had been assessed at nil. The settlement also included, among
certain heads of claim yet to be quantified, a claim for “costs of future care”. C had subsequently
entered a group home but had been removed from it by his parents after a short time. They now
considered that, in fact, C’s best interests lay in him being cared for in his own home. C’s applica-
tion to vary the approved settlement was dismissed by Christopher Clarke J whose decision was
upheld by the Court of Appeal.

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In Kojima v HSBC Bank Plc [2011] EWHC 611 (Ch); [2011] 3 All E.R. 359, the defendant to a
debt claim admitted liability for most of the claim but disputed the balance; the matter proceeded
to a hearing at which judgment was entered for the admitted sum and provision was made for
enforcement by charging order. The defendant subsequently applied for permission to withdraw
his admission and for the revocation of the judgment made upon it. Briggs J upheld the order of
the lower court which dismissed the application for revocation: a judgment on admissions is a final
judgment (and, also, a judgment on the merits); in such cases, having regard to the decision in
Roult, it will not normally be appropriate for a court to revoke a final order because of subsequent
changes of circumstances; the considerations which might make it appropriate to revoke an interim
order on that basis will generally be displaced by the much larger public interest in the finality of
litigation (subject to any right of appeal there may be): on the facts of this case, the appellant had
failed to make out a case for revocation on the grounds that the judge had been misled. See Tibbles
v SIG Plc [2012] EWCA Civ 518; [2012] 1 W.L.R. 2591 (noted in para.[Link], and see para.40.9.3).
In Salekipour v Parmar [2017] EWCA Civ 2141; [2018] Q.B. 833; [2018] 2 W.L.R 1090, the
Court of Appeal considered whether r.3.1(7) can be used in support of applications to set aside a
judgment on grounds that had been obtained by fraud. Sir Terence Etherton MR gave a reasoned
judgment with which the other members of the court agreed. After referring to Roult and other
cases, the Master of the Rolls ruled that the precise scope of r.3.1(7) was unclear but, for the
purposes of this case, it was neither necessary nor appropriate to provide further clarity: in High
Court cases the court has an inherent jurisdiction to rescind a final order obtained by means of
fraud; in County Court cases this jurisdiction is statutory (the County Courts Act 1984 s.23(g) and
see para.[Link]). In BCS Corporate Acceptances Ltd v Terry [2018] EWCA Civ 2422, another Court
of Appeal case concerning the use of r.3.1(7) in support of an application to set aside a judgment
obtained by fraud, Roult and other cases were again reviewed. Hamblen LJ, giving the judgment of
the court, referred to the considerations applicable to the varying or revoking of an interim order
(erroneous information and subsequent events) and stated (at [75]):
“General considerations such as these will not, however, justify varying or revoking a final
order. The circumstances in which that will be done are likely to be very rare given the
importance of finality.”
In BCS it was held that no proper or sufficient grounds had been identified for taking the wholly
exceptional course of setting aside the court’s final judgment under r.3.1(7) ([78]). There was also
a further hurdle facing an application under r.3.1(7): the judgment sought to be revoked in BCS
was a default judgment. The proper procedure under the CPR for challenging a default judgment
is the specific procedure set out in r.13.3, a rule which forms part of a separate self-contained
regime to which a general power such as r.3.1(7) does not apply.
There has not as yet been any definitive determination as to whether r.3.1(7) does or does not
give the court jurisdiction to vary or revoke a final order. However, most of the authorities state
that the court does have such jurisdiction (whether from r.3.1(7) or from elsewhere) but that
jurisdiction is so constrained as to render it exercisable only in exceptional circumstances. Current
case law identifies three sets of circumstances which may be exceptional enough to justify the vari-
ation or revocation of a final order:
D cases in which the order was obtained by fraud (Salekipour, above and BCS, above);
D orders made in the absence of the party now seeking to set it aside where, on applying
r.39.3 (Failure to attend the trial), or, in non-trial cases, on applying that rule by analogy,
the applicant can satisfy its three requirements (prompt action, good reason for non-
attendance and reasonable prospect of success at trial): see Forcelux Ltd v Binnie [2009]
EWCA Civ 854; [2010] H.L.R. 20, Hackney LBC v Findlay [2011] EWCA Civ 8; [2011]
H.L.R. 15, and Salix Homes v Mantato [2019] EWCA Civ 445; [2019] 1 W.L.R. 3069; and
D final orders on admissions obtained pursuant to Pt 14 on request, not on application (i.e.
orders issued by an administrative act, without any hearing before a judge) and where the
applicant for setting aside is the party in whose favour the orders were made (Madison CF
UK v Various [2018] EWHC 2786 (Ch) Hildyard J; and see also Re Cabot Financial (UK) Ltd
[2021] EWHC 789 (Ch), Mann J).
In BCS, above, Hamblen LJ gave a further example, drawn from family proceedings: the use of
powers akin to r.3.1(7) to vary or revoke final orders concerning financial arrangements in relation
to which there is a duty of full and frank disclosure in cases where the court retains jurisdiction
(see [75] citing Sharland v Sharland [2015] UKSC 60; [2016] A.C. 871, and Gohil v Gohil (No 2)
[2015] UKSC 61; [2016] A.C. 849).
For a recent illustration and application of the current law concerning the revocation of final
orders see Sangha v Amicus Finance Plc [2020] EWHC 1074 (Ch).
In Koza Ltd v Koza Altin Isletmeleri SA [2020] EWCA Civ 1018 the Court of Appeal (Moylan LJ
dissenting) described the principles governing the varying of interim orders as aspects of the rule
in Henderson (as to which see para.3.4.5) and the rule in Hunter (as to which see para.3.4.9).
Varying or revoking orders subject to liberty to apply
[Link] In the context of interim orders, judges often include “liberty to apply” in the order. As was
recognised in Tibbles (above), this is an express recognition of the possible need to revisit an order
in an ongoing situation. In such cases the court making the order does not lose seisin of the matter:

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the inclusion of a liberty to apply indicates that it is foreseen that further applications are likely in
the course of implementing the decision. However, the liberty does not constitute a “broad licence
to avoid appeals”. In order to secure the variation or revocation of an order the requirements of
Tibbles must still be satisfied. It is difficult to see how “a liberty to apply” provision in an order
would justify a subsequent variation in the absence of a change of circumstances or the misstate-

CPR 3
ment of facts. The absence of “liberty to apply” certainly does not preclude an application.

Rule 3.1(7): Other limitations on rule

In DEG-Deutsche Investitions- und Entwicklungsgesellschaft mbH v Koshy [2004] EWHC 2896 (Ch); [Link]
[2005] 1 W.L.R. 2434 (Hart J), it was held that the power of the court under r.3.1(7) is confined to
the variation or revocation of an order made by the court in exercise of “a power of the court
under these Rules”, not any order of a type which might have been made under these Rules; i.e.
r.3.1(7) did not permit the variation of orders made under the old RSC. Where the order was
made by the court in the exercise of a power derived from elsewhere, then any power to alter that
order must also be found elsewhere.
Rule 41.8 deals with periodical payment orders made in exercise of the court’s jurisdiction to
award damages for future pecuniary loss in personal injury cases. This jurisdiction is derived from
the Damages Act 1996 s.2. Under that statutory scheme, when assessing damages and making an
order for periodical payments, the court may in addition provide in that order that it should be a
“variable order”; that is to say, that it should be a periodical payments order which, although
disposing of the issue of damages, may be altered by the court subsequently in restricted
circumstances. The power to make a periodical payments order, whether of the variable variety or
not, is not a power to make an order “under these Rules” within the meaning of r.3.1(7). The
court’s jurisdiction to vary an order in these circumstances is regulated by the 1996 Act and
delegated legislation made thereunder (see further para.41.8.6).
The power to vary or revoke an order given by r.3.1(7) is only exercisable in relation to an order
that the court has previously made, and not to an order that is deemed to have been made by
operation of the rules (Lahey v Pirelli Tyres Ltd [2007] EWCA Civ 91; [2007] 1 W.L.R. 998, CA, ap-
proving Walker Residential Ltd v Davis [2005] EWHC 3483 (Ch) (Park J)).
The circumstances in which the court may make orders (procedural or otherwise) are legion.
The questions whether, as a matter of law, an order may be varied or revoked, and whether it
should be varied or revoked, must be determined in the contexts in which they arise. Where a
court exercises its power under r.31.5(2) to limit an order for standard disclosure of documents
made in unlimited terms it is in effect varying the order, and there is no real difference between
the circumstances in which the court may exercise that power and those in which an order may be
varied under r.3.1(7) (Serious Organised Crime Agency v Namli [2011] EWCA Civ 1411; [2012] C.P.
Rep. 10; [2012] Lloyd’s Rep. F.C. 139).
Where the order in question is a search order made by the High Court, the rule is that, subject
to an exception, a County Court may not vary or revoke the order (County Court Remedies
Regulations 1991 (SI 1991/1222) reg.3(1), see Vol.2, para.9B-78). The exception is that a County
Court may vary such an order (but may not revoke it) where all the parties are agreed on the terms
of the variation (above, reg.3(4)(b)).
Where a group litigation order (GLO) is in place, a party to a claim entered on the group
register after a judgment or order which is binding on them was given or made may not apply for
the judgment or order to be set aside, varied or stayed (and may not appeal), but may apply for an
order that the judgment or order is not binding on them (r.19.12(3)).

Other CPR concerning variation or revocation of orders

Some other provisions in the CPR, in addition to r.3.1(7), deal with the varying and revoking of [Link]
orders, including final orders. Rule 3.1(7) must be read in conjunction with them:
D r.23.10(1) concerning orders made without notice;
D r.23.11(2) concerning interim orders made at a hearing which a party failed to attend the
hearing;
D rr.28.4 and 29.5 concerning orders (and rules) setting a case management timetable;
D r.3.3(4) and (5) concerning orders made by the court of its own initiative, without hearing
the parties or without giving them an opportunity to make representations (and see also
PD 23A (Applications) para.11.2);
D r.3.6 concerning the setting aside of judgements entered without a hearing under r.3.5;
D PD 24 para.8 appears to supply a wide power to set aside a summary judgment given in the
absence of a party, as to which see further para.24.6.9;
D r.39.3(3) concerning orders made at a trial which a party failed to attend;
D rr.13.2 and 13.3 concerning the setting aside or varying of default judgments (and see
rr.20.3 and 20.11(5) concerning default judgments entered in Pt 20 claims);
D r.40.9 concerning the right of a person “who is not a party but who is directly affected by a
judgment or order” to apply to have that judgment or order set aside or varied;
D r.44.10(3) concerning deemed orders for costs made under r.44.10(2);
D r.3.15A concerning the revision and variation of costs budgets;
D r.3.19(7) concerning applications to vary a costs capping order;

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D rr.55.18 and 55.19 concerning certain orders made in accelerated possession claims of
property let on an assured shorthold tenancy;
D r.40.9A concerning the variation of a County Court judgment or order for the payment of
money;
D r.77.4 concerning the variation of serious crime prevention orders made by the Crown
Court;
D r.73.10B concerning the discharge or variation of a final charging order in certain
circumstances; and
D r.52.18 concerning the setting aside or variation of orders granting permission to appeal
(and see also PD 52B para.7.3).

Inherent jurisdiction of the court to vary orders

[Link] The court has an inherent jurisdiction to vary its own orders to make the meaning and intention
of the court clear (PD 40B (Judgments and Orders), para.4.5, see para.40BPD.4 below).
The well recognised routes for challenging a final decision on the basis that it was obtained by
means of fraud are to lodge an appeal or to bring a new action for rescission of the earlier
judgment. The High Court’s jurisdiction to rescind a final order of the High Court on this basis is
inherent. The County Court’s jurisdiction to set aside a final order of the County Court on this
basis is statutory (Salekipour v Parmar [2017] EWCA Civ 2141; [2018] 2 W.L.R. 1090, construing
s.23(g) of the County Courts Act 1984).

Rule 3.1(8): Court’s power to contact the parties

3.1.18 Rule 3.1(8) (as amended in 2013) makes explicit the court’s power to contact the parties from
time to time in order to monitor compliance with any directions made. In fact the courts have
always had such a power but, in practice, tended to exercise it only in respect of forthcoming hear-
ings where to do so might save time, expense or misunderstandings. In Constantinou v Wilmot-Josife
[2010] EWCA Civ 747; [2010] 2 F.L.R. 1449 Thorpe LJ expressed misgivings as to the wisdom of a
judge simply telephoning the parties’ representatives if that led to there being no record of the
exchange. He felt that it would have been preferable for the judge in that case to have sent an
identical e-mail to each side.
When the court does contact the parties under this sub-paragraph they are under a duty to
respond promptly (r.3.1(8) (second sentence and cf. r.1.3 (duty of parties to help the court to
further the overriding objective)).

Case management—unrepresented parties1

3.1A 3.1A—(1) This rule applies in any proceedings where at least one party is
unrepresented.
(2) When the court is exercising any powers of case management, it must
have regard to the fact that at least one party is unrepresented.
(3) Both the parties and the court must, when drafting case management
directions in the multi-track and fast track, take as their starting point any
relevant standard directions which can be found online at [Link]/
courts/procedure-rules/civil and adapt them as appropriate to the circumstances
of the case.
(4) The court must adopt such procedure at any hearing as it considers ap-
propriate to further the overriding objective.
(5) At any hearing where the court is taking evidence this may include—
(a) ascertaining from an unrepresented party the matters about which
the witness may be able to give evidence or on which the witness
ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may
appear to the court to be proper.
Rule 3.1A: Effect of rule
3.1A.1 This rule was inserted by the Civil Procedure (Amendment No.4) Rules 2015 (SI 2015/1569)
and came into force on 1 October 2015. Its primary purpose is to make explicit that which has long
been the practice of most courts, which is to conduct case management conferences in the manner
most likely to achieve efficiency and fairness, thereby furthering the overriding objective. It would
be wrong for the court to treat all parties as if they all had the same strength of advice and
representation. In order to equalise the access to justice each has, the court should vary the level of
assistance it gives according to the circumstances of each particular case, including whether a

1 Introduced by the Civil Procedure (Amendment No.4) Rules 2015 (SI 2015/1569).

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litigant is in person or is represented, and his level of competence and understanding. Achieving
the appropriate level of assistance is constrained by the requirement that the court must at all times
be, and be seen to be, impartial as between the parties, and that injustice to either side must be
avoided (Drysdale v Department of Transport (Maritime and Coastguard Agency) [2014] EWCA Civ 1083;
[2014] C.P. Rep. 43; [2014] I.R.L.R. 892; [2015] I.C.R. D2). Some examples of the adjustments

CPR 3
from standard practice which are encouraged by this rule are set out below.
Where a claimant is acting in person and the defendant is represented, a Master or District
Judge conducting a case management conference will often direct the defendant to prepare and
file hearing bundles and may direct that parties to agree trial bundles and exchange skeleton argu-
ments at an earlier stage before trial than is usually directed.
Sub-rule (3) largely reproduces the requirement already set out in r.29.1(2) as to the use of
standard form directions. However, r.29.1(2) applies only to cases allocated to the multi-track whilst
r.3.1A(2) applies to all cases governed by CPR. Departures from the standard forms may cause
stress to a litigant in person and therefore should be made only if and to the extent that it is neces-
sary to do so.
Sub-rules (4) and (5) indicate the active role the court should take when hearing oral evidence:
in respect of a witness called by the litigant in person, asking that litigant to summarise the topics
upon which this witness’s evidence is sought and, if necessary, posing or suggesting the lines of
questioning to be taken; in respect of a witness called by another party, asking a litigant in person
to indicate which parts of that witness’s evidence are challenged and, if necessary, posing or sug-
gesting the lines of cross-examination to be taken.
Rule 3.1A does not lower the standard of compliance with rules or court orders which litigants
in person are required to achieve. On an application for relief from sanction under r.3.9, the fact
that a person is unrepresented is most unlikely to amount to a good reason for breach (see Barton v
Wright Hassall LLP [2018] UKSC 12; [2018] 1 W.L.R. 1119 at [18] Lord Sumption JSC, and 3.9.16
below). This being so, it is all the more important that the court should make allowances for
litigants in person by setting clear and achievable directions under r.3.1A(2) or (3).
Axnoller Events Ltd v Brake [2021] EWHC 1706 (Ch) concerned two claims, in which the claim-
ants in one were the defendants in the other. At a stage when all parties were legally represented,
directions had been made requiring them to liaise as to the preparation of a combined trial bundle
and requiring one side (“G”) to file a hard copy bundle at court and supply the other side (“B”)
with an electronic copy. After those directions had been carried out B became unrepresented and
applied for an order varying the directions so as to require G to supply B with a hard copy without
payment. HH Judge Paul Matthews (sitting as a Judge of the High Court) dismissed that
application: neither the loss of legal representation nor the inconvenience of downloading files in
an area with low internet speeds amounted to a sufficient reason to revisit the directions made
earlier. Similarly, impecuniosity rendering B unable to afford the costs of a hard copy of the
bundle did not, in this case, justify a variation of the directions.
“[27] … [B] are the claimants in one of the two trials, and cannot complain that they are be-
ing brought to court against their will. Some expenditure by each of the parties is unavoidable.
Equipping yourself with the necessary papers for the trial process is part of that.”

The appointment of an advocate to the court

A court may properly seek the assistance of an Advocate to the Court when there is a danger of 3.1A.2
an important and difficult point of law being decided without the court hearing relevant argument
(PD 3G para.3). This topic most frequently arises where a case involving an important and difficult
point of law has one or more parties acting in person who cannot afford to pay for representation
and either cannot arrange pro bono representation, or does not have sufficient time to do so.
The person appointed as advocate to the court (formerly called amicus curiae or friend to the
court) represents no-one. Their function is to give to the court such assistance as they are able on
the relevant law and its application to the facts of the case. An Advocate to the Court will not
normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts. If the
court considers it appropriate to seek such assistance it may “request” the Attorney General to ar-
range it, setting out the circumstances which have occurred, identifying the point of law upon
which assistance is sought and the nature of the assistance required (for example, written advice
and/or oral submissions at the hearing).
Practice Direction 3G also covers other cases in which an Advocate to the Court may be ap-
pointed, by the Official Solicitor or the Children & Family Court Advisory Service (CAFCASS). It
also deals with two other cases of advocates appointed by the Attorney General who are not
Advocates to the Court: where a point of law which affects a government department is being
argued in a case where the department is not represented; and where the Attorney believes it is
necessary to intervene as a party in the Attorney’s capacity as guardian of the public interest. In the
first of these two cases, the court may simply invite the Attorney to make arrangements for some
representation on behalf of the department if so desired. In the second, the court may grant the
Attorney permission to intervene, in person or by an advocate. In each of these two cases the
advocate who attends will be representing the government department or the Attorney General, as
the case may be.

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Court officer’s power to refer to a judge

3.2 3.2 Where a step is to be taken by a court officer—
(a) the court officer may consult a judge before taking that step;
(b) the step may be taken by a judge instead of the court officer.
Rule 3.2: Effect of rule
3.2.1 “Court officer” means a member of the court staff (r.2.3(1)). Many steps taken by court officers
concern the filing of documents, the issue of claim forms and the entry of default judgments. This
rule enables court officers to refer to a judge any such document, form or request for judgment
which appears to be irregular or inappropriate. In respect of that matter the judge may give direc-
tions to the court officer as to the step to be taken, or may take the step themself. In either case the
judge may also exercise the court’s power to make orders of its own initiative (see r.3.3).
Paragraph 4.4.3 of the Queen’s Bench Guide states that any claim form or particulars of claim
which does not comply with the requirements of r.16.2 or r.16.4 or which is garbled or abusive will
be referred to a Master and is likely to be struck out (see Vol.2, para.1B-24).

Court’s power to make order of its own initiative

3.3 3.3—(1) Except where a rule or some other enactment provides otherwise,
the court may exercise its powers on an application or of its own initiative.
(Part 23 sets out the procedure for making an application.)
(2) Where the court proposes to make an order of its own initiative—
(a) it may give any person likely to be affected by the order an op-
portunity to make representations; and
(b) where it does so it must specify the time by and the manner in
which the representations must be made.
(3) Where the court proposes—
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice
of the hearing.
(4) The court may make an order of its own initiative, without hearing the
parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4)—
(a) a party affected by the order may apply to have it set aside(GL),
varied or stayed(GL); and
(b) the order must contain a statement of the right to make such an
application.
(6) An application under paragraph (5)(a) must be made—
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after
the date on which the order was served on the party making the
application.
(7) If the court of its own initiative strikes out a statement of case or
dismisses an application (including an application for permission to appeal or
for permission to apply for judicial review), and it considers that the claim or
application is totally without merit—
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate
to make a civil restraint order.
Rule 3.3: Effect of rule
3.3.1 The court’s duty of active case management includes narrowing the issues, controlling the
timetable and moving the case forward quickly and efficiently (r.1.4(2)(b), (c), (g) and (l)). By giving
them power to make orders on their own initiative, r.3.3 enables the judge to manage cases
proactively as well as reactively. The judge has power to:
(1) make a provisional order containing a procedure for representations, e.g. requiring
representations to be made orally or in writing and fixing deadlines (r.3.3(2)); or
(2) convene a hearing to decide whether to make a specified order (r.3.3(3)); or
(3) make an order without hearing the parties or giving them an opportunity to make
representations (r.3.3(4)). In this instance the parties may later apply to set aside that order
(r.3.3(5) and (6)). Or

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(4) contact the parties from time to time in order to monitor compliance with any directions
previously given (to which enquiries the parties must respond promptly; see generally,
r.3.1(8)).
Before exercising its powers under r.3.3(4) to make an order without hearing the parties or giv-

CPR 3
ing them an opportunity to make representations, the court must be very certain that it has all the
material which it needs in order to make such an order fairly and in compliance with the overrid-
ing objective (Shawton Engineering Ltd v DGP International Ltd [2003] EWCA Civ 1956, CA (appeal
against order under r.30.2(4) made on court’s own initiative transferring case from provincial city
to London allowed).
Sub-rule (7) of r.3.3 was added by the Civil Procedure (Amendment No.2) Rules 2004 (SI 2004/
2072). A similar addition was made to r.3.4. These and related amendments put on to a statutory
basis the court’s jurisdiction, when striking out a statement of case and in other circumstances, to
impose orders restraining parties bringing proceedings or making applications that are vexatious in
character. For explanation, see para.3.11.1.
Rule 23.8 states that, in certain circumstances, the court may deal with an application without a
hearing. One of the circumstances is that the court does not consider that a hearing would be ap-
propriate (r.23.8(c)). Practice Direction 23A (Applications) para.11.2 (see para.23APD.11) states
that, where that particular circumstance applies, the court will treat the application “as if it were
proposing to make an order on its own initiative”. Accordingly, where the court, acting under
r.23.8(c), dispenses with the hearing of an application and deals with it on paper, the provisions of
r.3.3 apply, with the result (amongst other things) that a party affected by the order has the right
under r.3.3(5) to apply to the court to have it set aside, varied or stayed (rather than being left to
the remedy of pursing an appeal); see e.g. Collier v Williams [2006] EWCA Civ 20; [2006] 1 W.L.R.
1945; [2006] P.I.Q.R. P18.
ECHR art.6(1) provides for a fair and public hearing in the determination of civil rights and
obligations: Stallinger and Kuso v Austria (1998) 26 E.H.R.R 81, ECtHR; Helmers v Sweden (1993) 15
E.H.R.R 285, ECtHR; and Axen v Germany (1984) 6 E.H.R.R 195, ECtHR.
Not all orders will be considered determinative of a civil right or obligation such that the
requirements of ECHR art.6(1) apply. For consideration of the issue of striking out a statement of
case which discloses no reasonable cause of action see para.3.4.1. Article 6(1) is not generally
considered to apply to interlocutory hearings: see further para.39.2.1.
Where a court has made an order without hearing the parties the existence of a right to apply to
the court to set the order aside will probably be sufficient in the majority of cases to ensure compli-
ance with the requirements of ECHR art.6(1).
Where parties have agreed directions and informed the court as to them, the court should not
exercise its power to make different directions of its own motion, without notice and without hear-
ing representations from either party, unless the circumstances were exceptional (Re A Debtor, No.20
SD 1999 [2000] L.T.L. 8 February, Ch D).

Application to set aside

Where a court does not consider that a hearing of an application would be appropriate (r.23.8(c)), 3.3.2
and considers the points made by the parties on paper, the effect of para.11.2 of PD 23A—Applica-
tions (see para.23APD.11 below) is that the court proceeds as if it were proposing to make an order
of its own initiative, with the consequence that r.3.3 applies. In such circumstances any party af-
fected by the order may apply to have any order made set aside, varied or discharged (r.3.5(a)) (R.
(MD (Afghanistan)) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1
W.L.R. 2422 at [21]). The right so to apply exists whether or not the order contains the statement
of such a right which is required by r.3.3(5)(b) (see R. (Nolson) v Stevenage BC [2020] EWCA Civ
379; and see further para.23.8.2).
An application under r.3.3(5)(a) to set aside, vary or stay an order made under r.3.3(4) should
involve a rehearing of the issue, not a review of the decision made (Al-Zahra (Pvt) Hospital v DDM
[2019] EWCA Civ 1103; but see also R. (Kuznetsov) v Camden LBC [2019] EWHC 3910 (Admin)).
In Collier v Williams [2006] EWCA Civ 20; [2006] 1 W.L.R 1945; [2006] P.I.Q.R. P18, CA, the
Court of Appeal said it is good practice to require any application under r.3.3(5) to be made at a
hearing rather than on paper. If a judge dismisses an application under r.3.3(5), whether on paper
or at a hearing, any further application under r.3.3(5) should usually be struck out as an abuse of
process, unless it is based on substantially different material from the earlier application (in which
case different considerations will arise) (above [37]). See further para.23.0.16.

Own initiative directions as to forum non conveniens

The court has jurisdiction to stay proceedings commenced in England and Wales if it considers 3.3.3
that there is another available forum which is clearly and distinctly more appropriate. The court
has power to make such an order even in circumstances in which it is not open to the defendants to
apply for such directions (as to this, see further r.11(5) and para.11.1.1). In Cook v Virgin Media Ltd
[2015] EWCA Civ 1287; [2016] 1 W.L.R. 1672, two separate personal injury claims relating to ac-
cidents which occurred in Scotland were commenced in the County Court and were assigned to the
Carlisle hearing centre (as being the nearest to Scotland). In their defences both defendants

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pleaded that the Scottish Courts were the correct courts to hear the claims but, in both cases, no ap-
plications having been made under r.11(1), the defendants had lost the right to challenge the
jurisdiction of the English courts. Nevertheless a district judge stayed both claims on the grounds
that Scotland was the most convenient forum and directed a hearing for the claimants to show
cause why the claims should be allowed to proceed in England. At that hearing the district judge
exercised his case management powers under r.3.1(2)(m) to strike out both claims on the principal
ground that they should have been brought in Scotland. That decision was upheld on appeal and
on a second appeal to the Court of Appeal. (Lord Dyson MR expressed the view obiter that, instead
of striking out under r.3.1(2)(m) it would have been preferable in at least one of the two cases to
make an order staying the proceedings under r.3.1(2)(f).)

Power to strike out a statement of case1

3.4 3.4—(1) In this rule and rule 3.5, reference to a statement of case includes
reference to part of a statement of case.
(2) The court may strike out(GL) a statement of case if it appears to the
court—
(a) that the statement of case discloses no reasonable grounds for
bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is
otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direc-
tion or court order.
(3) When the court strikes out a statement of case it may make any
consequential order it considers appropriate.
(4) Where—
(a) the court has struck out a claimant’s statement of case;
(b) the claimant has been ordered to pay costs to the defendant; and
(c) before the claimant pays those costs, the claimant starts another
claim against the same defendant, arising out of facts which are
the same or substantially the same as those relating to the claim in
which the statement of case was struck out,
the court may, on the application of the defendant, stay(GL) that other claim
until the costs of the first claim have been paid.
(5) Paragraph (2) does not limit any other power of the court to strike
out(GL) a statement of case.
(6) If the court strikes out a claimant’s statement of case and it considers
that the claim is totally without merit—
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate
to make a civil restraint order.
Rule 3.4: Effect of rule
3.4.1 Statement of case means “a claim form, particulars of claim where these are not included in the
claim form, defence, Pt 20 claim, or a reply to a defence; and includes any further information
given in relation to them voluntarily or by court order under rule 18.1” see r.2.3(1). Strike out is
defined in the Glossary as “Striking out means the court ordering written material to be deleted so
that it may no longer be relied upon”. This rule enables the court to strike out statements of case in
whole or in part and then make consequential orders.
A statement of case may be struck out (in whole or in part) if:
(a) it discloses no reasonable grounds for bringing or defending the claim;
(b) it is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the
proceedings; or
(c) there has been a failure to comply with a rule, practice direction or court order.
Generally, an application for an order striking out of a statement of case will be made during
the pre-trial stages of proceedings (often together with an application for summary judgment).
However the court may exercise the power immediately before trial or even during the course of
trial (and may do so whether or not an application was made before trial and adjourned to be dealt
with at the trial). Further, the court may act of its own volition (see r.3.3). However, the occasion to

1 Amended by the Civil Procedure (Amendment) Rules 2014 (SI 2014/407).

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exercise the jurisdiction after the start of trial is likely to be very rare (National Westminster Bank Plc
v Rabobank Nederland [2006] EWHC 2959 (Comm); [2007] 1 All E.R. (Comm) 975 (Colman J)).
There is no power to strike out a statement of case or a claim after judgment has been given in the
claim (BCS Corporate Acceptances Ltd v Terry [2018] EWCA Civ 2422, as to which, see further
para.[Link]).

CPR 3
Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexa-
tious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognis-
able claim or defence. This power can be exercised by a judge acting on their own initiative at the
stage of issuing a claim (perhaps with a court officer referring the case to the judge under r.3.2)
and thus defendants against whom an ill-founded action is sought to be brought will be spared
needless expense in having to initiate “strike out” proceedings; see PD 3A (Striking out a Statement
of Case) para.2.1 (para.3APD.2).
Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the
claim or defence (as the case may be) has been conducted. The strike-out can be made even where
there was nothing in the rule, practice direction or court order breached which specified that this
might happen as a consequence of breach. In many circumstances such a strike-out would seem
unduly harsh unless the party concerned was warned (possibly in writing by another party) of the
risk of their statement of case being struck out if they did not comply with the rule, practice direc-
tion or court order in question.
In the case of non-compliance with a rule or practice direction the court may instead order the
non-complying party to pay a sum of money into court (see r.3.1(5) and (6)). In the case of non-
compliance with a court order the court may instead repeat its order, this time imposing conditions
and/or specifying the consequences of failure to comply with the order or condition (r.3.1(3)).
In Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; [1999] 4 All E.R. 934, the Court of Appeal
drew attention to several alternatives to a strike out under r.3.4 which may be appropriate to deal
with non-compliance with time limits laid down by rules or orders: awarding costs on the indemnity
basis payable forthwith, ordering a party to pay money into court and awarding interest at a higher
or lower rate (and see Asiansky Television Plc v Bayer Rosin [2001] EWCA Civ 1792 and the cases
cited therein).
In Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607; [2015] C.P. Rep 15;
the Court of Appeal held that, on an application under r.3.4 for a strike-out for non-compliance,
the Mitchell/ Denton principles (which apply to applications under r.3.9; and see further, paras 3.9.3
and 3.9.4) have a direct bearing even though they relate to applications for relief from sanctions
rather than applications to impose a sanction. On the facts, applying the Denton three-stage test, it
was held that the judge had been entitled to dismiss the strike out application. The defendant had
been in breach of the court’s orders, serving its own list of documents late, failing to provide copies
of its disclosed documents, and failing to serve its own witness statements. In assessing the serious-
ness of a breach, the loss of the trial date was a weighty consideration, but the judge had been
entitled to his view that it had impacted more on the claimant than the defendant. It was likely that
the trial date would not have been lost if the defendant had acted promptly. Although Mitchell and
Denton were said to have a direct bearing and were, in effect, applied, it is to be noted that the
Court of Appeal stressed that the ultimate question for the court in deciding whether to impose the
sanction of strikeout is materially different from that in deciding whether to grant relief from a
sanction that has already been imposed. In a strike-out application under r.3.4 the proportionality
of the sanction itself is in issue, whereas an application under r.3.9 for relief from sanction has to
proceed on the basis that the sanction was properly imposed (and see further, Cable v Liverpool
Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4 W.L.R. 110 noted in para.3.4.18).
While many applications under r.3.4(2) can be made without evidence in support (usually if the
statement of case discloses no reasonable grounds for bringing or defending the claim), the ap-
plicant should consider whether facts need to be proved and, if so, whether evidence in support
should be filed and served; see PD (Striking Out a Statement of Case), para.5.2 (para.3APD.5).
Applications under r.3.4 should be made as soon as possible and before allocation if possible
(PD supplementing r.3.4, para.5.1, see para.3APD.5). If the application is made by the defendant
against the claimant’s statement of case, the claimant cannot obtain a default judgment until that
application is disposed of (r.12.3(3)(a)).
The court may make an order under r.3.4 of its own initiative (r.3.3). The most likely occasion
for such an order would be on the filing of a claim form or defence which appears to fall within
grounds (a) or (b) above (PD supplementing r.3.4, paras 2.2 and 3.2, see paras 3APD.2 and
3APD.3). The fact that the court allows such a claim or defence to proceed does not prejudice the
right of any other party to apply for an order under r.3.4 (PD supplementing r.3.4, paras 2.6 and
3.5, see paras 3APD.2 and 3APD.3).
If a strike out application is made, the court cannot refuse it on a reading of the papers unless it
first hears oral argument on behalf of the applicant: it is a fundamental feature of the English civil
justice system that an applicant should be allowed to bring his application to court and make his
case before a judge (Frey v Labrouche [2012] EWCA Civ 881; [2012] 1 W.L.R. 3160).
Other provisions in the CPR refer to the court’s power to strike out, not (in particular) a state-
ment of case, but (variously) “the claim, “defence” or “any counterclaim”, where certain procedural
failures occur, and do so in terms that expressly state that the strike out will take effect “without

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further order of the court”. For example, failing to file a directions questionnaire (r.26.3(7A) and
(8) and see PD 26 para.2.5), or a pre-trial checklist (r.28.5(3) and PD 28 para.6.5 in fast track cases,
and r.29.6(3) and PD 29 para.8.3 in multi-track cases). See also, the rules in this Part dealing with
non-payment of fees (rr.3.7, 3.7A and 3.7B).
Rule 3.4(2)(a): Statement of case discloses no reasonable grounds for bringing or defending
the claim
3.4.2 Paragraph 1.4 of the PD (Striking Out a Statement of Case), para.3APD.1, gives examples of
cases where the court may conclude that particulars of claim disclose no reasonable grounds for
bringing the claim: those claims which set out no facts indicating what the claim is about; those
claims which are incoherent and make no sense; and those claims which contain a coherent set of
facts but those facts even if true, do not disclose any legally recognisable claim against the
defendant.
Paragraph 1.6 of the PD, para.3APD.1, states that a defence may fall within r.3.4(2)(a) where it
consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out,
while coherent, would not even if true amount in law to a defence to the claim.
Statements of case which are suitable for striking out on ground (a) include those which raise an
unwinnable case where continuance of the proceedings is without any possible benefit to the
respondent and would waste resources on both sides (Harris v Bolt Burdon [2000] C.P. Rep. 70;
[2000] C.P.L.R. 9). A claim or defence may be struck out as not being a valid claim or defence as a
matter of law (Price Meats Ltd v Barclays Bank Plc [2000] 2 All E.R. (Comm) 346, Ch D). However, it
is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas,
decisions as to novel points of law should be based on actual findings of fact (Farah v British
Airways, The Times, 26 January 2000, CA referring to Barrett v Enfield BC [2001] 2 A.C. 550; [1989]
3 W.L.R. 79, HL). A statement of case is not suitable for striking out if it raises a serious live issue
of fact which can only be properly determined by hearing oral evidence (Bridgeman v McAlpine-
Brown, 19 January 2000, unrep., CA). An application to strike out should not be granted unless the
court is certain that the claim is bound to fail (Hughes v Colin Richards & Co [2004] EWCA Civ 266;
[2004] P.N.L.R. 35, CA (relevant area of law subject to some uncertainty and developing, and it
was highly desirable that the facts should be found so that any further development of the law
should be on the basis of actual and not hypothetical facts)).
Where a statement of case is found to be defective, the court should consider whether that
defect might be cured by amendment and, if it might be, the court should refrain from striking it
out without first giving the party concerned an opportunity to amend (In Soo Kim v Youg [2011]
EWHC 1781 (QB)).
The ECHR art.6(1) right of access to a court may require caution on the part of courts in
exercising the r.3.4(2)(a) power to strike out a statement of case which appears to disclose no
reasonable grounds for bringing or defending a claim, particularly where it would be applying the
rules in such a way as to exclude an entire category of claims from the courts or confer blanket
“immunities” from civil liability on particular groups: Fayed v United Kingdom (1994) 18 E.H.R.R
393 ([65]). In Osman v United Kingdom (2000) 29 E.H.R.R 245, the ECtHR held that the striking
out by the Court of Appeal of the applicant’s statement of claim on the basis that it was contrary to
public policy for the police to be under a duty of care in the circumstances of the case was a breach
of the art.6(1) right of access to a court. The ECtHR found that the court had proceeded on the
basis that the police had a blanket immunity from civil liability in respect of their acts and omis-
sions in the investigation and suppression of crime.
The force of Osman was weakened by a subsequent judgment of the ECtHR in Z v United
Kingdom [2002] 34 E.H.R.R. 3; [2001] 2 F.L.R. 612, ECtHR. The court affirmed that striking out a
claim was not inherently contrary to the right of access to a court. It upheld a decision to strike out
a claim in negligence on the basis that the strike out resulted not from a blanket immunity but
from the application of domestic law principles governing the constituent elements of a cause of
action.
English courts have taken the view that art.6(1) does not prevent the striking out of claims in ap-
propriate cases since it applies only to “genuine and serious” disputes about civil rights and obliga-
tions, although a claim submitted to a tribunal for determination must be presumed to be genuine
and serious unless there are indications to the contrary. See also Palmer v Tees Health Authority
(2000) 2 L.G.L.R. 69; [2000] P.I.Q.R. P1 and Jarvis v Hampshire CC [1999] 1 W.L.R. 2042, CA
(strike out refused on appeal on other grounds, sub nom. Phelps v Hillingdon LBC [2000] 3 W.L.R.
776) (Osman did not prevent the court exercising its power to strike out in a “clear and obvious”
case: see transcript). In Kent v Griffiths [2001] Q.B. 36, CA Lord Woolf stated that:
“… it would be wrong for the Osman decision to be taken as a signal that, even when the legal
position is clear and an investigation of the facts would provide no assistance, the Courts
should be reluctant to dismiss cases which have no real prospect of success. Courts are now
encouraged, where an issue or issues can be identified which will resolve or help to resolve
litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve
expedition and save expense. There is no question of any contravention of art.6 in so doing.”
Lord Woolf’s comments were endorsed in Outram v Academy Plastics Ltd [2001] I.C.R. 367, CA.
A statement of case which discloses no reasonable grounds may also be an abuse of the court’s

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process, and, in respect of it, the opposing party may be entitled to summary judgment under Pt
24. Thus, there is no exact dividing line between ground (a) and ground (b) (as to which see
para.3.4.3) or between either of them and Pt 24 (as to which see para.3.4.21).

Rule 3.4.(2)(b): Statement of case is an abuse of the court’s process or is otherwise likely to

CPR 3
obstruct the just disposal of the proceedings
Although the term “abuse of the court’s process” is not defined in the rules or practice direc- 3.4.3
tion, it has been explained in another context as “using that process for a purpose or in a way
significantly different from its ordinary and proper use” (Attorney General v Barker [2000] 1 F.L.R.
759, DC, per Lord Bingham of Cornhill, Lord Chief Justice). The categories of abuse of process
are many and are not closed. The main categories which have been recognised in the case law to
date are described in the following paragraphs. The court has power to strike out a prima facie
valid claim where there is abuse of process. However there has to be an abuse, and striking out has
to be supportive of the overriding objective. It does not follow from this that in all cases of abuse
the correct response is to strike out the claim. In a strike-out application the proportionality of the
sanction is very much in issue; see Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ
1607. In Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; [1999] 4 All E.R. 934, the Court of Ap-
peal drew attention to several alternatives to a strike out under r.3.4; see 3.4.1 above. The striking
out of a valid claim should be the last option. If the abuse can be addressed by a less draconian
course, it should be.
In T v Nugent Care Society [2004] EWCA Civ 51; [2004] 1 W.L.R. 1129, it was held that it was not
an abuse of process for a claimant to bring an individual claim when there was a GLO in place. In
any event, on the facts, it would be disproportionate to strike out the claim as there were alternative
steps available to protect the defendant. Note, however, that a claimant applying to join the register
in group litigation after the cut-off date may be faced with having to apply for relief from sanction
under r.3.9; see para.19.13.3.

Vexatious proceedings
The function of the court is to do justice between the parties, not to allow its process to be used 3.4.4
as a means of achieving injustice. In an extreme case, a party by their conduct may forfeit their
right to take part in a trial. For example, where they demonstrate that they are determined to
pursue proceedings with the object of preventing a fair trial (Arrow Nominees Inc v Blackledge [2000]
2 B.C.L.C. 167, CA (forgery of documents as part of disclosure process, coupled with perjured
evidence)). In such circumstances, their object is inimical to the process which they purport to
invoke. It is an abuse to bring vexatious proceedings, i.e. two or more sets of proceedings in respect
of the same subject matter which amount to harassment of the defendant in order to make them
fight the same battle more than once with the attendant multiplication of costs, time and stress. In
this context it is immaterial whether the proceedings are brought concurrently or serially. In addi-
tion to striking out the statements of case in such proceedings the court may make a civil restraint
order, as to which, see para.3.4.10, below. Whilst it might not be appropriate for the County Court
to make such an order in relation to the High Court, there is no difficulty in the High Court mak-
ing such a order in relation to the County Court if the facts merit it (Ebert v Birch [2000] Ch. 484,
CA).
There is no abuse if the claimant has sufficient justification for commencing concurrent proceed-
ings (Merrill Lynch, Pierce Fenner & Smith Inc v Raffa [2001] C.P. Rep 44, QB; claimant seeking sum-
mary judgment in England where concurrent proceeding in Egypt were deferred pending the
conclusion of linked criminal proceedings there; and see further, the commentary to SCA 1981
s.49, Vol.2, paras 9A-183 (“Concurrent civil proceedings”) and 9A-185 (“Lis alibi pendens, forum
non conveniens and foreign jurisdiction clauses”).

Attempts to re-litigate issues which were raised, or should have been raised, in previous
proceedings
The court’s power to strike out abusive proceedings is often employed to give effect to principles 3.4.5
relating to res judicata, a portmanteau term which is used to describe a number of different legal
principles including cause of action estoppel (the prohibition on the relitigating of a cause of ac-
tion held to exist (or not exist) in earlier proceedings); issue estoppel (the prohibition on relitigating
an issue decided in earlier proceedings even though in respect of a different cause of action); and
the principle first formulated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, which
precludes a party from raising in subsequent proceedings matters which were not, but could and
should have been raised in the earlier ones (as to res judicata, see further Virgin Atlantic Airways Ltd
v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] A.C. 160; [2013] 3 W.L.R. 299 at [17] to [26]).
The rule in Henderson extends the res judicata principle in two respects: the rule applies, not to
matters which were decided by a court, but to matters which might have been decided but were not;
the rule applies not just to subsequent litigation between the same parties or their privies, but also
to parties to the subsequent proceedings who were not joined as parties to the earlier proceedings.
Because this is so, the need to consider the element of abuse of process has much greater emphasis
in these cases.
“The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any

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strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the
desirability, in the general interest as well as that of the parties themselves, that litigation
should not drag on for ever and that a defendant should not be oppressed by successive suits
when one would do. That is the abuse at which the rule is directed” (Lord Bingham in Barrow
v Bankside Agency Ltd [1996] 1 W.L.R. 257; [1996] 1 All E.R. 981).
Whether relitigation of a decided issue is an abuse depends upon all of the circumstances. It
does not follow that a matter should have been raised in earlier proceedings simply because it
could have been raised in those proceedings. A broad, merits-based judgment should be adopted,
taking account of all the public and private interests involved and all the facts of the case; Johnson v
Gore Wood & Co (No.1) [2002] 2 A.C. 1, HL. In all the circumstances of that case it was held not to
be an abuse for a claimant to commence proceedings seeking remedies in respect of matters which
had formed the subject matter of previous proceedings brought by a company which he controlled.
This “broad, merits based” approach does not refer to the substantive merits but to the merits
relevant to the question whether the claimant should have brought their claim as part of the earlier
proceedings; see: Stuart v Goldberg Linde [2008] EWCA Civ 2; [2008] 1 W.L.R. 823, CA.
In Aldi Stores Ltd v WSP Group Plc [2008] 1 W.L.R. 748; [2008] P.N.L.R. 14, the Court of Appeal
referred with approval to the judgment of Clarke LJ (as he then was) in Dexter v Vlieland-Boddy
[2003] EWCA Civ 14, where he summarised the principles to be derived from Johnson v Gore-Wood
as follows:
(i) where A has brought an action against B, a later action against B or C may be struck out
where the second action is an abuse of process;
(ii) a later action against B is much more likely to be held to be an abuse of process than a
later action against C;
(iii) the burden of establishing abuse of process is on B or C or as the case may be;
(iv) it is wrong to hold that because a matter could have been raised in earlier proceedings it
should have been, so as to render the raising of it in later proceedings necessarily abusive;
(v) the question in every case is whether, applying a broad merits based approach, A’s
conduct is in all the circumstances an abuse of process; and
(vi) the court will rarely find that the later action is an abuse of process unless the later ac-
tion involves unjust harassment or oppression of B or C;
Clarke LJ said (at [50]) that proposition (ii) above:
“… seems to me to be of importance because it is one thing to say that A should bring all his
claims against B in one action, whereas it is quite another thing to say that he should bring all
his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be
many entirely legitimate reasons for a claimant deciding to bring an action against B first
and, only later (and if necessary) against others.”
In Aldi Stores, the Court of Appeal held that the fact that the defendants to the original action
and to the new action were different did not operate as a bar to the finding of abuse but was a
powerful factor in the application of the broad merits based judgment. It was also held that no
distinction in law between cases where the original action concludes by settlement and where it
concludes by judgment. It was further held that that the decision as to whether or not there has
been an abuse is not the exercise of a discretion. It was a decision involving the assessment of a
large number of factors to which there can only be one correct answer as to whether or not there
has been an abuse. On the facts in Aldi Stores, the claimant had not behaved in any way that was
culpable or improper and this was held to be an important factor even though neither impropriety
or culpability is a necessary finding before a claim can be struck out. The claimant’s decision not to
proceed against the present defendants in the first action was commercially reasonable, forensically
legitimate and reasonably transparent and the present defendants were being faced with a claim for
the first time. The Court of Appeal, allowing the appeal against the order striking out the claim,
held that there was no abuse. As to the Aldi Guidelines, see further, below.
The rule in Henderson has usually been applied where a claimant starts fresh proceedings which
could and should have been brought in earlier proceedings which were pursued to judgment.
However it is not conceptually impossible for it to apply also in relation to separate stages of the
same litigation (Tannu v Moosajee [2003] EWCA Civ 815, Seele Austria GMBH Co KG v Tokio Marine
Europe Insurance Ltd [2009] EWHC 255 (TCC); [2009] B.L.R. 261, Kensell v Khoury [2020] EWHC
567 (Ch), and Koza Ltd v Koza Altin Isletmeleri SA [2020] EWCA Civ 1018; [2021] 1 W.L.R. 170.
“[105] … the court should be astute to prevent a claiming party from putting its case one way,
thereby causing the other side to incur considerable expense, only for the claiming party to
lose and then come up with a different way of putting the same case, so as to begin the
process all over again. The Civil Procedure Rules are designed to avoid the litigation
equivalent of death by a thousand cuts. I have no doubt that, on the basis of the facts as I
have summarised them … above, it would be wrong and unfair to allow the claimant in these
proceedings to go back to square one and attempt to run a case which could and should have
been raised years ago” (Coulson J in Seele).
The rule in Henderson is as capable of applying to defendants and defences as to claimants and
claims if the circumstances so warrant; Barnett-Waddington Trustees (1980) Ltd v Royal Bank of
Scotland Plc [2017] EWHC 834 (Ch). In that case the claimant had sought declaratory relief in
respect of a loan agreement which the defendant bank had disputed (unsuccessfully) only upon

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narrow grounds and a declaration, framed by reference to those narrow grounds, was made. The
defendant bank continued to dispute the claimants’ rights relying upon wider grounds which it
could and should have raised earlier. In a subsequent action the claimants were granted further
declaratory relief by way of summary judgment.

CPR 3
Other case examples of the rule in Henderson, decided post 2001 (after Johnson v Gore
Wood)
There are many cases each year in which the rule in Henderson is raised. There is no abuse if, at 3.4.6
the time of the earlier proceedings, the claimants did not have all the information necessary to
bring their claim (Walbrook Trustees (Jersey) Ltd v Fattal [2009] EWCA Civ 297; [2010] C.P. Rep. 1
and see also Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA [2018] EWCA Civ 2025).
Striking out a second claim was held to be inappropriate where legal aid franchising arrangements
had prevented the claimants from instructing a single firm of solicitors to bring both claims
together (BA v Home Office [2012] EWCA Civ 944). It was held not to be an abuse to bring a second
action where the two claims involved different issues, where a fair trial was still possible, the
defendant had been aware of the new claim for many years and the claimants had not said or done
anything to lead the defendant to think that they would not bring a second claim in respect of it
(Henley v Bloom [2010] EWCA Civ 202; [2010] 1 W.L.R. 1770).
In Takhar v Gracefield Developments Ltd [2019] UKSC 13; [2020] A.C. 450, the Supreme Court
considered how the broad merits-based approach laid down in Johnson v Gore Wood (see above) af-
fects an action to rescind a judgment on the grounds that it had been obtained by fraud. Takhar
was a rescission action in which the Court of Appeal had held that the claimant was required to
establish that the evidence of fraud had not been available at the time of the first trial, and could
not have been discovered with reasonable diligence. Allowing the appeal, the Supreme Court held
that where it could be shown that a judgment had been obtained by fraud, and where no allegation
of fraud had been raised at the trial, a requirement of reasonable diligence should not be imposed
on the party seeking the rescission of that judgment. However, where issues of fraud had been
raised at the original trial and the claimant now advanced new evidence of fraud, the court has a
discretion as to whether or not to grant rescission. In Takhar the existence of fraud had not been
decided in the first action. It was a new issue and did not involve the re-litigation of an identical
claim.
Takhar was followed and applied in Elu v Floorweald Ltd [2020] EWHC 1222 (QB), a case in
which the statement of case of the party seeking rescission was struck out: the allegations of fraud
had been considered by the court and dismissed in the earlier proceedings.
Takhar was followed and applied in Park v CNH Industrial Capital Europe Ltd [2021] EWCA Civ
1766. In that case, the defence of a party (P) had been struck out on procedural grounds and the
claimant (CNH) had subsequently entered judgment under r.3.5. P commenced these proceedings
to set aside that judgment on grounds of a fraudulent misstatement of facts made by CNH in its
particulars of claim. The Court of Appeal held that P was entitled to bring these proceedings even
though P could have raised the allegation of fraud in the earlier action but failed to do so.
The rule in Henderson was also considered, explained and applied by the Court of Appeal in
Koza Ltd v Koza Altin Isletmeleri AS [2021] EWCA Civ 1018; [2021] 1 W.L.R. 170.
In Read v Eastern Counties Leather Group Ltd [2022] EWHC 31 (Ch), a claim for rescission of an
order for possession made in previous proceedings was struck out on two grounds: (i) in the earlier
proceedings the claimant must have known about, or at the very least suspected the existence of,
the allegations of fraudulent misrepresentation which he now relied upon in order to obtain rescis-
sion; alternatively (ii) the defendant was entitled to summary judgment under Pt 24 because the
claimant’s claim for rescission had no realistic prospect of success.

The Aldi guidelines

The guidance given as to strike out applications on grounds of res judicata which was given by 3.4.7
the Court of Appeal in Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260; [2008] 1 W.L.R.
748; [2008] P.N.L.R. 14 is set out above. In that case, Thomas LJ (as he then was) concluded his
judgment with these words, at [31]:
“… for the future, if a similar issue arises in complex commercial multi-party litigation, it
must be referred to the court seized of the proceedings. It is plainly not only in the interest of
the parties, but also in the public interest and in the interest of the efficient use of court
resources that this is done. There can be no excuse for failure to do so in the future.”
The possibility of further proceedings should be raised with the court in the first proceedings
commenced at an early stage so that the appropriate case management directions can be made.
This is known as the Aldi requirement, non-compliance with which involves the claimant running a
risk that the pursuit of a second claim would constitute an abuse (Stuart v Goldberg Linde [2008] 1
W.L.R. 823, noted below; Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWCA
Civ 1466; [2014] P.N.L.R. 11 (CA) at [65]–[67], [82], [83]).
In Clutterbuck v Cleghorn [2017] EWCA Civ 137, the Court of Appeal examined the guidelines in
Aldi Stores and concluded that a judge had been entitled to strike out two claims as an abuse of
process for the claimants’ failure to bring them before the court in earlier proceedings involving
the same defendant. The Aldi guidelines were mandatory and they applied to the instant

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proceedings. However, their third claim against a party who was not part of the earlier proceedings
should not have been struck out. The court stated that an inexcusable failure to comply with the
Aldi guidelines was a relevant factor in assessing whether a party was abusing the process of the
court. In assessing whether there was an abuse, the court had to carry out a broad merits-based
judgment which took account of the public and private interests involved and also of the facts of
the case.
In Stuart v Goldberg Linde [2008] EWCA Civ 2; [2008] 1 W.L.R. 823, CA, the claimant had suc-
cessfully sued the defendant solicitor for breach of a solicitor’s undertaking given in anticipation of
a contract being concluded between the claimant and the solicitor’s client. The claimant then
brought a second action against the solicitor alleging inducement of a breach of contract and
misrepresentation. The Court of Appeal, allowing the appeal, held on the facts that the second ac-
tion was not an abuse of process. The majority of the Court of Appeal regarded it as reasonable to
proceed with the breach of undertaking claim alone. The issues in the first action were clear,
simple and self-contained. The proceedings would have been on a different scale had the induce-
ment or misrepresentation claims been included. Furthermore, the second action was not an abuse
of process as the claimant only became aware of the facts of the inducement claim about three
months before the trial of the first action and was only aware of all of the facts relating to the
misrepresentation claim after trial. The Court of Appeal made four points of general application:
[1] if the prospects of success are uncertain but the case is not suitable for summary judgment for
either party, it is inappropriate to weigh the prospects of success in the balance in deciding whether
it is an abuse of process to bring the claim in later proceedings (the “broad, merits based” approach
in Johnson v Gore Wood was not a reference to the substantive merits but to the merits relevant to the
question whether the claimant should have brought their claim as part of the earlier proceedings);
[2] delay, of itself, is not relevant to whether the second claim is an abuse of process; [3] a claimant’s
failure to use reasonable diligence in finding out facts relevant to whether they had a possible
claim might be relevant to the abuse of process issue, but there was no general principle that a
potential claimant was under a duty to exercise reasonable diligence to find out the facts relevant to
whether they had or might have a claim; and [4] a claimant who keeps a second claim against the
defendant up their sleeve while prosecuting the first is at high risk of being held to have abused
the court’s process. Furthermore, as was stated in Aldi Stores, the proper course is for the claimant
to raise the possibility of a second claim with the court so that appropriate case management direc-
tions can be given.
In Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWCA Civ 1466 it was held
that the judge had been correct to strike out a claim for fraudulent misrepresentation brought
against chartered surveyors in connection with the purchase of land as it consisted of an abusive at-
tempt to pursue a cause of action already released (by settlement against other joint tortfeasors),
and the claimant had been fully compensated for the alleged loss by an earlier settlement agree-
ment with the landowners. The Court of Appeal emphasised that the Aldi case regarded the
requirement to refer a contemplated future claim for case management directions in the earlier
claim as mandatory and as serving the public interest in the efficient use of court resources. It
described the failure to do so in the instant case as inexcusable. The judge had been correct to treat
a failure by the claimant to follow the mandatory guideline as one of the relevant matters pointing
to a conclusion that the instant claim constituted an abuse of process.
In Otkritie International Investment Management Ltd v Threadneedle Management Services Ltd [2017]
EWCA Civ 274; [2017] 2 Costs L.R. 375, the claimant commenced a second action having, in the
first action, wrongly failed to comply with the Aldi guidelines. Knowles J refused to strike out the
second action but did impose a costs penalty on the claimants (75% of the costs of the defendant’s
application) and this decision, and the order for costs, were both upheld by the Court of Appeal.
Knowles J found that it was likely that, if the Aldi guidelines had been followed, the court would
not have required the defendant in the second action to be joined as a party to the first action.
Previous litigation terminated without any substantive adjudication or settlement
3.4.8 The principles of res judicata, including the rule in Henderson, do not apply where the earlier
proceedings terminated prematurely, without any substantive adjudication or settlement. However,
there may be other grounds upon which such claims may be struck out as an abuse of process.
In Securum Finance Ltd v Ashton [2001] Ch. 291; [2000] 3 W.L.R. 1400, CA, the claimant’s first
action had been struck out on grounds of inordinate and inexcusable delay. The Court of Appeal
concluded that the claimant’s wish to have a “second bite at the cherry” has to be weighed with the
overriding objective of the CPR in mind, and in particular, the court’s need to allot its limited
resources to other cases. The Court of Appeal ruled that the conduct which had led to the first ac-
tion being struck out had been so serious as to amount to an abuse of the court’s process. Although
misconduct as serious as that did not by itself prevent the court from allowing a second action to
proceed, the court should start with the assumption that if a party has had one action struck out
for abuse of process, some special reason has to be identified to justify a second action being al-
lowed to proceed.
In C (A Child) v CPS Fuels Ltd [2001] EWCA Civ 1597, the claimant’s solicitors failed to comply
with an unless order and, as a result, the first action was struck out. Prior to the making of the un-
less order, between 1996 and 1999, there had been repeated failures by the claimant’s solicitors to

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comply with earlier orders—on at least six occasions. The claimant then applied to set aside the
order striking out the claim (which was refused) and subsequently commenced a second action.
The second action was struck out as an abuse of process. On the appeal to the Court of Appeal, the
decision to strike out the second action was upheld. The first action had been struck out, not only
for failure to comply with the final unless order, but because there had been a number of failures

CPR 3
to comply with earlier orders and a failure to engage with the case management process. Although
the failures were not intentional, no good explanation had been given and the failures were
“inexcusable” (see Bodey J at [16]). Judge LJ (as he then was) agreed with Bodey J’s judgment and
that the words “some special reason” (derived from an earlier case) were not a fixed formula and
that other terms, such as “very good reason” or “powerful” or “sufficient” reason, expressed the
same principle.
The “special” or “powerful” reason requirement identified in Securum and C (A Child) applies
where the conduct of the first action has been found to have been an abuse of process or otherwise
inexcusable; in such a case the second action will be struck out as an abuse of process unless some
special or powerful reason is shown. This is so even if the first action was struck out before the
adjudication of any issues raised therein. However, if the first action was not itself an abuse of
process, the court’s consideration of a second action should not start with an assumption that the
second action is abusive.
In Cranway Ltd v Playtech Ltd [2008] EWHC 550 (Pat) the first action had been struck out for
failure to comply with a practice direction dealing with the requirements for a pleading. There was
no appeal against that decision. An application to strike out a second action on the grounds that it
was an abuse of process because the first action had been struck out was dismissed. Lewison J (as
he then was) applied the approach in Securum, stating that the court must take a broad view of the
reasons why the original action was struck out and the stage at which it was struck out. At [20] he
concluded that the reason why a claim was struck out was an important factor in deciding whether
a subsequent claim is or is not abusive. In the present case, the original claim had not been struck
out because it was an abuse of process.
In Aktas v Adepta [2010] EWCA Civ 1170, the claimant’s first action was struck out for failure,
due to mere negligence, to serve a claim form in time and a subsequent second action was also
struck out as being an abuse of process. Rix LJ concluded that where the first action had been
struck out for procedural failure (and had not been lost on the merits), the second action would be
an abuse of process only where the conduct in the first action itself amounted to an abuse of
process; and that such an abuse of process in the first action would arise where there had been (a)
intentional and contumelious conduct or (b) want of prosecution (i.e. inordinate and inexcusable
delay) or (c) wholesale disregard of rules of court: see [48], [52], [72] and [90]. Applying this ap-
proach, he concluded that a mere negligent failure to serve a claim form in the first action did not
fall into any of these categories and was not an abuse of process; thus the second action was not an
abuse of process (and see also [92]).
In Davies v Carillion Energy Services Ltd [2017] EWHC 3206 (QB); [2018] 1 W.L.R. 1734, the
claimant brought a claim in 2010 which was struck out for his failure to file and serve particulars
of claim pursuant to an unless order. He did not appeal, nor did he apply for relief from sanctions.
In 2015 he brought a second claim against the same defendant who applied to have it struck out as
an abuse of process. On the facts, Morris J decided that the claimant's conduct in the first claim
had been neither an abuse of process nor inexcusable and, hence, that the second claim should not
be struck out as an abuse of process. The learned judge ruled that a single failure to comply with
an unless order was not, of itself, sufficient to conclude that the second action was an abuse of
process.
In Harbour Castle Ltd v David Wilson Homes Ltd [2019] EWCA Civ 505, C’s claim (the “first ac-
tion”) was struck out because of C’s failure to comply with an unless order to provide security of
costs. It was common ground that, at all material times, C had not itself possessed the funds to
provide security, but that its sole shareholder (X) personally had the resources to do so. The unless
order was made prior to the change in practice brought about by the Supreme Court’s ruling in
Goldtrail Travel Ltd (In Liquidation) v Aydin [2017] UKSC 57; [2017] 1 W.L.R. 3014 (as to which see
para.3.1.14). For commercial reasons X did not assist C to comply with the unless order, and
therefore its claim was automatically struck out in December 2012. In 2016 C commenced new
proceedings (the “second action”) raising the same claims as before and D applied for an order
striking out the second action as an abuse of process. The lower court struck out the second action
as an abuse and C’s appeal to the Court of Appeal was dismissed.
“[6] The burden of showing that the second action is an abuse lies on the party asserting it,
in this case [D], and it must be clearly shown to be an abuse. Whether an action is an abuse is
not a question of discretion, but an evaluative assessment to which there can be only one
answer. These propositions are established by several decisions of this court, including Stuart
v Goldberg Linde [2008] EWCA Civ 2, [2008] 1 WLR 823 and Aktas v Adepta [2010] EWCA Civ
1170, [2011] QB 894. If it is an abuse, the court has a discretion whether to strike it out, but,
as Rix LJ said in Aktas v Adepta at [53], once satisfied that the second action is an abuse of
process it is likely that the court will strike it out, but it does not necessarily follow.”
Bearing in mind the principles set out in Goldtrail, the second action would be an abuse of process
if C had decided not to comply with the unless order even though it could have raised sufficient

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funds to do so. The relevant question in this case was whether X would have provided the requisite
funds if he had been requested to do so by C. The burden of proof on this sub-issue fell upon C; it
was for C to show that it could not have raised the funds from X. The evidence given by X and oth-
ers in the second action led the lower court to the conclusion that X had been the sole directing
mind of C, had financed both C and the litigation up to December 2012, and had continued to
finance C after that time. On the basis of this evidence the lower court had concluded that the
decision not to comply with the unless order had been made by X in his capacity as the directing
mind of C and that if, in that capacity, he had concluded that it was in the interests of C to proceed
with the litigation, he would personally have provided the necessary funding. C therefore did have
access to funding if it chose to seek it.
In Kishore v Revenue and Customs Commissioners [2021] EWCA Civ 505, C submitted a VAT return
claiming input tax exceeding £22 million. On D’s refusal of that claim, C commenced an appeal to
the First-tier Tribunal (FTT) which made a directions order. The proceedings were later struck out
as a result of an unless order requiring C to comply with the directions order. Subsequently D
imposed penalties exceeding £2 million on C for alleged inaccuracies in the return. C commenced
new appeal proceedings in respect of the penalty assessments. The FTT made an order striking
out those proceedings as an abuse of process because issues raised in the earlier proceedings
(knowledge of fraud) would also be raised in the new proceedings. The Upper Tribunal (UT) set
aside the order of strike out and D’s appeal to the Court of Appeal was dismissed.
“[31] … it has not been demonstrated that Mr Kishore was guilty of intentional and contumeli-
ous conduct, wholesale disregard of the rules or otherwise inexcusable conduct in the [earlier
proceedings]. Mr Kishore failed to comply with the FTT’s October 2014 directions and,
subsequently, the unless order made on 29 July 2015 in respect of that. I do not think those
defaults can be said to represent ‘wholesale disregard of the rules’ …” (Newey LJ).
As to the correct test to apply, the Court of Appeal upheld the UT’s decision to proceed on the
basis that the Johnson v Gore Wood & Co principles (a “broad, merits-based” approach) applied ([29]
and [30]). However, it was noted that, in analagous circumstances (a second action after the
discontinuance of the first; r.38.7) there is a conflict of authorities at first instance as to the correct
approach: Johnson v Gore Wood & Co principles or a simpler resort to the overriding objective ([26];
and see also para.38.7.1 and the cases noted therein and Davies v Carillion Energy Services Ltd
(above) at [55(2)] cited in Kishore at [24]).
Collateral attacks upon earlier decisions
3.4.9 In Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 the House of Lords
defined as a further example of abuse of process:
“… the initiation of proceedings in a court of justice for the purpose of mounting a collateral
attack upon a final decision against the intending plaintiff which had been made by another
court of competent jurisdiction in previous proceedings in which the intending plaintiff had
full opportunity of contesting the decision in the court in which it was made.”
The prime example of a claim in which this principle may be invoked is a claim brought against
lawyers for negligence in the conduct of the claimant’s defence of criminal proceedings which
ended in a verdict, or a plea, of guilty. In such a case the Hunter principle overlaps with principles
relating to consistency and coherence and with the doctrine as to illegality (as to which, see further
Patel v Mirza [2016] UKSC 42; [2017] A.C. 467 at [99]).
“It is a rule of law and a manifestation of public policy that a civil court will not award dam-
ages to compensate a claimant for a disadvantage which the criminal courts have imposed on
him or her by way of punishment for a criminal act for which he or she was responsible”
(Coulson LJ in Day v Womble Bond Dickinson (UK) LLP [2020] EWCA Civ 447 at [28]).
There is also a large overlap between the rule in Henderson (see para.3.4.5) and the rule in Hunter.
Henderson deals with the private interest of a party not to be vexed twice for the same reason.
Hunter deals with the public interest of the State in not having issues repeatedly litigated (Michael
Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3; [2017] 1 W.L.R. 2646 at [48] (Simon LJ)).
In Allsop v Banner Jones Ltd [2021] EWCA Civ 7 the Court of Appeal made a distinction between
a collateral attack upon an anterior criminal decision and a collateral attack upon an anterior civil
(including matrimonial) decision.
“In terms of the facts and circumstances that render relitigation potentially abusive, the fol-
lowing points are of particular relevance:
a) There is a public interest in criminal convictions only being challenged by way of ap-
peal, and for them not otherwise to be called into question. As Lord Hoffmann put it
in [Arthur JS Hall & Co v Simons [2002] 1 A.C. 615, HL] ‘…it would ordinarily be an
abuse of process for a civil court to be asked to decide that a subsisting conviction was
wrong. This applies to a conviction on a plea of guilty as well as after a trial. The
resulting conflict of judgments is likely to bring the administration of justice into
disrepute… On the other hand, in civil (including matrimonial cases), it will seldom
be possible to say that an action for negligence against a legal adviser or representa-
tive would bring the administration of justice into disrepute. Whether the original
decision was right or wrong is usually a matter of concern only to the parties and has
no wider implications…’

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b) There is a second, important, distinction between collateral challenge to anterior

criminal rather than civil decisions. As Lord Diplock emphasised in Hunter (at 540),
criminal decisions do not give rise to res judicata estoppels in the way that civil deci-
sions do. That is, at least in part, because there is no meaningful identity of parties
between the earlier (criminal) and later (civil) decisions. That, in turn, means that the

CPR 3
abuse doctrine has an inevitably greater role where the anterior proceedings the
subject of collateral challenge are criminal rather than civil. The doctrine of res
judicata estoppel does not operate in the criminal sphere as they do in the civil.”
(Marcus Smith J at [44(iv)]; subpara.c) (“Thirdly, and relatedly, …”) is quoted in
para.3.4.12).
Attempts to impugn an earlier criminal decision
The meaning of the phrase “collateral attack” was explained in Smith v Linskills (A Firm) [1996] 1 3.4.10
W.L.R. 763 as an attack which is made in new proceedings rather than by way of appeal in the
proceedings in which the impugned decision was made. In that case, the Court of Appeal upheld
the striking out of a claim brought against the claimant’s former solicitors for negligence and
breach of contract in the conduct of criminal proceedings, which, it was alleged, had led to his
conviction and imprisonment.
In the overwhelming majority of cases concerning an earlier decision in criminal proceedings,
the failure to successfully attack that decision by way of appeal in those proceedings will lead to a
finding that an attempt to re-litigate the matter in subsequent proceedings is an abuse of process
(Amin v Director General of the Security Service (MI5) [2015] EWCA Civ 653). Save in an exceptional
case (see Walpole v Partridge & Wilson [1994] Q.B. 106, noted below) defendants who pleaded guilty
to a criminal charge or were found guilty, cannot bring a civil claim alleging negligence against
their former solicitor or counsel who acted for them in those proceedings without first successfully
appealing the conviction.
“A conviction may be set aside as unsafe and unsatisfactory when the accused appears to have
been prejudiced by ‘flagrantly incompetent advocacy’: see Reg. v. Clinton [1993] 1 W.L.R.
1181. After appeal, the case may be referred to the Court of Appeal (if the conviction was on
indictment) or to the Crown Court (if the trial was summary) by the Criminal Cases Review
Commission: see Part II of the Criminal Appeal Act 1995.
It follows that in my opinion it would ordinarily be an abuse of process for a civil court to be
asked to decide that a subsisting conviction was wrong. This applies to a conviction on a plea
of guilty as well as after a trial. The resulting conflict of judgments is likely to bring the
administration of justice into disrepute. … The proper procedure is to appeal, or if the right
of appeal has been exhausted, to apply to the Criminal Cases Review Commission under sec-
tion 14 of the 1995 Act. …
Once the conviction has been set aside, there can be no public policy objection to an action
for negligence against the legal advisers.” (Lord Hoffmann in Arthur JS Hall & Co v Simons
[2002] 1 A.C. 615, HL (at 705 and 706).
The rule in Hunter is not an inflexible rule to be applied to all cases which might arguably be
said to fall within it. Although the mounting of an attack upon an earlier decision might be an
abuse of process, it is not necessarily so. There is an abuse of process only if the new proceedings
(i) would be manifestly unfair or (ii) would bring the administration of justice into disrepute. In
Walpole v Partridge & Wilson [1994] Q.B. 106 a claim against solicitors was not struck out where the
claimant alleged that the solicitors had given him bad advice on a point of law and had negligently
failed to lodge an appeal in time (as to (i) and (ii) above, see further, para.3.4.20).
In Hunter Lord Diplock stated that a conviction might possibly be challenged in subsequent civil
proceedings without being an abuse of the process of the court if the challenger could adduce
“fresh evidence” such as to satisfy the test laid down by Earl Cairns LC in Phosphate Sewage Co Ltd v
Molleson (1879) 4 App. Cas. 801 (noted in para.3.4.11). However, this obiter dictum should now be
reconsidered in the light of Allsop v Banner Jones Ltd [2021] EWCA Civ 7 (at [32] and [44(iv)(c)]
and see para.3.4.12).
In some circumstances, defendants are given a statutory right to initiate collateral attacks upon
decisions made against them in criminal proceedings. Where an allegation is made under the Civil
Evidence Act 1968 s.11, that a party’s conviction for an offence is evidence that they committed
that offence, a response by that party that the conviction was erroneous is not, by itself, an abuse of
process because s.11(2) clearly permits such a response (McCauley v Hope [1999] 1 W.L.R. 1977,
CA). There is controversy as to the quality of the evidence needed to attack a conviction relied
upon under this statute: must the party attacking the conviction adduce evidence that satisfies the
test laid down in Phosphate Sewage Co Ltd v Molleson (see above) and, if not, can the trial court treat
the proof of conviction as a weighty piece of evidence in its own right? In CXX v DXX [2012]
EWHC 1535 (QB) Spencer J took the latter view but did so only in the context of an application
for permission to appeal. As to the status of judgments granting or refusing permission to appeal,
see Practice Direction (Citation of Authorities) [2001] 1 W.L.R. 1001, paras 6.1 and 6.2, noted in Vol.1
para.39MPD.2.
Attempts to impugn an earlier civil decision: res judicata
The principle of finality of earlier civil decisions is mainly preserved by the doctrine of res 3.4.11
judicata, that is to say, a decision pronounced by a judicial or other tribunal with jurisdiction over

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the cause of action and the parties, which disposes, once and for all, of all the fundamental matters
decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judg-
ment or their privies. Under this doctrine, a party is estopped, as against any other party, from
disputing the correctness of the decision, except on appeal. The estoppel may be a “cause of action
estoppel” or an “issue estoppel” (a final decision which determines an issue in a cause of action as
an essential step in its reasoning).
Apart from appeals, there are three main ways in which parties can lawfully challenge a civil
decision which is otherwise binding upon them:
D an action in which a party seeks to have a judgment made in earlier proceedings set aside
on grounds that it was fraudulently obtained: Takhar v Gracefield Developments Ltd [2019]
UKSC 13; [2020] A.C. 450 (as to which, see further, para.3.4.5);
D an action in which a party seeks to have a judgment made in earlier proceedings set aside
on the basis of new facts have come to light which fundamentally change the complexion
of the case; see Phosphate Sewage Company Ltd v Molleson (1879) 4 App. Cas. 801 at 814. The
new evidence must be such as to “fundamentally change the shape of the case” (Amin v
Director General of the Security Service (MI5) [2015] EWCA Civ 653 at [52]). In Hunter this
test was described as being more rigorous than the Ladd v Marshall test, justifying the use
of fresh evidence on appeals (see para.52.21.3, below); and
D an application in the proceedings in which the earlier judgment was made, seeking an
order setting aside or varying the judgment under r.3.1(7) (see para.3.1.17).
“CPR 3.1(7) lists as one of the court’s general powers of case management the power
to vary or revoke a prior order made. It is very clear that this provision cannot gener-
ally be used to vary or revoke final orders (that is, orders that give rise to a res judicata
estoppel) and equally clear that even interlocutory decisions will generally only be
varied or revoked where either (a) there has been a material change of circumstance
since the original order was made or (b) where the facts on which the original deci-
sion was made were (innocently or otherwise) misstated: Tibbles v. SIG plc [2012]
EWCA Civ 518, [2012] 1 WLR 2591.” (Allsop v Banner Jones Ltd [2021] EWCA Civ 7
at [24(i)])

Attempts to impugn an earlier civil decision: abuse of process

3.4.12 Given the breadth of res judicata in civil cases, the abuse of process doctrine has a much smaller
role in preventing collateral attacks on earlier civil decisions (Allsop v Banner Jones Ltd [2021]
EWCA Civ 7 at [44(iv)(c)], quoted below).
In Smith v Linskills (A Firm) [1996] 1 W.L.R. 763 (noted in para.3.4.10) it was said, obiter, that
there is no abuse if the party wishing to impugn the earlier decision did not receive a full op-
portunity to contest that decision before it was made; for example, where judgment is entered
against the party on the ground of procedural default, or on an application for summary judgment
(Smith v Linskills at 770A).
In Re Norris [2001] UKHL 34; [2001] 1 W.L.R. 1388 the House of Lords held that it was not an
abuse of process for a defendant to assert her beneficial ownership of land even though, in earlier
proceedings in which she had been called as a witness, her evidence as to her beneficial ownership
had not been believed (and see also Shalabayev v JSC BTA Bank [2016] EWCA Civ 987; [2017] 1
W.L.R. 603, a case which is broadly similar to Norris; and Law Society v Dua [2020] EWHC 3528
(Ch)).
A claim made, or a defence raised, by a party seeking to attack a decision made in earlier civil
proceedings may be struck out as an abuse even if that party is not bound by res judicata if it is
shown that the new proceedings (i) would be manifestly unfair manifestly unfair to a party to the
new proceedings; or (ii) would bring the administration of justice into disrepute (Secretary of State
for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] 1 Ch. 1. However, in that case, the
defendant’s challenge to an earlier civil decision made against him was held not to be an abuse; the
new proceedings in that case (under the Company Directors Disqualification Act 1986) were akin to
criminal proceedings affecting the business life and reputation of the defendant).
In Laing v Taylor Walton (A Firm) [2007] EWCA Civ 1146; [2008] B.L.R. 65, C had, in an earlier
action, sued X, a business associate, to establish the true effect of agreements that had been made
between them. There was a factual dispute about what exactly had been agreed orally that led to a
later written agreement being made. The judge at the first trial rejected Mr Laing’s account of the
disputed oral exchanges and accepted X’s account. C did not appeal that decision but commenced
this action against D, a firm of solicitors, who, he alleged, had acted for him in preparing the writ-
ten agreement. C contended that they had negligently failed to translate correctly what had been
agreed orally into writing. D applied to strike out C’s claim as a collateral attack upon the decision
in the C v X action which amounted to an abuse of process. In the Court of Appeal the C v D ac-
tion was struck out as an abuse. Careless drafting, if proved, would not by itself establish any li-
ability by D for C’s loss of the action against X. In order to win against D, C would have to prove
(amongst other things) that the judge in C v X had wrongly rejected C’s evidence as to what had
been agreed orally. Proof of that matter should have been raised by way of an appeal in the C v X
action.
“[37] But such cases [negligence claims against legal practitioners] differ from the instant ap-

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peal in two important respects. Firstly, in the normal run of cases, the impugned conduct of
the lawyer is independent of the factual conclusions of the court; those conclusions are only
relevant to prove causation and loss. His case does not, in reality, involve any challenge to the
findings or conclusion of the court. He merely contends that, in the light of the negligence of
which he now complains, the court’s conclusions would have been different. But this is not so

CPR 3
in the present case. As Buxton LJ has demonstrated (at paragraphs 19 and 27), the claimant
cannot establish that his adviser’s drafting of the agreements was negligent without challeng-
ing the judge’s findings as to credibility and fact. To make good the allegations of negligence,
Mr Laing must show that his account of the agreements is the truth. He must demonstrate
that His Honour Judge Thornton’s judgment of his credibility was wrong.
[38] Secondly, generally in actions against legal advisers arising out of litigation, the losing
party’s allegations of negligence could not have been advanced in the case which he lost.
They arise only after the case is concluded. But in the present case, the claimant had every
opportunity during the course of the trial to raise, as he would have it, the inadequate
drafting. …” (Moses LJ).
“[25] I therefore conclude that it would bring the administration of justice into disrepute if
Mr Laing were to be permitted in the second claim to advance exactly the same case as was
tried and rejected by Judge Thornton. If Judge Thornton’s judgment was to be disturbed, the
proper course was to appeal, rather than seek to have it in effect reversed by a court not of
superior but of concurrent jurisdiction hearing the second claim. That the second claim is in
substance an attempt to reverse Judge Thornton is important in the context of wider principles
of finality of judgments. …” (Buxton LJ).
In Arts & Antiques Ltd v Richards [2013] EWHC 3361 (Comm); [2014] P.N.L.R. 10, the earlier
proceedings were taken against an insurer in respect of a claim made on a policy in respect of
losses sustained in a robbery. The matter first proceeded by way of arbitration which resulted in a
finding that C had failed to satisfy the requirements of a condition precedent in the policy (“CP2”).
An attempt to appeal or set aside the award was dismissed by the court. C then brought proceed-
ings against the brokers who had arranged the policy, arguing among other things that the condi-
tion precedent had not validly been incorporated in the policy and that the brokers had fabricated
a copy of the policy incorporating it. Hamblen J held that the second claim fell to be struck out as
an abuse of process in so far as it rested on an argument that the condition precedent had not
formed part of the policy.
“There is in this case no new evidence which casts doubt on the Arbitrator’s decision. ... That
decision has sought to be challenged by appeal but the application has been dismissed on the
basis that the decision is ‘not open to serious doubt’. For the issue to be relitigated in this
court involves a collateral attack on the Arbitrator’s final and binding decision. Further, that
decision relates to the terms of the contract as between A & A and Zurich, which have been
determined in accordance with the agreed contractual machinery, namely by arbitration. In
all the circumstances, I conclude that it would bring the administration of justice into
disrepute, and would be oppressive and unfair on [the defendants], for A & A to be allowed
to fight the issue of whether or not the contract contained CP2 all over again. It would ac-
cordingly be an abuse of process” (Hamblen J at [46]).
In Allsop v Banner Jones Ltd [2021] EWCA Civ 7 (a claim against solicitors and counsel for
professional negligence relating to a financial remedies order made against the claimant in
matrimonial proceedings) the defendants sought, in respect of most of the allegations made against
them, a strike out under r.3.4(2)(a) (because they disclosed no reasonable grounds for bringing the
claim) or summary judgment under r.24.2 (because the claimant had no reasonable prospect of
success as to them) and also a strike out under r.3.4(2)(b) as an abuse of process. The Court of Ap-
peal ruled that, in such cases, the court should first address the applications under r.3.4(2)(a) and
r.24.2 (the “not reasonably arguable” grounds); see [47(iii)]. Most of the claimant’s allegations
survived the defendants’ applications at first instance. However a few were struck out as an abuse of
the earlier financial remedies order on the basis that the claimant had not adduced fresh evidence
which met the stringent test in Phosphate Sewage Company Ltd v Molleson (1879) 4 App. Cas. 801 (see
para.3.4.11). The claimant’s appeal to the Court of Appeal succeeded as to three of the allegations
disallowed on abuse grounds.
“… at least where the anterior proceedings are civil, Phosphate Sewage is of no application, and
not to be used as a test for the purpose of determining whether the subsequent proceedings
are abusive or otherwise” (Allsop at [44(v)]).
Properly understood, the allegations made against the defendants in Allsop did not amount to re-
litigation and did not involve any attack upon the earlier decision made in the matrimonial
proceedings.
“c) Thirdly, and relatedly, it is necessary to be very clear what is meant by ‘relitigation’. In my
judgment, relitigation means arguing the same issue, that has already been determined in
earlier proceedings, all over again in later proceedings. In civil proceedings, generally speak-
ing, for an issue to be the same, it will arise as between the same parties (or their privies).
That is why, in such cases, the doctrine of res judicata estoppel comes into play. The role of
the doctrine of abuse of process is, correspondingly, much more limited. The abuse doctrine
will only arise where one of the parties to the earlier litigation sues a stranger to that litigation.

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In such a case, the claim will typically be permissible and not abusive, and that will generally
be because the case is not one of relitigation at all. Rather, the stranger to the earlier litigation
will be the subject of the later claim because that person has done or failed to do something
which (had that person behaved as he or she should) affected the terms or nature of the
anterior decision. Why or how that earlier decision was affected will depend on the individual
circumstances. It may be that the later claimant’s former legal advisers failed properly to
prepare the case (see the example in Laing at [27] (Buxton LJ at paragraph 40 above) and
[36] (Moses LJ at paragraph 41 above) or failed, in an appeal, to deploy or consider a
potentially winning point (Walpole at paragraph 37 above). In all of these cases, what is being
focussed on is “the impugned conduct of the lawyer [which is] independent of
the...conclusions of the court” in the anterior decision (Laing at [37] (Moses LJ at paragraph
41 above)” ([44(iv)]; the preceding subparagraphs, a) and b), are quoted in para.3.4.9).
In Tinkler v Ferguson [2021] EWCA Civ 18; [2021] 4 W.L.R. 27, CA, the dispute related to a
boardroom battle as a result of which C was dismissed as a director and D’s appointment as
chairperson of the company was confirmed. C sued D and other directors for malicious prosecution.
One week later the company sued C seeking a declaration that C had been validly dismissed. That
action was tried first and the company was successful (Stobart Group Ltd v Tinkler [2019] EWHC 258
(Comm)). Nicklin J struck out the malicious prosecution claim as an abuse of process because it
represented a collateral attack on key findings in Stobart Group Ltd and this decision was upheld by
the Court of Appeal.
“In both sets of proceedings Mr Tinkler is making the same essential complaint about the
same individuals. On the specific facts of this case, that amounts to a collateral attack on the
previous findings. These features bring the case into the rare group where litigation is
abusive although it is not formally between the same parties or their privies. I would reach
this conclusion [even if there were any residual issues not directly covered by the judgment in
Stobart Group Ltd because they] are of such small significance that they do not begin to justify
the resources that would be necessary to resolve them, and I would despatch them under
Jameel. Those residual issues are quintessentially part of ‘the give and take of business life’
and there is no proportionate way in which they could be determined … the Court would
have to rehear a great deal of similar evidence from the same witnesses. That would be
manifestly unfair to the Respondents and an improper use of the court process. In boxing
terms, the judges have scored the round and no good private or public interest is served by
continuing the argument about a single punch.” (Peter Jackson LJ at [62]).
Abuse of process challenges are not limited to prohibiting attacks upon decisions made in
courts. They can also be invoked to prohibit collateral attacks upon decisions made by industrial
tribunals or administrative bodies such as the European Commission or the FSA (Kamoka v Security
Service [2017] EWCA Civ 1665) or decisions made in arbitration proceedings (Michael Wilson &
Partners Ltd v Sinclair [2017] EWCA Civ 3; [2017] 1 W.L.R. 2646).
“The touchstone for the application of the principle is not whether the earlier proceedings
led to a final determination of a court of competent jurisdiction but whether the pursuit of
the subsequent proceedings is manifestly unfair to a party to the litigation or would otherwise
bring the administration of justice into disrepute” (Flaux LJ in Kamoka at [75]).

Challenges where the consolidation of or joint trial of linked cases was considered but
reasonably rejected
3.4.13 In BTI 2014 LLC v PricewaterhouseCoopers LLP [2021] EWCA Civ 9, C sued D for professional
negligence relating to auditing services D had carried out for a company (“A”) shortly before the
transfers of funds from that company to its parent company (“S”). In respect of the same matters C
and its parent company had already commenced proceedings against S and against the former
directors of A. C attempted to have the two sets of claims tried together but D resisted that sugges-
tion, as did S. C decided not to pursue an application for a joint trial, and the claim against D was
stayed by consent pending the outcome of the other actions. They proceeded to trial before Rose J
at which C failed totally. Although C obtained permission to appeal, no appeal was pursued
because of fears as to the solvency of S. S did become insolvent and C’s parent company made no
recoveries against S in respect of the multi-million pound award Rose J had made.
None of the issues raised in BTI 2014 LLC v PricewaterhouseCoopers LLP having previously been
litigated between those parties, neither side was bound by any findings made by Rose J and the
decisions she had made would not be admissible in evidence. However, D applied to strike out the
claim on grounds of abuse (r.3.4(2)(b)) and on the grounds that the claim was not reasonably argu-
able (applications under r.3.4(2)(a) and/or r.24.2). These applications were heard by Fancourt J
who ruled that, in order for BTI to succeed, it would be necessary to show that Rose J’s decision as
to an important matter was wrong. However, Fancourt J ruled that BTI’s claim was not an abuse of
process which would bring the administration of justice into disrepute. As to the “not reasonably
arguable” applications, Fancourt J rejected a submission that there was no possibility that BTI
could adduce evidence which was materially different from the evidence Rose J had heard. D’s ap-
peal to the Court of Appeal was dismissed.
“87. There is no question of the first limb of the Bairstow test applying, since PwC was not a
party to the proceedings before Rose J, so that it cannot be said that relitigation of the same

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issues would be manifestly unfair to PwC or that it would vex or harass PwC for the issues to
be relitigated. …
88. It has not been suggested on behalf of PwC that BTI is pursuing these proceedings other
than for the genuine purpose of seeking to recover the losses it has suffered, which it failed to
recover in the first proceedings. Rather, what is contended is that, because the allegations

CPR 3
made in these proceedings involve inviting a second judge to make findings which are contrary
to those made by Rose J and thus involve a collateral attack on her judgment, the proceedings
are an abuse of process; hence the considerable reliance placed by Mr Salzedo QC [for the
appellant] on the decisions in Laing and Arts & Antiques [noted in para.3.4.12].
89. Despite the cogent and careful submissions advanced by Mr Salzedo QC both in opening
the appeal and in reply, I am firmly of the view that the present proceedings, notwithstand-
ing that they involve to a considerable extent relitigation of the same issues as decided by
Rose J, do not bring the administration of justice into disrepute. My principal reason for
reaching that conclusion is the procedural and case management history of the two sets of
proceedings and the attempts by BTI to procure the agreement of both sets of defendants to
a joint trial. I have set out that history in detail at [8] to [21] above, which I do not propose to
repeat, but I would simply highlight a number of features of that procedural history which
are striking and relevant.” (Flaux LJ; and see further [90]–[105]).

Pointless and wasteful litigation

Yet another form of abuse can arise in circumstances where it can be demonstrated that the 3.4.14
benefit attainable by the claimant in the action is of such limited value that “the game is not worth
the candle” and the costs of the litigation will be out of all proportion to the benefit to be achieved;
see Jameel v Dow Jones and Co [2005] EWCA Civ 75; [2005] Q.B. 946; [2005] 2 W.L.R. 1614 (see
below).
Jameel was a libel case but this form of abuse is not confined to such cases. However, as the cases
below demonstrate, it has its limitations and the mere fact that a claim is small does not mean that
it is abusive.
In Wallis v Valentine [2002] EWCA Civ 1034; [2003] E.M.L.R. 8, CA, a libel claim which arose
out of a lengthy neighbour dispute was struck out as an abuse of process: in all the circumstances
any damages recoverable if the claim succeeded would be nominal only and would be wholly
disproportionate to the costs of the proceedings. The claim was being brought, not to vindicate a
right, but to cause expense, harassment or commercial prejudice beyond that normally encountered
in the course of properly conducted litigation. See para.3.4.9 below.
The Jameel case itself involved limited publication within the jurisdiction and limited damages.
The claim was struck out as an abuse of process. Lord Phillips of Worth Matravers MR (as he then
was) summarised the position as follows at [69]:
“If the claimant succeeds in this action and is awarded a small amount of damages, it can
perhaps be said that he will have achieved vindication for the damage done to his reputation
in this country, but both the damage and the vindication will be minimal. The cost of the
exercise will have been out of all proportion to what has been achieved. The game will not
merely not have been worth the candle, it will not have been worth the wick.”
At [54] he said:
“An abuse of process is of concern not merely to the parties but to the court. It is no longer
the role of the court simply to provide a level playing field and to referee whatever game the
parties choose to play upon it. The court is concerned to ensure that judicial and court
resources are appropriately and proportionately used in accordance with the requirements of
justice.”
Lord Phillips said at [70]:
“It would be an abuse of process to continue to commit the resources of the English court,
including substantial judge and possibly jury time, to an action where so little is now seen to
be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate
small claims procedure. Such a course is not available in an action for defamation where,
although the claim is small, the issues are complex and subject to special procedure under the
CPR.”
In Evans v Secretary of State for the Environment, Transport and the Regions [2006] EWHC 322 (QB),
HH Judge Mackie QC (sitting as a judge of the High Court) having given summary judgment for
the first defendant in respect of various heads of damage, struck out the balance of the claimant’s
claim as an abuse of process. The second defendant (the MIB) had made an open offer to waive a
costs order in its favour and the claimant’s remaining heads of damage amounted to less than this
offer. The offer was still current at trial. The judge regarded the continuation of the claim as a
pointless waste of time, costs and other resources.
The Jameel case was followed in the libel case of Kaschke v Gray [2010] EWHC 1907 (QB).
However, in McLaughlin v Lambeth LBC [2010] EWHC 2726 (QB); [2011] E.M.L.R. 8; [2011]
E.L.R. 57; [2011] H.R.L.R. 2, concerning two headteachers and chairman of school governors who
brought a libel claim against the local authority responsible for the school, Tugendhat J, declined
to strike out the case on the Jameel basis. Although the number of addressees of the emails
complained of was small, they were all concerned with education and with the school. The judge

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took into account that the words complained of were in electronic form; they could be stored
indefinitely, and easily searched and republished, both generally to those concerned with educa-
tion, and in particular to others in the Department for Education or in the local authority
defendant. The judge observed that although the damage incurred might or might not be small,
the main point of defamation proceedings is vindication which included preventing or reducing
the risk of future publications. The fact that the damage suffered so far may be small is no indica-
tion of the extent of the damage which is prevented from occurring in the future, when a claimant
in a libel action obtains a public retraction or a judgment in his favour from the court.
In Mama Group Ltd v Sinclair [2013] EWHC 2374 (QB); an application to strike out a libel claim
was refused as there was a legitimate and proper purpose in pursuing the claim where the email
complained of had been intended to cause damage (and the evidence suggested that damage was
caused) and the claimant music festival organisers had a legitimate intention to vindicate their
reputation. The wide publication of the email is to be noted.
In Ansari v Knowles [2013] EWCA Civ 1448; [2014] C.P. Rep. 9, the claimant, a university
lecturer, sued in relation to the publication of a defamatory memo. The claim was settled against
one of the defendants. The Court of Appeal refused to strike out the remaining claim as an abuse
of process. Although the publication of the memo was limited to a few people, its nature and the
identities of the people to whom it was communicated made it potentially very serious. On the
question of whether, given the settlement against one defendant, it was futile to press on the Court
of Appeal doubted whether it is appropriate for the court to have regard to the strength or weak-
ness of the claimant’s case, except insofar as it can be seen without the need for any detailed
enquiry to fall at one or other extreme of the spectrum. Moore-Bick LJ stated that an application
of this kind should not be allowed to become a vehicle for an investigation into the merits of the
claim. Unless it is obvious that the claim has very little prospect of success it should be taken at face
value. Vos LJ stated that on an application to strike out a claim on the Jameel principle, where the
question of abuse of process depends on whether the game is or is not “worth the candle”, it is not
appropriate for the court to undertake any kind of mini-trial, based upon incomplete evidence,
either as to liability or quantum.
In Adelson v Anderson [2011] EWHC 2497 (QB), after a slow start, a libel claim proceeded
through allocation and standard disclosure but then largely went to sleep for some three years.
Tugendhat J inferred from that delay, and from other evidence, that the claimant did not consider
that the defamation alleged was particularly serious and also inferred that, at one stage, the claim-
ant had ceased to have any intention to prosecute the matter to trial. The claim was struck out. As
to the principle in Jameel, although the case had not been an abuse of the court’s process at the
time of commencement, it had since become an abuse because the reputational interests
subsequently at stake in the proceedings had ceased to be proportionate to the court time and the
cost it would take to resolve the dispute. Strike out was also held to be appropriate applying the
principle in Grovit v Doctor [1997] 1 W.L.R. 640 HL (as to which, see para.3.4.16).
The principles in Jameel and Grovit were also raised in Morrissey v McNicholas [2011] EWHC
2738 (QB) but, in that case, the strike out application was dismissed: despite a 19 month delay in
the proceedings, the claim could still serve the legitimate purpose of protecting the claimant’s
reputation and, because it accepted the claimant’s explanation for the delay, the court did not infer
that the claimant had ceased to have an intention to progress the action to trial.
The Jameel case was considered by the Court of Appeal in Sullivan v Bristol Film Studios Ltd
[2012] EWCA Civ 570; [2012] E.M.L.R 27; [2012] C.P. Rep. 34. Lewison LJ stated, obiter:
“The mere fact that a claim is small should not automatically result in the court refusing to
hear it at all. If I am entitled to recover a debt of £50 I should, in principle, have access to
justice to enable me to recover it if my debtor does not pay. It would be an affront to justice if
my claim were simply struck out. The real question, to my mind, is whether in any particular
case there is a proportionate procedure by which the merits of a claim can be investigated. In
my judgment it is only if there is no proportionate procedure by which a claim can be
adjudicated that it would be right to strike it out as an abuse of process.”
In Alsaifi v Trinity Mirror Plc [2018] EWHC 1954 (QB); [2019] E.M.L.R. 1 Nicklin J made a further
comment upon the same example:
“The Court cannot strike out a claim for a £50 debt simply because, assessed against the costs
of the claim, it is not ‘worth’ pursuing. Inherent in the value of any legitimate claim is the
right to have a legal wrong redressed. The value of vindicating legal rights – as part of the
rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes
benefits not only the individual litigants but society as a whole ([45]).”
In Mahtani v Sippy [2013] EWHC 285 (Ch); a claim in relation to the interpretation of a family
arrangement for the division of an estate lacked utility and therefore was struck out as an abuse of
process.
In Citation Plc v Ellis Whittam Ltd [2013] EWCA Civ 155, the Court of Appeal upheld the strik-
ing out of a slander and malicious falsehood claim, for injunctive relief only, where there was no
real risk of repetition and therefore no utility to the proceedings.
In Stanko Subotic v Ratko Knezevic [2013] EWHC 3011 (QB); and Karpov v Browder [2013] EWHC
3071 (QB), Jameel was applied and libel claims in which the claimants were unable to establish a
substantial reputation in England and Wales, and therefore could not establish a real and substantial
tort in the jurisdiction, were struck out as an abuse of process.

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In Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB); [2015] 1 W.L.R. 3409, Warby J refused
to strike out a libel claim brought by a US resident on Jameel principles given that he had a real
prospect of demonstrating that the publication within England and Wales might be read by people
whose opinion was of serious consequence to him and his business prospects and that it had
therefore caused serious harm to his reputation. The judge made the point that the assessment of

CPR 3
whether a real and substantial tort had been committed was not a “numbers game”; even a publica-
tion to a single individual could be highly damaging and make a substantial and costly libel action
proportionate. Where a libel claimant had a real prospect of establishing a tort which was real and
substantial, the court should be slow to find that it could not devise a proportionate means of try-
ing the claim, and that the only way of dealing with it justly was to dismiss it. That was particularly
so after the implementation of costs budgeting procedures to help the court perform the duty of
dealing with cases justly and at proportionate cost.
The judge stated that Section 1 of the Defamation Act 2013 did not abolish the foregoing
principles. It introduced a new requirement whereby there was no tort unless and until serious
harm to the claimant’s reputation had either been caused or was likely to be caused by the
publication. Accordingly, an assessment of whether a defamation claim in respect of a publication
on or after 1 January 2014 should be dismissed on the ground that the actual or likely harm to
reputation was too slight to justify the claim ought normally to start with consideration of the seri-
ous harm requirements in s.1 of the 2013 Act. The question was whether one of those require-
ments was satisfied or had a real prospect of being, satisfied. If the answer was no, then there was
no tort and the claim would be dismissed. If the answer was yes, then it might be hard for a
defendant to establish that the alleged tort failed the “real and substantial tort” test. The factors
relevant to the question of whether serious harm had been caused or was likely were the same as
those which came into play in assessing whether a tort was real and substantial for Jameel purposes.
In Ames Warby J provided guidance as to the appropriate procedure to adopt: issues as to (i) seri-
ous harm and (ii) Jameel abuse were best resolved as preliminary issues together with (iii) any
disputes as to meaning. This guidance was subsequently followed in Lachaux v Independent Print Ltd
[2015] EWHC 915 (QB) (Nicola Davies J). Defendants should consider carefully whether to seek
the dismissal of an action for Jameel abuse when the proceedings are at an early stage and have not
reached the conclusion of statements of case (Ward v Associated Newspapers Ltd [2020] EWHC 2797
(QB) at [62]).
In Lilley v DMG Events Ltd [2014] EWHC 610 (IPEC); Jameel was applied. A claim for copyright
infringement was struck out where the holder of intellectual property rights had adopted the
wrong approach to calculating the damages to which they would be entitled were their claim for
infringement be successful. They were unable to show that they would be entitled to more than
about £83, and allocating court resources to such a claim would amount to an abuse of process.
In Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB); [2016] E.M.L.R. 12, Dingemans J, it
was held that although the meaning of the words complained of in a newspaper article, which was
the subject of libel proceedings brought by an international banker against a Portuguese publishing
company, implied illegality on the part of the banker, publication of the article had not caused seri-
ous harm to the banker’s reputation in England and Wales. The claimant’s reputation had been so
effectively restored by the reporting of his and other evidence to a Parliamentary inquiry in
Portugal that the pursuit of the instant proceedings was “not worth the candle” and was an abuse
of process, Jameel applied.

Improper collateral purpose

It is an abuse of process to pursue a claim for an improper collateral purpose. However, what is 3.4.15
an improper collateral purpose is not easy to define and few cases have been struck out solely on
this basis.
In Goldsmith v Sperrings Ltd [1977] 1 W.L.R. 478 CA; Bridge LJ said:
“… when a litigant sues to redress a grievance no object which he may seek to obtain can be
condemned as a collateral advantage if it is reasonably related to the provision of some form
of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing
an ulterior purpose unrelated to the subject matter of the litigation and that, but for his
ulterior purpose, he would not have commenced proceedings at all, that is an abuse of
process. These two cases are plain; but there is, I think, a difficult area in between.”
A litigant with a genuine cause of action, which he would wish to pursue in any event, would
not be debarred (by stay or striking out) from proceeding because he had an ulterior purpose in
mind as a desired by-product of the litigation.
In Wallis v Valentine [2002] EWCA Civ 1034; [2003] E.M.L.R. 8, CA, (see 3.4.14 above) the court
approved the dicta of Simon Brown LJ in Broxton v McClelland [1995] E.M.L.R. 485 to the effect
that the institution of proceedings with an ulterior motive is not of itself enough to constitute an
abuse. An action is only that if the court’s processes are being misused to achieve something not
properly available to the plaintiff in the course of properly conducted proceedings. The cases sug-
gest two distinct categories of such misuse of process: [1] the achievement of a collateral advantage
beyond the proper scope of the action; and [2] the conduct of the proceedings themselves (includ-
ing the initiation of the claim itself) is not so as to vindicate a right but rather in a manner
designed to cause the defendant problems of expense, harassment, commercial prejudice or the

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like beyond those ordinarily encountered in the course of properly conducted litigation. Only in
the most clear and obvious case will it be appropriate upon preliminary application to strike out
proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper
cause of action to trial. At the interlocutory stage, the test is an objective one (and see also, JSC BTA
Bank v Ablyazov [2011] EWHC 1136 (Comm); [2011] 1 W.L.R. 2996).
In Cowley v LW Carlisle & Co Ltd [2020] EWCA Civ 227, the claimant’s solicitors obtained the is-
sue of a claim form naming four defendants, one of which was a non-existent company (“LWC”).
Over four months later, before any application had been made to restore LWC to the register of
companies, an insurer filed an acknowledgment of service purportedly on behalf of LWC and ap-
plied to strike out the claim against it. By the time of the hearing of that application no progress
had been made as to the restoration of LWC and the claim against it was struck out. The district
judge had been entitled to strike out that part of the claim in order to exercise his case manage-
ment powers as to the progress of the proceedings in respect of the other named defendants.
Delay
3.4.16 Rule 3.4(2)(b) is not strictly relevant where the complaint is one of delay rather than a complaint
as to the form or content of a statement of case (Western Trust & Savings Ltd v Acland & Lensam (A
Firm) [2000] L.T.L. 19 June 2000, QB). However, in Habib Bank Ltd v Jaffer (Gulzar Haider) [2000]
C.P.L.R. 438, CA, a claim was struck out where delays were caused by a claimant acting in wholesale
disregard of the norms of conducting serious litigation and doing so with full awareness of the
consequences (cf. Grovit v Doctor [1997] 1 W.L.R. 640; [1997] 2 All E.R. 417, HL, noted in
para.3.4.20 below). Delay, even a long delay, cannot by itself be categorised as an abuse of process
without there being some additional factor which transforms the delay into an abuse (Icebird Ltd v
Winegardner [2009] UKPC 24).
The principles in Grovit and Icebird were considered and applied in Adelson v Anderson [2011]
EWHC 2497 (QB), as to which, see para.3.4.14, above.
In Hall v Ministry of Defence [2013] EWHC 4092 (QB) (a personal injury claim) an application
for an extension of time for service of the claim form was dismissed, the action was struck out ac-
cordingly and the claimant was ordered to pay costs including £3,000 on account. Some months
later the claimant commenced a second action without first paying the sum ordered on account.
Phillips J held (i) that the conduct of the first action had not been so wrongfully delayed as to make
the issue of the second action an abuse, and (ii) that the conduct of the second action had not been
rendered an abuse by the further months of delay which had occurred or by the failure to pay
£3,000 on account (the Defendant’s remedy here being to seek a stay pending payment or to take
steps to enforce the order).
In Wearn v HNH International Holdings Ltd [2014] EWHC 3542 (Ch), Barling J, the case was
struck out under CPR r.3.4(2)(b) and r.3.4(2)(c) for delay and non-compliance with court orders.
The claim had been ongoing for almost 14 years and the claimant was largely responsible for the
delay. The court recognised that the guiding principle was that delay alone, even if it was inordinate
and inexcusable, could not be an abuse of process. However, abuse of process might arise when
delay was combined with some other relevant factor; Grovit v Doctor [1997] 1 W.L.R. 640, HL,
applied. In the instant case the delay was an abuse of process as the claimant acted with wholesale
disregard for court orders. A further aggravating factor was that the claimant had also sought to
rely upon expert evidence which was clearly inconsistent with the requirements of CPR Pt 35 in
significant respects. Allowing the expert to carry out unnecessary investigations also added consider-
ably to the delay. For the matter to reach trial would require substantial further expenditure and
the passage of time meant that the prospect of a fair trial was severely impaired.
Issuing and maintaining proceedings with no real intention of carrying them through to trial
(“warehousing”) may amount to an abuse but the court should always examine all the circumstances,
including the length of the delay, the degree of the claimant’s responsibility for it and the reasons
given for it. In Asturion Fondation v Alibrahim [2020] EWCA Civ 32 at [61]–[64], the Court of Ap-
peal having reviewed the authorities stated that the question whether “warehousing” amounted to
an abuse of process depended on the reason why they had not been pursued actively and the
strength of that reason, which was to be assessed objectively and with regard to the length of delay.
It further held that where an application to strike out a claim that had been “warehoused” as an
abuse of process required the court: first, to determine whether the claimant’s conduct was an
abuse of process; and, if so, whether the discretion to strike out should be exercised.
A failure to progress a claim expeditiously following the grant of an interim injunction may well
be found to be an abuse of process (Havering LBC v Persons Unknown [2021] EWHC 2648 (QB)).
In Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm), HH Judge Pearce (sitting as a High
Court judge) ruled that evidence of very long periods of procedural inactivity by the claimant
often gives rise to an inference that the claimant has no real intention of progressing the claim;
however, that inference can be rebutted if there is a satisfactory explanation for the delay ([41]).
Although proof that the defendant has “let sleeping dogs lie” does not by itself prevent a striking
out if the claimant is in fact guilty of warehousing the claim, it may prevent the court from draw-
ing an inference of guilt ([39]). Proof that the defendant has not been prejudiced by the delay does
not excuse the claimant but may sometimes make the sanction of strike out disproportionate ([18]).
Other forms of abuse
3.4.17 Most of the cases noted in paras 3.4.4 to 3.4.16 deal with particular instances of a fundamental
principle that the court will not allow its process to be abused (and see also paras 3.1.17 to [Link];

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the limits on the court’s power to vary or revoke orders; and paras 3.11.1 to 3.11.7 concerning the
court’s powers to make civil restraint orders). The court’s objectives in all of these topics are to
counteract any deliberate or incorrigible behaviour which would otherwise cause injustice and to
protect litigants and also the court itself from the unnecessary waste and delay that such behaviour
may cause.

CPR 3
Proceedings can be struck out as an abuse of process even if there has been no unlawful
conduct, no breach of relevant procedural rules, no collateral attack on a previous decision and no
dishonesty or other reprehensible conduct (JSC VTB Bank v Skurikhin [2020] EWCA Civ 1337 at
[51]; Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4 W.L.R. 110 noted
in para.3.4.18, breach of a pre-action protocol may amount to an abuse of process). As to whether a
deliberate underpayment of the court fee is payable on the issue of a claim, see the conflicting
decisions in Lewis v Ward Hadaway (A Firm) [2015] EWHC 3503 (Ch); [2016] 4 W.L.R. 6 and Atha
& Co Solicitors v Liddle [2018] EWHC 1751 (QB); [2018] 1 W.L.R. 4953. (In Hayes v Butters [2021]
EWCA Civ 252; [2021] 1 W.L.R. 2886 Peter Jackson LJ expressed a provisional view against the
disallowance of a claim on limitation grounds because of an inadvertent miscalculation of a court
fee ([24]). In Citysprint UK Ltd v Barts Health NHS Trust [2021] EWHC 2618 (TCC), Fraser J ruled
that an inadvertent underpayment of a court fee at the time issue of a claim form did not, in that
case, invalidate the issue of the claim form. It was a minor mistake which was corrected
administratively (shortly after the steps taken to serve the claim form had been taken ([7], and see
further, para.3.10.4)).
A decision made by a trial court that part of a claim is dishonest or fraudulent is unlikely to lead
to a striking out of the whole claim under r.3.4(2) or under the inherent jurisdiction if the court
can still make a proper assessment of both liability and quantum. The draconian step of striking a
claim out is always a last resort. Instead the trial court can ensure that the dishonesty does not
increase the award of damages and can make orders penalising the claimant in costs, interest and
by way of proceedings for contempt and criminal proceedings, it being open to a judge to refer the
case to the CPS or DPP (Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 W.L.R. 2004;
the Supreme Court’s ruling in this case was subsequently negatived by Parliament in respect of
personal injury claims: the Criminal Justice and Courts Act 2015 s.57, as to which see para.16.5.2
and Vol.2 para.3F-32.3).
Cases on forms of abuse falling outside the preceding paragraphs of this commentary are
legion. Many are briefly summarised below. However it is not appropriate to treat these cases as set-
tled precedents. Decisions as to abuse are extremely fact-sensitive. Whilst the circumstances of a
particular case may, at first sight, raise an appearance of abuse, appearances can be deceptive.
There is a two-stage test. First the court has to determine whether the claimant’s conduct was an
abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to
strike out the claim (Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4
W.L.R. 110 at [63]). It is at the second stage that a balancing exercise, and considerations of
proportionality, become relevant. The court must engage in a close “merits based” analysis of all
the facts.
“This will take into account the private and public interests involved, and will focus on the
crucial question: whether in all the circumstances a party is abusing or misusing the court’s
process” (Michael Wilson & Partners Ltd v Sinclair [2017] EWCA Civ 3; [2017] 1 W.L.R. 2646
at [48(3)] citing two earlier judgments).
In each of the following cases a claim was struck out as an abuse.
D Carter Commercial Developments v Bedford BC [2001] EWHC Admin 669; [2001] 34 E.G. 99
(C.S.), attempting to bring a Part 8 claim instead of judicial review proceedings in order to
avoid the time limits applicable to judicial review (and see Clark v University of Lincolnshire
and Humberside [2000] 1 W.L.R. 1988, CA, obiter).
D Ashraf v Secretary of State for the Home Department [2013] EWHC 4028 (Admin) including an
unmeritorious unlawful detention claim in judicial review proceedings solely to avoid a
transfer from the Administrative Court to the Upper Tribunal.
D Nomura International Plc v Granada Group Ltd [2007] EWHC 642 (Comm); [2008] Bus. L.R.
1, issuing a claim for an illegitimate benefit, namely the prevention of further time run-
ning under the Limitation Acts for a claim C could not properly identify or plead.
D Pickthall v Hill Dickinson LLP [2009] EWCA Civ 543; [2009] P.N.L.R. 31, issue of a claim
by a bankrupt knowing he lacked title to do so but hoping would be assigned to him later
(for contrary cases where no actual knowledge was proved, see Pathania v Adedeji [2014]
EWCA Civ 681 and Munday v Hilburn [2014] EWHC 4496 (Ch); [2015] B.P.I.R. 684).
D Towler v Wills [2010] EWHC 1209 (Comm) serving particulars of claim which are so badly
drafted that they fail to reveal to the defendant, or to the court, the case the defendant can
expect to meet at trial in circumstances showing that even after attempting amendments, C
is unable to put forward a coherently pleaded and intelligible claim (but note, (i) the word
“obstruct” in r.3.4(2)(b) means “impede to a high extent” and thus the court will not strike
out a statement of case merely because it raises some irrelevant issues or otherwise gener-
ates some untidiness in the pleadings (Atos Consulting Ltd v Avis Europe Plc [2005] EWHC
982 (TCC)); and (ii) the importance of giving C an opportunity to amend a defective claim
(Kim v Park [2011] EWHC 1781 (QB)).

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D Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm); [2015] 1 All E.R. (Comm)
961, particulars of claim which, at 94 pages, failed to comply with the principles set out in
the Admiralty and Commercial Court Guide (which states that statements of case must be
no longer than 25 pages unless the court has given permission for a longer document);
Leggatt J struck out the particulars of claim, disallowed the costs of drafting them and
ordered fresh compliant particulars of claim to be served.
D Municipio De Mariana v BHP Group Plc [2020] EWHC 2930 (TCC); a group action relating
to a dam failure in Brazil was commenced on behalf of many thousands of individuals and
organisations against companies alleged to be indirect polluters. Similar proceedings
involving many of these claimants were already on foot in Brazil against companies alleged
to be direct polluters and some high-value judgments had been obtained and some
compensation had been paid out to some claimants. Turner J ruled that there was no
reason in principle why Henderson considerations should not be relevant in circumstances
in which a claimant seeks to run two sufficiently related actions in two different jurisdic-
tions whether sequentially or in parallel ([56]). Given the enormous overlap of issues
raised in both sets of proceedings, the learned judge described the task facing the manag-
ing judge in England would be “akin to trying to build a house of cards in a wind tunnel”
([93]). For this and several other reasons the claims were struck out as an abuse of the
court process. Following the grant of permission to appeal ([2021] EWCA Civ 1156) this
case was listed for an appeal hearing but that listing has now been vacated.

Rule 3.4(2)(c): Failure to comply with a rule, practice direction or court order
3.4.18 Rule 3.4(2)(c) gives the court an unqualified discretion to strike out a claim or defence where a
party has failed to comply with a rule, practice direction or court order. In Nomura International Plc
v Granada Group Ltd [2007] EWHC 642 (Comm) (noted in para.3.4.3, above and para.16.2.1,
below) a failure to comply with r.16.2 led to the striking out of the claim form; this was held to be
the only appropriate sanction because, on the facts, the very commencement of proceedings
amounted to an abuse of process.
In Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607, the Court of Appeal
held that, in exercising its discretion under r.3.4(2)(c), the court is entitled to have regard to the
Mitchell/Denton principles (which apply to applications under r.3.9, as to which, see para.3.9.2).
However, in that case, the Court of Appeal stressed that the ultimate question for the court in
deciding whether to impose the sanction of strike-out is materially different from that in deciding
whether to grant relief from a sanction that has already been imposed. In a strike-out application
under r.3.4 the proportionality of the sanction itself is in issue, whereas an application under r.3.9
for relief from sanction has to proceed on the basis that the sanction was properly imposed (and
see further, para.3.4.1, above).
In Bot v Barnick [2019] 12 WLUK 371; LTL 20/12/2019 (Yip J, QBD) a medical negligence
claim, the claimant failed to serve any expert evidence against the first defendant even though
three years had elapsed since the issue of the claim, directions for expert evidence had been given
and several extensions for its service had been granted. There was no information before the court
to suggest that the expert evidence was likely to be forthcoming in the near future. A claim against
a professional could not be maintained without expert evidence to support it and the first defend-
ant should not have to wait indefinitely to see the case against him. It was appropriate to strike out
the claim against the first defendant under r.3.4(2)(c) on the basis of the claimant’s failures to
comply with orders even though none of them had included an unless order.
In many cases there may be alternatives to a strike out which may be more appropriate: awarding
costs on the indemnity basis payable forthwith, ordering a party to pay money into to court and
awarding interest at a higher or lower rate (Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926, CA;
and see also Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 W.L.R. 2004, noted in
para.3.4.17). In Candy v Holyoake [2017] EWHC 373 (QB), Warby J held that, although the defend-
ants had been in serious breach of their obligations under a consent order made for disclosure,
and there was no good reason for the failures, it was not a just and proportionate response to strike
out their defences. The admitted faults and the gravity of their failures could be reflected in costs
orders. It was not suggested that the admitted defaults had prevented the possibility of a fair trial.
In Mark v Universal Coatings & Services Ltd [2018] EWHC 3206 (QB); [2019] 1 W.L.R. 2376, a
personal injury claim, the claimant’s particulars of claim were served in time but, in breach of PD
16 paras 4.2 and 4.3, they were not served with a schedule of loss and a medical report. These
documents were served separately some 11–12 weeks later (see at [36]). More than 13 weeks later
(see [21] and [33]) the defendants successfully applied to the court for an order striking out the
claim. Allowing the claimant’s appeal against that order, Spencer J held that a failure to comply
with PD 16 paras 4.2 and 4.3 does not give rise to an implied sanction of strike out (see further
para.3.9.15). Instead, if it is appropriate to do so, an aggrieved defendant can apply to the court for
an order requiring the claimant to remedy the breach ([49]).
Where liability is not in issue, it is no longer necessary for the court to make an “all or nothing
order” on a strike out application if it would be unjust to do so: instead, the court should take a
careful look at all of the relevant circumstances and weigh up carefully the order that it considered
it would be just to make on the facts before it: for example, restrictions may be placed upon the

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claimant’s right to claim interest and special damages accruing during the period of delay; the
claim could be allowed to proceed to trial on the basis that the judge will assess compensation
which would have been payable to the claimant had the trial not suffered delay (Walsh v Misseldine
[2000] L.T.L. 18 May, CA).
In Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4 W.L.R. 110, a

CPR 3
personal injury claim in which liability was admitted, C’s solicitors commenced proceedings in
circumstances amounting to an abuse of the relevant pre-action protocol and which led to years of
delay and expense for D. Eventually C obtained, without notice to D, an order giving directions for
the future conduct of the claim, which order C failed to serve on D until after the date specified in
the order. The Court of Appeal held that, despite the abuse of process, it was inappropriate to
strike out the claim and, as to the late service, held that C should be granted relief from sanctions
under r.3.9 (as to which, see paras 3.9.3 and 3.9.15). C was ordered to pay D’s costs on the indemnity
basis and it was ordered that C was disentitled to interest on special damages for the period up to
the date upon which D’s application to strike out was first heard. A further order was also made in
respect of the costs of the appeal.
Striking out a statement of case because of a litigant’s failure to comply with a court order for
the payment of a sum of money which is beyond their means to pay may amount to a breach of the
ECHR art.6(1) right of access to a court (cf. Ford v Labrador [2003] UKPC 41; [2003] 1 W.L.R.
2082. However, in Oil & Minerals Development Corp v Sajjad [2002] All E.R. (D) 319 (Apr) (Gibbs J),
the defendants were ordered to pay the costs of interlocutory proceedings and failed to comply
with an order for payment on account of those costs; holding that there was no possible or credible
excuse for that failure, Gibbs J fixed further dates for payment on terms that, in default the
defence would be struck out (see also Crystal Decisions (UK) Ltd v Vedatech Corp [2006] EWHC 3500
(Ch), Patten J and Ogiehor v Belinfantie [2018] EWCA Civ 2423 noted in para.3.1.14).
In Hayden v Charlton [2010] EWHC 3144 (QB), Sharp J, claims for libel brought by claimants,
who had legal representation, against litigants in person were struck out under r.3.4(2)(c) as there
had been deliberate and wholesale non compliance with the rules and orders of the court by the
claimants which resulted in a serious delay to the progress of the claims including the loss of a trial
window. The claimants had not been subject to any “unless” order but this was not regarded as a
bar to striking out the claims. In considering whether it would be appropriate to strike out the
claims, the judge took into account that this had implications for the claimant’s rights pursuant to
art.6(1) of the ECHR. However the judge cited Hale LJ (as she then was) who said in Khilili v Ben-
nett [2000] E.M.L.R. 996 at [50]:
“National laws are entitled to regulate their domestic procedures, and this includes prescrib-
ing timetables and steps which have to be taken within a limited period. If a claimant has not
complied with those rules, then normally he will not be able to complain under Article 6.”
On appeal in Hayden [2011] EWCA Civ 791, no criticism was made of the judgment at first
instance. However, the claimants were permitted to adduce fresh evidence that they had not been
kept informed by their then solicitors and that they had not known the true position until after the
strike out had been ordered. The Court of Appeal accepted that evidence as an important factor in
favour of granting relief. However, it also took into account other factors, including the consider-
able burden the proceedings had placed upon the defendants, who were litigants in person. That
hardship would have no remedy if relief was granted whereas the claimants would have an op-
portunity for redress against their former solicitors if the appeal was refused. Overall, it was held
that the less unfair result was for the claim to stay struck out.
In Maqsood v Mahmood [2012] EWCA Civ 251, the Court of Appeal held that the judge had been
justified in striking out the claim under r.3.4(2)(c) given the failure of the claimant to comply with
court orders relating to specific disclosure, exchange of witness statements and delivery of trial
bundles. The claimant should have been ready for trial but attended before the judge seeking an
adjournment which had been rightly refused. Given the claimant’s hopeless position following the
refusal of the adjournment, his case was doomed to be dismissed. The Court of Appeal made the
point that the right to a fair trial was a right enjoyed by defendants as well as claimants.
In Adams v Ford [2012] EWCA Civ 544; [2012] 1 W.L.R. 3211, solicitors sent letters to a large
number of potential claimants offering to represent them in a group litigation claim about to be
commenced on their behalf. Later, at a time when the limitation period was possibly about to
expire, a claim form was issued naming 273 claimants even though some of them had not by then
replied to the solicitors who therefore had no means of knowing whether they would wish to join
in the proceedings. The claim form contained a statement of truth signed by a solicitor which
stated that the claimants “believe that the facts stated in this claim form are true” and that the
solicitor was “duly authorised by the claimants to sign this statement”. The claim form was later
amended, prior to its service, to reduce the number of claimants to 170. Steele J held that the state-
ment of truth (given on behalf of 273 persons) was false but that, in all the circumstances it would
be disproportionate to strike out the claim form and the defendants’ appeal to the Court of Appeal
was dismissed. Commencing proceedings without the authority of all the claimants was not neces-
sarily an abuse; after the claim form had been issued some of the claimants who had been joined
without their permission had ratified the solicitors’ act and thereby adopted the proceedings
(Presentaciones Musicales SA v Secunda [1994] Ch. 271, CA, applied; and see further, para.3.4.16,
above). The false statement and a subsequent lack of candour when questioned about it, together

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amounted to a serious shortcoming which the court would not condone. (As to the statements of
truth the solicitor should have given, see [54] to [59].) However, it would have been disproportion-
ate and contrary to justice for the amended claim form to be struck out, even if that strike out was
limited to those claimants who had ratified the wrongful act.
Striking out sanction effective without need for further order (“unless” orders)
3.4.19 Rule 3.1(3) states that, when the court makes an order, it may (a) make it subject to conditions,
and (b) specify the consequence of failure to comply with the order or a condition. This provision
and r.3.4(2)(c) (when put together) confirm that the court may make a conditional order in the
form of an order stating that, unless by a particular date a party complies with a procedural order
made by the court (e.g. a disclosure order, or an order to give security for costs), their statement of
claim shall be struck out and their claim dismissed. (The existence of such power is assumed in
r.3.5 and r.3.8, see further below.) The consequence (i.e. the striking out and dismissal sanctions)
follows automatically upon the party’s failure to comply with the condition, without any further
order of the court. In PD 3A (Striking Out a Statement of Case) (supplementing r.3.4) it is stated in
para.1.9 (inserted in October 2005) that, where an order (or a rule or a practice direction) states
that a statement of case shall be struck out or will be struck out or dismissed, this means that the
striking out or dismissal “will be automatic and that no further order of the court will be required”
(see para.3APD.1). Obviously, the automatic imposing of the striking out and dismissal sanction
can have very serious consequences for the defaulting party. In Marcan Shipping (London) Ltd v
Kefalas [2007] EWCA Civ 463; [2007] 1 W.L.R. 1864; [2007] 3 All E.R. 365, CA, the Court of Ap-
peal stressed that, in making a conditional (or “unless”) order containing such sanction, a judge
should consider carefully whether that sanction is appropriate in all the circumstances of the case.
Where an unless order has had this effect, the court retains jurisdiction to grant the defaulting
party relief (usually in the form of an extension of time for complying) if that party makes an ap-
plication under r.3.8 (in which event the court will consider all the circumstances, in particular,
those listed in r.3.9). (The importance of maintaining the distinction between the effect of the
order itself and the exercise of the court’s jurisdiction to grant relief was stressed in the Marcan
Shipping case.)
Further, where an unless order has had this effect, the defaulting party’s opponent may obtain
judgment by complying with r.3.5. In such event, (a) in the circumstances provided for by r.3.5(2),
the party against whom the claim was made may obtain judgment by filing a request for judgment,
but (b) otherwise they must make an application in accordance with Pt 23 if they wish to obtain
judgment under r.3.5 (see r.3.5(5)). In the Marcan Shipping case the Court of Appeal held that, at
the hearing of such an application, (a) the court’s function is limited to deciding what order should
properly be made to reflect the sanction which has already taken effect, and (b) the operation of
the sanction does not lie in the discretion of the court, as it is only if there is an application under
r.3.8 by the defaulting party that the court is required to consider whether, in all the circumstances,
it is just to make an order granting relief from the sanction automatically imposed.
The Marcan Shipping case was cited in Kinsley v Commissioner of Police of the Metropolis [2010]
EWCA Civ 953; see further under r.3.9.
In Workman v Forrester [2017] EWCA Civ 73, the claimants had obtained a default judgment for
damages to be assessed and also an order for disclosure of documents. Because the defendant
persistently failed to comply with the disclosure order, the district judge made a further order that,
unless the previous order was complied with, there would be judgment for the sum of
£1,503,579.50, plus interest and costs. The defendant’s appeal against that order was upheld by the
circuit judge and by the Court of Appeal. Although such an order was more onerous than the
usual order (an unless order under which the defendant might be debarred from defending the as-
sessment of damages) it was justified given that the defendant’s failure to comply with the disclosure
order had been calculated to frustrate proceedings to his own advantage.
Inherent jurisdiction to strike out
3.4.20 In addition to the power under r.3.4, the court has an inherent jurisdiction to strike out any
documents or strike out, dismiss or stay any proceedings which amount to an abuse of the court’s
process (as to which, see para.3.4.3 above). This jurisdiction is preserved by r.3.1(1) and r.3.4(5). It
duplicates but is not limited to the express powers to strike out which are conferred by r.3.4(2). The
undoubted jurisdiction of the court to strike out material in a witness statement which was both
scandalous and irrelevant should only be exercised sparingly (Sandhurst Holdings Ltd v Grosvenor As-
sets Ltd [2001] L.T.L. 25/10/01, Ch D).
Where proceedings have been dismissed with costs it is an abuse for an assignee of the claimant
to commence or continue fresh proceedings in respect of the same matter without paying the costs
previously awarded against the assignor (Investment Invoice Financing Ltd v Limehouse Board Mills Ltd
[2006] EWCA Civ 9; [2006] 1 W.L.R. 985, CA; and see further, para.3.4.23).
The court may strike out vexatious applications in an action and may, in addition, make an
order prohibiting further applications being made without the court’s permission. However, such
powers will now be exercised under r.3.11.
For a claimant to commence or continue litigation with no intention of bringing it to a conclu-
sion can amount to an abuse (Grovit v Doctor [1997] 1 W.L.R. 640, HL; cf. Habib Bank Ltd v Jaffer
(Gulzar Haider) [2000] C.P.L.R. 438, CA, noted in para.3.4.3 above).

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The court may strike out a claim where the claimant was guilty of conduct which put the fair-
ness of any trial in jeopardy, or which was such as to render further proceedings unsatisfactory and
prevent the court from doing justice (cf. Arrow Nominees Inc v Blackledge [2000] C.P. Rep. 59; [2000]
2 B.C.L.C. 167, Ch D reversed on the facts, The Times, 7 July 2000, CA)
It is an abuse of process for a defendant to appeal against the refusal of an adjournment in

CPR 3
circumstances in which they also have the opportunity to apply under r.39.3(3) (application for a
judgment or order to be set aside made by a party who failed to attend the trial): Tennero Ltd v
Arnold [2006] EWHC 1530, QB.
In Nolan v Devonport [2006] EWHC 2025 (QB), an application to set aside a default judgment
was struck out on the ground that the defendant had unreasonably delayed the application until
the claimant had commenced proceedings for a charging order by way of enforcement; by not mak-
ing her set aside application expeditiously the defendant had failed in her duty to help the court to
further the overriding objective. In striking out the application HH Judge Grenfell, sitting as a
judge of the High Court, placed reliance upon r.3.1(2)(m) rather than upon the inherent jurisdic-
tion; r.3.1(2)(m) enables the court to make any “order for the purpose of managing the case and
furthering the overriding objective”.
Overlap with Pt 24 (summary judgment)
The rules give the court two distinct powers which may be used to achieve the summary disposal 3.4.21
of issues which do not need full investigation at trial. Rule 3.4 enables the court to strike out the
whole or part of a statement of case which discloses no reasonable grounds for bringing or defend-
ing a claim (r.3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to
obstruct the just disposal of the proceedings (r.3.4(2)(b)). Rule 24.2 enables the court to give sum-
mary judgment against a claimant or defendant where that party has no real prospect of succeed-
ing on their claim or defence. Both those powers may be exercised on an application by a party or
on the court’s own initiative; see para.1.2 of the PD (Striking Out a Statement of Case). Many cases
fall within both r.3.4 and Pt 24 and it is often appropriate for a party to combine a striking out ap-
plication with an application for summary judgment. Indeed, the court may treat an application
under r.3.4(2)(a) as if it was an application under Pt 24; Moroney v Anglo-European College of
Chiropractice [2009] EWCA Civ 1560; and see, Taylor v Midland Bank Trust Co Ltd (No.2) [2002]
W.T.L.R 95. However, in Ministry of Defence v AB [2010] EWCA Civ 1317; [2011] 117 B.M.L.R.
101, summary judgment sought in respect of test cases in group litigation was refused on procedural
grounds: in the circumstances of that case, an informal application for summary judgment in the
course of a strike out application was held to be unfair. (This point was not raised in the further
appeal in this case; see AB v Ministry of Defence [2012] UKSC 9; [2012] 2 W.L.R. 643; [2012] 3 All
E.R. 673.) Similarly in St Clair v King [2018] EWHC 682 (Ch) an appeal was allowed in respect of
an order granting summary judgment made on an application to strike out; the hearing had been
unfair to the claimant because she had not been given the 14-day notice period which is stipulated
for a summary judgment application and the consequences of allowing the application to proceed
as one for summary judgment had not been properly or fairly explained to her (and see also Saeed
v Ibrahim [2018] EWHC 3 (Ch) at [7]–[9] (Chief Master Marsh)).
A party may believe that they can show without a trial that an opponent’s case has no real
prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be,
because of a point of law (including the construction of a document). In such a case the party
concerned may make an application under r.3.4 or Pt 24 (or both) as they think appropriate; see
para.1.7 PD (Striking Out a Statement of Case), para.3APD.1.
However, the overlap between r.3.4 and Pt 24 is not complete:
(1) unlike Pt 24, r.3.4 also applies to cases of non-compliance with a rule, practice direction or
court order;
(2) unlike r.3.4, Pt 24 also applies to the summary disposal of issues including preliminary is-
sues;
(3) there are various procedural requirements in Pt 24 which do not apply to r.3.4;
(4) unlike Pt 24, r.3.4 applies to all proceeding. Thus, an order akin to summary judgment
may be obtained under r.3.4 in proceedings which are excluded from Pt 24 (Shephard v
Wheeler Times, 15 February 2000 noted in para.24.3.1).
In Independents’ Advantage Insurance Co Ltd v Cook [2003] EWCA Civ 1103; [2004] P.N.L.R. 3,
CA, the defendant applied to strike out the claim under r.3.4(2)(a), i.e. that, even assuming the
claimant could prove the facts alleged in his particulars of claim, he had no reasonable grounds for
bringing a claim. The defendant did not allege any additional facts so as to justify a strike out on
any other ground but did make a second application for summary judgment under r.24.2. The
Court of Appeal considered the application under r.24.2 to be superfluous: if the particulars of
claim had disclosed reasonable grounds for bringing a claim, both applications would fail; if the
particulars of claim disclosed no reasonable grounds for bringing the claim, the court would have
ample power to strike it out and enter judgment for the defendant, thereby making any recourse to
r.24.2 quite unnecessary.
Consequential orders after striking out
Where an order of strike out has been made the court may enter such judgment for the other 3.4.22
party as that party appears entitled to (PD 3A para.4.2, see para.3APD.4). Whilst it will often be ap-

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propriate to make an order dismissing the claim or giving judgment upon it (as the case may be)
the court may instead merely give further directions. In Brown v AB [2018] EWHC 623 (QB) Pep-
perall J struck out an unwieldy and unnecessarily complex defence which ran to 55 pages. However,
having ruled that giving judgment on the claim would be disproportionate (because the defendant
nevertheless had an arguable defence) the learned judge directed the defendant to file a fresh
defence which was no longer than 25 pages in length and printed on A4 paper in not less than 11-
point font and 1.5-line spacing. The giving of directions permitting the filing of an amended claim
or defence are expressly provided for by PD 3A paras 2.4 and 3.2 in the case of strike outs made by
the court when acting on its own initiative (see paras 3APD.2 and 3APD.3).
Where a strike out relates to only part of a statement of case the court may also give directions
for the management of the remaining parts of the proceedings, for example, allocating them to a
case management track.
In a claim against two or more defendants, it may be inappropriate to enter judgment against a
defendant whose defence is struck out if the claim will still proceed against other defendants. In
such a case the court may instead make a debarring order against the defendant whose defence is
struck out. See further Michael v Phillips [2017] EWHC 1084 (QB) noted in para.29.9.2; and Times
Travel (UK) Ltd v Pakistan International Airlines Corp [2019] EWHC 3732 (Ch). In Tonstate Group Ltd
v Wojakovski [2020] EWHC 1004 (Ch) Zacaroli J ruled that non-compliance with an order made in
one action cannot justify the making of a debarring order in another action even if the two actions
are being case managed together.

Staying subsequent claim until costs paid

3.4.23 Rule 3.4(4) applies where a claimant’s statement of case has been struck out, the claimant has
been ordered to pay costs to the defendant, and before paying those costs they start another claim
against the same defendant arising out of facts which are the same or substantially the same as
those relating to the first claim. In such a case the defendant may apply for a stay of the second
claim until the costs of the first claim have been paid. The term “stay” is defined in the Glossary.
As to the expression “arising out of facts which are the same or substantially the same” see the
commentary to r.17.4 in which similar words are used. As to the circumstances in which a
subsequent claim may be struck out as an abuse of the court process, see para.3.4.3 above and
Securum Finance Ltd v Ashton [2001] Ch. 291; [2000] 3 W.L.R. 1400, CA.
It has been held that a stay of subsequent proceedings until the costs of earlier proceedings have
been paid does not, if reasonably imposed, amount to an infringement of ECHR art.6(1) (Stevens v
School of Oriental and African Studies, The Times, 2 February 2001).
In Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] EWCA Civ 9; [2006] 1
W.L.R. 985, CA, C1 presented a winding up petition against D in respect of certain alleged debts
which D disputed. The petition was dismissed with costs assessed at £18,000. C1 then commenced
new proceedings against D in respect of the same alleged debts which debts it then purported to
assign to C2 who was joined as a claimant. C1 was ordered to give security for future costs and for
the costs of the winding up and, on C1’s failure to comply with that order, C1’s claim was struck
out with costs assessed at £5,000. The Court of Appeal upheld an order staying C2’s claim until the
costs awarded against C1 totalling £23,000 had been paid. The court had an inherent jurisdiction
to make such an order which was analogous to an order under r.3.4(4). Even though C2 had not
commenced the proceedings it was an abuse for him, as successor in title to C1, to continue the
proceedings whilst the costs orders against C1 remained unsatisfied.
As to the orders appropriate for failure to comply with an order to pay costs of interlocutory
proceedings see Oil & Minerals Development Corp v Sajjad [2002] EWHC 1258, noted in para.3.4.18
above, Reed v Oury (No.2) [2002] EWHC 369 (Ch), and CIBC Mellon Trust Co v Mora Hotel Corp NV
[2002] EWCA Civ 1688; [2003] 1 All E.R. 564 (Ch) noted below.
In Reed v Oury (No.2) (above) breach of trust claims were made against the defendant, an ac-
countant who counterclaimed in respect of fees for work done and services provided. Although
judgment by consent was entered against the defendant for damages and costs on the claim, no
payments were made under that judgment and, some months later, the defendant sought to
reactivate his counterclaim. It was held that, having regard to the conduct of the litigation, the
weakness of the counterclaim, the cost of having it determined and the likelihood that even if it
was successful, he would continue to owe a very large sum to the claimants, the proportionate way
of achieving the overriding objective was to stay his counterclaim until he had paid the amount
incontestably due from him by way of damages and costs. The decision in Reed v Oury was cited
with approval in Ali v Hudson [2003] EWCA Civ 1793; [2004] C.P. Rep. 15; (noted in para.3.1.5,
above).
In CIBC Mellon Trust Co v Mora Hotel Corp NV (above), as a result of extremely protracted
proceedings in various courts in England and New York, the claimants obtained English freezing
orders and default judgments which were recognised by the courts of New York. After a two-year
delay an application was made, funded by the controlling shareholder of the defendants, to set
aside the default judgments. The claimants applied for a stay of that application unless and until
certain sums were paid by way of damages and costs. The claimants refused to permit payment of
those sums out of assets secured for them by the freezing orders. The Court of Appeal lifted a stay
imposed by the lower court which required the payment of £1.5 million in respect of past orders

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for costs; as a matter of discretion, it was inappropriate to order a stay which retrospectively
improved the claimant’s position in relation to costs orders where to do so would indirectly compel
substantial payments to be made by a non-party who was not otherwise liable to pay those costs.
Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] EWCA Civ 9; [2006] 1 W.L.R
985, CA, was applied in Powel Entertainment v Ryder [2011] EWHC 2957 (Ch), (Briggs J). In Powel

CPR 3
proceedings were stayed on the basis that it was an abuse of process for substantially identical
claimants to commence fresh proceedings where the indemnity costs of earlier dismissed proceed-
ings remained unpaid. In a similar case (Wahab v Khan [2011] EWHC 908 (Ch)) Briggs J held that,
generally speaking, an order striking out the subsequent proceedings would be a disproportionate
sanction for this type of abuse: instead the proceedings were stayed until the costs awarded in the
earlier proceedings were paid.

Vexatious litigants
Paragraphs 7.1 to 7.10 of the practice direction supplementing r.3.4 contains provisions that ap- 3.4.24
ply where a “civil proceedings order” or an “all proceedings order”, as defined under the Senior
Courts Act 1981 s.42(1A), is in force against a person (see para.3APD.7). Those paragraphs are
headed “Vexatious litigants”. Such orders should be distinguished from civil restraint orders (see
para.3.4.10, and r.3.11 and commentary following).
The term “vexatious litigant” is used to describe a person who has habitually and persistently
and without reasonable ground instituted vexatious proceedings, whether in the High Court or an
inferior court, made vexatious applications in such proceedings or instituted vexatious prosecutions.
In respect of such a person an order may be made under SCA 1981 s.42 requiring them to obtain
the permission of a High Court judge to begin or continue or to make any application in proceed-
ings covered by the order (see Vol.2, para.9A-148). Where a person subject to an order under s.42
wishes to apply for leave to institute or continue, or to make an application in, any civil proceedings
they should follow the procedure stated in paras 7.1 to 7.10.
Normally, the civil proceedings which the person subject to the order is prevented from institut-
ing or continuing, or from making an application in, will include claims for judicial review. CPR
r.54.4 states that the court’s permission to proceed is required in a claim for judicial review. (Ap-
plications for such permission are normally dealt with on paper.) Where a person subject to a civil
proceedings order wishes to bring a claim for judicial review, they will require the leave of court
under s.42. Therefore, in these circumstances, two quite distinct applications for permission are
involved; one for leave to institute the proceedings under s.42 made in accordance with Pt 23 (see
para.7.10), and the other for permission to proceed with the claim under r.54.4. The applications,
though raising distinct issues, may be dealt with together.
In Ewing v DPP [2010] EWCA Civ 70, it was held that proposed proceedings for judicial review
in a criminal cause or matter were civil proceedings and therefore an application to bring those
proceedings was itself a civil proceeding and a person subject to a civil proceedings order required
permission under the Senior Courts Act 1981 s.42(3) before they could make such an application.
It is conceivable that a person’s application for leave under s.42 may be, not for permission to
institute a judicial review claim, but to be joined as a co-claimant to judicial review proceedings for
which there is a concurrent application for permission to proceed under r.54.4 by a competent
claimant. In R. (Ewing) v Office of the Deputy Prime Minister (Practice Note) [2005] EWCA Civ 1583;
[2006] 1 W.L.R. 1260, CA, the Court of Appeal explained how the two applications should be
handled in these unusual circumstances (above at [33] et seq. per Carnwath LJ).
Paragraph 7 of PD 3A, see para.3APD.7 sets out what is required to be stated in applications for
permission and how such applications may be dealt with. No appeal shall lie from a decision of the
High Court refusing permission (s.42(4)).
The provision in para.7.6(3) of PD 3A, to the effect that an application for leave to institute
proceedings may be determined by a High Court judge, without an oral hearing, is neither ultra
vires nor a violation of the right of access to the Court under art.6 of the European Convention on
Human Rights (R. (Ewing) v Department for Constitutional Affairs [2006] EWHC 504 (Admin); [2006]
2 All E.R. 993 (Sullivan J).

Rule 3.4(6): Where a claim is “totally without merit”

By the Civil Procedure (Amendment No.2) Rules 2004 (SI 2004/2072), r.3.11, which refers to 3.4.25
the court’s power of the court to make civil restraint orders (CRO), was added to Pt 3 (see further
para.3.11.1).
By r.3.4(6), where, in striking out a claimant’s case, the court considers that the claim or applica-
tion is “totally without merit”, the court is required “at the same time” to consider whether it is ap-
propriate to make a CRO. In addition, whether or not it makes a CRO, in its order the court must
record the fact that it did consider that the claim or application was totally without merit. Obvi-
ously, that finding may become relevant on a subsequent occasion. Rule 3.3(7) makes it clear that
the court is under similar obligations when, of its own initiative, it strikes out a statement of case or
dismisses an application.
In R. (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091; [2014] 1 W.L.R.
342, the Court of Appeal stated that the proper meaning of “totally without merit” is simply
“bound to fail”. The court made the point that no judge would certify an application as totally

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without merit unless he was confident that the case was truly bound to fail. Grace was followed in
R. (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82. However, in Wasif, the
court warned that an application should not be labelled as being totally without merit merely
because it was unsuccessful. The court should distinguish between an unsuccessful application in
respect of which some rational argument could be raised and an unsuccessful application in sup-
port of which no rational argument could be raised. Whilst it might be said that both types of
claim were “bound to fail”, the making of a “totally without merit” certificate was appropriate only
in the latter case (see [15] to [17]).

Judgment without trial after striking out1

3.5 3.5—(1) This rule applies where—
(a) the court makes an order which includes a term that the statement
of case of a party shall be struck out if the party does not comply
with the order; and
(b) the party against whom the order was made does not comply with
it.
(2) A party may obtain judgment with costs by filing a request for judg-
ment if—
(a) the order referred to in paragraph (1)(a) relates to the whole of a
statement of case; and
(b) where the party wishing to obtain judgment is the claimant, the
claim is for—
(i) a specified amount of money;
(ii) an amount of money to be decided by the court;
(iii) delivery of goods where the claim form gives the defendant
the alternative of paying their value; or
(iv) any combination of these remedies.
(3) Where judgment is obtained under this rule in a case to which
paragraph (2)(b)(iii) applies, it will be judgment requiring the defendant to
deliver goods, or (if the defendant does not do so) pay the value of the goods
as decided by the court (less any payments made).
(4) The request must state that the right to enter judgment has arisen
because the court’s order has not been complied with.
(5) A party must make an application in accordance with Part 23 if they
wish to obtain judgment under this rule in a case to which paragraph (2) does
not apply.
Rule 3.5: Effect of rule
3.5.1 This rule applies where a striking out occurs automatically because of non-compliance with the
terms of a court order, for example an unless order. In such circumstances this rule enables the
other party to obtain judgment with costs.
In the cases falling within r.3.5(2) the judgment can be obtained by filing a request stating that
the right to enter judgment has arisen because the court’s order has not been complied with. The
request may be in Form PF84A (as renumbered in April 2016). In other cases the party entitled to
judgment under this rule must make an application in accordance with Pt 23 (General rules about
applications for court orders).
In Apex Global Management Ltd v FI Call Ltd [2013] EWHC 3752 (Ch), it was held that in relation
to judgments obtained pursuant to r.3.5(2), the abandonment of claims for relief which were not
monetary claims was a permissible way of reducing a pleaded claim so as to make it fall within the
scope of that provision.
Where the court makes an order directly striking out a statement of case it may also make any
consequential order it thinks appropriate (r.3.4(3)) including entering such judgment for the other
party as that party appears entitled to (PD supplementing r.3.4, para.4.2, see para.3APD.4). Rule
3.5 does not apply in these circumstances.
In Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 643; [2007] 1 W.L.R. 1864; [2007]
3 All E.R. 365, CA, the Court of Appeal stated that, at the hearing of an application made under
r.3.5(5), the court’s function is limited to deciding what order should properly be made to reflect
the striking out sanction which has already taken effect. The court rejected the submission that, at

1 Amended by the Civil Procedure (Amendment) Rules 2000 (SI 2000/221) and the Civil

Procedure (Amendment) Rules 2014 (SI 2014/407).

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such a hearing, it was open to the defaulting party to contend that striking out could not be justi-
fied unless the breach of the order was so serious as to prevent there being a fair trial (see further
para.3.4.19). It is only if there is an application under r.3.8 by the defaulting party that the court is
required to consider whether, in all the circumstances, it is just to make an order granting relief
from the sanction automatically imposed. See Marcan further under 3.8.1.

CPR 3
In Richardson v Langtree Group Plc [2004] EWCA Civ 1447, acting on own motion and in the
absence of the parties, a district judge ordered that unless the claimant complied with a direction
as to disclosure of documents by a particular their “claim will be struck out without further order”.
The claimants did not comply but the defendant made no attempt to request judgment against the
claimant until the start of the trial, by which time disclosure had been made. The Court of Appeal
referred to the question whether r.3.5 applied in these circumstances. The defendant’s contention
that it did not was based on the argument that the district judge’s “springing” order was not merely
an order which included a term that the claimant’s case should be struck out, but an order actually
striking out the claim once the date for compliance had passed. The defendant further argued that
r.3.5 did not apply because he was not seeking a “judgment with costs”. The court managed to
dispose of the appeal on other grounds but it doing so doubted the validity of the defendant’s
arguments as to the application of r.3.5.

Judgment without trial after striking out a claim in the County Court
Money Claims Centre1
3.5A—(1) If a claimant files a request for judgment in the County Court 3.5A
Money Claims Centre in accordance with rule 3.5, in a claim which includes
an amount of money to be decided by the court, the claim will be sent to the
preferred hearing centre.
(2) If a claim is sent to a preferred hearing centre pursuant to paragraph
(1), any further correspondence should be sent to, and any further requests
should be made at, the hearing centre to which the claim was sent.
Rule 3.5A: Effect of rule
This rule was substituted by the Civil Procedure (Amendment) Rules 2014 (SI 2014/407), as a 3.5A.1
consequence of the coming into force of provisions in the Crime and Courts Act 2013 s.17 and
Sch.9 creating the single County Court, with effect from the commencement date for those
provisions. Under the new court structure, in the circumstances provided for in this rule (and in
others), proceedings will not be “transferred” from court to court, but will be “sent” be sent from
one “hearing centre” to another. The County Court Money Claims Centre (CCMCC) is the
administrative office for the management of money claims which fall within para.4A.1 of PD 7A
(formerly referred to as “designated money claims”) up to the stage at which directions question-
naires have been filed or a hearing is required. The CCMCC is not a County Court hearing centre
and so if a hearing is required the claim must be sent to a hearing centre. See further para.7.2.2
above and commentary following r.26.2A. Note also r.12.6 and r.14.7A.

Setting aside judgment entered after striking out

3.6—(1) A party against whom the court has entered judgment under rule 3.6
3.5 may apply to the court to set the judgment aside.
(2) An application under paragraph (1) must be made not more than 14
days after the judgment has been served on the party making the application.
(3) If the right to enter judgment had not arisen at the time when judg-
ment was entered, the court must set aside(GL) the judgment.
(4) If the application to set aside(GL) is made for any other reason, rule
3.9 (relief from sanctions) shall apply.
Rule 3.6: Effect of rule
This rule applies to a judgment entered under r.3.5, i.e. a judgment with costs entered where a 3.6.1
statement of case has been struck out automatically as a consequence of non-compliance with the
terms of a court order. It does not apply to orders directly striking out a statement of case (for
example, a striking out under r.3.4).
The party against whom the judgment under r.3.5 was entered may apply to the court to set the
judgment aside (r.3.6(1)). The application must be made promptly, within 14 days of service of the
judgment on the applicant (r.3.6(2); as to the calculation of time periods under these rules, see
r.2.8 and the commentary thereto). If the judgment was entered prematurely, the court must set it

1 Amended by the Civil Procedure (Amendment No.4) Rules 2011 (SI 2011/3103) and the Civil

Procedure (Amendment) Rules 2014 (SI 2014/407).

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aside. In other cases the court has a discretion, to be exercised after considering all the
circumstances (r.3.6(4) which refers to r.3.9 (relief from sanctions)).
Where the court has made an order directly striking out a statement of case (for example, an
order under r.3.4(2)(c) the party against whom that order was made may apply under r.3.9 for
relief from that order.

3.6A 3.6A1 If—

(a) a party against whom judgment has been entered under rule 3.5
applies to set the judgment aside;
(b) the claim is for a specified sum;
(c) the claim was started in the County Court Money Claims Centre;
and
(d) the claim has not been sent to a County Court hearing centre, the
claim will be sent to—
(i) if the defendant is an individual, the defendant’s home
court; and
(ii) if the defendant is not an individual, the preferred hearing
centre.
Rule 3.6A: Effect of rule
3.6A.1 This rule was inserted by the Civil Procedure (Amendment) Rules 2014 (SI 2014/407), as a
consequence of the coming into force of provisions in the Crime and Courts Act 2013 s.17 and
Sch.9 creating the single County Court, with effect from the commencement date for those
provisions. Under the new court structure, in the circumstances provided for in this rule (and in
others), proceedings will not be “transferred” from court to court, but will be “sent” be sent from
one “hearing centre” to another.

Sanctions for non-payment of certain fees by the claimant2

3.7 3.7—(1) Except where rule 3.7A1 applies, this rule applies to fees payable
by the claimant where—
(a) [Omitted]
(b) [Omitted]
(c) [Omitted]
(d) the court has made an order giving permission to proceed with a
claim for judicial review; or
(e) the fee payable for a hearing specified by the Civil Proceedings
Fees Order 2008 (Fees Order 2008) is not paid.
(Rule 54.12 provides for the service of the order giving permission to proceed
with a claim for judicial review.)
(2) The court will serve a notice on the claimant requiring payment of the
fee specified in the Fees Order 2008 if, at the time the fee is due, the claimant
has not paid it or made an application for full or part remission.
(3) The notice will specify the date by which the claimant must pay the
fee.
(4) If the claimant does not—
(a) pay the fee; or
(b) make an application for full or part remission of the fee,
by the date specified in the notice—
(i) the claim will automatically be struck out without further
order of the court; and
(ii) the claimant will be liable for the costs which the defendant
has incurred unless the court orders otherwise.

1 Introduced by the Civil Procedure (Amendment) Rules 2014 (SI 2014/407).

2 Amended by the Civil Procedure (Amendment No.4) Rules 2000 (SI 2000/2092), the Civil
Procedure (Amendment) Rules 2002 (SI 2002/2058), the Civil Procedure (Amendment No.2)
Rules 2003 (SI 2003/1242), the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178), the
Civil Procedure (Amendment) Rules 2013 (SI 2013/262), the Civil Procedure (Amendment No.7)
Rules 2013 (SI 2013/1974), and the Civil Procedure (Amendment) Rules 2017 (SI 2017/95).

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 PART 3 THE COURT’S CASE AND COSTS MANAGEMENT POWERS

(Rule 44.9 provides for the basis of assessment where a right to costs arises
under this rule and contains provisions about when a costs order is deemed
to have been made and applying for an order under section 194(3) of the
Legal Services Act 2007.)

CPR 3
(5) Where an application for—
(a) full or part remission of a fee is refused, the court will serve notice
on the claimant requiring payment of the full fee by the date speci-
fied in the notice; or
(b) part remission of a fee is granted, the court will serve notice on
the claimant requiring payment of the balance of the fee by the
date specified in the notice.
(6) If the claimant does not pay the fee by the date specified in the notice—
(a) the claim will automatically be struck out without further order of
the court; and
(b) the claimant will be liable for the costs which the defendant has
incurred unless the court orders otherwise.
(7) If—
(a) a claimant applies to have the claim reinstated; and
(b) the court grants relief,
the relief will be conditional on the claimant either paying the fee or filing
evidence of full or part remission of the fee within the period specified in
paragraph (8).
(8) The period referred to in paragraph (7) is—
(a) if the order granting relief is made at a hearing at which the claim-
ant is present or represented, 2 days from the date of the order;
(b) in any other case, 7 days from the date of service of the order on
the claimant.
The relevant fees
Rule 3.7 makes provision concerning the fees payable by a claimant in the circumstances speci- 3.7.1
fied in r.3.7(1). Paragraphs (a) to (c) of this sub-rule were omitted by the Civil Procedure (Amend-
ment) Rules 2017 (SI 2017/95) following the abolition of the court fee to which they related. These
paragraphs applied to what used to be Fee 2.1 in the Civil Proceedings Fees Order 2008, a court
fee linked to the time for service of a pre-trial checklist or listing questionnaire. As a result of
changes made by the Civil Proceedings Fees (Amendment) Order 2016 (which came into force on
the 6 March 2017) Fee 2.1 now provides for a fee payable in cases in which the court fixes a trial
date or trial period. The sanctions for non-payment of the new Fee 2.1 are now set out in the
revised r.3.7A and the new r.3.7AA (see below).
Paragraph (d) of r.3.7(1) applies to the fee payable in judicial review cases under Fee 1.9(b)
and/or 1.9(c) of the Civil Proceedings Fees Order 2008. Paragraph (e) of r.3.7(1) applies to any
other fee payable for a hearing, for example, Fee 10.5 of the Civil Proceedings Fees Order 2008.
Rule 3.7 as now amended does not apply to any fees payable by a defendant. Sanctions for non-
payment of fees by defendants are now provided by Rule 3.7A which duplicates r.3.7 in respect of a
fee payable by a defendant for a hearing, and r.3.7AA which duplicates r.3.7A1 in respect of a fee
payable by a defendant in cases in which the court fixes a trial date or trial period.
As to the amounts payable in the circumstances specified in paras (d) and (e) of r.3.7(1), and as
to applications for full or part remission, see Vol.2 para.10-1.
The amendments made to this rule by the Civil Procedure (Amendment) Rules 2017 (SI 2017/
95) came into effect on 6 March 2017. Under the transitional provisions included in that statutory
instrument the amendments have no effect in relation to a case in which the court gives notice of
the trial date or the start of the trial period before 6 March 2017 (r.13(1)). Rule 3.7 (together with
r.3.7A1 and r.3.7AA) is supplemented by PD 3B (Sanctions for non-payment of fees); see
para.3BPD.1.

Consequences of non-payment
If the claimant fails to pay these fees and does not apply for full or part remission in respect of 3.7.2
them, the court will serve a notice on them requiring payment and specifying the date of payment.
If the claimant fails to pay the fee or apply for full or part remission by that date:
(1) the claim will be automatically struck out without any further order of the court; and
(2) the claimant will be liable for the defendant’s costs of the claim unless the court otherwise
orders.
A similar procedure applies where an application for full or part remission is made but is

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 SECTION A CIVIL PROCEDURE RULES 1998

refused. Where a claim is automatically struck out under this rule the claimant can apply under
r.3.9 (relief from sanctions) to have it reinstated on the strict terms set out in r.3.7(7).
If a claim is struck out under this rule the court will send a notice to the defendant stating that
the claim has been stuck out and explaining the effect that has upon any interim injunction
granted (PD supplementing r.3.7, see para.3BPD.1). The defendant must file this notice if it
becomes necessary to commence proceedings for a detailed assessment of costs (see r.44.9(1)(a) and
PD 47 para.13.3).
An explanatory note to r.3.7(4) mentions two provisions relevant to orders for costs. The first
provision is r.44.9 which provides that the deemed order for costs in favour of the defendant which
may arise under r.3.7 will be an order for costs to be assessed on the standard basis. The second
provision mentioned in the explanatory note to r.3.7(4) is “section 194(3) of the Legal Services Act
2007” which deals with orders for costs in favour of a party with pro-bono representation (see
further, Vol.2, para.9B-550).
As to applications for relief from the sanctions imposed by r.3.7 see R. (DPP) v Stratford
Magistrates’ Court 22 March 2017, unrep., DC noted in para.3.9.21.

Sanctions for non-payment of the trial fee by the claimant1

3.7A1 3.7A1—(1) In this rule and in rule 3.7AA—
(a) “Fees Order 2008” means the Civil Proceedings Fees Order 2008;
(b) “fee notice” means a notice of—
(i) the amount of a trial fee;
(ii) the trial fee payment date; and
(iii) the consequences of non-payment of the trial fee;
(c) “trial date” means the date of the trial in relation to which the trial
fee is payable, and if the trial in relation to which the trial fee is
payable is scheduled to commence during the course of a specified
period, “trial date” means the date of the Monday of the first week
of that specified period;
(d) “trial fee” means fee 2.1 set out in the Table in Schedule 1 to the
Fees Order 20082
and payable for the trial of a case on the multi-track, fast track or
small claims track;
(e) “trial fee payment date” means the date by which the trial fee must
be paid, calculated in accordance with the Fees Order 2008;
(f) “revised trial fee payment date” means, if an application for fee
remission is denied in whole or part, the revised date by which the
fee or part of it is to be paid, calculated in accordance with the
Fees Order 2008.
(2) This rule applies in relation to trial fees where that fee is to be paid by
the claimant and the court notifies the parties in writing of the trial date.
(3) When the court notifies the parties in writing of the trial date, the
court must also send a fee notice to the claimant.
(4) The fee notice may be contained in the same document as the notice of
trial date, or may be a separate document.
(5) Where an application for full or part remission of a trial fee is refused,
when the court sends written notice to the claimant of the refusal, the court
must also notify the claimant in writing—
(a) that the claimant is required to pay the full trial fee by the revised
trial fee payment date; and
(b) of the consequences of non-payment of the trial fee.
(6) Where part remission of a fee is granted, when the court sends written
notice to the claimant of the part remission, the court must also notify the
claimant in writing—
(a) that the claimant is required to pay the balance of the trial fee by
the revised trial fee payment date; and

1 Introduced by the Civil Procedure (Amendment) Rules 2017 (SI 2017/95).

2 Schedule 1 was substituted by S.I. 2014/874, article 2(1), (5), Schedule, and there are relevant
amendments in relation to fee 2.1 in the Civil Proceedings Fees (Amendment) Order 2016 (S.I.
2016/1191), with saving provisions in article 3.

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 PART 3 THE COURT’S CASE AND COSTS MANAGEMENT POWERS

(b) of the consequences of non-payment of the balance of the trial fee.

(7) If—
(a) the claimant has had notice in accordance with this rule to pay the
trial fee;

CPR 3
(b) the claimant has not applied to have the trial fee remitted in whole
or part; and
(c) the trial fee has not been paid on or before the trial fee payment
date,
the claim will automatically be struck out without further order of the court,
and unless the court orders otherwise, the claimant will be liable for the costs
which the defendant has incurred.
(8) If—
(a) the claimant has had notice in accordance with this rule to pay the
trial fee;
(b) the claimant has applied to have the trial fee remitted in whole or
part;
(c) remission is refused or only part remission of the trial fee is
granted;
(d) following the decision on remission, the claimant has had notice in
accordance with this rule to pay the full trial fee or balance of it;
and
(e) the full trial fee or balance of it (as appropriate) has not been paid
on or before the revised trial fee payment date,
the claim will automatically be struck out without further order of the court,
and, unless the court orders otherwise, the claimant will be liable for the
costs which the defendant has incurred.
(Rule 44.9 provides for the basis of assessment where a right to costs arises
under this rule and contains provisions about when a costs order is deemed
to have been made and applying for an order under section 194(3) of the
Legal Services Act 2007.)
(9) If—
(a) a claimant applies to have the claim reinstated; and
(b) the court grants relief,
the relief must be conditional on the claimant either paying the trial fee or
filing evidence of full or part remission of that fee within the period speci-
fied in paragraph (10).
(10) The period referred to in paragraph (9) is—
(a) if the order granting relief is made at a hearing at which the claim-
ant is present or represented, 2 days from the date of the order;
(b) in any other case, 7 days from the date of service of the order on
the claimant.
(11) If a fee is not paid for a claim where there is also a counterclaim, the
counterclaim will still stand.
Editorial introduction
This rule was inserted in Pt 3 by r.5(5) of the Civil Procedure (Amendment) Rules 2017 (SI 3.7A1.1
2017/95), and came into effect on 6 March 2017. The transitional provision in that statutory
instrument applicable to the enactment of r.3.7A1 states that the rule has no effect in relation to a
case in which the court gives notice of the trial date or the start of the trial period before 6 March
2017 (r.13(1)). Rule 3.7A1 (together with r.3.7 and r.3.7AA) is supplemented by PD 3B (Sanctions
for non-payment of fees); see para.3BPD.1.

The relevant fees

This rule makes provisions concerning the fee payable by a claimant once the court has fixed a 3.7A1.2
trial date or trial period for the case. The new r.3.7AA makes similar (but not identical)_provisions
concerning the fee payable by a defendant once the court has fixed a trial date or trial period for a
case which is proceeding only as to a counterclaim (see Fee 2.1 in the Civil Proceedings Fees Order
2008, as amended by the Civil Proceedings Fees (Amendment) Order 2016, which came into force
on the 6 March 2017).

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 SECTION A CIVIL PROCEDURE RULES 1998

Consequences of non-payment
3.7A1.3 In all four of the rules as to non-payment of fees (i.e., rr.3.7, 3.7A1, 3.7A and 3.7AA) no sanc-
tion is imposed unless the party in default has received a notice from the court concerning the fee
in question (the “fee notice”). The primary difference between rr.3.7A1 and 3.7AA on one side
and rr.3.7 and 3.7A on the other, concerns the date when the fee notice is served. Under rr.3.7 and
3.7A it is not served until the deadline for payment has passed. Under this rule and r.3.7AA the
fee notice is served when the court notifies the parties in writing of the trial date and, indeed it
may be contained in the same document as the notice of trial date (r.3.7A1(3) and (4) and
r.3.7AA(2) and (3)). The trial fee payment date must be specified in the fee notice (r.3.7A1(1)
which sub-rule also applies to r.3.7AA). In most cases the trial fee payment date must be at least 28
days before the date fixed for trial (see the notes to Fee 2.1 in the Civil Proceedings Fees (Amend-
ment) Order 2016 (2016/1191)). A fee notice remains valid even if the date specified in it allows
the claimant more than the minimum amount of time (Boodia v Yatsyna [2021] EWCA Civ 1705,
citing r.3.10).
If, having received a valid fee notice, the claimant fails to pay the fee or apply for full or part
remission by the trial fee payment date:
(1) the claim will be automatically struck out without any further order of the court; and
(2) the claimant will be liable for the defendant’s costs of the claim unless the court otherwise
orders.
A similar procedure applies where an application for full or part remission is made but is
refused. (On a refusal the court must send a second fee notice which must specify a revised trial
fee payment date (r.3.7A1(1)(f) and r.3.7A1(6)(a)).) Where a claim is automatically struck out under
this rule the claimant can apply under r.3.9 (relief from sanctions) to have it reinstated on the strict
terms set out in r.3.7A1(9) and (10).
If a claim is struck out under this rule the court will send to both the claimant and the defend-
ant a notice stating that the claim has been struck out and explaining the effect that has upon any
interim injunction granted (PD 3B; see para.3BPD.1). The defendant must file this notice if it
becomes necessary to commence proceedings for a detailed assessment of costs (see r.44.9(1)(a) and
PD 47 para.13.3).
An explanatory note to r.3.7(4) mentions two provisions relevant to orders for costs. The first
provision is r.44.9 which provides that the deemed order for costs in favour of the defendant which
may arise under r.3.7 will be an order for costs to be assessed on the standard basis. The second
provision mentioned in the explanatory note to r.3.7(4) is “section 194(3) of the Legal Services Act
2007” which deals with orders for costs in favour of a party with pro-bono representation (see
further, Vol.2 para.9B-550).
In Badejo v Cranston [2019] EWHC 3343 (Ch) the trial fee was not paid on the due date but the
claimant’s solicitor applied for relief against sanctions nearly three weeks before the trial date. The
County Court did not expedite the hearing of that application; but instead vacated the trial date
because of the automatic strikeout. On appeal, Fancourt J granted relief from sanctions. Had the
application been heard swiftly relief would have been granted. While it was not always possible for
the court to process an application swiftly, that should not be held against litigants.
In Boodia v Yatsyna [2021] EWCA Civ 1705, a fee notice was given in respect of a fast track trial
listed for hearing in June 2018. The trial fee was not paid in accordance with that notice. The
court office did not comply with the obligation to serve notice of strike out (see para.3BPD.1). The
June date was later adjourned because there was no judge available to hear it on that day. In
September 2018 the trial was relisted for a date in January 2019 and a fee notice requiring pay-
ment in December 2018 was given and that fee was paid before the December date. At the trial, the
defence submitted that the claim had been automatically struck out before June 2018 but the trial
judge ruled that subsequent events had amounted to an extension of the time for payment. The
trial ended in judgment for the claimant. On the first appeal, the circuit judge ruled that it had not
been open to the trial judge to grant a retrospective extension of time unless an application had, at
that time, been made. On a second appeal to the Court of Appeal, the trial judgment was restored.
The making of an application for relief from sanctions is not an essential prerequisite to the grant
of relief ([55] to [58]). As to the third stage of the test in Denton (see para.3.9.3), Lewison LJ listed
various factors ([73]); see in particular:
“x) It would be grossly disproportionate to invalidate the trial of that claim, and thus either
cause both parties to incur yet further legal costs (some of which may be duplicated); or
prevent Mrs Boodia from having her claims heard at all if, as seems likely, both claims
would now be statute-barred. Moreover, the court would itself have to devote more time
and resources to managing any new proceedings, with only partial recovery of the cost
of doing so. That would put a strain on an already overstretched system.”

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Sanctions for non-payment of certain fees by the defendant1

3.7A—(1) Except where rule 3.7AA applies, this rule applies to fees pay- 3.7A
able by the defendant where—
(a) a defendant files a counterclaim without—

CPR 3
(i) payment of the fee specified by the Civil Proceedings Fees
Order 2008 (Fees Order 2008); or
(ii) making an application for full or part remission of the fee;
or
(b) the proceedings continue on the counterclaim alone and—
(i) [Omitted]
(ii) [Omitted]
(iii) [Omitted]
(iv) the fee payable for a hearing specified by the Fees Order
2008 is not paid.
(2) The court will serve a notice on the defendant requiring payment of
the fee specified in the Fees Order 2008 if, at the time the fee is due, the
defendant has not paid it or made an application for full or part remission.
(3) The notice will specify the date by which the defendant must pay the
fee.
(4) If the defendant does not—
(a) pay the fee; or
(b) make an application for full or part remission of the fee,
by the date specified in the notice, the counterclaim will automatically be
struck out without further order of the court.
(5) Where an application for—
(a) full or part remission of a fee is refused, the court will serve notice
on the defendant requiring payment of the full fee by the date
specified in the notice; or
(b) part remission of a fee is granted, the court will serve notice on
the defendant requiring payment of the balance of the fee by the
date specified in the notice.
(6) If the defendant does not pay the fee by the date specified in the
notice, the counterclaim will automatically be struck out without further
order of the court.
(7) If—
(a) the defendant applies to have the counterclaim reinstated; and
(b) the court grants relief,
the relief will be conditional on the defendant either paying the fee or filing
evidence of full or part remission of the fee within the period specified in
paragraph (8).
(8) The period referred to in paragraph (7) is—
(a) if the order granting relief is made at a hearing at which the
defendant is present or represented, 2 days from the date of the
order;
(b) in any other case, 7 days from the date of service of the order on
the defendant.
The relevant fees
This rule makes provisions concerning the fee payable by a defendant for a hearing other than a 3.7A.1
trial, for example, Fee 10.5 of the Civil Proceedings Fees Order 2008. This rule was amended (in
line with the amendments to r.3.7) by the Civil Procedure (Amendment) Rules 2017 (SI 2017/95)
which came into effect on 6 March 2017. Under the transitional provisions included in that statu-
tory instrument the amendments have no effect in relation to a case in which the court gives notice
of the trial date or the start of the trial period before 6 March 2017 (r.13(1)). As to the amount pay-

1 Amended by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and the Civil

Procedure (Amendment) Rules 2017 (SI 2017/95).

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 SECTION A CIVIL PROCEDURE RULES 1998

able and as to applications for exemption or remission, see the Civil Proceedings Fees Order 2008
(SI 2008/1053), as amended (Vol.2, para.10-1).
Consequences of non-payment
3.7A.2 If the defendant fails to pay this fee and does not apply for exemption or remission in respect of
it, the court will serve a notice on them requiring payment and specifying the date of payment. If
the defendant fails to pay the fee or apply for exemption or remission by that date the defence will
be automatically struck out without any further order of the court. A similar procedure applies
where an application for exemption or remission is made but is refused. Where a defence is
automatically struck out under this rule the defendant can apply under r.3.9 (relief from sanctions)
to have it reinstated on the strict terms set out in r.3.7A(7).
Rule 3.7A does not make a defendant whose counterclaim has been struck out liable for the
claimant’s costs of the counterclaim (contrast the sanctions provided by rr.3.7 and 3.7A1 where a
claimant fails to pay certain fees, and the sanctions provided by r.3.7B where a claimant or defend-
ant pays any court fee by a cheque which is subsequently dishonoured).

Sanctions for non-payment of the trial fee by the defendant, where

proceedings continue on the counterclaim alone1
3.7AA 3.7AA—(1) This rule applies in relation to trial fees where that fee is to be
paid by the defendant and the court notifies the defendant in writing of the
trial date.
(Definitions contained in rule 3.7A1(1) apply to this rule also.)
(2) When the court notifies the parties in writing of the trial date, the
court must also send a fee notice to the defendant.
(3) The fee notice may be contained in the same document as the notice of
trial date, or may be a separate document.
(4) Where an application for full or part remission of a trial fee is refused,
when the court sends written notice to the defendant of the refusal, the court
must also notify the defendant in writing—
(a) that the defendant is required to pay the full trial fee by the revised
trial fee payment date; and
(b) of the consequences of non-payment of the trial fee.
(5) Where part remission of a fee is granted, when the court sends written
notice to the defendant of the part remission, the court must also notify the
defendant in writing—
(a) that the defendant is required to pay the balance of the trial fee by
the revised trial fee payment date; and
(b) of the consequences of non-payment of the balance.
(6) If—
(a) the defendant has had notice in accordance with this rule to pay
the trial fee;
(b) the defendant has not applied to have the trial fee remitted in
whole or part; and
(c) the trial fee has not been paid on or before the trial fee payment
date,
the counterclaim will automatically be struck out without further order of the
court.
(7) If—
(a) the defendant has had notice in accordance with this rule to pay
the trial fee;
(b) the defendant has applied to have the trial fee remitted in whole
or part;
(c) remission is refused or only part remission of the trial fee is
granted;
(d) following the decision on remission, the defendant has had notice
in accordance with this rule to pay the full trial fee or balance of
it; and

1 Introduced by the Civil Procedure (Amendment) Rules 2017 (SI 2017/95).

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 PART 3 THE COURT’S CASE AND COSTS MANAGEMENT POWERS

(e) the full trial fee or balance of it (as appropriate) has not been paid
on or before the revised trial fee payment date,
the counterclaim will automatically be struck out without further order of the
court.

CPR 3
(8) If—
(a) a defendant applies to have the counterclaim reinstated; and
(b) the court grants relief,
the relief will be conditional on the defendant either paying the trial fee or
filing evidence of full or part remission of the fee within the period specified
in paragraph (9).
(9) The period referred to in paragraph (8) is—
(a) if the order granting relief is made at a hearing at which the
defendant is present or represented, 2 days from the date of the
order;
(b) in any other case, 7 days from the date of service of the order on
the defendant.
Editorial introduction
This rule was inserted in Pt 3 by r.5(9) of the Civil Procedure (Amendment) Rules 2017 (SI 3.7AA.1
2017/95), and came into effect on 6 March 2017. The transitional provision in that statutory
instrument applicable to the enactment of r.3.7AA states that the rule has no effect in relation to a
case in which the court gives notice of the trial date or the start of the trial period before 6 March
2017 (r.13(1)). Rule 3.7AA (together with r.3.7 and r.3.7A1) is supplemented by PD 3B (Sanctions
for non-payment of fees); see para.3BPD.1.
The relevant fees
This rule makes provisions concerning the fee payable by a defendant once the court has fixed a 3.7AA.2
trial date or trial period for the case which is proceeding only as to a counterclaim. It makes provi-
sions which are similar (but not identical) to r.3.7A1 concerning the fee payable by a claimant once
the court has fixed a trial date or trial period (see Fee 2.1 in the Civil Proceedings Fees Order 2008
(SI 2008/1053), as amended by the Civil Proceedings Fees (Amendment) Order 2016 (SI 2016/
1191), which came into force on 6 March 2017).
Consequences of non-payment
In all four of the rules as to non-payment of fees (i.e., rr.3.7, 3.7A1, 3.7A and 3.7AA) no sanc- 3.7AA.3
tion is imposed unless the party in default has received a notice from the court concerning the fee
in question (the “fee notice”). The primary difference between rr.3.7A1 and 3.7AA on one side
and rr.3.7 and 3.7A on the other, concerns the date when the fee notice is served. Under rr.3.7 and
3.7A it is not served until the deadline for payment has passed. Under this rule and r.3.7A1 the fee
notice is served when the court notifies the parties in writing of the trial date and, indeed it may be
contained in the same document as the notice of trial date (r.3.7A1(3) and (4) and r.3.7AA(2) and
(3)). The trial fee payment date must be specified in the fee notice (r.3.7A1(1) which sub-rule also
applies to r.3.7AA). In most cases the trial fee payment date must be at least 28 days before the date
fixed for trial (see the notes to Fee 2.1 in the Civil Proceedings Fees Order 2008, as amended by
the Civil Proceedings Fees (Amendment) Order 2016).
If, having received a valid fee notice, the defendant fails to pay the fee or apply for full or part
remission by the trial fee payment date the counterclaim will automatically be struck out without
further order of the court. As under r.3.7A, a strike out of the counterclaim made under r.3.7AA
does not carry with it any obligation to pay the claimant’s costs of the counterclaim (contrast rr.3.7,
3.7A1 and 3.7B).
This rule contains provisions similar to r.3.7A1 concerning the service by the court of a revised
fee notice if an application for remission is made but refused, and concerning applications for
reinstatement by way of relief from the sanction of strike out.

Sanctions for dishonouring cheque1

3.7B—(1) This rule applies where any fee is paid by cheque and that cheque 3.7B
is subsequently dishonoured.
(2) The court will serve a notice on the paying party requiring payment of
the fee which will specify the date by which the fee must be paid.
(3) If the fee is not paid by the date specified in the notice—
(a) where the fee is payable by the claimant, the claim will automati-
cally be struck out without further order of the court;

1 Amended by the Civil Procedure (Amendment No.7) Rules 2013 (SI 2013/1974).

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 SECTION A CIVIL PROCEDURE RULES 1998

(b) where the fee is payable by the defendant, the defence will
automatically be struck out without further order of the court,
and the paying party shall be liable for the costs which any other party has
incurred unless the court orders otherwise.
(Rule 44.9 provides for the basis of assessment where a right to costs arises
under this rule.)
(4) If—
(a) the paying party applies to have the claim or defence reinstated;
and
(b) the court grants relief,
the relief shall be conditional on that party paying the fee within the period
specified in paragraph (5).
(5) The period referred to in paragraph (4) is—
(a) if the order granting relief is made at a hearing at which the pay-
ing party is present or represented, 2 days from the date of the
order;
(b) in any other case, 7 days from the date of service of the order on
the paying party.
(6) For the purposes of this rule, “claimant” includes a Part 20 claimant
and “claim form” includes a Part 20 claim.
Rule 3.7B: Effect of rule
3.7B.1 This rule specifies the procedure to be followed where a claimant or defendant pays a court fee
by cheque and the cheque is subsequently dishonoured; the court will serve a notice on them
requiring payment and specifying the date of payment. (The court is not required to invite the
making of an application for exemption or remission in respect of the fee; contrast the provisions
of rr.3.7 and 3.7A.) If the paying party is the claimant and the fee is not paid by the date specified
in the notice:
(1) the claim will be automatically struck out without any further order of the court; and
(2) the claimant will be liable for the defendant’s costs of the claim unless the court otherwise
orders.
If the paying party is the defendant and the fee is not paid by the date specified in the notice:
(1) the defence will be automatically struck out without any further order of the court; and
(2) the defendant will be liable for the claimant’s costs of the defence unless the court otherwise
orders.
A party whose claim or defence has been automatically struck out under this rule can apply
under r.3.9 (relief from sanctions) to have it reinstated on the strict terms set out in r.3.7B(4). An
explanatory note to r.3.7B(3) states that, where a right to costs arises under r.3.7B “rule 44.12
provides for the basis of assessment”. This note requires amendment to take account of the amend-
ments made in April 2013 (what was r.44.12 is now r.44.9). However, curiously neither r.44.9, nor
its predecessor, r.44.12, mentions orders for costs under r.3.7B (contrast their references to orders
for costs under r.3.7).

Sanctions have effect unless defaulting party obtains relief1

3.8 3.8—(1) Where a party has failed to comply with a rule, practice direction
or court order, any sanction for failure to comply imposed by the rule, practice
direction or court order has effect unless the party in default applies for and
obtains relief from the sanction.
(Rule 3.9 sets out the circumstances which the court will consider on an ap-
plication to grant relief from a sanction.)
(2) Where the sanction is the payment of costs, the party in default may
only obtain relief by appealing against the order for costs.
(3) Where a rule, practice direction or court order—
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement
between the parties except as provided in paragraph (4).

1 Amended by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and the Civil

Procedure (Amendment No.5) Rules 2014 (SI 2014/1233).

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(4) In the circumstances referred to in paragraph (3) and unless the court
orders otherwise, the time for doing the act in question may be extended by
prior written agreement of the parties for up to a maximum of 28 days,
provided always that any such extension does not put at risk any hearing date.

CPR 3
Coronavirus variation
Practice Direction 51ZA (April 2020) varied r.3.8(4) as from 2 April 2020 to 30 October 2020. 3.8.0
The variation substitutes 56 days for 28 days, thus extending the time for which parties can agree
extensions of time. The Practice Direction further enjoins courts to take account of the impact of
the Coronavirus epidemic, in so far as that is consistent with the proper administration of justice,
in considering any applications for extensions of time whether agreed by the parties or otherwise.

Rule 3.8: Effect of rule

In this and other rules the term sanction refers to any adverse consequence imposed upon a 3.8.1
party because of his failure to comply with a rule, practice direction or court order (see Summit
Navigation Ltd v Generali Romania Assigurare Reasigurare SA [2014] EWHC 398 (Comm) at [27];
[2014] 1 W.L.R. 3472). Many rules, practice directions and orders specify a sanction which will
come into operation in the case of non-compliance. If no sanction is specified, one may be imposed
by an order obtained by the non-defaulting party on an application under r.3.4(2)(c) (“failure to
comply with a rule, practice direction or court order”; and see para.3.4.18, above and 3.9.10,
below).
This rule confirms the validity of any sanction imposed by a rule, practice direction or court
order whilst at the same time providing that the party in default may apply for relief from the
sanction. In most cases an application for relief can be made under r.3.9. However, if the sanction
is an order for the payment of costs the party in default may obtain relief only by way of appealing
against the order for costs (r.3.8(2)).
This rule also removes the right which the parties would otherwise have (r.2.11) to extend by
agreement the time for doing an act specified in a rule, practice or court order where the rule,
practice direction or court order also specifies the time for doing that act and the consequences of
failure to comply (r.3.8(3)).
In Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463; [2007] 1 W.L.R. 1864, CA, the
court stated that r.3.1(3)(b) expressly gives the court the power when making an order to specify the
consequences of failure to comply with its terms; and that r.3.8(1) expressly provides that where a
party has failed to comply with an order any sanction imposed by the order has effect unless the
party in default applies for and obtains relief from the sanction. No further order is required to
render the sanction effective; on the contrary, the onus is on the defaulting party to take steps to
obtain relief; Moore-Bick LJ at [28].
Note also PD 3A para.1.9 at 3APD.1 which states that: “where a rule, practice direction or order
states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the strik-
ing out or dismissal will be automatic and that no further order of the court is required.”

Relief from sanction without an application

In Marcan (above) it was further held that the court has jurisdiction to give relief from sanction 3.8.2
on its own its own initiative despite the wording of r.3.8(1) which assumes that the party in default
will make an application for relief; Keen Phillips v Field [2006] EWCA Civ 1524; [2007] 1 W.L.R.
686, CA, followed in this respect. The court in Marcan recognised that the jurisdiction is one which
is likely to be exercised only rarely because it will usually be necessary for evidence to be placed
before the court to enable it to consider the various matters to which rule 3.9 refers; see [33]. In
Nelson v Circle Thirty Three Housing Trust Ltd [2014] EWCA Civ 106, the Court of Appeal confirmed
that the court could consider relief from sanctions of its own motion under r.3.9.
The case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 W.L.R. 795
(as to which, see para.3.9.2) resulted in a large number of applications to the court for orders
recording the parties’ agreement for extensions of time to serve witness statements or other
documents. Busy courts, with limited resources, could not cope with this influx. The applications
themselves resulted in costs being needlessly incurred. In the Queen’s Bench Division, Central Of-
fice, the designated clinical negligence Masters introduced what has become widely known as a
“buffer” direction and this was adopted in many other courts. The standard direction is as follows:
“The Parties may, by prior agreement in writing, extend time for a Direction in this Order by
up to 28 days and without the need to apply to Court. Beyond that 28-day period, any agreed
extensions of time must be submitted to the Court by email including a brief explanation of
the reasons, confirmation that it will not prejudice any hearing date and with the draft
Consent Order in Word format. The Court will then consider whether a formal application
and hearing is necessary. Any retrospective agreement to extend time is to submitted to the
Court in like manner.”
The Civil Procedure (Amendment No.5) Rules 2014 (SI 2014/1233), which came into force on 5
June 2014, sanctioned this approach at least in relation to prospective agreements. Although the
new r.3.8(4) does not relate to retrospective agreements to extend time, it is submitted that the

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standard direction (which does include retrospective agreements) may sensibly be adopted given
the judicial scrutiny involved.

Relief from sanctions1

3.9 3.9—(1) On an application for relief from any sanction imposed for a
failure to comply with any rule, practice direction or court order, the court
will consider all the circumstances of the case, so as to enable it to deal justly
with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost;
and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
Impact of coronavirus on applications for relief from sanction
3.9.0 Practice Direction 51ZA (April 2020) required, from 2 April 2020 to 30 October 2020, courts to
take account of the impact of the Coronavirus epidemic, in so far as that is consistent with the
proper administration of justice, in considering applications for relief from sanction.
Rule 3.9: Effect of rule in general terms
3.9.1 This rule sets out the court’s general discretion to give relief from any sanction imposed for
failure to comply with any rule, practice direction or court order. The sanction imposed may be the
entry of judgment against the defaulting party (for example, an unless order, as to which, see
further, para.3.4.19, above) or the loss of the right to call a witness (for example, r.32.10;
consequence of failure to serve a witness statement, as to which see Primus Telecommunications
Netherlands BV v Pan European Ltd [2005] EWCA Civ 273) or the loss of a right to participate in a
hearing (for example, a debarring order, or, in detailed assessment proceedings, the penalty under
r.47.9(3) (consequences of late service of points of dispute; see further, Hallam Estates v Baker
[2014] EWCA Civ 661; [2014] 4 Costs L.R. 660. In some cases specific rule provision is made for
relief from particular sanctions (for example, Pt 13 (setting aside or varying default judgment) and
r.39.3(3) setting aside judgment entered on failure to attend trial). Rule 3.9 does not apply where
the sanction imposed is an order for the payment of costs; in that instance the party in default may
only obtain relief by appealing against the order for costs (r.3.8(2)).
In Momson v Azeez [2009] EWCA Civ 202 it was held that the refusal to grant relief against a
debarring sanction would not contravene art.6 of the European Convention on Human Rights
provided that such refusal was proportionate and was for a legitimate purpose. The Court of Ap-
peal held that any other conclusion would mean that litigants could with impunity avoid compli-
ance with court orders made for the purpose of the holding of a fair trial.
It should be noted that r.3.9 comes into play, not merely where a party has failed to comply with
any rule, etc., but only where a sanction is imposed as a result of that failure. The rule in its cur-
rent form was first implemented in April 2013 (see further, para.3.9.2). The new wording gave rise
to an avalanche of new cases in respect of which the Court of Appeal has now clearly re-stated how
the courts should deal with applications under r.3.9 (the Denton principles, as to which see paras
3.9.3 to 3.9.7). These principles now underscore the court’s approach to rule-compliance in all
circumstances whether or not r.3.9 itself is engaged (see further on this, paras 3.9.8 (“Effect
Denton principles on applications to set aside default judgments”) and 3.9.23 (“Effect of Denton
principles in all cases of non-compliance”).

Formulation of rule since April 2013

3.9.2 As originally drafted, r.3.9 required a court hearing an application for relief against sanctions to
consider all the circumstances including nine particular circumstances which were derived from
pre-CPR case authorities. By the Civil Procedure (Amendment) Rules 2013, r.3.9(1) was
substantially re-cast following recommendations made in Review of Civil Litigation Costs: Final Report
(December 2009, see p.397). When the amended r.3.9(1) is read in conjunction with the
contemporaneous amendments made to r.1.1 (Overriding objective), it is clear that the intention
was to encourage the courts to be less ready than they previously were to grant relief from sanc-
tions for procedural defaults. Under the new r.3.9(1) the court is required to consider “all the
circumstances of the case, so as to enable it to deal justly with the application”. Two circumstances
are specifically mentioned (factor (a) the need for litigation to be conducted efficiently and at
proportionate cost and factor (b) the need to enforce compliance with rules, practice directions and
court orders).
Some aspects of the Court of Appeal’s first decision on the re-formulated r.3.9 (Mitchell v News
Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 W.L.R. 795) led to an avalanche of new
cases on the principles it laid down and substantial criticism and debate among practitioners and
academics. In Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296, the Court of

1 Amended by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

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Appeal, dealing with three appeals, with the Bar Council and the Law Society intervening, clarified
and further explained the guidance given in Mitchell. The guidance was very much needed. As the
Court of Appeal itself stated, the judgment in Mitchell had been misunderstood and misapplied by
some courts. The Court of Appeal expressed the hope that the further guidance will avoid the
need in future to resort to the earlier decisions.

CPR 3
In Patterson v Spencer [2017] EWCA Civ 140, the refusal of relief from sanctions was overturned
where the judge (before the guidance in Denton had been given) had erred in his approach by rely-
ing extensively on Mitchell. The judge had erred, albeit understandably and the matter was
considered afresh with the benefit of the guidance given in Denton.

Summary of guidance given in Denton

The guidance given in Denton may be summarised as follows: a judge should address an applica- 3.9.3
tion for relief from sanctions in three stages. The first stage is to identify and assess the seriousness
and significance of the “failure to comply with any rule, practice direction or court order” which
engages r.3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to
spend much time on the second and third stages. The second stage is to consider why the default
occurred. The third stage is to evaluate all the circumstances of the case, so as to enable the court
to deal justly with the application including r.3.9(1)(a) (b). The court also gave guidance as to the
importance of penalising parties who unreasonably oppose applications for relief from sanctions.

The first stage: assess seriousness and significance of breach

As far as the first stage is concerned, the Court of Appeal recognised that the use of the word 3.9.4
“trivial” in the guidance previously given in Mitchell had given rise to some difficulty and semantic
disputes. The court said that it would be preferable if in future the focus of the enquiry at the first
stage should not be on whether the breach has been trivial. Rather, it should be on whether the
breach has been serious or significant. The court stated that in many circumstances whether or not
a breach imperilled future hearing dates or otherwise disrupts the conduct of litigation (including
litigation generally) would be the most useful measure of whether a breach has been serious or
significant. However, the court added that there were breaches which are serious although they are
incapable of affecting the efficient progress of the litigation: e.g. the failure to pay court fees. The
court stated that the concepts of seriousness and significance are not hard-edged and that there are
degrees of seriousness and significance. At the first stage, the assessment of the seriousness or
significance of the breach should concentrate on the very breach in respect of which relief from
sanction is sought. Considerations of the defaulter’s previous conduct in the litigation (for example,
if the breach is the latest in a series of failures to comply) should be left to the third stage.
If a judge concludes that a breach is not serious or significant, then relief from sanctions will
usually be granted and it will usually be unnecessary to spend much time on the second or third
stages. If, however, the court decides that the breach is serious or significant, then the second and
third stages assume greater importance.
In Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB); [2015] 1 W.L.R. 971, at the pre-action
stage, the claimant gave the defendants a notice of funding as required by para.9.3 of the PD, Pre-
Action Conduct, then in force and the former r.44.15(1) (see Vol.2 para.7B-16) but failed to repeat
that notice once proceedings were issued as was required by para.19.2 of the former Costs PD.
Relief from sanction was given: on the facts, Warby J held that the breach in this case was not a
serious or practically significant one.
British Gas Trading Ltd v Oak Cash and Carry Ltd [2016] EWCA Civ 153; [2016] 1 W.L.R. 4530;
[2016] 4 All E.R. 129, involved an unless order following a failure to file a pre-trial checklist. The
Court of Appeal held that in assessing the seriousness or significance of the breach of an unless
order it was also necessary to look at the underlying breach. It was not possible to look at an unless
order in isolation. The reference in the first sentence of [27] in Denton to “unrelated failures” is a
reference to earlier breaches of rules or orders which the applicant has committed during the
course of the litigation. The phrase “the very breach” in [27] of Denton, when applied to an unless
order, means: the failure to carry out the obligation which was (a) imposed by the original order or
rule and (b) extended by the unless order. Jackson LJ, giving the leading judgment, added that the
very fact that a party has failed to comply with an unless order (as opposed to an “ordinary” order)
is undoubtedly a pointer towards seriousness and significance. However, it was acknowledged that
not every breach of an unless order is serious or significant. See para.3.9.6 for the court’s considera-
tion of the third stage.
In Khandanpour v Chambers [2019] EWCA Civ 570, on D’s application to set aside a default costs
certificate, the court made an order setting aside the certificate which was conditional upon D pay-
ing £10,000 on account to C by 16.00 on a specified date and upon D also serving points of dispute
by 16.00 on that date. D served points of dispute and paid £4,000 to C on time but failed to pay the
remaining £6,000 until the following morning. The Court of Appeal held that, for the purposes of
determining D’s application for relief from sanctions, the conditional order made in this case
should not be treated as if it was an unless order.
“[39] … even if the payment condition was imposed in the light of the appellant’s long-
standing failure to pay the judgment debt and a history of leaving things until the last
minute, he was not in breach of any previous order as to costs. It was not, therefore, a case

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such as described by Jackson LJ [in British Gas Trading] where, having been in breach of
previous orders for payment on account of costs, the appellant was now being given a final
chance. At stage one, therefore, this was a minor breach, not one which was serious or
significant.”
In Diriye v Bojaj [2020] EWCA Civ 1400; [2021] 1 W.L.R. 1277, an unless order was made
requiring C to file and serve, by a specified date, a reply which was explicit as to C’s case on a
specified issue. A reply was served two days late but C did not then, or later, provide the explicit
information required by the order. C submitted that a delay of two days, although serious, was not
significant and that the failure to give the explicit information was not significant because it did
not imperil the trial timetable. The Court of Appeal ruled against both submissions. As to the two-
day delay, there was no room in Stage 1 to consider the degrees of seriousness of a serious breach.
Where applications for relief from sanctions are made in respect of two separate sanctions the
court should consider each breach separately at the first stage but should consider both of them
together at third stage (McTear v Englehard [2016] EWCA Civ 487; [2016] 4 W.L.R. 108; especially
at [33], [34], [41] and [42]).
The second stage: why the default occurred
3.9.5 The second stage is particularly important where the breach is serious or significant. The court
declined to give any examples of good and bad reasons for a failure to comply with rules, practice
directions or court orders. The court did not disapprove of the examples previously given in
Mitchell but stated that they are no more than examples. In Mitchell, the examples given were as
follows: the fact that the defaulting party or his solicitor suffered from a debilitating illness or was
involved in an accident ([41]); later developments in the course of the litigation process if they
show that the period for compliance originally imposed was unreasonable, although the period
seemed to be reasonable at the time and could not realistically have been the subject of an appeal
([41]) “…good reasons are likely to arise from circumstances outside the control of the party in
default…” ([43]).
If some good reason is shown for the failure to comply with a rule, practice direction or order,
the court will usually grant relief from any sanction imposed because of it. See, for example, Sum-
mit Navigation Ltd v Generali Romania Assigurare Reasigurare SA [2014] EWHC 398 (Comm); [2014]
1 W.L.R. 3472, at [27] (failure to deliver an insurance bond in time caused by the difficulties
encountered in getting the underwriter’s signature to the bond); Cranford Community College v
Cranford College Ltd [2014] EWHC 349 (IPEC), HH Judge Bacon, (one of the defaulting party’s key
witnesses had been pre-occupied with caring for and visiting his very ill wife in hospital); Service
Insurance Co Ltd v Beacon [2014] EWHC 2435 (QB), Andrews J, (non-compliance with a consent
order to issue a new claim form by 21 September 2013; although the claimant had delivered the
new claim form to the court office in good time, the court office had not issued it until 25
September 2013, i.e. nine days after receipt and four days after the deadline; such a delay was
outside the control of the claimant).
The third stage: all the circumstances of the case, including r.3.9(1)(a) and (b)
3.9.6 The Court of Appeal highlighted what had been an important misunderstanding of Mitchell: it
is wrong to assume that, if (i) there is a non-trivial (now serious or significant) breach and (ii) there
is no good reason for the breach, the application for relief from sanctions will automatically fail.
That is not so. Rule 3.9(1) requires that, in every case, the court will consider “all the circumstances
of the case, so as to enable it to deal justly with the application”. The Court of Appeal regarded
this as the third stage.
Two circumstances which are specifically mentioned in r.3.9 are (a) the need for litigation to be
conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules,
practice directions and court orders and are referred to in Denton as factors (a) and (b). The court
stated that factor (a) makes it clear that the court must consider the effect of the breach in every
case. If the breach has prevented the court or the parties from conducting the litigation (or other
litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing
relief. Factor (b) emphasises the importance of complying with rules, practice directions and
orders. The court observed that this factor received insufficient attention in the past. However, the
old lax culture of non-compliance is no longer tolerated.
Other factors or circumstances mentioned in Denton are the need to consider whether the sanc-
tion imposed is proportionate to the breach in question (see the ruling given in Decadent Vapours Ltd
v Bevan a case which was heard with Denton), whether the application for relief from sanctions was
made promptly, and whether the defaulting party has a poor record as to compliance with proper
court procedures: other past or current breaches of the rules, practice directions and court orders
may also be taken into account as a relevant circumstance.
The majority of the Court of Appeal (Lord Dyson MR; Vos LJ) expressed the view that, whilst
factors (a) and (b) may not be of paramount importance, they are of particular importance and
should be given particular weight at the third stage when all the circumstances of the case are
considered. However, this is not what the rule actually says. Jackson LJ dissented on this point and
expressed the view that the rule does not require the courts to give factors (a) and (b) any greater
weight than any other circumstances. All that the rule requires is that they are specifically
considered in every case.

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The more serious or significant the breach the less likely it is that relief will be granted unless
there is a good reason for it. Where there is a good reason for a serious or significant breach, relief
is likely to be granted. Where the breach is not serious or significant, relief is also likely to be
granted. Relief has been granted even in respect of the breach of an unless order (as to which, see
para.3.9.4) where the breach was neither serious nor significant (Utilise TDS Ltd v Davies [2014]

CPR 3
EWHC 834 (Ch), a delay of only 45 minutes; Michael v Lillitos [2019] EWHC 2716 (QB); [2019]
Costs L.R. 1615, breach held to be near the bottom of the range of seriousness for several reasons
including the fact that when the unless order had been imposed, there had been no underlying
breach of a rule or court order (see [54] of the judgment)).
In British Gas Trading Ltd v Oak Cash and Carry Ltd [2016] EWCA Civ 153; [2016] 1 W.L.R. 4530;
[2016] 4 All E.R. 129 (noted in paras 3.9.4 and 3.9.17), the Court of Appeal regarded the
defendant’s lack of promptness in applying for relief from sanction as the critical factor for
consideration at the third stage. Had the application been made promptly, it would have been
granted. However, when the delay in applying for relief was added to all the other factors, it could
be seen that the defendant’s default had substantially disrupted the progress of the action. The ap-
plication for relief was refused.
In Depp v News Group Newspapers Ltd [2020] EWHC 1734 (QB) an order for disclosure was made
against C shortly before the date fixed for the start of the trial. Four days later, C was granted a
two-day extension of the time limit for compliance. The extension order was in the unless form,
stating that, if C failed to make the disclosure ordered, “the claim is struck out”. C made some
disclosure within time but subsequently that disclosure was held to be incomplete. C immediately
completed the disclosure and applied for and was granted relief from sanction. Nicol J held that
the unless order had not been made because C had been recalcitrant but because the trial had
been imminent and necessitated a tight timeline. The breach was not deliberate but occurred
because of the solicitors’ erroneous view of the nature of the disclosure obligations. Accordingly,
although the breach was serious, there was scope for other considerations to play a more significant
role in the assessment of what justice required. The first of several considerations mentioned was
that the claim was far advanced, the trial was imminent and, notwithstanding the breach, the trial
would not be unfair.
In Diriye v Bojaj [2020] EWCA Civ 1400; [2021] 1 W.L.R. 1277 (as to which see further,
para.3.9.4) a two-month delay in applying for relief from sanctions was held to militate strongly
against the grant of relief. “The need to act promptly if a party is or might be in breach of an
order is axiomatic” ([65] citing PD 23A para.2.7). In mid-April, with a trial date fixed for November,
allowing weeks and months to go by before even making the application for relief from sanctions
was unsupportable.
The importance of discouraging opportunism by the non-defaulting party
The Court of Appeal in Denton went on to state that litigation cannot be conducted efficiently 3.9.7
and at proportionate cost without fostering a culture of compliance with rules, practice directions
and court orders, and cooperation between the parties and their lawyers. Rule 1.3 provides that
“the parties are required to help the court to further the overriding objective”. Parties who op-
portunistically and unreasonably oppose applications for relief from sanctions take up court time
and act in breach of this obligation. The court made it plain that it is wholly inappropriate for
litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that
relief from sanctions will be denied and that they will obtain a windfall strike out or other litiga-
tion advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b)
where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions
is appropriate, parties should agree that relief from sanctions be granted without the need for
further costs to be expended in satellite litigation. The parties should in any event be ready to
agree limited but reasonable extensions of time up to 28 days as envisaged by the new r.3.8(4). The
court will be more ready in the future to penalise opportunism. 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 applica-
tions for relief from sanctions.
In Viridor Waste Management Ltd v Veolia ES Ltd [2015] EWHC 2321 (Comm), Popplewell J, the
claimant was awarded costs on the indemnity basis as a defendant had taken unreasonable
advantage of the claimant’s default in its late service of its particulars of claim in the hope of
obtaining a windfall strike-out when it was obvious that relief from sanctions was appropriate (and
see also Freeborn v Marcal [2017] EWHC 3046 (TCC); [2017] 6 Costs LR 1103 noted in para.3.13.1).
In R. (Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187; [2016] 1
W.L.R. 1694, on the question of costs, Lord Dyson, MR, acknowledged that, in Denton, the court
had said that parties should not “adopt an unco-operative attitude in unreasonably refusing to
agree extensions of time and in unreasonably opposing applications for relief from sanctions” and
that “it is unacceptable for a party to try to take advantage of a minor inadvertent error…”.
However, he emphasised the words “unreasonably” and “minor inadvertent”. He stated that a party
is not required to agree to an extension of time in every case where the extension will not disrupt
the time-table for the appeal or will not cause him to suffer prejudice. If the position were

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otherwise, the court would lose control of the management of the litigation: [80]. It is important to
put the comments of the Master of the Rolls in context. The court was concerned with a serious
delay in the filing of the respondent’s notice in judicial review proceedings. That delay did not put
the hearing date at risk or cause the applicant prejudice. However, the lack of prejudice did not
mean that the applicant should have consented to the respondent’s application. The Master’s deci-
sion at an interim hearing extending time for the filing of the respondent’s notice but ordering the
respondent to pay the applicant’s costs on an indemnity basis was upheld.
In Diriye v Bojaj [2020] EWCA Civ 1400; [2021] 1 W.L.R. 1277 (as to which see further, paras
3.9.4 and 3.9.6) the Court of Appeal warned applicants for relief from sanctions not to overstate
the need for restraint on the part of the opposing party. It is not opportunistic to oppose the grant
of relief where the breach is serious or significant, where no good reason for it has been
demonstrated and where it is not obvious that relief from sanctions is appropriate. The threat of a
costs penalty to restrain opportunism:
“… was emphatically not designed to give carte blanche to a defaulting party to blame the
other side for the delays caused by its own breach” (at [69]).

Effect of Denton principles on applications to set aside default judgments

3.9.8 This paragraph concerns applications under r.13.3, which relates to the setting aside of a default
judgment (other than a judgment wrongly entered, which can be set aside as of right under r.13.2)
and applications under r.47.12(2), which relates to the setting aside of a default costs certificate
(other than a certificate wrongly issued, which can be set aside as of right under r.47.12(1)). In
Blakemores LDP v Scott [2015] EWCA Civ 999; [2016] C.P. Rep 1, the Court of Appeal applied the
Denton principles on an appeal from an order dismissing a set aside application made under r.13.3.
In Blakemores the claimant, a solicitors firm, sued upon a bill it had delivered to three former
clients, the defendants in these proceedings. On 5 February 2013 a default judgment had been
entered against one defendant, B. Although the claim form had been validly served on B neither
the claim form nor the default judgment had come to his attention until 6 February 2014. The
other defendants, A and C, filed a defence and counterclaim denying liability on the basis that the
claimant had given negligent advice. On 13 March 2014 the claimant applied for summary judg-
ment against A and C. On 14 March 2014 B applied for an order setting aside the default judg-
ment against him. Both applications came before a circuit judge who awarded summary judgment
against A and C and dismissed the application to set aside the default judgment against B. The
Court of Appeal set aside both the summary judgment and the default judgment. As to the sum-
mary judgment, the court disagreed with the circuit judge’s finding that, because of a limitation is-
sue, the defendants had no reasonable prospects of success. As to the default judgment, it was com-
mon ground that the Denton principles were properly applicable. The Court of Appeal held that,
plainly, B’s delay had been serious or significant. However there was a reasonable excuse for the
delay up to 6 February 2014 (when he had first become aware of the proceedings and the default
judgment) and there was also good reason explaining his subsequent delay of 36 days before mak-
ing the set aside application (during this period B had sought to trace a former solicitor and had
applied for legal aid).
“[61] The third stage of the Denton analysis is to consider all the circumstances of the case
giving particular weight to factors (a) and (b). Applying that test, I have no hesitation in
concluding that the default judgment should in this case be set aside. [B] was faced unexpect-
edly with a very difficult situation. Even having particular regard to the need for litigation to
be conducted efficiently and at proportionate cost and to the need to enforce compliance with
the rules, his delay was explicable and excusable in his very special circumstances. It would be
unjust … for the judgment to stand against him, whilst his co-defendants were allowed to
proceed with their defence. Accordingly, in my view, the judge was wrong to refuse to set
aside the default judgment…” (Vos LJ, with whose judgment Underhill and Moore-Bick LJJ
agreed).
In Gentry v Miller [2016] EWCA Civ 141; [2016] 1 W.L.R. 2696, a road accident claim was notified
to the defendant’s insurer in April 2013. On 8 August 2013 the claimant obtained judgment in
default of an acknowledgment of service and later, on 17 October 2013, at an unopposed hearing,
the damages payable were assessed at £75,089. The insurer was informed as to that assessment in
late October 2013. On 25 November 2013 the defendant’s insurer made a set aside application
under r.13.3 in respect of the default judgment. On 10 February 2014 the solicitors nominated by
the insurer made a further application to cease acting for the defendant and for an order joining
the insurer as a second defendant in order to allege that the claim was fraudulent. After some
further proceedings, including an application made under r.39.3, the orders sought in the Febru-
ary application were made, the default judgment was set aside on an application under r.13.3 and
the judgment for £75,089 was set aside under r.39.3 (judgment at trial obtained in the absence of a
party). The claimant’s first appeal as to these set asides were heard and dismissed. On the claimant’s
second appeal, the Court of Appeal reinstated both the default judgment and the judgment for
£75,089. It was held that the Denton principles were relevant to the application to set aside a default
judgment and also to the application under CPR r.39.3 once the express requirements of those
rules had been considered (see [23] and [24]).
As to r.13.3 the insurer had shown real prospects of success but could not show that it had acted

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promptly once it knew or ought to have known of the default judgment. It had inexcusably delayed
action for more than two months. The defendant’s insurer first knew of the possibility of a claim in
April 2013 and of the commencement of proceedings in July 2013 and knew or ought to have
known of the default judgment on 19 September 2013 if not earlier, but did not make a set aside
application until 25 November 2013 (see [31]). As to r.39.3 the court must first consider the three

CPR 3
mandatory requirements of CPR r.39.3(5), before considering the question of whether relief from
sanctions is appropriate, applying the Denton principles. The promptness of the application is a pre-
condition under CPR r.39.3(5)(a). In this case the insurer had not applied promptly but had
delayed for approximately four months, from October to February (see [40]).
Had the court had to apply the Denton principles, questions of delay would also have been
considered at the outset but not in respect of the failure to apply promptly. The sanction from
which relief was sought in respect of the default judgment would have been the failure to file an
acknowledgment of service. The sanction from which relief was sought in respect of the judgment
for £75,089 would have been the failure to attend the trial. The promptness of the application
would have been considered only at stage three (as part of all the circumstances). On the facts, the
insurer’s allegations of fraud would not have been a determinative factor under the Denton
principles. Thus, as to the fraud allegation, the insurer would have to pursue what remedies it
could by way of a new fraud action (see [41]).
In Cunico Resources NV v Daskalakis [2018] EWHC 3382 (Comm); [2019] 1 W.L.R. 2881 at [38]
to [41], Andrew Baker J declared, obiter, that the entry of a default judgment does not amount to a
sanction for procedural non-compliance by the defendant and stated that, properly understood,
some of the cases mentioned above, including Gentry v Miller, did not constitute binding authorities
requiring the court to determine an application under r.13.3 by applying the Denton principles.
The learned judge made it clear that the views he had expressed on this matter were obiter; in
Cunico the court was not in fact hearing an application under r.13.3.
See further paras 3.9.14, 3.9.15 and [Link].
Relief from sanctions cases after the re-formulation of the rule in April 2013
The Court of Appeal’s decision in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; 3.9.9
[2014] 1 W.L.R. 795 gave rise to an avalanche of new cases on the scope and application of the
principles it laid down. In Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296;
[2014] 4 Costs L.R. 752, the Court of Appeal expressed the hope that the further guidance given
in that case will avoid the need in future to resort to the earlier decisions. Nevertheless, several of
these decisions provide useful illustrations of the current law. In the following sub-paragraphs
these cases are grouped together under various headings. The titles to these sub-paragraphs are
provided for convenience only and should not be treated as a rigid classification: some cases could
properly be placed under more than one heading.
Conduct complained of did not bring sanction into operation
Filing a costs budget which, although signed by the solicitor, did not contain the full words of 3.9.10
the required statement of truth did not amount to a breach of the requirement in r.3.13 to “file a
budget as required by the rules” (Bank of Ireland v Philip Pank Partnership [2014] EWHC 284 (TCC);
[2014] 2 Costs L.R. 301). Similarly, serving a list of documents which was deficient did not by itself
amount to a failure to comply with an unless order to give standard disclosure provided that the list
was not illusory (Lakatamia Shipping Co Ltd v Nobu Su [2014] EWHC 275 (Comm); [2014] 2 Costs
L.R. 307); a list would be illusory if the court could infer lack of good faith where it was obvious,
from deficiencies in the list that it had been prepared in apparent but not real compliance with the
obligation to give disclosure) and see also Euro-Asian Oil SA v Abilo (UK) Ltd [2015] EWHC 1741
(Comm) and Griffith v Gourgey [2017] EWCA Civ 926. The terminology of compliance that is “il-
lusory” and the test of good faith derive from the judgment of Devlin J in Reiss v Woolf, which was
approved by the Court of Appeal, [1952] 2 Q.B. 557 at 559, 560 and see also QPS Consultants Ltd v
Kruger Tissue (Manufacturing) Ltd [1999] C.P.L.R. 710; [1999] B.L.R. 366, Simon Brown LJ at
371R. However, in Re Bankside Hotels Ltd [2015] EWHC 1080 (Ch) Simons J expressed, obiter,
some doubt as to whether these pre-CPR cases are still of continuing authority (see [39]—[55]).
Filing a costs budget which was not signed the party’s senior legal representative as required by
PD 3E para.1 (see 3EPD.1) did not bring into operation the sanction imposed by r.3.14 where the
budget was signed by a costs draftsman; the document suffered only from an irregularity (as to
which, see r.3.10 and para.3.10.1) and r.3.14 was not applicable (Americhem Europe Ltd v Rakem Ltd
[2014] EWHC 1881 (TCC); [2014] 4 Costs L.R.682).
The rules governing service of a claim form do not impose a duty upon a claimant to serve a
claim form once it is issued. They are simply conditions which if satisfied, will render the defend-
ant subject to the jurisdiction of the court. Accordingly r.3.9 does not give the court power to grant
any relief to a claimant who has failed to satisfy those conditions (Barton v Wright Hassall LLP
[2018] UKSC 12; [2018] 1 W.L.R. 1119, (at [8]); Woodward v Phoenix Healthcare Distribution Ltd
[2019] EWCA Civ 985 at [48]).
See also paras 3.9.14, 3.9.15 and [Link].
Breach avoided by an in-time application for extension of time which was granted
An in-time application for extension of time refers to an application which is received by the 3.9.11
court office before the relevant time limit has been reached. In Re Guidezone Ltd [2014] EWHC

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1165 (Ch); [2014] 1 W.L.R. 3728, Nugee J adopted this term as a clearer alternative to “a prospec-
tive application for extension of time” because it often happens that, if such applications proceed to
a hearing, that hearing will not take place until after the relevant time limit has expired and,
therefore, the extension sought is to that extent retrospective. Subsequently, the term was adopted
and used by the Court of Appeal (see Hallam Estates v Baker [2014] EWCA Civ 661; [2014] 4 Costs
L.R. 660). In that case, the Court of Appeal held that (what are now the Denton principles) do not
apply to an in-time application: instead the guidance given by the Court of Appeal in Robert v
Momentum Services Ltd [2003] EWCA Civ 299; [2003] 1 W.L.R. 1577 remains good law. In such
cases the court’s discretion to vary a time limit or deadline is to be exercised having regard to the
overriding objective (as to which, see r.1.1) and without reference to r.3.9(1)(a) and (b) (i.e., the two
considerations which are to be treated as having paramount importance). The addition of
subpara.1.1(2)(f) into the overriding objective (“enforcing compliance with rules, practice directions
and orders”) does not require courts to refuse reasonable extensions of time, which neither imperil
hearing dates nor otherwise disrupt the proceedings.
The decision in Kagalovsky v Balmore Investment Ltd [2014] EWHC 108 (QB), Turner J, provides
an example of an in-time application for an extension of time which was refused. In that case the
eighth defendant had been found to be in contempt of court. He applied for an extension of time
to file an appellant’s notice on the last day on which the notice should have been filed. The ap-
plication was refused. It was held that it was not appropriate to grant an extension of time despite
the potential seriousness of the consequences for him and the absence of prejudice to the claimants.
It should also be noted that the judge exercised a discretion taking a number of factors adverse to
the application into account. The case is not authority for the proposition that extensions of time
should never be granted.
The decision in Jalla v Shell International Trading and Shipping Co Ltd [2021] EWCA Civ 1559
provides an example of an in-time application for an extension of time which was refused. In that
case, in March 2020, the claimants had been ordered to supply dates and supporting evidence relat-
ing to limitation issues to be determined at the trial which was subsequently listed for hearing in
February 2022. In July 2021, after the expiry of substantial agreed extensions of time, the claim-
ants made an application to the court for a further extension, but this was refused both at first
instance and on appeal, thereby bringing to an end claims made by nearly 28,000 claimants. For an
earlier example, see also Kagalovsky v Balmore Investment Ltd [2014] EWHC 108 (QB) noted in
para.52.12.3).
Matters of form, not substance
3.9.12 A mistake of form rather than substance is one of the examples given in Mitchell (at [40]) of a
case where the non-compliance can be regarded as (in Denton parlance) “neither serious nor
significant” . In Forstater v Python (Monty) Pictures Ltd [2013] EWHC 3759 (Ch); [2014] 1 Costs L.R.
36, the receiving party failed to serve a notice of funding pursuant to the old r.44.3B (see Vol.2
para.7B-12) the sanction for which is the loss of most of the recoverable success fees otherwise
payable. Although there was no good reason for this failure the receiving party did belatedly give
some of the required information to its opponent by letter. Norris J held that, from the date of the
informal notice by letter, the receiving party’s breach was largely a matter of form not substance
and so granted relief from sanctions from that date onwards. In Adlington v ELS International
Lawyers LLP (In Administration) [2014] 1 Costs L.R. 105 (QB), seven out of 132 claimants applied
for relief from an Unless order striking out their claims because of their failure to meet a deadline
for the filing and serving of individual particulars of claim. His Honour Judge Oliver-Jones QC
considered the non-compliance to be a matter of form not substance: the names of the seven claim-
ants could easily be moved into a different schedule of claimants in respect of whom the Unless
order did not apply.
Breach which does not imperil future hearing dates or otherwise disrupt the case in hand or
litigation generally
3.9.13 In Denton the Court of Appeal accepted that, in many cases, a court might conclude that a
breach is not serious or significant if it does not imperil future hearing dates and does not otherwise
disrupt this case or litigation generally. Nevertheless it declined to adopt this as a test of seriousness
and significance, holding that some breaches are serious even though they are incapable of affect-
ing the efficient progress of litigation, e.g. a failure to pay court fees (see judgment at [26] and see
Joshi and Welch Ltd v Taj Foods Ltd [2015] EWHC 3905 (QB), Green J).
In Decadent Vapours Ltd v Bevan [2014] EWCA 906; [2014] 1 W.L.R.3296, an appeal heard at the
same time as Denton and reported with it, the claimant failed to comply with an Unless order by
sending a cheque for a court fee one day late. The cheque went astray, either before or after
delivery to the court office but the claimant’s solicitor remedied the breach promptly once the loss
of the cheque came to light. The Court of Appeal set aside the lower court’s refusal to grant relief:
(i) the failure in this case was near the bottom of the range of seriousness, (ii) there was no good
reason for the breach but (iii) both factor (a) (the need for litigation to be conducted efficiently and
at proportionate cost) and (b) (the need to enforce compliance with rules, practice directions and
court orders) pointed in favour of the grant of relief. The breach only affected the orderly conduct
of the litigation because of the approach adopted by the defendants’ failure to consent to relief be-
ing given, and by the approach taken by the lower courts (see at [58] to [66]).

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In Utilise TDS Ltd v Davies [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296, another appeal heard
at the same time as Denton and reported with it, the claimant failed to comply with an Unless order
by filing a costs budget 45 minutes late and, subsequently, failed to comply with another order (in
respect of which no sanction applied) by notifying the court of the outcome of certain negotiations
13 days late. The claimant’s solicitor promptly applied for relief in respect of the Unless order but

CPR 3
was refused on the basis of the cumulative effect of the breaches. The Court of Appeal set aside
the lower court’s refusal to grant relief: (i) the 45 minute delay was trivial: it did not imperil any
future hearing date or otherwise disrupt the conduct of this or other litigation. In the circumstances
there was no need for the district judge to spend much time on either of the second or third stages,
(ii) there was no good reason for the breach but (iii) both factor (a) (the need for litigation to be
conducted efficiently and at proportionate cost) and (b) (the need to enforce compliance with rules,
practice directions and court orders) pointed in favour of the grant of relief. It was only at the
third stage that the courts should have considered the subsequent breach (as to which there was no
specified sanction); this subsequent breach was of itself neither serious nor significant and so did
not outweigh the other factors. The Court of Appeal considered that the defendants ought to have
consented to the grant of relief from sanctions (see at [67] to [80]).
In Caliendo v Mishcon de Reya (A Firm) [2015] EWCA Civ 1029; [2015] 5 Costs L.R. 849, the
Court of Appeal upheld the decision of Hildyard J; the claimants failed by several months to give
the intended defendants a notice of funding as required by para.9.3 of the PD, Pre-Action Conduct,
then in force and the former r.44.15(1) (see Vol.2 para.7B-16). Subsequently proceedings were is-
sued and served on the defendants together with an application for relief from sanctions. Hildyard
J had granted relief against sanctions: earlier notification would not have altered the defendant’s
position as regards any potential settlement, so that the default had not had a serious or significant
adverse effect on the efficient conduct and progress of the litigation. The Court of Appeal held
that Denton had been correctly applied and that in all the circumstances of the case it was prefer-
able to grant relief rather than encourage what would inevitably be satellite litigation involving
claimants suing their solicitors.
In Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch) the court, when re-fixing a trial
date, ordered that if the defendant did not “attend in person” on the date so re-fixed, his Defence
would be struck out and judgment entered for the claimant. At that stage in the proceedings the
defendant had been acting in person and the purpose of the order was to ensure that the trial
would be effective on the re-fixed date and would not be adjourned a second time. On the re-fixed
date the defendant did not attend in person but was represented by solicitors and counsel who were
ready to proceed with the trial. Counsel for the defendant applied for relief from sanctions for
non-compliance with the order but that was refused by the trial judge and judgment was entered
for the claimant. The defendant’s appeal against the refusal of relief from sanctions was allowed;
when considering the seriousness or significance of the breach, the trial judge should have
considered the purpose of the order and the practical consequences of its breach in terms of the
efficiency or conduct of the trial. Although the failure to attend in person was inevitably a breach,
it was not a serious or significant one; it had neither imperilled the trial date, nor in any way
militated against the purpose for which it had been made.
Where the breach in question is serious or significant, the fact that it has not imperilled the trial
date will not by itself lead to the grant of relief from sanctions. Factors (a) and (b) of r.3.9(1) are
still of particular importance (albeit not conclusive) in all cases where serious breaches affect the ef-
ficient progress of the litigation. In Clearway Drainage Systems Ltd v Miles Smith Ltd [2016] EWCA
Civ 1258, a high-value commercial claim, the claimants delayed serving any witness statements for
over two months, and served them less than one month before the trial date. This delay, and a
similar delay in making a formal application for relief, had caused the pre-trial review to be
adjourned twice. The Court of Appeal upheld the learned judge’s decision to refuse relief from
sanctions: the prolonged failure over a period of months had been viewed by the court as serious
or significant even though it had not imperilled the trial date. No good reason for it had been
shown. Whilst the loss of the opportunity to rely upon witness evidence (which effectively
terminated the claimant’s case) clearly weighed in favour of granting relief, it did not in all the
circumstances, outweigh other factors including factors (a) and (b) and the lack of promptness in
the application.
Clearway Drainage was distinguished in Castle Trustee Ltd v Bombay Palace Restaurant Ltd, 21 June
2017, unrep., QBD (TCC) (Jefford J). It was held that the defendant’s inability to fund its solicitors
was not a good reason for its failure to comply with court directions. However, relief from sanctions
was granted on the basis that the trial could proceed without any prejudice to the claimant coupled
with the fact the defendant’s failure to comply with directions did not amount to a disreputable
course of conduct or a deliberate flouting of the court’s orders for tactical reasons.
In Gladwin v Bogescu [2017] EWHC 1287(QB), a low value road accident claim, liability had
been admitted and the claim was proceeding to a trial as to the assessment of damages, listed for 8
February 2017. Although a direction for service of witness statements by 3 November 2016 had
been made, the claimant did not serve a witness statement until 5 January 2017 and did not apply
for relief from sanctions until less than one week before trial. The application was made on the
basis that, if relief was granted, the trial would be adjourned. In the lower court, relief from sanc-
tions and an adjournment of the trial was granted on the basis that the sanction (no oral evidence

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allowed) would not prevent the claimant relying upon the witness statement as hearsay evidence,
thereby depriving the defendant of the advantage of cross-examination. The defendant’s appeal
against the grant of relief and the adjournment was granted and the claim was struck out. Although
liability had been admitted, the additional expenses generated by an adjournment were likely to be
significant bearing in mind the modest value of the claim. The non-compliance with rules and
orders was serious and no good reason for it had been given. Had the court not exercised its power
to strike out under r.3.4(2)(c) it would have had ample power under r.32.1(2) to prevent the reli-
ance on hearsay evidence in a claim in which oral evidence was prohibited.
Substantial breach of a deadline
3.9.14 This sub-paragraph deals with cases in which in a rule, practice direction or order requires a
party to perform a procedural direction by a stated deadline and also states a sanction which will
take effect in the case of non-compliance and the defaulting party cannot show that the deadline
was only narrowly missed (i.e., a delay which is neither serious nor significant) and cannot show
some good reason for the non-compliance (as to which, see para.3.9.5, above).
In Durrant v Chief Constable of Avon & Somerset [2013] EWCA Civ 1624; [2014] 2 All E.R. 757, an
order was made specifying the deadline for filing and service of any witness statements the defend-
ant wished to rely upon at trial on terms that the defendant would not be permitted to rely upon
any witness evidence “other than that of witnesses whose statements have been so served”. The
defendant did not make an in-time application for an extension of time (as to which, see
para.3.9.11, above) and without good reason failed to serve all but two witness statements until six
weeks after the expiry of the deadline; the Court of Appeal held that no relief from that sanction
should be allowed (as to the other two witness statements, see also, para.3.9.17).
In Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296; [2014] 4 Costs L.R. 752,
the deadline for serving witness statements expired in June 2013 and the trial was fixed for ten
days starting in mid-January 2014. In late November and early December 2013 the claimants
served six further witness statements. At the pre-trial review on 23 December 2013 the judge
granted relief from the sanction contained in r.32.10 and adjourned the trial. The Court of Appeal
set aside that order and directed the trial be listed for trial at the earliest practicable date: (i) the
service of witness statements so long after the deadline was serious and significant because it
caused the trial date to be vacated and therefore disrupted the conduct of the litigation; (ii) there
was no good reason for the breach; the issues dealt with in the new evidence had been known
about since August 2013 at the latest, with most of the information being available since 2012; (iii)
both factor (a) (the need for litigation to be conducted efficiently and at proportionate cost) and (b)
(the need to enforce compliance with rules, practice directions and court orders) militated heavily
or strongly in favour of refusing relief and there was very little to weigh in the balance in favour of
granting relief. The adjournment of the proceedings caused a waste of court resources and gener-
ated substantial extra costs for the parties. It caused inconvenience to a large number of busy
people (including six experts and numerous factual witnesses) who had carved out space in their
diaries for the anticipated trial (see at [46]–[57]).
In Kimathi v Foreign & Commonwealth Office [2017] EWHC 939 (QB) Stewart J, the applicants
sought relief from sanctions so that their claims could be added to the register under a GLO after
the cut-off date which was in May 2014. The application was made in November 2016. There was
no good reason for the delay. Applying Denton, and looking at all the circumstances of the case,
relief from sanction was refused. Although the addition of the personal injury claims would not af-
fect the trial timetable or prejudice the ongoing group litigation trial, the court had to bear in
mind the need for compliance with orders. The register had closed two-and-a-half years before the
application was issued; there had since been numerous hearings and the trial had been underway
for six months. There would be prejudice to the FCO in allowing the applications as extra time and
costs would be incurred. The uncertainty over whether there had been valid reason for the solici-
tors not registering the applicants’ claims also went to prejudice to the FCO, which could have to
spend resources weeding out individual claims which should fail.
Extension of time: out-of-time application
3.9.15 The term out-of-time application refers to an application for an extension of a time limit speci-
fied by a rule, practice direction or order which is not made until after the relevant time limit has
expired. Some rules, practice directions and, on occasions, orders expressly state a time limit for
the taking of a procedural step but do not expressly state what sanction applies if step in question is
not taken in time. For r.3.9 to apply, the sanction in question has to be specified in the rule,
practice direction or order in question. Nevertheless, the law and practice as to r.3.9 should be ap-
plied to such cases. A party’s inability to take the procedural step in question once the time limit
has expired does not amount to an express sanction. However, for the applicant seeking an exten-
sion of the time limit, the consequences are exactly the same as if it did (Sayers v Clarke Walker
[2002] 1 W.L.R. 3095; [2002] 3 All E.R. 490, CA. For over a decade now, out-of-time applications
for an extension of time have been treated as if they were the same as applications for relief from
sanctions (Altomart Ltd v Salford Estates (No.2) Ltd [2014] EWCA Civ 1408). The principles involved
here have come to be known as the “implied sanction” doctrine.
The Privy Council expressed disapproval of the “implied sanction” doctrine in Attorney General of
Trinidad & Tobago v Matthews [2011] UKPC 38 (a case in which no reference is made to the deci-

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sion in Sayers v Clarke Walker). However, in R. (Hysaj) v Secretary of State for the Home Department
[2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472, the Court of Appeal reconsidered many of the case
authorities on this topic and held that the “implied sanction” doctrine is now too well established to
be overturned. Moreover, it may be that the decision in Mitchell has established an additional,
independent line of authority for the doctrine. The Court of Appeal therefore held that out-of-

CPR 3
time applications for extensions of time to file notices of appeal under r.3.1(2)(a) have to be
determined using the principles governing applications for relief from sanctions under r.3.9.
In Mark v Universal Coatings & Services Ltd [2018] EWHC 3206 (QB); [2019] 1 W.L.R. 2376 it
was held that the “implied sanction” doctrine did not apply to a breach of PD 16 paras 4.2 and 4.3,
a failure to serve a medical report or a schedule of loss and damage at the same time as serving
particulars of claim. Moreover, it would not be appropriate to apply the doctrine to every instance
where the CPR provided that something “must” be done. Spencer J at [52] went on to explain that
the reason why the breach of some rules carries an “implied sanction” is due to the significant
nature of the consequences of breach flowing from the default position that applies in the absence
of compliance, i.e. the failure to serve a notice of appeal means that no appeal can be brought.
In Manning and Napier Fund Inc v Tesco Plc [2020] EWHC 2106 (Ch) a trial limited to liability
was listed for October 2020. In July 2020, just before a pre-trial review, C served further witness
statements on D which dealt with an issue C had previously believed, wrongly, would not be
determined until a subsequent trial on quantum. C made an out-of-time application for permission
which, if granted, would also necessitate further disclosure being given. Applying the Denton
criteria, Hildyard J ruled that C’s failure to serve evidence on this issue earlier was both serious
and significant and no good reason had been shown for it. However relief from sanctions was
granted conditionally on terms which would not be satisfied unless: (i) C provided sufficient
disclosure in a digestible form within three weeks; (ii) the extra work which that disclosure required
of D was fairly and proportionately manageable; and (iii) the disclosure did not result in a justified
need for expert evidence.
In Excotek Ltd v City Air Express Ltd [2021] EWHC 2615 (Comm), after the issue and service of a
claim form in the Commercial Court, the parties agreed a general stay of proceedings terminable
by either party on 28 days’ notice. The claimant failed to comply with PD 58 para.7 (a requirement
to notify the court of the agreed stay). Just over 12 months later, in order to remedy the position,
the claimant made an out-of-time application for an extension of time to serve particulars of claim.
Granting that application and dismissing the defendant’s application to strike out the claim,
Henshaw J took into account the parties’ agreement for a stay and the fact that a refusal of relief
would result in a claim for some £770,000 becoming time barred. The failure to serve particulars
of claim on time was consistent with the gist of the parties’ (reasonable) consensus and had not
been shown to have had adverse consequences for the defendant, or the court’s processes in
general, such as to make it appropriate to refuse relief from sanctions, because a refusal would
bring the claim to an end ([80]).
Cases to which Denton does not apply
The Denton principles apply to cases concerning the breach of an obligation stated in a rule, [Link]
practice direction or order which imposes an express sanction, for example, r.3.14 (Failure to file a
budget), r.32.10 (Consequence of failure to serve witness statement or summary) and Unless orders
(see paras 3.1.14 and 3.9.4) or an implied sanction (an inability to progress the defaulting party’s
claim or defence without the court’s permission), for example, r.13.3 (the court’s power to set aside
a default judgment, see para.3.9.8).
There is a growing list of cases in which the High Court has held that a party’s failure to comply
with a particular rule or practice direction paragraph does not require that party to seek relief
from sanctions because the breach does not, by itself, jeopardise that party’s further progress in the
proceedings. Instead, in these cases, it is left to any other party who is aggrieved by the non-
compliance, to apply for an Unless order under the court’s general powers of case management
(r.3.1(2)(m) and 3.1(3)) or for an order striking out the respondent’s statement of case under
r.3.4(2)(c) (see para.3.4.18).
D Tenaga Nasional Berhad v Frazer-Nash Research Ltd [2018] EWHC 2970 (QB); [2019] 1
W.L.R. 946 at [34] and [35]: on an interim application, failure to serve documents in
compliance with PD 23A paras 6.11 and 6.13. But see Gama Aviation (UK) Ltd v Taleveras
Petroleum Trading DMCC [2019] EWCA Civ 119 at [39]; and Soriano v Forensic News LLC
[2021] EWHC 873 (QB) at [45]–[56] concerning PD 23A para.9.4 (evidence for use on
interim applications). (Rule 32.10 applies to witness statements and summaries “for use at
a trial”.)
D Mark v Universal Coatings & Services Ltd [2018] EWHC 3206 (QB); [2019] 1 W.L.R. 2376
(noted in para.3.9.15): in a personal injury claim, failure to serve a medical report and
schedule of loss and damage at the same time as serving particulars of claim as required
by PD 16 paras 4.2 and 4.3. Alternatively, despite the use of the word “must” in these
paragraphs, the consequences of their breach are not of such significance as to require
them to be construed as imposing implied sanctions.
D Tyburn Film Productions Ltd v British Telecommunications Plc [2021] EWHC 334 (Ch) (noted
in para.3.9.11): non-compliance with PD 52B para.4.2(d) (requiring grounds of appeal to

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be set out on a separate sheet, to be attached to an appellant’s notice) does carry an implied
sanction; however, in this case the appellant made an in-time application for an extension
of time to file grounds of appeal, to which the Denton principles do not apply. On that ap-
plication the court had made an order in the unless form but that order was not served on
the appellant. In those circumstances, when considering whether to grant relief from the
sanction of the unless order, it was inappropriate to apply the Denton principles.

No good reason for breach

3.9.16 Case examples of reasons held not to be good reasons explaining a failure to comply with a rule,
practice direction or order include the following: “…overlooking a deadline will rarely be a good
reason” (Mitchell at [41]); “…well-intentioned incompetence, for which there is no good reason,
should not usually attract relief from a sanction unless the default is trivial” (Mitchell at [48]). See
also Newland Shipping & Forwarding Ltd v Toba Trading FZC [2014] EWHC 210 (Comm); [2014] 2
Costs L.R 279; Hamblen J (the loss of legal representation as a result of a dispute over fees payable
in respect of it); British Gas Trading Ltd v Oak Cash & Carry [2014] EWHC 4058 (QB) (upheld on
appeal; [2016] EWCA Civ 153; [2016] 1 W.L.R. 4530; [2016] All E.R. 129; (noted in para.3.9.4,
above and 3.9.17), McGowan J (personal difficulties suffered by the applicant’s solicitor whose wife
was subject to ongoing medical problems, where the solicitor was a member of a firm large enough
to enable work to be delegated to other fee earners with sufficient experience and skill to ensure
that tasks were properly completed; and see also, Intellimedia Systems Ltd v Richards 1 February 2017,
unrep., (Ch), Warren J, noted in para.3.14.1).
Inability to pay for legal representation cannot be regarded as a good reason for delay (R.
(Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472).
Being a litigant in person with no previous experience of legal proceedings is not a good reason for
failing to comply with the CPR (R. (Hysaj), above) or court orders, (Elliott v Stobart Group Ltd [2015]
EWCA Civ 449; [2015] C.P. Rep. 36).
The fact that a litigant was awaiting a funding decision by the Legal Aid Agency does not, by
itself, amount to a good reason for missing a deadline; it is no more than a factor which may be
taken into account (R. (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286;
[2016] 1 W.L.R. 723). To hold otherwise would place those who apply for and obtain legal aid in a
better position than those who, through no fault of their own, are forced to represent themselves
(Moore-Bick LJ at [18]).
Whilst a party’s lack of representation will often justify the making of allowances in setting case
management decisions and in conducting hearings (see r.3.1A, above) the lack of representation
will not usually justify applying to litigants in person a lower standard of compliance with rules or
court orders (Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 W.L.R. 1119). The overriding
objective requires the courts so far as practicable to enforce compliance with the rules (r.1.1(2)(f)).
The rules do not in any relevant respect distinguish between represented and unrepresented
parties. In Nata Lee Ltd v Abid [2014] EWCA Civ 1652; [2015] 2 P. & C.R. 3, Briggs LJ stated that
the fact that a party is not professionally represented is not of itself a reason for the disapplication
of rules and orders. There may be cases in which the fact that a party is a litigant in person has
some consequence in the determination of applications for relief from sanctions, but this is likely to
operate at the margins; see [53]. In Chadwick v Burling [2015] EWHC 1610 (Ch); [2015] 3 Costs
L.R. 589, Warren J, citing Nata Lee, stated that the court was not obliged to enquire into the state of
knowledge and intellectual capacity of every litigant in person who said that he did not understand
the process or realise that he had certain rights. The fact that the court was dealing with a litigant
in person could only be relevant at the margins, where, for example, there was some extremely
complex factor or complicated order which a lay person might find it difficult to understand; see
[42]. In EDF Energy Customers Ltd v Re-Energised Ltd [2018] EWHC 652 (Ch) HH Judge Mathews
held that the granting of a special indulgence to a litigant in person may be justified where a rule
is hard to find or difficult to understand, or ambiguous; and that some leeway may be given to a
litigant in person at the margins when the court is considering relief from sanctions or promptness
in applying to set aside an order.
Rule 3.1A requires the court, when exercising any powers of management, to have regard to the
fact that a party is unrepresented. This may sometimes cause the court to specify longer time limits
in procedural directions than would have been specified if all parties had been represented (see
further, r.3.1A(1), above). However, r.3.1A does not expressly assist litigants in person to obtain
relief from sanctions in respect of a breach of a time limit.
Even in the case of a breach which is serious nor significant, the absence of any good reason
explaining why it occurred need not be fatal to an application for relief from sanctions. Although
the court will not usually grant relief in such a case, in some circumstances it may do (see further,
Decadent Vapours Ltd v Bevan [2014] EWCA Civ 906, an appeal heard at the same time as Denton
and reported with it, noted in para.3.9.13, and see also para.3.9.18). However, the weaker the
reason, the more likely the court will be to refuse to grant relief (see Mitchell at [42]).

Delay in applying for relief

3.9.17 “Every application should be made as soon as it becomes apparent that it is necessary or desir-
able to make it” (PD 23A para.2.7; see 23APD.2). However, although the promptitude of applica-

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tion is a material factor in all relief from sanctions hearings it is never a pre-requisite to the grant
of relief (Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506; [2014] 3 Costs
L.R. 588, at [34]; Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296; [2014] 4
Costs L.R. 752, at [36], [64] and [72]). In a case in which the relevant breach is neither serious nor
significant, promptitude of application, and the other circumstances and the question why the

CPR 3
breach occurred, are matters which the court is unlikely to need to spend much time considering
(Denton at [24]).
In Durrant v Chief Constable of Avon & Somerset [2013] EWCA Civ 1624; [2014] 1 W.L.R. 4313;
[2014] 2 All E.R.757, the Court of Appeal held reversed a judge’s decision to grant relief from
sanctions in respect of the late service of witness statements in breach of an order akin to an Unless
order. The deadline for exchange was 12 March 2013 and the trial date was set for 10 June 2013.
The defendant served two witness statements one day late and, six weeks later, in May 2013, made
an application for relief from sanctions. The defendant then served four further witness statements
and, five days before the trial was due to start, made a further application for relief from sanctions
in respect of two further witness statements. In respect of most of the witness statements the period
of delay was substantial. In relation to the two witness statements which had been served one day
late, relief from sanction was refused on the basis that the application for relief from sanctions had
not been made promptly.
In British Gas Trading Ltd v Oak Cash and Carry Ltd [2016] EWCA Civ 153; [2016] 1 W.L.R. 4530;
[2016] 4 All E.R. 129 the defendants failed to comply with an unless order concerning the filing of
a pre-trial checklist (see further on this case, para.3.9.4, above) and subsequently their defence was
struck out and judgment was entered against them. Their application for relief was delayed for 31
days in circumstances such that, had the court granted the relief requested it would have had to fix
a new trial date some time after the original trial window. The Court of Appeal upheld the lower
court’s decision to refuse relief from sanctions.
In Apex Global Management Ltd v Global Torch Ltd [2017] EWCA Civ 315; [2017] C.P. Rep. 28; it
was held that it was possible to make a late application for a stay of proceedings in certain
circumstances. Such an application would be treated as an application for relief from sanctions.
That said, the judge’s refusal of a stay of execution based upon a challenge to the jurisdiction was
upheld. The appellants’ failure to make the application at the earliest opportunity was serious. The
application was made two weeks after judgment was handed down. There was no good reason for
the delay. Challenges to jurisdiction should be made as early as possible. The appellants should
have reserved their position on jurisdiction at the outset of the litigation.
Failure to comply which is intentional
In HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2014] 3.9.18
UKSC 64; [2014] 1 W.L.R. 4495 (proceedings which involved claims and counterclaims of serious
financial misconduct relating to companies) the owner of one of the companies was a member of
the royal family of Saudi Arabia. He denied the claims made against him and contended that the
money claimed had been repaid. At a case management conference it was ordered that the parties
“file and serve a statement, certified by a statement of truth signed by them personally”. The
prince refused to sign the statement personally, on the grounds that there was a Saudi Arabian
protocol that members of the royal family should not become personally involved in litigation or
sign court documents. An order was then made that unless the prince complied with the order and
signed the statement of truth his defence would be struck out and judgment would be entered.
The prince maintained his refusal and judgment was entered. The prince applied for relief from
sanctions under r.3.9 which was refused by the judge. Both the Court of Appeal and the Supreme
Court dismissed his appeal. Lord Neuberger PSC stated that once a court order is disobeyed, the
imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the
respect which they ought to have. However, in a particular case, the court may be persuaded by
special factors to reconsider the original order, or the imposition or enforcement of the sanction.
Where failure to comply was caused by the legal representative only
Sometimes the failure to comply with a rule, practice direction or order is not caused by a 3.9.19
litigant but is solely the fault of his legal representative. Is this a factor which makes the grant of
relief from sanctions more likely? Guidance on this was given by Peter Gibson LJ in Training in
Compliance Ltd v Dewse [2001] C.P. Rep 46 at [66], CA:
“Of course, if there is evidence put before the court that a party was not consulted and did
not give his consent to what the legal representatives had done in his name, the court may
have regard to that as a fact, though it does not follow that it would necessarily, or even prob-
ably, lead to a limited order against the legal representatives. It seems to me that, in general,
the action or inaction of a party’s legal representatives must be treated under the Civil
Procedure Rules as the action or inaction of the party himself. So far as the other party is
concerned, it matters not what input the party has made into what the legal representatives
have done or have not done. The other party is affected in the same way; and dealing with a
case justly involves dealing with the other party justly. It would not in general be desirable
that the time of the court should be taken up in considering separately the conduct of the
legal representatives from that which the party himself must be treated as knowing, or
encouraging, or permitting.”

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However, Training in Compliance Ltd (above) did not directly concern r.3.9. In other cases the court
has taken into account in favour of the party seeking relief the fact that the fault was one for which
their legal representative only was responsible. In one case, the court took into account the detri-
ment the claimant could suffer if the current proceedings were brought to an end and he was left
to sue his legal representative instead (Hansom v E Rex Makin & Co [2003] EWCA Civ 1801, CA
and Flaxman-Binns v Lincolnshire CC [2004] EWCA Civ 424; [2004] 1 W.L.R. 2232, CA at para.[41]).
However, these cases were decided before the re-formulation of r.3.9 in April 2013 (and see
further as to this, Clearway Drainage Systems Ltd v Miles Smith Ltd [2016] EWCA Civ 1258 at [71];
and Gladwin v Bogescu [2017] EWHC 1287(QB); both cases are noted at 3.9.13, above).
In Welsh v Parnianzadeh [2004] EWCA Civ 1832; [2004] All E.R. (D) 170, the Court of Appeal
indicated that “a claimant who is reduced to a claim which would perforce be on a percentage basis
for loss of a chance against her legal advisers is not only suffering a real loss in the sense of being
caused further delay and expense, but is also suffering a real reduction in the value of her claim”
(per Mance LJ). In that case the claim was allowed to proceed and one of the features was that
there was no prejudice to the defendant.
In Hayden v Charlton [2011] EWCA Civ 791, the claimants sued the defendants for libel in
respect of allegations made on a website. The claimants failed to comply with directions or with
subsequent unless orders and eventually the judge struck out the claim on the basis that the claim-
ants had lost interest in it and to continue it would be an abuse. On appeal, the claimants were
permitted to adduce evidence that they had not been kept informed by their then solicitors, despite
their attempts to contact them, and they had not known the true position until after the strike out
had been ordered. The Court of Appeal accepted that evidence as an important factor in favour of
granting relief. However, it also took into account other factors, including the considerable burden
the proceedings had placed upon the defendants, who were litigants in person. That hardship
would have no remedy if relief was granted whereas the claimants would have an opportunity for
redress against their former solicitors if the appeal was refused. Overall, it was held that the less
unfair result was for the claim to stay struck out.
In reported applications for relief from the sanction imposed by r.3.14 (budgeted costs deemed
not to exceed the sum of court fees paid) no mention has been made of the fact that the culpability
for the breach of the rule (failing to file and serve a budget on time) fell solely upon the lawyers
not the litigants. The explanation for this may be that the obligation to file and serve budgets
under r.3.13 falls only upon litigants who are legally represented and in such cases, the loss caused
by a breach of r.3.14 will fall upon the legal representatives. It is difficult to imagine many cases in
which a litigant would expressly instruct his representatives not to file a budget, or to file it late.

Whether the defaulting party’s claim or defence has merit

3.9.20 The Supreme Court has held that the substantive merits of the defaulting party’s claim or
defence may only be taken into account in limited circumstances (HRH Prince Abdulaziz Bin Mishal
Bin Abdulaziz Al Saud v Apex Global Management Ltd [2014] UKSC 64; [2014] 1 W.L.R. 4495, noted
in para.3.9.18, above). Lord Neuberger PSC stated that the strength of a party’s case on the
ultimate merits of the proceedings is generally irrelevant when it comes to case management issues
such as the imposition of sanctions or relief from sanctions. It was said that it would be thoroughly
undesirable if, every time the court was considering the imposition or enforcement of a sanction, it
could be faced with the exercise of assessing the strength of the parties’ respective cases: it would
lead to such applications costing much more and taking up much more court time than they
already do. However, Lord Neuberger PSC stated that one possible exception: a party who has a
strong enough case to obtain summary judgment might, as an exception to the general rule, be
entitled to rely on that fact in relation to case management decisions. His lordship concluded by
stating that nothing in the judgment was intended to impinge upon the decisions or reasoning of
the Court of Appeal in Denton.
The extent to which it was appropriate to consider substantive merits in applications for relief
from sanctions was further considered in R. (Hysaj) v Secretary of State for the Home Department
[2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472. In that case it was held that applications for exten-
sions of time to file notices of appeal under r.3.1(2)(a) had to be determined using the principles
governing applications for relief from sanctions under r.3.9 (see further, para.3.9.15, above). It was
stated that in most cases, the merits of the substantive appeal would have little to do with whether it
was appropriate to grant an extension of time. The merits would only have a significant part to
play when it came to balancing the various factors that had to be considered. In most cases, the
court should decline to embark on an investigation of the merits and firmly discourage argument
directed to them. A robust exercise of the jurisdiction in relation to costs was appropriate to
discourage those who would otherwise seek to impress the court with the strength of their cases.

Relevance of “all the circumstances”

3.9.21 On an application for relief from sanctions, all the circumstances have to be considered but the
rule makes express reference to (a) the need for litigation to be conducted efficiently and at
proportionate cost and (b) the need to enforce compliance with rules, practice directions and court
orders. In Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296 the Court of Ap-
peal decided by a majority (Lord Dyson MR and Vos LJ) that these two factors “are of particular

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importance and should be given particular weight at the third stage when all the circumstances of
the case are considered” (see [32]; Jackson LJ, dissenting on this point: “What the rule requires is
that the two factors be specifically considered in every case. The weight to be attached to those two
factors is a matter for the court having regard to all the circumstances” (see [85])). Nevertheless, the
Court of Appeal in Denton was unanimous in its desire to discourage courts from taking an unduly

CPR 3
draconian approach to r.3.9(1) and (at [37]) repeated the passage from the 18th Implementation
Lecture on the Jackson reforms;
“It [the relationship between justice and procedure] has changed not by transforming rules
and rule compliance into trip wires. Nor has it changed it by turning the rules and rule
compliance into the mistress rather than the handmaid of justice. If that were the case then
we would have, quite impermissibly, rendered compliance an end in itself and one superior to
doing justice in any case” (Lord Dyson MR, 22 March 2013).
Decisions as to whether or not to grant relief from sanctions are always discretionary and are
highly case-sensitive. Appeal courts will not interfere with a lower court’s decision on such matters
unless satisfied that the lower court erred in law, erred in fact or reached a conclusion which falls
outside the generous ambit within which reasonable disagreement is possible (Abdulle v Commis-
sioner of Police of the Metropolis [2015] EWCA Civ 1260; 2016 1 W.L.R. 898; and see para.52.11.4).
The fact that “other circumstances” may influence the court’s decision even where the two speci-
fied factors militate in favour of refusing relief may be taken as an indication that the court’s new
policy in respect of non-compliance with rules, practice directions and orders is one of low toler-
ance rather than no tolerance.
In Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506; [2013] 3 Costs L.R.
588, the “other circumstances” which justified relief in that case were the fact that both parties had
been in default, the refusal of relief would have had the disproportionate effect of ending the
claim, its grant would not lead to an adjournment of the trial date and would not cause any
significant extra cost.
The fact that the non-compliance has caused the loss or adjournment of a trial date is often fatal
to the grant of relief (see for example British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] EWCA
Civ 153; [2016] 4 All E.R. 129, trial date lost because a trainee solicitor filed a directions question-
naire in mistake for a listing questionnaire, thereby breaching an unless order; the loss of the trial
date was regarded as a matter of grave concern bearing in mind the impact that it would have not
only on the conduct of this case but also on other cases awaiting dates for hearings). Whilst the loss
of an appeal hearing might not be as serious as losing a trial date, it is still a factor weighing
against the grant of relief. Where there had been a serious breach for no reason and an appeal
hearing date had been lost, very significant factors are required to tip the scales in favour of grant-
ing relief Motley v Shadwell Park Ltd, CA (Civ Div) 9 November 2017, unrep.
In Manning and Napier Fund Inc v Tesco Plc [2020] EWHC 2106 (Ch) relief from sanctions for
the late service of evidence was granted conditionally on terms which would be satisfied only if it
transpired that the late service would not cause a loss of the trial date and would not cause material
prejudice to the opposing party (see further, para.3.9.15).
In R. (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R.
2472, the Court of Appeal held that the importance to the public at large of the issues raised in the
proceedings (whether in public law cases or private law cases) is a factor which may increase the
likelihood of relief being granted. In R. (DPP) v Stratford Magistrates’ Court 22 March 2017, unrep.,
DC, the DPP was granted relief from sanctions in judicial review proceedings after its claim was
struck out for the inadvertent failure to pay a court fee. Relief from that sanction was granted. The
case fell towards the bottom of the scale of seriousness. The underlying issue was not frivolous and
was potentially of general public importance. The judicial review was on a question of law and
there would be no forensic disadvantage to the interested parties and relatively little time would be
lost (and see also, R. (Muir) v Wandsworth LBC, 23 March 2017, unrep.).
Circumstances which favour of the grant of relief from sanctions arise where the defaulting
party is a defendant wishing to raise defences or counterclaims which his co-defendants will raise
whether or not he is allowed relief from sanctions (see for example, Blakemores LDP v Scott [2015]
EWCA Civ 999, noted in para.3.9.8, above; application to set aside a default judgment entered
against one of three defendants; and Kishenin v Von Kalkstein-Bleach [2015] EWCA Civ 1184;
request for extension of time for appealing made at the hearing of an appeal launched by a co-
defendant).
Allegations of fraud do not give rise to any exemption from of the application of the Denton
principles even where those allegations have real prospects of success (Gentry v Miller [2016] EWCA
Civ 141; [2016] 1 W.L.R. 2696, noted in para.3.9.8, above).
In Michael v Phillips [2017] EWHC 142 (QB) Green J, the defendants who had seriously breached
an unless order requiring them to disclose documents by a certain date had their defence and
counterclaim struck out and were debarred from defending the claim. Their application for relief
from sanctions under r.3.9 was refused as the way in which they had lost and/or suppressed data
was profoundly unsatisfactory, and significantly and unfairly prejudiced the claimants’ ability to
prepare for trial in a case turning on the forensic analysis of that data.
As to the circumstances in which it may be appropriate to take into account (in favour of a claim-
ant applicant) the risk of a time bar defence if relief is not granted; see Excotek Ltd v City Air Express

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Ltd [2021] EWHC 2615 (Comm) noted in para.3.9.15 and Boodia v Yatsyna [2021] EWCA Civ 1705
at [73(x)] quoted in para.3.7A1.3.
Orders granting partial relief from sanctions
3.9.22 As an alternative to seeking full relief from a sanction imposed upon him, an applicant may
invite the court to allow partial relief, such as, for example: permission to rely upon some if not all
the new witness statements served late; or a disallowance of some rather than all future costs in
excess of court fees. In some cases the court may grant relief on terms where the circumstances
make that appropriate; for example, terms as to costs payable by the defaulting party; or interest,
whether payable by or to the defaulting party; or terms requiring a payment into court to secure a
claim for compensation, or to secure the non-defaulting party’s costs. A consideration of all the
circumstances, including factors (a) and (b), may sometimes make it appropriate to grant partial
relief, or to grant relief on terms. As to the granting of relief subject to a condition, see further,
r.3.1(3) and para.3.1.14, above.
In Riff Trading Ltd (in liquidation) v Saunders (deceased) [2014] EWHC 2116 (Ch) (Edward Bartley
Jones QC) defendants who had failed to file evidence in time in compliance with an Unless order
were given relief from sanctions and allowed further time to serve evidence conditional upon the
following terms: (a) in respect of the new time limit for serving their evidence, time was to be of
the essence; (b) they were to pay the claimant’s costs of the application for relief within a defined
period, time being of the essence; (c) even if they were successful at trial, they would not be able to
recover any costs from the claimant or its liquidator.
In Motor Vessel Coal Hunter v Motor Vessel Yusho Regulus [2014] EWHC 4406 (QB) (Admlty) Teare
J, on an application heard two weeks before the start of a trial listed for six days, the claimant ap-
plied for relief from a sanction imposed by r.32.10 for its failure to serve a particular witness state-
ment in time. The claimant had delayed obtaining a witness statement from a vessel’s pilot in rela-
tion to a shipping accident because it had been led to believe that the pilot was not available.
Applying Denton, Teare J granted the claimant permission to rely on the statement of the pilot to
the extent that his account was unlikely to prejudice the defendant. However, where the defendant
was significantly prejudiced in so far as it could not investigate specific facts asserted by the pilot in
the short time left before trial, permission was refused. Accordingly, evidence of navigation was
admissible subject to the proviso that the claimant and the pilot were not entitled to say that the
pilot’s navigation was the standard practice followed by all pilots.
Effect of Denton principles in all cases of non-compliance
3.9.23 The Denton principles now underscore the court’s approach to rule-compliance generally whether
or not a particular failure to comply with a rule, practice direction or court order has resulted in
the imposition of an express sanction. As to applications to strike out a statement of case under
r.3.4(2)(c) see Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607; [2015] C.P.
Rep 16, noted in para.3.4.1, above. As to applications to set aside default judgments, see para.3.9.8,
above. As to out-of-time applications for extensions of time (implied sanction cases) see R. (Hysaj) v
Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 W.L.R. 2472 noted in
para.3.9.15. As to applications under r.39.3 to set aside a judgment at trial made in the applicant’s
absence, see Gentry v Miller [2016] EWCA Civ 141; [2016] 1 W.L.R. 2696 noted in para.3.9.8. As to
applications for retrospective permission to continue a derivative claim, see Wilton UK Ltd v Shut-
tleworth [2018] EWHC 911 (Ch) (noted in para.19.9A.8, below). As to an application to lift a stay
imposed under r.15.11(1), see Bank of Beirut (UK) Ltd v Sbayti [2020] EWHC 557 (Comm), noted in
para.15.11.1. In Martland v HMRC [2018] UKUT 178 (TCC) the Upper Tribunal held that the ap-
proach to relief from sanctions under r.3.9 applied to applications for permission to appeal the
First-tier Tribunal outside the relevant time limit.
The Denton principles do not apply to every application to the court for an indulgence of one
kind or another. They do not apply to applications to amend pleadings, even where such an
amendment is sought at a very late stage (Ahmed v Ahmed [2016] EWCA Civ 686 at [16] as to which,
see further, para.17.3.8). The Denton principles do not apply to in-time applications for extensions
of time (see para.3.9.11), there being no non-compliance in such cases. As to how the Denton
principles affect the court’s approach to cases falling within r.3.10 (General power of the court to
rectify matters where there has been an error of procedure), see para.3.10.3. As to how the Denton
principles affect requests in a detailed assessment for a departure from an agreed or approved
budget, see para.3.18.3. As to cases concerning the breach of an obligation stated in a rule, practice
direction or order which does not impose an express sanction and where the breach does not, by
itself, jeopardise that party’s further progress in the proceedings, see para.[Link].
The Denton principles do not fetter or overlay the discretion given to the court by s.33 of the
Limitation Act 1980 to disapply a limitation period otherwise applicable to a personal injury or
death claim (Ellis v Heart of England NHS Foundation Trust [2018] EWHC 3505 (Ch); [2019]
P.I.Q.R. P8). Nor do they apply when the court is considering whether to uphold a “limitation
amnesty” agreed by the parties to an Inheritance Act claim (Cowan v Foreman [2019] EWCA Civ
1336).
Application to be supported by evidence
3.9.24 Rule 3.9(2) states that an application for relief against sanctions must be supported by evidence.
Such applications are normally made under Pt 23 with a witness statement in support. However,

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the court has discretion to consider such an application even where a formal application under
CPR Pt 23 had not been made. Indeed, the court can, of its own motion consider relief from sanc-
tion (Cutler v Barnet LBC [2014] EWHC 4445 (QB) and see further, para.3.8.1, above).

Consequence if relief from sanctions is refused

CPR 3
If an application for relief from sanctions fails, the sanction in question has effect (see r.3.8(1)). 3.9.25
Subsequent compliance with the obligation which led to it will not, by itself, amount to a material
change of circumstances for the purposes of an application under r.3.1(7) (Thevarajah v Riordan
[2015] UKSC 78; [2016] 1 W.L.R. 76, SC, and see para.[Link] above).
Where a sanction has effect which makes it impossible or impracticable for a claimant to continue
the proceedings, the claimant may discontinue them, pay the defendant’s costs to date and apply to
the court for permission to bring a new claim (see further, r.38.7 and the commentary thereto).

General power of the court to rectify matters where there has been an
error of procedure
3.10 Where there has been an error of procedure such as a failure to 3.10
comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings un-
less the court so orders; and
(b) the court may make an order to remedy the error.
Effect of non-compliance
Rule 3.10 states that errors of procedure do not nullify the proceedings or any step taken in 3.10.1
them. Thus, any step taken which is permitted by the CPR is valid even if it is taken defectively, in
breach of a rule or practice direction. In most circumstances, r.3.10 gives the court a general power
to remedy errors or procedure (i.e. by making orders to correct or waive any irregular step, docu-
ment or order). It is now firmly established that this general power cannot be used to correct or
waive errors such as the late service or defective service of a claim form (see para.3.10.4). However,
errors such as these will be waived if the defendant in question fails to challenge the court’s
jurisdiction before taking any step in the action save as permitted by Pt 11 generally and para.11.1.3.
On the question whether the commencement of proceedings in the name of a dead person is a
nullity which is not curable on an application under r.3.10, see para.19.8.2, below, noting Milburn-
Snell v Evans [2011] EWCA Civ 577; [2012] 1 W.L.R. 41 and subsequent cases.
As to the power of an appeal court to allow an appeal where decision of lower court was unjust
because of serious procedural irregularity, see r.52.21(3)(b).

Meaning of “error of procedure”

Rule 3.10 gives examples of procedural errors but does not attempt a definition. It has been 3.10.2
held that procedural errors are not confined to the examples given in r.3.10, failures to comply
with a rule or practice direction; it can apply to any procedural step taken in error, including a step
which was permitted by the rules or practice directions. In Steele v Mooney [2005] EWCA Civ 96;
[2005] 1 W.L.R. 2819; [2005] 2 All E.R. 256, CA the claimant took a procedural step which was
permitted by the rules (an application for an extension of time for service of particulars of claim)
but, by mistake, failed to apply also for an extension of time for service of the claim form. The
Court of Appeal held that this mistake was a procedural error which was capable of being remedied
under r.3.10. This was so even though at the time relief was sought under r.3.10, an extension of
the time for service of the claim form was prohibited by r.7.6(3). Whilst the Court of Appeal ac-
cepted that r.3.10 cannot be successfully invoked so as to circumvent the prohibition of late applica-
tions for extension (as to this, see Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784, CA, noted in
para.3.10.4) a distinction must be drawn between: (a) making an application which contains an er-
ror (as occurred in Steele); and (b) erroneously not making an application at all (as occurred in
Vinos).

Rectifying procedural errors other than errors as to the service of claim forms
Under r.3.10(b) the court has the power to remedy errors of procedure which occur in the 3.10.3
conduct or defence of any claim if persuaded that it is just to do so. This power must be exercised
in accordance with the overriding objective of dealing with cases justly and at proportionate cost
(r.1.1(1)). There are three possible lines the court may take in order to remedy a procedural error;
the court may: (i) invalidate (i.e. cancel the effect of) any step, document or order made which is
irregular; (ii) make orders or directions on such terms as the court thinks fit in order to correct the
error and compensate parties for any injustice it has caused; or (iii) simply waive the error: declar-
ing a step, document or order which is irregular, to be valid despite its irregularity because, for
example, it has caused no unfairness.
An order under r.3.10 which declares a step, document or order to be invalid because of some
procedural error is akin to an order under r.3.4(2)(c) (an order striking out a statement of case
where there has been a failure to comply with a rule, practice direction or order, as to which, see
para.3.4.18). In Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607; [2015] C.P.

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Rep. 15, the Court of Appeal held that, when considering whether to make an order under
r.3.4(2)(c), the court is entitled to have regard to the Denton principles (which apply to applications
under r.3.9; and see further, para.3.9.3). Thus, save as explained below, when considering whether
to invalidate, correct or waive any irregularity, the court might first consider whether the procedural
error in question was serious or significant, then consider why the error occurred and, if appropri-
ate, then take into account all the circumstances of the case including: (a) the need for litigation to
be conducted efficiently and at proportionate cost; and (b) the importance of compliance with
rules, practice directions and court orders.
The court is likely to invalidate any irregular step, document or order if the error affecting is
such as to justify a striking out under r.3.4(2)(c).
If an error has caused prejudice to another party but is not such as to justify a striking out
under r.3.4(2)(c), the court may take the middle course of declaring the step, document or order
irregular but then making orders or directions on such terms as the court thinks fit in order to cor-
rect the error and compensate parties for any injustice caused. Such an order is akin to an order
under r.3.1(3) (a case management order which imposes conditions and specifies the consequences
of failure to comply with the order or condition (see further, para.3.1.14)). Note also r.3.1(5): the
court’s power to order a party to pay a sum of money into court if that party has, without good
reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
An order under r.3.10 which simply waives the error is likely to be made in cases in which the
defect is neither serious nor significant and has had no prejudicial effect on the other party.
Errors which are remedied by correction or waiver are ones which do not disrupt the case in
hand or litigation generally. In rectifying them the court refuses to place reliance upon form over
substance (Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm), Popplewell J at [37]).
In Reddy v General Medical Council [2012] EWCA Civ 310, it was held that, where a party, intend-
ing to initiate an appeal, uses a form other than the appropriate prescribed form, and the form
used contains all the necessary information and could fairly be construed as informing the court
and the respondent that by filing it at the court the party intends to commence appeal proceedings,
that error could be treated as a procedural error capable of being remedied under r.3.10. In LD
Commodities Rice Merchandising LLC v Owners and/or Demise Charterers of the Styliani Z [2015] EWHC
3060 (Admlty); [2016] 1 Lloyd’s Rep. 395, Teare LJ held that the inadvertent issue of an in
personam claim form, when an in rem claim was intended, was an error of procedure which could
be remedied by the court under r.3.10.
In Thompson v Reeve, 20 March 2017, unrep., Master Yoxall held that r.3.10 could be used to
remedy a defect in the method of service of a Part 36 withdrawal notice (service by email where the
opponent had not indicated a willingness to accept service by email). The court accepted that Pt 36
was a self-contained code. However, it was not completely freestanding as shown by the fact that the
respondents themselves had relied on an outside rule, r.6.20, to submit that service was irregular.
In Ealing LBC v Persons Unknown [2021] EWHC 2132 (QB) the claimant issued proceedings and
applied for an interim injunction but failed to apply for an order for service by an alternative
method. Provision was made for such service in para.1 of the order granting an interim injunction
but that part of the order had not been drawn to the judge’s attention and was itself irregular in
that it failed to specify the date upon which the claim form would be deemed to be served and
failed to specify the period for filing an acknowledgment of service. Steps to effect service in the
manner described by the order were taken. Subsequently the claimant applied for an order waiving
the irregularities in para.1 of the order and validating the steps to effect service taken under it.
Dismissing the application, Nicklin J distinguished Steele on the basis that the claimant had made
neither a formal application nor an oral application for order for service by an alternative method.
The terms of para.1 of the order appeared to have been included, not as a result of any conscious
decision-making after argument, but by default. Thus, the circumstances were more akin to Vinos,
“erroneously making no application at all” ([26]–[28]). Alternatively, if the court did have jurisdic-
tion to correct the defects in para.1 of the order it would not be appropriate to do so. The steps
taken pursuant to that paragraph could not have brought the proceedings to the attention of the
very large number of people who fell within the definition of persons unknown in this case. Thus,
had an application actually been made for an order for alternative service specifying those steps, it
would have been refused ([31] and [32]).
Court’s powers to rectify errors concerning the service of claim forms
3.10.4 The CPR contain three provisions relevant to the remedying of errors such as the defective
service or late service of claim forms: r.6.15(2) (retrospective validation of service by an alternative
method); r.6.16 (an order dispensing with service); and r.7.6(3) (an order granting retrospectively
an extension of time for service). It is now clearly established that these specific provisions cannot
be circumvented by an application under the general provision in r.3.10.
In Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784 the claim form had not been issued until a
few days before the expiry of the relevant limitation period and, by oversight, was not served until
nine days after its period of validity for service had expired. The Court of Appeal upheld the
lower court’s ruling that r.3.10 did not apply. Rule 7.6(3) limited the court’s power to extend the
time for serving the claim form in this case “only if” the stipulated conditions are fulfilled, which
they were not. The court’s general power to extend time periods (r.3.1(2)(a)) did not apply because
of its introductory words “except where these rules provide otherwise”.

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“The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3)
specifically forbids, nor to extend time when the specific provision of the rules which enables
extensions of time specifically does not extend to making this extension of time. What Mr
Vinos in substance needs is an extension of time—calling it correcting an error does not
change its substance” (May LJ at [20]).

CPR 3
In Boxwood Leisure Ltd v Gleeson Construction Services Ltd [2021] EWHC 947 (TCC) (O’Farrell J)
the claimant’s solicitors’ first attempt to serve the proceedings was sent, by letter, to the correct ad-
dress, within the time for service, but that letter referred only to the service of the particulars of
claim and a response pack and did not refer to or include a copy of the claim form. This mistake
was not remedied within the deadline for service. The claimant’s application for (amongst other
things) an order pursuant to rr.3.10, 1.2 and 3.1(2)(m) exercising the court’s general powers to
rectify an error of procedure was dismissed (see especially [48]–[51]).
In Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14, C sent sealed copies of 14 dif-
ferent claim forms to D for the purpose of information only. In each case, extensions of time for
service were agreed pending a decision by the Supreme Court in linked proceeding. That decision
was published more than four weeks before the final date for service. In the light of that decision C
decided to amend the claim forms before service. The amended forms were filed electronically via
the CE-File on the last day for service. In respect of all 14 cases C sent unsealed copies of the claim
forms to D, hours after receiving from the court the automatic notifications acknowledging
submission. One of the claim form also achieved Acceptance on that day but the others did not
achieve Acceptance for another three or five days. At first instance Morgan J held that the service
of unsealed copies of the claim forms was irregular and refused to make orders rectifying this er-
ror under rr.6.15(2), 6.16 or 3.10. C appealed the rulings as to irregularity and as to r.3.10 (no ap-
peal being made as to the rulings as to rr.6.15(2) or 6.16). The Court of Appeal dismissed the
appeal.
“[146] … the appellants are asking the Court to do the very thing which Vinos and the line of
authority which follows it does not permit. The general provision in rule 3.10 cannot be used
to override a specific provision, here rule 6.15 or rule 6.16. The appellants could not satisfy
the ‘good reason’ or ‘exceptional circumstances’ criteria under those two rules and they are
not permitted to use rule 3.10 to bypass the requirements of those specific provisions.
Likewise, since the appellants could not have satisfied condition (b) of rule 7.6(3), as they
could not have shown that they had taken all reasonable steps to comply with rule 7.5 or that
they had been unable to do so, they cannot be permitted to use rule 3.10 to bypass the
requirements of rule 7.6(3)” (Sir Julian Flaux C).
This decision settled a long running controversy as to the breadth of the court’s powers under
r.3.10 which had led to a plethora of conflicting High Court cases concerning irregularities in the
service of claim forms. The Court of Appeal cited with approval the decisions in Piepenbrock v As-
sociated Newspapers Ltd [2020] EWHC 1708 (QB) (the decision which Morgan J had followed in this
case) Boxwood (noted above) and Serbian Orthodox Church v Kesar & Co [2021] EWHC 1205 (QB).
Whilst other High Court cases on this point (including Bank of Baroda, GCC Operations v Nawany
Marine Shipping FZE [2016] EWHC 3089 (Comm), Dory Acquisitions Designated Activity Co v Frangos
[2020] EWHC 240 (Comm) and Citysprint UK Ltd v Barts Health NHS Trust [2021] EWHC 2618
(TCC)) “may be correct on their own particular facts, they should not be followed in relation to the
scope of rule 3.10” ([153]).

Power of the court to make civil restraint orders

3.11 A practice direction may set out— 3.11
(a) the circumstances in which the court has the power to make a civil
restraint order against a party to proceedings;
(b) the procedure where a party applies for a civil restraint order
against another party; and
(c) the consequences of the court making a civil restraint order.
Civil restraint orders (CROs)
This rule was added to Pt 3 by the Civil Procedure (Amendment No.2) Rules 2004 (SI 2004/ 3.11.1
2072) and came into effect on 1 October 2004. The rule puts on to a statutory basis the court’s
inherent jurisdiction to prevent abuse of its process, as explained by the Court of Appeal in
Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 1113; [2004] 1 W.L.R. 88, CA. Rule 2.3
(Interpretation) states that “civil restraint order” means an order restraining a party (a) from mak-
ing any further applications in current proceedings (a “limited civil restraint order” [or “limited
CRO”]), (b) from issuing any further applications or making certain applications in specified
courts (an “extended civil restraint order” [or “ECRO”]), or (c) from issuing any claim or making
any application in specified courts (a “general civil restraint order” [or “GCRO”]).
The underlying feature of all cases in which a CRO is made is that the person restrained has
repeatedly made applications or issued claims which are totally without merit. In this context the
term “totally without merit” refers to an application or claim in respect of which no rational argu-
ment was or could have been raised (R. (Wasif) v Secretary of State for the Home Department [2016]

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EWCA Civ 82; [2016] 1 W.L.R. 2793, CA). A claim or application may be held to be “totally
without merit” even if it was not abusive, made in bad faith, or supported by false evidence or
documents. However, evidence of such misconduct will reinforce the case for a civil restraint order
(Sartipy v Tigris Industries Inc [2019] EWCA Civ 225 at [27]).
Other rules in the CPR place obligations upon the court which may later assist parties in proving
a pattern of abusive conduct. Rule 3.4(6) provides that whenever a court strikes out a claimant’s
statement of case and considers that the claim is totally without merit, the court’s order must
record that fact and the court at the same time consider whether it is appropriate to make a CRO.
Similar duties are imposed on courts striking out or dismissing interim applications or appeals
which they consider to be totally without merit (rr.23.12 and 52.20(5) and (6)). These records are
of course binding upon the person restrained, unless successfully appealed. Thus they are ef-
fectively conclusive and subsequent courts should not permit argument as to whether the applica-
tions were in fact totally without merit (Re Glass Slipper Live Events – Event 1 Ltd [2020] EWHC 942
(Ch) (Pickering QC)).
A limited CRO restrains the person against whom it is made from making applications in the
proceedings in which the order is made and remains in force for the duration of those proceed-
ings, unless the court otherwise orders (PD 3C para.2.9). An ECRO restrains the person against
whom it is made from issuing claims or making applications, in any court identified in the order,
which are directly or indirectly linked to the proceedings in which the order is made (PD 3C
para.3.2). A GCRO restrains the person against whom it is made from issuing any claims or making
any applications in any court identified in the order; the restraint imposed by a GCRO covers all
claims and applications, whether or not they are linked to the proceedings in which the order is
made (PD 3C para.4.2). ECROs and GCROs remain in force for a specified period not exceeding
two years (PD 3C paras 3.9 and 4.9) but may subsequently be extended for periods of not more
than two years each (see further, para.3.11.7).
Because they extend beyond the original proceedings, an ECRO and a GCRO also restrain the
party against whom the order was made from making claims or applications in proceedings
covered by the order against persons who were not parties in the original claim (Couper v Irwin
Mitchell LLP [2017] EWHC 3231 (Ch); [2018] 4 W.L.R. 23, noted in para.3.11.5).
The court’s jurisdiction in respect of CROs is different from the jurisdiction it obtains from the
Senior Courts Act 1981 s.42 (see Vol.2 para.9A-148) under which, on the application of the At-
torney General, the High Court may make a “civil proceedings order” (or an “all proceedings
order”) preventing the person against whom it is made from instituting or carrying on proceedings
without the leave of the court. Unless the court otherwise orders, an order under s.42 remains in
force indefinitely. In Attorney General v Perrotti [2006] EWHC 1002 (Admin), an order under s.42 of
the Senior Courts Act 1981 was made in circumstances where ECROs and GCROs had been inef-
fective, making it appropriate to impose a restraint indefinitely.
Any party to any proceedings governed by the CPR who wishes to make an application for a
CRO against another party must use the Pt 23 procedure, unless the court otherwise directs
(para.3CPD.1). The application must specify the type of CRO sought (para.3CPD.2).
An application for a limited CRO may be made to any judge of the High Court or County Court
in which the claim is proceeding, including Masters and district judges. An application for an
ECRO or a GCRO can be made only to a Court of Appeal judge, a High Court judge or a
designated civil judge (see PD 3C paras 2.7, 3.1 and 4.1), and, if necessary, the proceedings must
be transferred accordingly (see PD 3C paras 3.11 and 4.11). A CRO may also be made by a court
acting on its own initiative. Model forms of order for each type of CRO are annexed to the Practice
Direction (respectively, Forms N19, N19A and N19B).
It may be appropriate to take committal proceedings for contempt of court against a party
subject to a CRO who repeatedly seeks to issue proceedings in breach of the order, for example, by
bringing claims in the names of other people (HM Solicitor General v Ellis [2020] EWHC 2727
(QB)).
Threshold requirements for each type of CRO
3.11.2 Practice Direction 3C para.2.1 provides that a limited CRO cannot be made unless the respond-
ent to the application is a party who has made two or more applications which are “totally without
merit” (as to the meaning of this term, see para.3.11.1).
The threshold requirement for an ECRO is proof that the party against whom it is sought “has
persistently issued claims or has made applications which are totally without merit” (PD 3C
para.3.1). Proof of three unmeritorious claims or applications has been described as the bare
minimum needed to constitute persistence (Re Ludlam (A Bankrupt) [2009] EWHC 2067 (Ch)). The
restraint imposed by an ECRO affects claims and applications “concerning any matter involving or
relating to or touching upon or leading to the proceedings in which that order was made” in any
court identified in the order (PD 3C para.3.2). Because the restraint is linked to “the proceedings
in which that order was made” an application for an ECRO has to be made in those proceedings
and not by way of a stand-alone application (Reelworld Europe Ltd v Uddin [2021] EWHC 535 (QB)).
An ECRO made by a Court of Appeal judge may restrain the issuing of claims or the making of
applications in the Court of Appeal, the High Court or the County Court. An ECRO made by a
High Court judge may restrain the issuing of claims or the making of applications in the High

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Court or the County Court. An ECRO made by a designated civil judge or their appointed deputy
may restrain the issuing of claims or the making of applications in every County Court hearing
centre (PD 3C para.3.2).
In Sartipy v Tigris Industries Inc [2019] EWCA Civ 225; [2019] 1 W.L.R. 5892, the Court of Ap-
peal gave guidance on the requirements for making an extended civil restraint order under PD 3C

CPR 3
para.3.1:
1. In the course of any proceedings one or more applications may be issued. If an earlier
claim issued by the person against whom the order is made was, itself, totally without merit
and if individual applications made within that claim were also totally without merit, there
is no reason why both the claim and individual applications should not be counted for the
purpose of considering whether to make an ECRO in the course of a subsequent claim.
2. Although at least three claims or applications are the minimum required for the making of
an ECRO, the question remains whether the party concerned is acting “persistently”. That
will require an evaluation of the party’s overall conduct. It may be easier to conclude that a
party is persistently issuing claims or applications which are totally without merit if it seeks
repeatedly to re-litigate issues which have been decided than if there are three or more
unrelated applications many years apart. The latter situation would not necessarily
constitute persistence.
3. Only claims where the party in question is the claimant (or counterclaimant) and only ap-
plications where the party in question is the applicant can be counted. A defendant or
respondent may behave badly, for example by telling lies in his or her evidence, producing
fraudulent documents or putting forward defences in bad faith. However, that does not
constitute issuing claims or making applications for the purpose of considering whether to
make an ECRO. Nevertheless such conduct is not irrelevant as it is likely to cast light on
the party’s overall conduct and to demonstrate, provided that the necessary persistence can
be demonstrated by reference to other claims or applications, that an ECRO or even a
GCRO, is necessary.
4. When considering whether to make a restraint order, the court is entitled to take into ac-
count any previous claims or applications which it concludes were totally without merit,
and is not limited to claims or applications which were so certified at the time; R. (Kumar)
v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 W.L.R. 536, CA
followed.
In Society of Lloyd’s v Noel [2015] EWHC 734 (QB); [2015] 1 W.L.R. 4393, Lewis J, it was held
that when a court was considering whether it had the power to grant an ECRO, and in particular
whether a party had persistently issued claims or made applications which were totally without
merit, it was entitled to have regard to all such claims and applications, including those which had
been made prior to the making of an earlier ECRO.
The threshold requirement for a GCRO is proof that the party against whom it is sought is
someone who “persists in issuing claims or making applications which are totally without merit, in
circumstances where an extended civil restraint order would not be sufficient or appropriate” (PD
3C para.4.1). In Chief Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675 the Court of Ap-
peal cited with approval the test for the grant (or extension) of a GCRO stated by Stuart-Smith J
from whose order it was hearing an appeal (and see further, para.3.11.7).
“In briefest outline, the question either on an original application for a GCRO or on an ap-
plication for an extension is whether an order (or its extension) is necessary in order (a) to
protect litigants from vexatious proceedings against them and/or (b) to protect the finite
resources of the Court from vexatious waste. This question is to be answered having full
regard to the impact of any proposed order upon the party to be restrained.”
A GCRO made by a Court of Appeal judge may restrain the issuing of claims or the making of
applications in the Court of Appeal, the High Court or the County Court. A GCRO made by a
High Court judge may restrain the issuing of claims or the making of applications in the High
Court or the County Court. A GCRO made by a designated civil judge or their appointed deputy
may restrain the issuing of claims or the making of applications in every County Court hearing
centre (PD 3C para.4.2). The restraint imposed upon the party against whom a GCRO is made af-
fects all claims and all applications in the relevant courts (PD 3C para.4.2). In R. (Kumar) v Secretary
of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 W.L.R. 536, CA, the Court of Ap-
peal stated that the court’s power to make GCROs is apt to cover a situation in which a litigant
adopts:
“…a scattergun approach to litigation on a number of different grievances without necessarily
exhibiting such an obsessive approach to a single topic that an extended CRO can ap-
propriately be made against him/her.”
When making an ECRO or a GCRO, the court may exclude some claims or applications from its
operation thereby leaving the party against whom the order is made free to make the excepted
claims or applications without first seeking permission (see the words “unless the court otherwise
orders” in paras 3.2 and 4.2 of PD 3C; see paras 3CPD.3 and 3CPD.4; for a case illustration see
Sheikh v Beaumont [2009] EWHC 2332 (QB)). In Moore v Ministry of Justice [2019] EWHC 3661
(QB) (Judge Coe QC, QBD) a GCRO was limited to the issue of applications or claims against the
Ministry of Justice, its staff and legal representatives; it did not restrain the issue of applications or
claims against other persons.

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In Howell v Evans [2020] EWHC 2729 (QB) a GCRO was made against the claimant which also
restrained him from issuing any claim or application as the litigation friend or trustee of his son,
or otherwise on behalf of, his son ([26]).

CROs made against a non-party

3.11.3 In 2001 and 2003, before r.3.11 was implemented, the Divisional Court of the Queen’s Bench
Division held that it had jurisdiction to make orders prohibiting a person from “acting as a Litiga-
tion Friend or a McKenzie Friend or from nominating members of his family to act on his behalf
in [proceedings specified in the Order]” (Ex p. Purvis [2001] EWHC 827 (Admin), [18]–[19]; and
Attorney General v Purvis [2003] EWHC 3190 (QB), [30]–[31] (transcript available on bailii)).
The meaning of the term “party” in PD 3C is wide enough to include a person who was the real
party behind the unmeritorious claims or applications even if he or she was not a named party in
any of those proceedings (CFC 26 Ltd v Brown Shipley & Co Ltd [2017] EWHC 1594 (Ch); [2017] 1
W.L.R. 4589 approved by the Court of Appeal in Sartipy v Tigris Industries Inc [2019] EWCA Civ
225).
In Hurst v Denton-Cox [2011] 2 WLUK 736 (Proudman J) an ECRO was made against the
claimant’s husband (who was added as a party for that purpose); the husband had been the driving
force behind a long history of litigation without merit and there was a risk of further litigation be-
ing taken against the present defendant. The husband had frequently made applications which
were totally without merit. It was immaterial that he had never brought such claims against the
present defendant. In Adelaja v Islington LBC [2019] EWHC 1295 (QB) ECROS were made against
both a husband and wife. It was clear that the husband was the driving force behind the various
claims and applications and it was necessary and proportionate to make an order against him. The
claims had been commenced in both names and there was evidence that the wife had been assessed
as lacking capacity to conduct litigation and had signed various forms under pressure from her
husband. Whilst she may lack litigation capacity, the wife did have sufficient capacity to understand
the order.
In Sartipy v Tigris Industries Inc [2019] EWCA Civ 225; [2019] 1 W.L.R. 5892 the Court of Ap-
peal ruled that, where a named party (X) allows another person (Y) the use of his or her name to
issue claims or make applications which are totally without merit, an ECRO may be made against X
notwithstanding that he or she is personally innocent of any misconduct or even ignorant of the
claims or applications which Y ( the “real” party) has been making. By permitting his or her name
to be used, X takes responsibility for the conduct of Y. However, that responsibility does not extend
to other totally without merit claims or applications made by Y solely in the name of Y.

CROs in aid of inferior courts and tribunals

3.11.4 The jurisdiction of the High Court under CPR r.3.11 to make a CRO only applies to Court of
Appeal, High Court and County Court proceedings: “the court” could not be interpreted as mean-
ing a tribunal such as the employment tribunal. However, where an inferior court had no jurisdic-
tion to make a restraint order, the High Court had the power to assist the inferior court by making
a GCRO under its inherent jurisdiction; Law Society v Otobo [2011] EWHC 2264 (Ch) (Proudman
J). Otobo was followed in Nursing and Midwifery Council v Harrold [2015] EWHC 2254 (QB); [2016]
I.R.L.R. 30 by Hamblen J and by Laing J at [2016] EWHC 1078 (QB). In Law Society of England &
Wales v Sheikh [2018] EWHC 1644 (QB), the defendant sought to circumvent various GCROs by
bringing proceedings in the employment tribunal; Jay J (applying the decisions in Nursing and
Midwifery Council, above) held that the High Court had an inherent jurisdiction to use its coercive,
injunctive powers to prevent a vexatious litigant from litigating in an inferior tribunal without
reasonable cause; that there was also power to grant an injunction under the Senior Courts Act
1981 s.37 where it appeared to the court to be just and convenient to do so; and that the High
Court also had jurisdiction to order the defendant to apply to the employment tribunal to withdraw
her claims.

Effect of CROs on the future conduct of proceedings

3.11.5 Every CRO must identify the claims and courts to which it applies and must identify the judge
(usually a High Court judge or a senior circuit judge) to whom applications for permission must be
made. Details about CROs are entered onto a public website: [Link]
nt-orders--2 [Accessed 3 February 2022].
The party against whom a CRO is made has an unfettered right to apply for permission to ap-
peal against the CRO and, if granted, may bring such an appeal. Subject thereto, they cannot take
the restrained steps without first giving the intended opponent at least seven days’ written notice of
their intention to do so (PD 3C paras 2.4, 3.4 and 4.4) and must then make a written application
for the permission of the judge identified in the order (PD 3C paras 2.6, 3.6 and 4.6). That written
application must be accompanied by any written response received from the opponent and must set
out the nature and grounds of the application. The court fee for this application (Fee 1.8 or Fee
2.5(a)) must be paid in full before the permission is sought. At this stage no application for fee
remission will be entertained. If permission is refused no refund of the fee will be made. If
permission is granted the applicant will be entitled to be refunded the difference between the fee
paid and the fee that would have been payable had the applicant not been subject to a CRO (Civil
Proceedings Fees Order 2008 (SI 2008/1053) Sch.2 paras 1.1 and 19). In Chief Constable of Avon and
Somerset v Gray [2019] EWCA Civ 1675 the Court of Appeal concluded that the need for payment
of a fee was not, in that case, an unfair burden upon the applicant’s access to justice; Irwin LJ also
indicated that the non-return of a court fee paid for an unsuccessful application for permission

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could represent a legitimate deterrent to the making of such applications (see [37] to [41]).
The specified judge will deal with any application for permission on paper only (i.e. without a
hearing). Similarly, applications for permission to appeal against a refusal of permission are dealt
with on paper only. If the party restrained repeatedly makes applications to the judge monitoring
them, further restrictions can be made (PD 3C paras 2.3, 3.3 and 4.3); for example, injunctive

CPR 3
relief may be granted banning that party from entering court buildings or contacting judges or
court staff by email, telephone or fax.
Steps taken without the necessary permission are automatically struck out or dismissed without
any further order and without any opposing party having to respond to them. In Couper v Irwin
Mitchell LLP [2017] EWHC 3231 (Ch); [2018] 4 W.L.R. 23, in 2013, C’s claim against X was
dismissed. In 2016 C commenced a professional negligence claim against their former solicitors in
the claim against X. In 2017 an ECRO was made against C in respect of any new claims or applica-
tions which were linked to C’s claim against X. Later in 2017 C commenced a professional
negligence claim against C’s barrister in C’s claim against X. On an application made by the bar-
rister, Arnold J held that the 2017 claim against the barrister had been issued in breach of the
ECRO and had therefore been automatically struck out. On applying the Denton principles (see
para.3.9.3), it was not appropriate to grant C relief from sanctions. However, it was still open to C
to apply for permission to issue a new claim against the barrister. On an oral application which C
made for such permission (the hearing of which the barrister did not resist) C was permitted to is-
sue a new claim (i.e. a second claim) against the barrister.
A GCRO catches “any application” in the specified courts, save applications which are expressly
excluded by the terms of the order. Thus, if the party against whom the order has been made is
committed to prison for contempt of court, an application to purge the contempt must, unless the
GCRO otherwise provides, be preceded by a written application for the permission of the specified
judge, seven days’ notice having been given to the relevant parties (Hussain v Vaswani [2021] EWCA
Civ 146).

Applications to discharge CROs

A limited CRO will remain in force for the duration of the proceedings in which it is made, un- 3.11.6
less the court otherwise orders (PD 3C para.2.9). ECROs and GCROs remain in force for a speci-
fied period not exceeding two years (PD 3C paras 3.9 and 4.9) but may subsequently be extended
for periods of not more than two years each (see further, para.3.11.7).
In respect of any CRO either party may apply for an amendment or discharge of the order.
However, the party against whom the CRO was made cannot apply for the amendment or discharge
of the CRO without first obtaining the permission of a judge identified in the order (PD 3C paras
2.2, 3.2 and 4.2). In Middlesbrough Football and Athletic Co (1986) Ltd v Earth Energy Investments LLP
(In Liquidation) [2019] EWHC 226 (Ch); [2019] 1 W.L.R. 3709, Sir Geoffrey Vos C held that the
grounds for discharging an ECRO were the same grounds as apply on an application under
r.3.1(7), namely a material change of circumstances since the order was made and the facts having
been misstated to the judge who made the order.

Applications to extend ECROs and GCROs

ECROs and GCROs remain in force for a specified period not exceeding two years (PD 3C paras 3.11.7
3.9 and 4.9) but may subsequently be extended for periods of not more than two years each (PD 3C
paras 3.10 and 4.10). Whilst PD 3C states detailed threshold requirements for the grant of an
original ECRO or GCRO (see para.3.11.2) an applicant for an extension of that order for a further
period need only show that an extension is “appropriate” (PD 3C paras 3.10 and 4.10). In Chief
Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675, the Court of Appeal, whilst reversing
an order made by Stuart-Smith J on other grounds, approved the learned judge’s decision as to the
tests to be applied on the grant or extension of a GCRO:
“14. The test for imposing a GCRO is stated by [4.1] of PD 3C to be that ‘the party against
whom the order is made persists in issuing claims or making applications which are
totally without merit, in circumstances where an extended civil restraint order would
not be sufficient or appropriate’ …
15. The test when the Court is asked to extend a GCRO pursuant to [4.10] of PD 3C is dif-
ferent and is that the Court ‘considers it appropriate’ to do so. That test must be read in
the light of the criteria for imposing a GCRO in the first place, since the restriction
upon the party’s right to bring litigation is the same during the original term of a
GCRO or during its extension. In briefest outline, the question either on an original ap-
plication for a GCRO or on an application for an extension is whether an order (or its
extension) is necessary in order (a) to protect litigants from vexatious proceedings
against them and/or (b) to protect the finite resources of the Court from vexatious
waste. This question is to be answered having full regard to the impact of any proposed
order upon the party to be restrained. The main difference between an original applica-
tion for a GCRO and an application for an extension is that, on an application for an
extension, the respondent will have been restrained from bringing vexatious proceed-
ings during the period of the existing GCRO.”
An extension of an ECRO or a GCRO may be granted if, during the period between the original
grant of the order and the application for its extension, the party against whom the order was
made has taken steps indicating a willingness to persist in unmeritorious litigation; for example
multiple unsuccessful applications to the judge monitoring the CRO, or multiple breaches of the
CRO (and see also the alleged misconduct complained of in Sheikh v Page [2017] EWHC 1772 (QB)

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and in Chief Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675). For a case in which an
application for an extension was refused, see G4S Care & Justice Services (UK) Ltd v Knights [2019]
EWHC 2934 (QB) (shortly after the expiry of an ECRO made against him, D intimated a claim he
wished to bring against C; Yip J refused C’s application for an extension. Although, in the light of
the history of the case, there would be a relatively low threshold for granting an extension, the
learned judge was not satisfied that the case D wished to bring was totally without merit. Also D
had not made any further claims since the last order and so had not persisted in making claims or
applications).
In Ghassemian v Chatsworth Court Freehold Co Ltd; Sartipy v Tigris Industries Inc [2019] EWHC
3646 (Ch) (Birss J) it was held that there was no fetter on the court’s jurisdiction to grant an exten-
sion of an ECRO after it had expired, although the fact of the expiry was a relevant factor to be
considered. If an extension was granted, the two-year period would run from the date of expiry of
the original order or its last extension, not from the date of the current hearing.
Whether or not an earlier CRO has expired more than two years previously, the court always has
jurisdiction to make a fresh CRO if it is evident that, unless a restraint is imposed, the respondent
will continue to issue claims or applications that are wholly without merit (Ingeus UK Ltd v Wardle
[2021] EWHC 1268 (QB)).

II. Costs Management

Application of this Section and the purpose of costs management1

3.12 3.12—(1) This Section and Practice Direction 3E apply to all Part 7 multi-
track cases, except—
(a) where the claim is commenced on or after 22nd April 2014 and
the amount of money claimed as stated on the claim form is £10
million or more; or
(b) where the claim is commenced on or after 22nd April 2014 and is
for a monetary claim which is not quantified or not fully quanti-
fied or is for a non-monetary claim and in any such case the claim
form contains a statement that the claim is valued at £10 million or
more; or
(c) where in proceedings commenced on or after 6th April 2016 a
claim is made by or on behalf of a person under the age of 18 (a
child) (and on a child reaching majority this exception will
continue to apply unless the court otherwise orders); or
(d) where the proceedings are the subject of fixed costs or scale costs;
or
(e) the court otherwise orders.
(1A) This Section and Practice Direction 3E will apply to any other
proceedings (including applications) where the court so orders.
(2) The purpose of costs management is that the court should manage both
the steps to be taken and the costs to be incurred by the parties to any proceed-
ings (or variation costs as provided in rule 3.15A) so as to further the overrid-
ing objective.
Editorial introduction
3.12.1 Section II and PD 3E (Costs Management) were first implemented in April 2013 and were based
on the recommendations made in the Review of Civil Litigation Costs: Final Report (December 2010).
They built on the experience gained in operating the defamation proceedings costs management
pilot scheme (PD 51D) and the costs management in Mercantile Courts and Technology and
Construction Courts pilot scheme (PD 51G). The claims to which r.3.12 originally applied and the
several variations to the rule which were made in 2013 and 2014 and some transitional provisions
thereto, are summarised in the 2015 edition of the White Book.
In April 2016 amendments were made to r.3.12 by the Civil Procedure (Amendment) Rules
2016 (SI 2016/234) which made some additions to the list of cases excluded from these rules un-
less the court otherwise orders (as to this, see further, para.3.12.3). In April 2017, rr.3.15 and 3.18
were amended by the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) and PD 3E was
amended by CPR Update 88 (February 2017). The amendments to these rules were made to nega-

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by

the Civil Procedure (Amendment No.4) Rules 2014 (SI 2014/867), the Civil Procedure (Amend-
ment) Rules 2016 (SI 2016/234) and the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/
747).

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tive some aspects of the decision of the Court of Appeal in SARPD Oil International Ltd v Addax
Energy SA [2016] EWCA Civ 120; [2016] B.L.R. 301. In July 2020 amendments were made to
rr.3.13, 3.15, 3.17 and 3.18 and a new rule was added (r.3.15A) by the Civil Procedure (Amend-
ment No.3) Rules 2020 (SI 2020/747) as from 1 October 2020. Rule 3.15A restates the procedure
to be followed on applications to vary a costs budget. This and the other amendments, take into the

CPR 3
rules, provisions which previously appeared in the old PD 3E. At the same time a new PD 3E was
published which takes in some provisions which were previously set out in a Guidance Note to
Precedent H (the prescribed form of costs budget).

Costs management in outline

Rule 3.12(2) states the purpose of costs management which is that the court should manage both 3.12.2
the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further
the overriding objective, namely to deal with cases justly and at proportionate cost (see further,
r.1.1). Other rules in this section of Pt 3 set out the procedures by which this purpose may be
achieved.
(i) In most Pt 7 multi-track claims, parties who are legally represented are required to file
and exchange budgets prior to the first case management conference (“CMC”; for the
exceptions, see r.3.12(1), and para.3.12.2).
(ii) The form of budget to be used is prescribed (PD 3E para.3(a), and see para.3.12.4). A
deadline for filing budgets is set (r.13.3(1)).
(iii) Parties who fail to file a required budget in time will be heavily penalised in the costs
they may later recover (r.3.14).
(iv) Prior to the first CMC the parties are required to file and exchange “budget discussion
reports” which indicate, in respect of each phase of each budget, whether the sum of
costs claimed is agreed and, if not, a brief summary of why they are not agreed (r.3.13(2)
and PD 3E para.11).
(v) At the first CMC the court will usually make a costs management order (“CMO”;
r.3.15(2)). Such an order will record the extent (if any) to which the parties have agreed
any of the costs and, in respect of costs to be incurred after the date of the first budget,
will record the amounts of those costs which the court has approved, having considered
and if necessary, revised the budgets in question (r.3.15(2)).
(vi) Thereafter the court will control the parties’ budgets in respect of recoverable costs and
will not make any case management decision without fully considering its costs implica-
tions (r.3.17(1)).
(vii) Once a CMO has been made, each party must actively reconsider its budget and, if a
significant development warrants the making of a revision, upwards or downwards, must
promptly seek such a revision either by agreement with other parties or with the ap-
proval of the court (r.3.15A).
(viii) Applications to the court about costs budgets should, if practicable, be conducted by
telephone or in writing unless they are combined with an application for other direc-
tions for which a court hearing has been convened (r.3.16(2)).
(ix) All approvals and agreements as to budgets and revised budgets must be recorded in an
order of the court (rr.3.13(3), 3.15(2) and 3.15A(5)).
(x) Whenever a party’s budget or revised budget has been agreed or approved that party
must re-file and re-serve it, with the arithmetic appropriately re-cast and attaching a copy
of the order approving it or recording the parties’ agreement (r.3.15(7)).
(xi) At the end of the proceedings, the recoverable costs of the winning party will be assessed
in accordance with the last agreed or approved budget (r.3.18).

Cases to which Pt 3 Section II applies

Legally represented parties are required to file and exchange costs budgets before the first CMC 3.12.3
in all Pt 7 multi-track cases except the following:
(a) claims in which the amount of money claimed as stated on the claim form is £10 million
or more;
(b) claims containing a statement that the claim is valued at £10 million or more;
(c) proceedings in which a claim is made by or on behalf of a person under the age of 18 (on
that person reaching majority this exception will continue to apply unless the court
otherwise orders);
(d) proceedings which are the subject of fixed costs or scale costs;
(e) litigants in person;
(f) claims proceeding in the Shorter Trials Scheme; or
(g) proceedings in which the court otherwise orders.
As to (a) and (b) above cases commenced before 22 April 2014 are subject to the automatic costs
budgeting rules (see the Civil Procedure (Amendment No.4) Rules 2014 (SI 2014/867).
As to (c) above, claims of this type commenced before 6 April 2016 are subject to the automatic
costs budgeting rules (Civil Procedure (Amendment) Rules 2016 (SI 2016/234)). This exception
was introduced on the recommendation of the CPRC Costs Management Sub-committee, chaired
by Mr Justice Coulson as he then was. The sub-committee recommended this exception principally

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because of the time many such cases take to get to trial. It may take years for injuries to stabilise
before a proper prognosis can be given and a trial date fixed. The sub-committee felt that budget-
ing for 5–10 years is “not sensible”. Excluding these cases from costs budgeting also helps to help
alleviate the delays in the listing of costs and case management cases caused by the costs budgeting
process. It may be that r.46.4 (costs where money is payable by or to a child or protected party) was
thought to provide sufficient control over costs to allow this exception. It does not extend to claims
brought by protected parties.
As to (d) most of the rules relating to fixed costs and scale costs are set out in Pt 45.
As to (e) the exception made for litigants in person appears in the opening words of r.3.13(1).
Although they are not required to file and exchange budgets unless ordered to do so (see r.3.13(3))
other represented parties are still required to serve budgets on them and are required to seek to
agree budget discussion reports with them (r.3.13(2) and 3.13(6)).
As to (f) (claims proceeding in the Shorter Trials Scheme) see r.57A.3 and PD 57AB para.2.56
(para.57ABPD.14). In such cases, unless the parties otherwise agree, r.3.12 is disapplied and
instead the court will usually make a summary assessment of any costs awarded.
As to (g) (proceedings in which the court otherwise orders) PD 3E para.1 states that, in cases
where the claimant has a limited or severely impaired life expectation (five years or less remaining)
the court will ordinarily disapply cost management under Section II. This provision is particularly
important in mesothelioma cases with living claimants where avoiding delay in the listing of cases is
of vital importance (and see further, Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749
(QB) (Master Davison)). Other cases in which the court may disapply r.3.12 altogether, or direct a
bespoke costs management regime, are cases proceeding in the Flexible Trials Scheme (see further,
PD 57AB para.3.9 (para.57ABPD.18)).
In an informal note, dated 1 November 2016, published by the Chancery Bar Association (http://
[Link]/for-members/library/practice-directions-court-notices/costs-management-note [Accessed 3
February 2022]) the Chief Master explained that in the Chancery Division in London a Note is
sent out with the Notice of Proposed Allocation to the Multi-Track (Form N149C). The Note speci-
fies that, unless exempted because the claim has a value in excess of £10 million or the party is a
litigant in person, costs budgets must be filed with the Directions Questionnaire, draft directions,
Disclosure Report and list of issues. The Note states that the parties should consider whether they
wish the court to exercise its costs management powers and should notify the court in their Direc-
tions Questionnaires of their views. The parties are reminded in the Note that even if they do not
wish there to be costs management they must serve and file a costs budget. This reminder reflects
the terms of r.3.15(2) under which the court may decide not to make a costs management order but
only after costs budgets have been filed and exchanged. The Chief Master stated that normally
budgets in Precedent H would be required. However, an alternative, which may be acceptable to the
court where all the parties agree to seek an order that the case should be taken out the costs
management regime, is for budgets to be prepared using only the first page of Precedent H, as if
the claim had a value of less than £50,000 and the costs were less than £25,000.
As the rules are presently worded the following cases are also exempted from the costs manage-
ment provisions of rr.3.12 and 3.13 by implication unless the court otherwise orders: all Pt 8 claims
and all claims allocated to the small claims track or the fast track. As to the court’s power to bring
within the costs management regime any cases falling within the exceptions (a) to (g) above or any
of the cases just described as being exempted by implication, see rr.3.12(1A) and 3.13(3) and
para.3.13.2.

Prescribed form of costs budget to be used

3.12.4 Unless the court orders otherwise, a budget must be in the form of Precedent H, which is an-
nexed to PD 3E (para.4(a)). However, if the total costs (incurred and budgeted) do not exceed
£25,000 or if the value of the claim as stated on the claim form is less than £50,000, the parties
must only use the first page of Precedent H (PD 3E para.4(b)). On the first page the different
budgeted phases of the proceedings are shown in separate lines alongside the total costs for each
phase and the grand total for all phases. Unlike the subsequent pages, the first page does not break
down the budgeted figures to show separately the sums claimed for, e.g. solicitors’ charges, counsel’s
fees and other disbursements. The first page concludes with a statement of any costs claimed in
respect of costs management (see further, para.3.15.4) and then a statement of truth (see further,
para.3.13.5).
If the stated value of the claim exceeds £50,000 and the budgeted costs exceed £25,000, the
second and subsequent pages of a budget in the form of Precedent H will show, in respect of each
phase of the proceedings, separate calculations of the amount of costs budgeted in respect of each
fee earner and counsel, and the hourly rate in respect of that fee earner or counsel by reference to
which those amounts have been calculated. Rule 3.15(8) states that it is not the role of the court in
the costs budgeting hearing to fix or approve the hourly rates claimed in the budget. The underly-
ing detail in Precedent H for each phase is provided for reference purposes only to assist the court
in fixing a budget (as to this, see further, para.3.18.2).
On the first page and also on subsequent pages, the amounts of costs for each phase of the
budget are shown in three columns headed “Incurred”, “Estimated” and “Total”. In the first
budget submitted for approval the division of costs between the “Incurred” and “Estimated”

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columns is obvious and straightforward, the date upon which the costs management order was
made (r.3.17(3)). However, in respect of a second or subsequent budget submitted for approval,
both of these headings may be misleading. In a second or subsequent budget all costs incurred
after the first budget was approved should be placed in the “Estimated” column, together with any
other costs to be included in the budget which have not yet been incurred. Unless the first budget

CPR 3
was incorrectly drawn, the figures placed in the “Incurred” columns of a subsequent budget should
be identical to the figures placed in the “Incurred” columns of the first budget. See further as to
this topic, para.3.12.5.
Practice Direction 3E para.6 indicates that the table included in the Practice Direction shows the
phases of the budget into which various items of work should be placed and indicates that, at the
budget hearing, the parties should be ready to justify the estimates as to time and the estimates as
to grade of fee earner they have made.
In Various Claimants v MGN Ltd [2016] EWHC 1894 (Ch); [2016] 4 Costs L.R. 695, Mann J held
that a budget approved by the court should not include any sum for any success fees or after-the-
event (“ATE”) insurance premiums which may be recoverable from the opponent if an order for
costs is obtained. The exclusion of these items from the budget is consistent with the terms of the
statement of truth included in Precedent H (as to which, see para.3.13.5).
As to the adverse consequences of filing a non-compliant budget, see Page v RGC Restaurants Ltd
[2018] EWHC 2688 (QB); [2019] 1 W.L.R. 22 noted in para.3.14.1.

Distinction between incurred costs and budgeted costs

It is necessary to distinguish between incurred costs and budgeted costs for three reasons: to 3.12.5
divide costs correctly between the different columns of the prescribed form of budget, whether the
budget in question is the first budget, or a revised budget; to determine the limits of the court’s
power to approve costs; and to determine the extent to which a court assessing costs can depart
from the figures in an approved budget.
In r.3.15(1) the term “costs to be incurred” is defined as “budgeted costs”. For all practical
purposes the distinction between incurred costs and budgeted costs is as follows:
a. Incurred costs are all costs incurred up to and including the date of the first costs manage-
ment order, unless otherwise ordered.
b. Budgeted costs are all costs to be incurred after the date of the first costs management
order.
This distinction is not now stated expressly in the rules or practice direction. (Before October 2020
it was so expressed in the Precedent H Guidance Note most of which (but not this distinction) has
now been subsumed into the rules or the new PD 3E.) However the distinction can still be gleaned
from a close reading of rr.3.15(1), 3.15A(5) and 3.17(3). Rule 3.15(1) treats as budgeted costs all
“costs to be incurred”. Rule 3.17(3) provides that, a budgeting court “may not approve costs
incurred before the date of any costs management hearing” but this embargo is stated to be
“Subject to rule 3.15A”. Rule 3.15A(5) permits the court, when engaged upon revising a budget:
“… to approve, vary or disallow the proposed variations, having regard to any significant
developments which have occurred since the date when the previous budget was approved or
agreed.”
Thus any costs incurred after the date of the first costs management order from part of the
“budgeted costs” if they are agreed or approved at a revision of that budget.
The meaning of the terms “incurred costs” and “budgeted costs” as defined above do not
coincide with the words “Incurred” and “Estimated” which are used as the column headings in the
prescribed form of budget (see further, para.3.12.4).
Incurred costs include all reasonable and proportionate costs claimed for the period up to and
including the first management conference. In some cases the draft budget filed may not have cor-
rectly anticipated the costs actually incurred by the budgeting party in the period after filing and
before the conclusion of the first management conference. In such a case that party may seek to
amend it (upwards or downwards) before the costs management order is made.
The general words of r.3.17(3) provide that the court has no power to approve any costs which
are not budgeted costs (i.e. the costs correctly placed in the incurred costs columns) but may take
those costs into account when considering the reasonableness and proportionality of all budgeted
costs. The costs managing court may also record any comments it has about the incurred costs. Any
such comments recorded on the face of a case management order must be taken into account by
the court when subsequently assessing the incurred costs (r.3.15(4) and see further as to this,
para.3.18.4).
In two cases, guidance has been given as to how to deal with budgets where the court considers
that the amount claimed as incurred costs is excessively high. In Redfern v Corby BC [2014] EWHC
4526 (QB), HH Judge Seymour QC held that if the court concludes that the costs already incurred
appear to be excessive, it may approve all subsequent costs at lower levels than would otherwise
have been approved. In CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 481
(TCC); [2015] B.L.R. 285 Coulson J had, at an earlier hearing, exercised the court’s discretion to
make a costs management order even though the claim value exceeded £10 million. Subsequently
the claimant filed a budget totalling almost £9.5 million of which about £4.3 million had already
been incurred. Coulson J declared this costs budget to be a wholly unreliable document and that

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the figures placed in the “Incurred” columns and the “Estimated” columns were disproportionate
and unreasonable. In his judgment there were four available options for the court to consider: to
order the claimant to prepare a new budget; to decline to approve the claimant’s costs budget; to
endeavour to set costs budget figures on a phase by phase basis, looking primarily at estimated
rather than actual costs; or to simply refuse to allow anything more in the costs budget beyond that
which had already been spent. He decided that only the option of endeavouring to set costs budget
figures on a phase by phase basis was workable, but, in the unusual circumstances of the case, that
option needed modification to arrive at a better approximation to justice. He reduced the total
budget from £9.5 million to about £4.3 million, roughly the amount said to have been already
incurred. Whilst setting totals for each phase of the budget the learned judge recorded the amounts
which he considered it had been reasonable for the claimant to have already incurred. If, on a
subsequent detailed assessment, larger sums were allowed for any of these items, corresponding
reductions would have to be made to the sums approved as reasonable for the claimant to incur in
the future. However, in many cases the court merely records its comments upon the incurred costs
without adjusting the budgeted costs to take account of those comments (see, for example, Various
Claimants v Sir Robert McAlpine [2015] EWHC 3543 (QB); [2015] 6 Costs L.R. 1085, especially at
[29] and [30]). In Discovery Land Co LLC v Axis Speciality Europe SE [2021] EWHC 2146 (Comm)
Peter MacDonald Eggers QC (sitting as a High Court judge) stated that the court should be cau-
tious about making comments upon incurred costs when first making a case management order,
given the limited information and evidence available to the court at that stage; CIP was described as
an extreme case in which the court could see, even at that early stage, that the incurred costs of a
party were excessive and the court had not been satisfied with the party’s explanation of those costs
([45] and [46]).
Guidance as to the extent to which a court assessing costs can depart from the figures in an ap-
proved budget was given by the Court of Appeal in Harrison v University Hospitals Coventry &
Warwickshire NHS Trust [2017] EWCA Civ 792; [2017] 3 Costs L.R. 425. In respect of budgeted
costs, the assessing court should not make any departure, whether upwards or downwards, unless
there is some good reason to do so (see further, para.3.18.3). Incurred costs (i.e. the figures placed
in the “Incurred” column of the first budget), unlike budgeted costs, fall outside the ambit of CPR
r.3.18(b) and, accordingly, the assessing court has an unfettered discretion as to what, if any sums to
allow. Before exercising that unfettered discretion, the assessing court is required (by r.3.18(c)) to
take into account any comments the costs managing court may have made pursuant to r.3.15(4) (see
above) which are recorded on the face of any case management order.
Penalties for misuse of costs management
3.12.6 The intended purpose of costs management is to assist the court to deal with cases justly and at
proportionate cost. It requires the parties to plan the expenditure on costs they intend to make and
then requires them to seek to agree that expenditure with opposing parties. If their planned
expenditure on costs cannot be agreed, they must seek the court’s approval of it.
It is possible for these rules to be misused so as to cause disproportionate costs and thereby
prevent a case being dealt with justly. Parties may improperly exaggerate the amount of costs they
intend to incur and may improperly withhold their consent to any reasonable agreements their op-
ponents suggest. The motive behind such misuse may be to drain away their opponents’ resources
so as to prevent them from continuing their claim or defence or to demoralise them into abandon-
ing it. The use of costs management in this or other oppressive ways is an abuse of the process of
the court which, if proved, may lead to the striking out of the oppressor’s claim or defence (see
further, para.3.4.3). Practice Direction 3E para.13 states:
“Any party may apply to the court if it considers that another party is behaving oppressively
in seeking to cause the applicant to spend money disproportionately on costs and the court
will grant such relief as may be appropriate.”

Filing and exchanging budgets and budget discussion reports1

3.13 3.13—(1) Unless the court otherwise orders, all parties except litigants in
person must file and exchange budgets—
(a) where the stated value of the claim on the claim form is less than
£50,000, with their directions questionnaires; or
(b) in any other case, not later than 21 days before the first case
management conference.
(2) In the event that a party files and exchanges a budget under paragraph
(1), all other parties, not being litigants in person, must file an agreed budget
discussion report no later than 7 days before the first case management
conference.

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by

the Civil Procedure (Amendment) Rules 2016 (SI 2016/234) and the Civil Procedure (Amendment
No.3) Rules 2020 (SI 2020/747).

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(3) The court—

(a) may, on its own initiative or on application, order the parties to
file and exchange costs budgets in a case where the parties are not
otherwise required by this Section to do so;

CPR 3
(b) shall (other than in an exceptional case) make an order to file and
exchange costs budgets if all parties consent to an application for
such an order.
(4) The court may, in a substantial case, direct that budgets are to be limited
in the first instance to part only of the proceedings and extended later to
cover the whole proceedings.
(5) Every budget must be dated and verified by a statement of truth signed
by a senior legal representative of the party.
(6) Even though a litigant in person is not required to prepare a budget,
each other party (other than a litigant in person) must provide the litigant in
person with a copy of that party’s budget.
Rule 3.13(1): “file and exchange budgets”
Rule 3.13 applies to all proceedings commenced on or after 6 April 2016 (Civil Procedure 3.13.1
(Amendment) Rules 2016 (SI 2016/234), r.23; for proceedings commenced before that date, r.3.13
as originally drawn still applies).
Unless the court otherwise orders (see below) the deadline for filing and exchanging budgets
depends upon the stated value of the claim on the claim form. Where that value is less than
£50,000, each party must file (i.e. send to the court office) their budget together with the completed
directions questionnaire (as to which, see further, para.26.3.3); by the same time they should also
exchange budgets with other parties (r.3.13(1)(a)). In other cases, budgets must be filed and
exchanged not later than 21 days before the first case management conference (r.3.13(1)(b)).
In Yeo v Times Newspapers Ltd [2015] EWHC 209 (QB); [2015] 1 W.L.R. 3031 Warby J suggested
that, in some cases, it might be appropriate for the court to direct the parties to file and exchange
budgets at a time earlier than is provided for in r.3.13(1). In some libel, privacy and some harass-
ment cases, the costs may become disproportionate before the time for costs budgeting is reached.
While early intervention was not to be regarded as routine, the court might appropriately exercise
its powers to give directions for the filing and exchange of budgets at an early stage ([75]–[77]). If a
budget is required at an early stage it need not be for the entire litigation: in substantial cases, it
may be limited initially to part only of the proceedings (see para.3.13.5).
In Freeborn v Marcal [2017] EWHC 3046 (TCC); [2017] 6 Costs L.R. 1103, the court office sent
to the parties a letter which specified the date appointed for the first CMC and required the parties
“to file and exchange costs budgets not less than 7 days before” that date. In compliance with that
letter the defendant’s costs budget was filed and served eight days before the first CMC. On receiv-
ing the defendant’s budget the claimant’s solicitors wrote to the defendant and to the court assert-
ing that the budget had been filed 13 days late and that, therefore, the sanction of r.3.14 applied
(budget to be treated as comprising only the applicable court fees). In response, the defendant
made an application for relief from sanctions. Coulson J ruled that there had been no breach of
the r.3.13 time limit; the 21-day period specified in the rule applies “unless the court otherwise
orders” and the defendant had been entitled to conclude that the court’s letter referring to a seven-
day period had ordered otherwise. The learned judge also declared that, even if there had been a
breach, there was no doubt that relief would have been granted; as to the three-stage test in Denton,
the breach was not serious or significant, the court’s letter provided a good reason for the breach
and, in all the circumstances, it was plainly just and reasonable to grant relief. The stance taken by,
and persisted in by, the claimant was criticised and the costs of the application were awarded
against him. Parties should not seek to take advantage of alleged minor procedural mistakes made
by their opponents. They need to consider carefully whether an alleged breach of the rules is, on
analysis, any such thing and, even if it is, whether it is proportionate and appropriate to require or
oppose an application for relief from sanctions in all the circumstances of the case.

Rule 3.13(2): Filing “an agreed budget discussion report”

Rule 3.13(2) requires all represented parties to file “an agreed budget discussion report”. (This 3.13.2
version of the rule does not apply to cases commenced before 6 April 2016; Civil Procedure
(Amendment) Rules 2016 (SI 2016/234) r.23.) The report must set out in respect of each phase of
the proceedings, those figures which are agreed, those figures which are disputed and a brief sum-
mary of the grounds of dispute (see PD 3E para.11). A standard form of report is annexed to the
PD which parties are encouraged to use (Precedent R Budget Discussion Report). The object of
r.3.13(2) is to compel the parties to discuss their budgets, thereby encouraging them to agree their
budgets as far as they can. Rule 3.13(2) requires the filing of a report by all parties other than the
party whose budget it is and litigants in person. Where a budget is served upon more than one
represented party the obligation on those parties is to serve an “agreed budget discussion report”

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(see r.3.13(2)). The deadline for filing a budget discussion report is “no later than 7 days before the
first case management conference” (r.3.13(2), line 3). Thus if case management directions are
given without a hearing, such reports may never have to be filed unless the court alters the
deadline in that case.
Rule 3.13(2) does not require the filing of budget discussion reports before any hearing after
the first case management hearing. When a party seeks to revise a budget (under r.3.15A) certain
variation particulars must be prepared in a standard form, the first page of which sets out the vari-
ation figures claimed and offered and subsequent pages have space in which explanations as to why
the variations are sought should be given and also columns in which an opposing party can explain
why any variations are disagreed (see PD 3E, Precedent T).
It is an abuse of the costs budgeting process to propose unjustifiably low figures in a budget
discussion report in the hope that this would cause the court to approve amounts which were lower
than the amounts it would otherwise approve. In Findcharm Ltd v Churchill Group Ltd [2017] EWHC
1108 (TCC) Coulson J deplored the budget discussion report served by the defendant in respect of
the claimant’s budget. The learned judge also criticised as being too low the figures put forward by
the defendant in its own budget. In the result the claimant’s budget was approved as drawn and the
defendant’s budget was agreed as drawn.
Rule 3.13(3): CMOs in cases otherwise excluded from costs budgeting
3.13.3 In cases in which the parties are not required by rr.3.12 and 3.13 to file and exchange budgets
prior to the first case management conference (notably claims with a stated value of £10 million or
more, and claims commenced by a Part 8 claim form; see further para.3.12.3) the court may in its
discretion decide that it is appropriate to make a CMO so bringing those proceedings into the costs
budgeting regime (rr.3.12(1A) and 3.13(3)). For a list of Part 8 claims and other claims in which
costs management may be particularly appropriate, see PD 3E para.2. The court may exercise its
powers under this rule of its own initiative or on the application of a party (r.3.13(3)(a)). Indeed,
the court is required to make a CMO (other than in an exceptional case) if an application for such
an order is made which gains all parties’ consent (r.3.13(3)(b)). A CMO can also be made in respect
of an application in a claim not otherwise subject to automatic costs budgeting, for example, heavy
detailed assessment proceedings (rr.3.12(1A) and 3.13(3)).
Budgets to include all costs up to and including trial unless the court otherwise orders
3.13.4 Unless the court otherwise orders, r.3.13(1) as amplified by PD 3E para.4(a), places upon the
parties to whom it applies, an obligation to exchange and file a budget which is “in the form of
Precedent H”, and which follows the table included in PD 3E which identifies where to include
within the budget form the various items of work for which a claim is made (PD 3E para.6).
Neither the precedent nor the table in PD 3E require the inclusion of any costs estimated for
periods after trial other than the costs of “Dealing with draft judgment and related applications”.
Indeed the precedent contains a pro forma statement to the contrary:
“This estimate excludes VAT (if applicable), success fees and ATE insurance premiums (if ap-
plicable), costs of detailed assessment, costs of any appeals, costs of enforcing any judgment
and [complete as appropriate]”.
Precedent H requires the costs claimed for in the budget to be divided into phases, the first two
being Pre-action and Issue/Statements of case. The last two are Trial and Settlement. Costs in
respect of other work may be claimed as if they were separate phases if it is believed that such costs
are more likely than not to be incurred; for example, a trial of preliminary issues, or an application
for disclosure against non-parties (PD 3E para.9 which refers to the claims for such costs as
“contingent costs sections”).
Rule 3.17(4) (as amended in October 2020) deals with the costs of any interim applications
made after budgets have been approved but which were not included in those budgets. The court
may treat the costs of such an application as additional to the receiving party’s budget if it consid-
ers that the receiving party had acted reasonably in not including that application in its budget (see
further para.3.17.2).
In some cases parties may find it difficult or impractical to budget accurately all the work which
will later have to be undertaken. The opening words of r.13.3(1) indicate that the court has the
power to direct the parties to exchange and file budgets in some other form or omitting parts of
the prescribed form. Rule 3.13(4) describes a system of staged budgeting which may be appropriate
in “substantial cases” for example a group action such as Hutson v Tata Steel UK Ltd [2020] EWHC
771 (QB) (noted in para.3.15A.2). For other case examples see Yeo v Times Newspapers Ltd [2015]
EWHC 209 (QB); [2015] 1 W.L.R. 3031 (noted in para.3.13.1) and Wright v Rowland [2016]
EWHC 2206 (Comm); [2016] 5 Costs L.O. 713 (noted in para.3.15.3).
A party seeking permission to budget for only part of a case must make an application to the
court in advance of the deadline for filing budgets. Unless an appropriate direction has been
obtained in advance, a party filing a budget which does not include all costs up to and including
trial will be in breach of r.13.3(1) and therefore at risk of the court making a costs management
order limiting their recoverable costs to court fees only (see r.3.14 and Page v RGC Restaurants Ltd
[2018] EWHC 2688 (QB); [2019] 1 W.L.R. 22 noted in para.3.14.1).
Statement of truth for use in Precedent H
3.13.5 A budget in the form of Precedent H must be dated and verified by a statement of truth signed
by a senior legal representative of the party on whose behalf it is submitted (r.3.13(5)). The form of

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words to be used (which are set out in Precedent H itself and in PD 22 para.2.2A) require the legal
representative to certify that the budget has been drawn so that it is a “fair and accurate statement”
of costs which “it would be reasonable and proportionate for my client to incur in this litigation”.
Such costs may well be less than the costs the client is likely or willing to incur. For example, in a
modest value claim, a client may be willing to incur premium rates of remuneration for legal sup-

CPR 3
port and advocacy in the hope that, to do so, will increase the client’s chances of success.
Filing or exchanging a budget which is unsigned, or signed by an insufficiently senior legal
representative, may lead to the imposition of some sanction for non-compliance with r.3.13(5) (see
above, r.3.4(2)(c) and the commentary thereto). However, it will not usually bring into play the sanc-
tion set out in r.3.14 (budget to be treated as comprising only the applicable court fees). In Americhem
Europe Ltd v Rakem Ltd [2014] EWHC 1881 (TCC); [2014] 4 Costs L.R. 682 (TCC), Stuart-Smith J,
a solicitor had served and filed a costs budget in the form of Precedent H in time, but it was signed
by a costs draftsman and not by a senior legal representative within the meaning of PD 3E. It was
held that the error did not render the budget a nullity (as to this, see further, para.3.10.1, above).
The document suffered only from an irregularity and CPR r.3.14 was not applicable. The learned
judge stated that while CPR r.3.14 provides a sanction in the event that a party “fails to provide a
budget”, it does not include the additional words “complying in all respects with the formal
requirements laid down by PD3E”.

Costs budgeting in cases involving litigants in person

Rule 3.13 expressly provides that litigants in person are not under any duty to file and exchange 3.13.6
a costs budget or any agreed budget discussion report thereon (see sub-rules (1) and (2)). However,
they may still file and exchange such documents if they wish. More importantly, their exemption
from these duties does not affect the duties which represented parties have to serve budgets on
litigants in person (r.3.13(6)) and subsequently to seek to agree a budget discussion report with
them. If a litigant in person does serve a budget, other parties who are represented are required to
file a budget discussion report in respect of that budget.
Rule 3.13(3) provides that the court may order a litigant in person to file and exchange a costs
budget and must so order (save in an exceptional case) if an application for such an order is made
which gains all parties’ consent (r.3.13(3)(b)). For case illustrations of the circumstances in which it
may be appropriate to make a CMO binding upon a litigant in person, see Campbell v Campbell
[2016] EWHC 2237 (Ch) (application by claimant represented by direct access counsel; CMO
made) and CJ & LK Perk Partnership v Royal Bank of Scotland [2020] EWHC 2563 (Comm); [2020]
Costs L.R. 1365 (application opposed by claimant represented by direct access counsel; CMO
refused).

Failure to file a budget1

3.14 Unless the court otherwise orders, any party which fails to file a 3.14
budget despite being required to do so will be treated as having filed a budget
comprising only the applicable court fees.
Rule 3.14: Effect of rule
This rule is explicit and the consequences of failure to comply are Draconian; the defaulting 3.14.1
party is deemed to have filed a budget comprising only the applicable court fees. Rule 3.18
provides that, when assessing costs on the standard basis where a costs management order has been
made, the court will not depart from the receiving party’s last approved or agreed budgeted costs
unless satisfied that there is “a good reason to do so”. In one respect r.3.14 is narrower than it
appears: it is not engaged if a party merely fails to exchange a budget with another party. The sanc-
tion of a deemed budget is applied only if a party fails to file a budget with the court. However, in
another respect, the rule is much wider than it appears: in Mitchell v News Group Newspapers Ltd
[2013] EWCA Civ 1537; [2014] 1 W.L.R. 795, the Court of Appeal confirmed that r.3.14 applies
not only to parties who fail to file a budget at all, but also to parties who fail to file a budget within
the time prescribed by r.3.13 (see judgment at [30]). In Mitchell, the failure to file a costs budget in
time had caused the cancellation of a hearing in another case and the Master’s decision to refuse to
grant relief from sanctions was upheld. In other cases, where the consequences of breach were not
so material, the late service of a costs budget was held to be neither serious nor significant and
relief from sanctions was granted (see for example Utilise TDS Ltd v Cranstoun Davies [2014 EWHC
834 (Ch) (45-minute delay), Azure East Midlands Ltd v Manchester Airport Group Property Developments
Ltd [2014] EWHC 1644 (TCC) (two-day delay) and Murray v BAE Systems Plc, 22 December 2015,
unrep., HH Judge Peter Gregory, (seven-day delay)).
In Jamadar v Bradford Teaching Hospitals NHS Foundation Trust [2016] EWCA Civ 1001; [2016] 5
Costs L.R. 809, a high value personal injury claim, the claimant did not serve a budget arguing
that, in the circumstances of that case, there was no obligation upon him to do so. These argu-
ments which were rejected by the lower courts and by the Court of Appeal. The district judge had
made orders restricting the claimant’s recoverable costs to court fees only and refusing relief from

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

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sanctions. An appeal from those orders was dismissed by the circuit judge, as was the claimant’s ap-
peal to the Court of Appeal. The circuit judge had acted within the ambit of his discretion and,
therefore, his decision to refuse the claimant relief from sanctions could not be interfered with.
Jackson LJ, stated that other judges might have been more lenient. The claim was for around £3
million and involved an extensive list of expert witnesses. However, any harshness of the orders
had been mitigated by the fact that the damages claim had subsequently settled, and so the case
would not have proceeded to trial at the expense of the claimant’s solicitors or their insurers.
In Intellimedia Systems Ltd v Richards,1 February 2017, unrep., Ch D, because of staff illness, the
claimant’s solicitors failed to file or serve a budget or a budget discussion report on the defendants’
budget before a CMC. This was a significant breach for which there had been no good reason.
However, in all the circumstances, the sanction imposed by r.3.14 was not a proportionate one in
the instant case. As the claimant had been inefficient, it was ordered to pay the costs of the instant
hearing on an indemnity basis.
In Lakhani v Mahmud [2017] EWHC 1713 (Ch); [2017] 1 W.L.R. 3482 (Daniel Alexander QC),
the defendant’s solicitors filed their costs budget one day late without reasonable excuse. They had
started to prepare the costs budget only after receiving the claimants’ costs budget. They then
proceeded to deny that it had been filed and served late and only applied for relief from sanctions
just before the hearing. The costs and case management conference, listed for 45 minutes, lasted
for half a day dominated by the defendant’s application for relief from sanction under r.3.14.
Although the costs budget was served late, the parties had been able to discuss their budgets and
only £3,000 was in dispute on the on the defendant’s budget. The decision of the judge to refuse
relief from sanctions was upheld on appeal. Although the appeal court expressed the view that the
case was on the borderline of sufficient seriousness to warrant refusal of relief from sanctions, it
held that, in all the circumstances of the case, the lower court had been entitled to find that the
delay of one day had been serious or significant.
In Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB); [2019] 1 W.L.R. 22, a high value
personal injury claim proceeding to the first CMC, the parties agreed all directions and all costs up
to and including a proposed second CMC. They also agreed that all subsequent directions and
costs budget figures should left over to be dealt with at the proposed second CMC. The claimant’s
budget included the words “interim budget” in the title and, in respect of the trial preparation and
trial phases, specified £0.00 as the phase totals. At the CMC the Master refused to direct a second
CMC and ruled that the claimant had failed to file a budget in full compliance with r.3.14. He
therefore made a costs management order limiting the claimant’s approved budget to court fees
only. On appeal, Walker J upheld the decision that the claimant had been in breach of r.3.13: filing
a budget which did not cover all budgeted costs up to and including the trial, the claimant was a
breach of r.3.13. It was immaterial that this breach had been agreed with the defendants. However,
the learned judge ruled that, because of the opening words of r.3.14 (“Unless the court otherwise
orders”) the Master had been required to consider at the CMC whether, as a matter of discretion, to
disapply the sanction under r.3.14 in whole or in part.
“… at the stage when the court becomes involved, and proposes to make a formal decision
continuing to treat Mr Page as subject to the CPR 3.14 sanction, it is necessary for the court to
consider whether the court should take a different course” ([155]).
It being clear from the transcript that the Master had not exercised that discretion it was open to
the appeal court to do so. In all the circumstances Walker J held that the r.3.14 sanction should be
confined to the phases of trial and trial preparation and should be disapplied in respect of all
earlier phases.
The penalty imposed by an order under r.3.14 may subsequently be reduced if the party upon
whom it was imposed later becomes entitled to costs under r.36.13 (acceptance of a claimant’s offer)
or r.36.17 (costs consequences following judgment); see r.36.23, and the commentary thereto.

“Unless the court otherwise orders”

3.14.2 A party in default of r.3.14 need not make a separate application for relief from sanctions under
r.3.9. Instead, it may seek to invoke the saving provision in r.3.14 itself (“Unless the court otherwise
orders”) by seeking to persuade the court to adopt that course at the hearing convened for costs
management purposes. This saving provision gives the court an express power to disapply the sanc-
tion which is additional to the power it has under r.3.9. Whichever application is made, the court
should apply the three-stage test set out in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1
W.L.R. 3296 (as to which, see para.3.9.3). There is an important difference between these two
applications: on an application for relief from sanctions under r.3.9, the starting point should be
that the sanction has been properly imposed and complies with the overriding objective (Denton at
[45]); however, on an application under r.3.14, the court is not required to take that starting point
unless there has been a prior judicial decision to that effect (Page v RGC Restaurants Ltd [2018]
EWHC 2688 (QB); [2019] 1 W.L.R. 22 at [138]).

Rule 3.14: Minimising the adverse consequences of rule if relief from its sanction is not
given
3.14.3 In many cases, a loss of costs in excess of court fees paid will not directly prejudice the parties in
breach of r.3.14 but will fall instead upon their legal representatives. Nevertheless there are several

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methods which a party in breach may consider if it wishes later to be able to recover extra costs if
an order for costs is subsequently made in its favour.
In the case of a claimant, if the relevant limitation period has not expired, it may be appropriate
to discontinue the claim and start again. A discontinuing claimant would have to pay the defend-
ants’ costs of the first action (see r.38.6) which may be stayed pending such payment (see Vol.2

CPR 3
para.9A-181). Current case law suggests that the second action will not be struck out as an abuse of
process (Aktas v Adepta [2010] EWCA Civ 1170; [2011] Q.B. 894 and Hall v Ministry of Defence
[2013] EWHC 4092 (QB); and see paras 3.4.5 and 3.4.16 above). However, the reasoning applied
in those cases may now have to be re-considered. The rules on discontinuance (Pt 38) do not apply
to Defences and therefore this solution is not available to defendants. If a Defence is amended by
way of deleting its contents or admitting the claim, the claimant would thereby become entitled to
obtain judgment for remedies as well as costs (see r.3.1(2)(m) and Pts 14 (Admissions) and 24
(Summary Judgment).
If a costs management order is made it is arguable that a party treated as having a budget
limited to court fees may, indeed must, seek revisions of it so as to include any additional
expenditure made reasonable by developments which they could not have anticipated at the time of
their breach of r.3.14. Rule 3.15A(1) requires parties to revise their “budgeted costs … if significant
developments in the litigation warrant such revisions”. If a costs management order is not made,
PD 44 para.3.7 applies. Under this provision the court may accept that the occurrence of significant
developments in the litigation amounts to a “satisfactory explanation” for a claim for extra costs in
respect of those developments. In Asghar v Bhatti [2017] EWHC 1702 (QB), Lewis J dismissed an
appeal against a Master’s order which approved a revision to a budget limited to court fees, the
significant development being an increase in the likely duration of trial from six days to 12 days.
An order approving a deemed costs budget limited to court fees is an interim order which may
subsequently be varied on a later application if there has been a material change in circumstances
(r.3.1(7) and see para.[Link]). Thus, for example, if a preliminary issues trial, included in the
deemed budget, has to be re-listed at a late stage because of the fault of another party, the court
may vary the deemed budget to include costs thrown away by the re-listing, and then the court may
either leave those costs to be assessed at the conclusion of the proceedings, or (more likely) sum-
marily assess them immediately (see further, Pasricha v Pasricha [2021] EWHC 1017 (Ch)).
The adverse consequences will be reduced by half if the party whose costs are limited to court
fees makes a Part 36 offer which his opponent does not accept within the relevant period for ac-
ceptance (usually 21 days from service of the offer) or which his opponent does not accept and
later fails to achieve a more advantageous result at trial (see r.36.23 and the commentary thereto;
para.36.23.1).
The adverse consequences of r.3.14 might also be minimised, or perhaps avoided altogether, if
the party in breach is later awarded costs on the indemnity basis (as to which see below, r.44.3 and
the commentary thereto). If a costs management order is made, a court which later assesses costs
will have regard to the receiving party’s last agreed or approved budgeted costs only if it is “assess-
ing costs on the standard basis” (see r.3.18). If a costs management order is not made the position
is governed by PD 44 paras 3.1 to 3.7; para.3.4 uses the word “may” not “will” and the fact that
costs were awarded on the indemnity basis may be accepted by the court as a “satisfactory explana-
tion” for claiming extra costs (see para.3.7).

Costs management orders1

3.15—(1) In addition to exercising its other powers, the court may manage 3.15
the costs to be incurred (the budgeted costs) by any party in any proceedings.
(2) The court may at any time make a “costs management order”. Where
costs budgets have been filed and exchanged the court will make a costs
management order unless it is satisfied that the litigation can be conducted
justly and at proportionate cost in accordance with the overriding objective
without such an order being made. By a costs management order the court
will—
(a) record the extent to which the budgeted costs are agreed between
the parties;
(b) in respect of the budgeted costs which are not agreed, record the
court’s approval after making appropriate revisions;
(c) record the extent (if any) to which incurred costs are agreed.

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by

the Civil Procedure (Amendment No.4) Rules 2014 (SI 2014/867), the Civil Procedure (Amend-
ment) Rules 2017 (SI 2017/95) and the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/
747).

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 SECTION A CIVIL PROCEDURE RULES 1998

(3) If a costs management order has been made, the court will thereafter
control the parties’ budgets in respect of recoverable costs.
(4) Whether or not the court makes a costs management order, it may
record on the face of any case management order any comments it has about
the incurred costs which are to be taken into account in any subsequent as-
sessment proceedings.
(5) Save in exceptional circumstances—
(a) the recoverable costs of initially completing Precedent H (the form
to be used for a costs budget) shall not exceed the higher of—
(i) £1,000; or
(ii) 1% of the total of the incurred costs (as agreed or allowed
on assessment) and the budgeted costs (agreed or approved);
and
(b) all other recoverable costs of the budgeting and costs management
process shall not exceed 2% of the total of the incurred costs (as
agreed or allowed on assessment) and the budgeted (agreed or ap-
proved) costs.
(Precedent H is annexed to Practice Direction 3E.)
(6) The court may set a timetable or give other directions for future reviews
of budgets.
(7) After a party’s budgeted costs have been approved or agreed, the party
must re-file and re-serve the budget—
(a) in the form approved or agreed with re-cast figures; and
(b) annexed to the order approving the budgeted costs or recording
the parties’ agreement.
(8) A costs management order concerns the totals allowed for each phase
of the budget, and while the underlying detail in the budget for each phase
used by the party to calculate the totals claimed is provided for reference
purposes to assist the court in fixing a budget, it is not the role of the court
in the costs management hearing to fix or approve the hourly rates claimed in
the budget.
Rule 3.15: Effect of rule
3.15.1 Rules 3.15 and 3.18 are amended by the Civil Procedure (Amendment) Rules 2017 (SI 2017/95)
and by the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/747) as from 1 October 2020;
see para.3.12.1.
Rules 3.12 and 3.13 require represented parties in most Pt 7 multi-track claims to file and
exchange budgets prior to the first case management conference (“CMC”; for the exceptions,
notably claims with a stated value of £10 million or more, and claims by or on behalf of a person
under the age of 18, see r.3.12, above). In such cases the court will usually make a costs manage-
ment order (“CMO”) at the CMC thereby compelling the court and the parties to manage and
control the costs of the claim thereafter by actively reconsidering and where necessary revising
budgets as agreed by the parties or approved by the court. In some cases the court may, in its
discretion, decide not to make a CMO (for example, in cases where the claimant has a limited or
severely impaired life expectation with five years or less remaining, see further PD 3E para.1). If
the parties have filed budgets in accordance with rr.3.12 and 3.13, but the court does not make a
CMO the provisions of para.3 of PD 44 apply when the costs are assessed. Under r.3.15(2) the
court’s costs management power to approve costs is limited to “the costs to be incurred (the budgeted
costs)”. However the court has the power to comment upon incurred costs (r.3.15(4) and r.3.18(c)).
In cases in which the parties are not required by rr.3.12 and 3.13 to file and exchange budgets
prior to the first case management conference (notably claims with a stated value of £10 million or
more, and claims by or on behalf of a person under the age of 18 and claims commenced by a Pt 8
claim form) the court may in its discretion decide that it is appropriate to make a CMO so bringing
those proceedings within this rule (r.3.12(1A)). For a list of Pt 8 claims in which costs management
may be particularly appropriate, see PD 3E para.2 (and see further, para.3.13.3).
As to the format of a budget (which is prescribed), see para.3.12.4.

Budgets to be limited to costs which are both reasonable and proportionate

3.15.2 The text of r.3.15 does not expressly state that the costs the court managing costs may approve
must be both reasonable and proportionate and there is no footnote to this rule cross referring to
the relevant costs rules (contrast r.3.18 which applies to an assessment of budgeted costs on the

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standard basis and, in a footnote, draws attention to r.44.3(2)(a) and (5)). Nevertheless, the fact that
budgeted costs should be limited to costs which are both reasonable and proportionate is expressly
stated in PD 3E paras 5 and 12 and in the statement of truth by which every budget must be veri-
fied (as to which see para.3.13.5).
In deciding the reasonable and proportionate costs of each phase of the budget, the court will

CPR 3
have regard to the factors set out at rr.44.3(5) and 44.4(3) including a consideration of where and
the circumstances in which the work was done as opposed to where the case is heard (PD 3E
para.5).
The format of a budget in the prescribed form is described in para.3.12.4. In cases in which the
budgeted costs do not exceed £25,000 (as to which, see further, para.3.12.4) or in which the stated
value of the claim does not exceed £50,000, the parties must only use the first page of Precedent H
(PD 3E para.4(b)). Accordingly, in these smaller cases each budget shows only the total costs
claimed in respect of each stage without specifying different sums for solicitors’ charges, counsel’s
fees or other disbursements.
In cases in which the stated value of the claim exceeds £50,000 and in which the budgeted costs
exceed £25,000, the parties must complete the first page of Precedent H (a summary sheet) and
also complete the second and subsequent pages. These pages disclose, in respect of each phase of
the proceedings, the amount of costs estimated for each fee earner and for counsel, and also the
hourly rate in respect of that fee earner or counsel by reference to which those amounts have been
calculated. Rule 3.15(8) states that it is not the role of the court in the cost management hearing to
fix or approve any hourly rates claimed in the budget. The detailed breakdowns of each phase
given in the second and subsequent pages of a budget are “provided for reference purposes only to
assist the court in fixing a budget”. Thus, if the court wishes to approve a reduced amount for any
phase of the budget, the reduction should be shown as a reduced single figure for the estimated
costs of that phase.
In Yirenkyi v Ministry of Defence [2018] EWHC 3102 (QB); [2018] 5 Costs L.R.1177, Jacobs J held
that a Master conducting a cost budgeting exercise had erred in principle in approving specific
hours and disbursements rather than total figures for each phase of the proceedings and had erred
also in expressly reserving matters, such as hourly rates, to be disputed at a detailed assessment.
There were three vices in the approach the Master had taken: leaving open for later argument the
question of hourly rates to be applied greatly diminished the level of certainty in a final figure
which an approved budget is intended to provide; approving the number of hours which different
levels of fee earner may spend had the effect of removing the flexibility each party would later
have when deciding how to spend the budget in the light of the way the case develops; thirdly, the
process of approving the number of hours and some disbursements, leaving over other questions
for a subsequent detailed assessment, involved the court in micromanaging costs to a disproportion-
ate extent.
As to the power of the court at a subsequent detailed assessment, to allow hourly rates which are
lower, or indeed higher, than the rates specified in the last approved or agreed budget, see
para.3.18.3.

Problems in assessing whether the costs estimated are proportionate

When assessing proportionality of a claim the court should take into account its overall value 3.15.3
(r.44.3(5)(a) and (b)). In some cases the valuation proposed at the costs budgeting stage by the
defendant is lower than the valuation proposed by the claimant. If both valuations are reasonably
made the court must perforce accept the claimant’s valuation. If, in such circumstances, the claim
succeeds but it transpires that the defendant’s assertion as to the claim’s value had been right all
along, the defendant may seek to argue that this amounts to a good reason to depart from the last
approved budget (see further, para.3.18.3 below).
In Wright v Rowland [2016] EWHC 2206 (Comm); [2016] 5 Costs L.O. 713, the parties were in
dispute as to a different factor to be taken into account when assessing proportionality; the complex-
ity of the litigation (r.44.3(5)(c)). The defendants submitted that the claimants had greatly
underestimated the complexity of the claim and sought the approval of a budget covering the costs
of one leading counsel and two junior counsel to represent the defendants at trial or ADR. The
learned judge felt that, although the dispute on this issue was extreme, either party could be right.
This raised a dilemma as to the costs the defendants might recover should they win at trial: if their
budgeted costs were approved as claimed but the claimant’s view of complexity was correct, the
defendants would be overcompensated in costs, whereas, approving their budgeted costs at the low
level the claimant suggested would cause potential unfairness to them if their view of complexity
was correct. In the result the dilemma was resolved by an order approving only parts of the defend-
ants’ budgeted costs, leaving other parts, namely, trial preparation, trial and ADR, neither approved
nor disapproved. These parts were left for determination by the trial court or by detailed assess-
ment should the defendants be awarded costs.

Approving budgets and withholding approval

Rule 3.15(2) provides that, if a costs management order (CMO) is made, the court will record 3.15.4
the extent to which each party’s budgeted costs are agreed or approved by the court. If the court
wishes to approve a reduced amount for any phase of a budget, it is appropriate to alter only the

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total specified for the estimated costs of that phase (see further, para.3.15.2). However, in Red and
White Services Ltd v Phil Anslow Ltd [2018] EWHC 1699 (Ch); [2018] 4 Costs L.O. 425, a multi-party
competition law claim with a trial estimate of 10 days, the budgets for future costs filed by the
claimant and the third party were £1,369,620 and £1,150,971 respectively. Birss J ruled that those
budgets were disproportionate. In respect of those parties the learned judge approved a maximum
budget for future costs of £800,000 each and directed each of them to file a revised budget not
exceeding that maximum. For further points concerning budgets in group actions, see Hutson v
Tata Steel UK Ltd [2020] EWHC 771 (QB), noted in para.3.15A.2.
If the court wishes to urge all parties to reconsider their budgets, it may decline to make a costs
management order for the time being and relist this topic for a further hearing. In Group Seven Ltd
v Nasir [2016] EWHC 620 (Ch); [2016] 2 Costs L.O. 303, Morgan J directed the parties to review
their budgets having regard to a miscellany of points set out in his written judgment. Where parties
have agreed a budget which the court considers to be clearly disproportionate the court may record
the agreed figures and then record comments expressing reservations about the reasonableness and
proportionality of those figures. Although comments upon budgeted costs fall outside rr.3.15(4)
and 3.18(c) they may nevertheless facilitate an argument at a detailed assessment whether there is
“good reason” to depart from the last agreed or approved budget.

Steps to be taken after budget approved

3.15.5 After any budgeted costs have been approved or agreed, each party must re-file and re-serve
their budget in the form approved or agreed with re-cast figures, annexed to the order approving
the budgeted costs or recording the parties’ agreement (r.3.15(7)). By this means the court file will
contain a clear record of what phases have been budgeted and in what amount. If that record can
be made simply by filing updated versions of the page 1 (summary sheet) of each bill, the court
may so direct. Standard directions often annex a diagram showing, in ranks and columns, all of the
approved or agreed phase totals for each budget (see Form PF 52 para.28 and Chancery Form
CH40).

Costs cap placed upon the costs of costs management

3.15.6 Rule 3.15(5) provides that, save in exceptional cases, the recoverable costs allowed for initially
completing a costs budget shall not exceed £1000 or, if higher, 1% of the of the total of the
incurred costs (as agreed or allowed on assessment) and the budgeted costs (agreed or approved).
All other recoverable costs of the budgeting and costs management process shall not, save in
exceptional cases, exceed 2% of the total of the incurred costs (as agreed or allowed on assessment)
and the budgeted (agreed or approved) costs. For a case which was found to be exceptional enough
to merit a higher allowance, see Richard v BBC [2017] EWHC 1666 (Ch) (Chief Master Marsh) at
[22]–[25].
Save as mentioned below, no details of costs management costs should appear in the budget.
Instead, there are spaces on the first page into which the appropriate percentages should be
inserted after a budget or revised budget has been approved by the court (PD 3E para.8). The
exceptional costs management costs, details of which should appear in the budget, are the costs of
preparing, reviewing and agreeing updated budgets. These costs should be included in Phases 3
and 7 of the budget: the CMC and the PTR phases (PD 3E para.9). Because these costs are likely to
comprise much, if not all, the work relating to the 2% cap, their inclusion as an unspecified ele-
ment in the budgeted costs makes the assessing court’s task of applying the cap extremely difficult
(see further Woodburn v Thomas [2017] 8 WLUK 153; bailii ref [2017] EWHC B16 (Costs) (Master
McCloud)).
The restrictions on the costs of costs management stated in r.3.15(5) are costs caps, not costs
allowances. If a case, in which a costs management order was made, later proceeds to a detailed as-
sessment, full details of the work done in respect of costs management will have to be set out in the
receiving party’s bill of costs. In respect of that part of the bill the assessing court will allow the
costs as assessed or the costs caps, whichever are the lower. A further sum may then be added in
respect of VAT if applicable (Marbrow v Sharpes Garden Services Ltd [2020] 7 WLUK 161; bailii ref
[2020] EWHC B26 (Costs) (Master Gordon Saker, Senior Costs Judge)).

Revision and variation of costs budgets on account of significant

developments (“variation costs”)1
3.15A 3.15A—(1) A party (“the revising party”) must revise its budgeted costs
upwards or downwards if significant developments in the litigation warrant
such revisions.
(2) Any budgets revised in accordance with paragraph (1) must be submit-
ted promptly by the revising party to the other parties for agreement, and
subsequently to the court, in accordance with paragraphs (3) to (5).

1 Introduced by the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/747).

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 PART 3 THE COURT’S CASE AND COSTS MANAGEMENT POWERS

(3) The revising party must—

(a) serve particulars of the variation proposed on every other party,
using the form prescribed by Practice Direction 3E;
(b) confine the particulars to the additional costs occasioned by the

CPR 3
significant development; and
(c) certify, in the form prescribed by Practice Direction 3E, that the
additional costs are not included in any previous budgeted costs or
variation.
(4) The revising party must submit the particulars of variation promptly to
the court, together with the last approved or agreed budget, and with an
explanation of the points of difference if they have not been agreed.
(5) The court may approve, vary or disallow the proposed variations, hav-
ing regard to any significant developments which have occurred since the
date when the previous budget was approved or agreed, or may list a further
costs management hearing.
(6) Where the court makes an order for variation, it may vary the budget
for costs related to that variation which have been incurred prior to the order
for variation but after the costs management order.
Budgeted costs to be revised if “significant developments” so warrant
Approved budgets are not costs caps; each party should revise its budgeted costs whether 3.15A.1
upwards or downwards, if significant developments in the litigation warrant such revisions
(r.3.15A(1)).
The term “significant developments” is not defined. It appears to include any event, circumstance
or step which is of such a size and nature as to go beyond the events, circumstances and steps which
were taken into account, expressly or impliedly, in the budget previously approved or agreed. A
development is taken into account impliedly if it is something that was, or should reasonably have
been, anticipated by the applicant for revision at the time of a previously approved or agreed
budget. This paragraph and Sharp v Blank (see below) was applied in Seekings v Moores [2019]
EWHC 1476 (Comm) (Judge Worster).
Obvious examples of significant developments, depending on the circumstances of the case,
include; the grant of permission to call additional expert witnesses (Elvanite Full Circle Ltd v AMEC
Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC)); the adjournment of a trial (Churchill v
Boot [2016] EWHC 1322 (QB) a refusal of permission to appeal; on the facts, the adjournment
held not to be a significant development), an increase in the number of days needed for trial
(Asghar v Bhatti [2017] EWHC 1702 (QB); Sharp v Blank [2017] EWHC 3390 (Ch), Chief Master
Marsh); as to disclosure, the receipt of far more documents than the applicant could have reason-
ably foreseen (Sharp v Blank); in a clinical negligence claim, a change of position by the defendant
relating to causation justifying the instruction of leading counsel by the claimant (Zeromska-Smith v
United Lincolnshire Hospitals NHS Trust [2019] EWHC 630 (QB) (Martin Spencer J)).
Thompson v NSL Ltd [2021] EWHC 679 (QB) (Master McCloud) concerned a personal injury
claim initially valued at £150,000. After budgets had been exchanged and filed but before the hear-
ing of the first case and costs management conference (“CCMC”), significant developments oc-
curred which increased the value of the claim to £3.9 million and which also increased the complex-
ity of the claim and the need for expert evidence. By the time of the hearing of the CCMC C’s
solicitor had served a revised schedule of loss but had not revised the budget; at that stage C’s
solicitor could not accurately assess what budgetary revisions were needed. The district judge was
informed of the developments and an order was made approving the budget C had already filed
and the claim was transferred to the High Court. C then promptly sought a revision under r.3.15A.
D submitted that, at the hearing of the CCMC, C should have, for example, proposed figures on an
estimated basis or asked for a recital that the budget could be updated at a later date. The learned
Master rejected D’s submissions and approved revisions to various phases of C’s budget.
In r.3.15A, an order by which the court approves a variation to a previously approved budget is
called an “order for variation”. Any additional costs included in that order are called “variation
costs”. To a limited extent, variation costs may be approved retrospectively: the court may vary the
budget for costs related to that variation which have been incurred prior to the order for variation
but after the date of the first costs management order (rr.3.15A(6) and 3.17(3); and see further,
para.3.12.5). A budget can be revised only in respect of significant developments which have oc-
curred since the date when the previous budget was approved or agreed (r.3.15A(5)). In other
words, an order for variation cannot be made in order to remedy a budget in respect of develop-
ments which could and should have been covered at an earlier approval or variation.
Steps to be taken on revisions
The procedure set out in r.3.15A is as follows. Each party should revise its budgeted costs 3.15A.2
promptly as soon as a significant development becomes apparent that warrants such a revision

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 SECTION A CIVIL PROCEDURE RULES 1998

(r.3.15A(1)). If revision is needed, the revising party must prepare variation particulars in the form
prescribed by PD 3E para.3(b) (Precedent T, which is annexed to PD 3E). The front sheet of form
T is a summary sheet. It comprises of columns in which to set out, in respect of each phase of the
budget, the budgeted costs already approved and the variation sought (plus or minus). Other
columns show the incurred costs (see para.3.12.5) claimed in that party’s budget or budgets, the
new total claimed for budgeted costs including the variation proposed and, finally a column to be
completed by the court showing the new total for budgeted costs including the variation as agreed
or approved by the court. Other pages of Precedent T enable the revising party to explain the
significant development in question and the effect (if any) it is estimated to have on each phase of
the budget. These pages also enable opposing parties to comment upon the revision proposed.
Precedent T contains a certificate, to be signed by the revising party or a legal representative,
stating that the additional costs claimed are not included in any previous budgeted costs or variation.
Having completed the appropriate columns in Precedent T the revising party must promptly
submit it to the other parties for comments (i.e. any agreements or points of difference) and then
submit it, promptly, to the court, together with the last approved or agreed budget, and with an
explanation of any points of difference. Unless the application is combined with an application for
other directions the court hearing which is convened for it (a “costs management conference”)
should, if practicable, be conducted by telephone or in writing (r.3.16(2)). In some cases an earlier
costs management order may have set a timetable for future reviews of budgets (r.3.15(6)).
Applications can also be made during the trial. However, at that late stage it may not be ap-
propriate for the trial judge to do more than give an indication as to what adjustment may be ap-
propriate, leaving further details to the costs judge should the matter proceed to a detailed assess-
ment (National Museums and Galleries on Merseyside Board of Trustees v AEW Architects and Designers Ltd
[2013] EWHC 3025 (TCC) at [40]).
On reviewing the budget in question the court may make an order which approves, varies or
disallows the proposed variations, having regard to any significant developments which have oc-
curred since the date when the previous budget was approved or agreed, or may list a further costs
management hearing (r.3.15A(5)). Once the variations have been approved or agreed, the revising
party must re-file and re-serve its budget, with the arithmetic appropriately re-cast and attaching a
copy of the order for variation (r.3.15(7)).
In Hutson v Tata Steel UK Ltd [2020] EWHC 771 (QB), a group action, the court had previously
directed that costs budgeting should be divided into phases; a budget had been approved for the
costs of the first phase, budgeting for subsequent phases being deferred until the start of each
phase. At the start of phase 2, C applied under (what is now) r.3.15A for a revision of the phase 1
budget. Turner J dismissed that application; in the particular circumstances of that case, once
phase 1 was completed, any application to deviate from it should be made under r.3.18, i.e. to the
court assessing costs at the conclusion of the proceedings.
In Persimmon Homes Ltd v Osborne Clark LLP [2021] EWHC 831 (Ch) Master Kaye ruled that,
before considering whether to exercise its discretion to vary a costs budget, the court should first
consider whether the applicant has complied with two mandatory requirements set out in r.3.15A,
namely proof that there has been a significant development in the litigation since the last approved
or agreed budget; and proof that the applicant had acted promptly in submitting particulars of the
variation to the other parties and to the court. These mandatory requirements were said to form a
threshold test which, if not satisfied, prevents the court from proceeding to exercise its discretion as
to whether to allow any variation. Non-compliance with the promptness requirement does not
prevent the applicant later applying under r.3.18, should the matter proceed to a detailed
assessment. However, at that stage the applicant would have to show some good reason for depart-
ing from the costs budget (as to which, see para.3.18.3).
As to the revision of a budget limited to court fees which it is treated as having been filed under
r.3.14, see Asghar v Bhatti [2017] EWHC 1702 (QB), noted in para.3.14.3.

Budget revisions in respect of surveillance evidence

3.15A.3 There is some controversy as to whether the court will allow revisions to a budget in respect of
surveillance evidence which the parties decide to make after their previous budget has been ap-
proved; for example, in a personal injury claim in which the defendants now suspect the claimant
of exaggerating his injuries. Rule 3.15A(2) and (4) require the revising party to submit Precedent T
to the other parties and then to the court “promptly”. Is an application for a revised budget made
promptly if the defendants delay serving and filing Precedent T until after the additional
expenditure has been incurred? In an early case on this topic (Purser v Hibbs [2015] EWHC 1792
(QB)) HH Judge Moloney remarked that the court would not wish to do anything to discourage the
judicious use of surveillance evidence, or to alert fraudsters to the use of surveillance.
Applications for permission to adduce surveillance evidence are usually made after the first case
management conference has been held. By that time, directions have been given as to the exchange
of witness statements and the approval of costs budgets. Those directions may also include a date
by which any surveillance evidence must be disclosed (see para.[Link] noting O’Leary v Tunnelcraft
Ltd [2009] EWHC 3438 (QB) and Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC
1121 (QB); [2016] 3 Costs L.R. 547. It is in principle open for a defendant to combine an applica-
tion for permission to adduce surveillance evidence with an application for an appropriate budget

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variation. The success or failure of either application depends upon how promptly the defendants
acted in obtaining the surveillance evidence and in disclosing it to the claimant. If the defendants
are held, in all the circumstances, to have acted promptly, a budget revision could be made relating
to all surveillance costs incurred since the date of their last agreed or approved budget (see
r.3.15A(6)).

CPR 3
Costs management conferences1
3.16—(1) Any hearing which is convened solely for the purpose of costs 3.16
management (for example, to approve a revised budget) is referred to as a
“costs management conference”.
(2) Where practicable, costs management conferences should be conducted
by telephone or in writing.
Rule 3.16: Effect of rule
This rule describes any hearing convened solely for the purpose of costs management as a “costs 3.16.1
management conference”, gives an example thereof (a hearing to approve a revised budget) and
states that any such hearing “should, if practicable, be conducted by telephone or in writing”. In
practice most costs management decisions are made on occasions when the court is considering
also what case management directions should be given. Costs management conferences are
comparatively rare. In most cases to which Pt 3 Section II applies (see para.3.12.3) represented par-
ties are required to exchange and file budgets before the first case management conference. In any
case in which a costs management order is made the court may set a timetable or give other direc-
tions for future reviews of budgets (r.3.15(6)). Most budget reviews are also conducted by way of a
hearing or video conference. Because reviews are usually sought in respect of some “significant
developments in the litigation” (see further, para.3.15A.1) those developments will often generate a
need to review the case management directions also.
If, on receipt of an application for a costs management conference, the court does not consider
that a hearing would be appropriate and, accordingly, makes an order without a hearing, any party
affected by that order may apply to have it set aside, varied or stayed (see further, rr.3.3, 23.8(c)
and PD 23A para.11.2). There is no such right if the parties agreed to the terms of the order
sought, or agreed that the court should dispose of the application without a hearing (r.23.8(a) and
(b), and PD 23A para.11.1).

Court to have regard to budgets and to take account of costs2

3.17—(1) When making any case management decision, the court will have 3.17
regard to any available budgets of the parties and will take into account the
costs involved in each procedural step.
(2) Paragraph (1) applies whether or not the court has made a costs
management order.
(3) Subject to rule 3.15A, the court—
(a) may not approve costs incurred up to and including the date of any
costs management hearing; but
(b) may record its comments on those costs and take those costs into
account when considering the reasonableness and proportionality
of all budgeted costs.
(4) If an interim application is made but is not included in a budget, the
court may, if it considers it reasonable not to have included the application in
the budget, treat the costs of such interim application as additional to the ap-
proved budgets.
Rule 3.17: Effect of rule
The CPR have the overriding objective of enabling the court to deal with cases justly and at 3.17.1
proportionate cost (r.1.1(1)). The court must seek to give effect to the overriding objective when
exercising any power given to it by the CPR, including any case management power (r.1.2). This
rule reinforces the point that the court’s “costs management” powers are “a feature of or adjunct
to” case management. The intention is that every case management decision should be made with
full consideration of its cost implications. If the effect of making a particular case management

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

2 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by
the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/747) and the Civil Procedure (Amend-
ment) Rules 2021 (SI 2021/117).

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 SECTION A CIVIL PROCEDURE RULES 1998

direction is to render a particular phase of the proceedings or procedural step of the claim
disproportionate (by reference to the definition of proportionality stated in r.44.3(5)) then that
direction will not be given.
Effect of approved budgets upon the costs of subsequent interim applications awarded on
the standard basis
3.17.2 At the conclusion of any interim application the court has a discretion as to whether one party
should be ordered to pay the costs of another party; if such an order is made the court also has a
discretion as to the amount of costs to award and the date by which they must be paid (r.44.2(1)).
In the case of an interim application made after a costs management order has been made, if an
award of costs on the standard basis is appropriate (r.44.3) the court must have regard to the receiv-
ing party’s last approved or agreed budget (r.3.18(a)). If the costs of the application in question
were included in that budget the court should not depart from it unless there is good reason to do
so (r.3.18(b)). If the costs of application in question were not included in the budget, a question
arises as to whether they should have been included. The court may make an award of costs to be
paid (in addition to any budgeted costs the receiving party may later be awarded) only if it consid-
ers that the receiving party had acted reasonably in not including that application in its budget
(r.3.17(4)).

Assessing costs on the standard basis where a costs management order

has been made1
3.18 3.18 In any case where a costs management order has been made, when as-
sessing costs on the standard basis, the court will—
(a) have regard to the receiving party’s last approved or agreed
budgeted costs for each phase of the proceedings;
(b) not depart from such approved or agreed budgeted costs unless
satisfied that there is good reason to do so; and
(c) take into account any comments made pursuant to rule 3.15(4) or
3.17(3) and recorded on the face of the order.
(Attention is drawn to rules 44.3(2)(a) and 44.3(5), which concern proportion-
ality of costs.)
Rule 3.18: Effect of rule
3.18.1 This rule explains the effect which costs management should have when, on the conclusion of
proceedings, one party is awarded costs against another and the amount of those costs cannot be
agreed and so they fall for assessment by the court.
The opening words of r.3.18 expressly limit its application to an assessment of costs on the
standard basis, not an assessment on the indemnity basis (Lejonvarn v Burgess [2020] EWCA Civ
114; [2020] 4 W.L.R. 43; for definitions of the standard basis and the indemnity basis, see r.44.3(2)
and (3)).
Assessment of budgeted costs
3.18.2 Paragraphs (a) and (b) of r.3.18 relate only to the budgeted costs as opposed to the incurred
costs (as to this distinction, see further, para.3.12.6).
Paragraph (a) requires the assessing court to have regard to the receiving party’s last approved or
agreed budgeted costs “for each phase of the proceedings”. The words just quoted make it clear
that an underspend in one phase cannot be used to offset an overspend in another phase.
Paragraph (b) is intended to prohibit the assessing court from departing from the figures given
therein for each phase of the proceedings “unless satisfied that there is good reason to do so”.
Whilst an underspend in one phase amounts to a good reason to depart from that part of the
budgeted costs, it cannot, by itself amount to a good reason to exceed the budgeted allowance for
another phase.
In Harrison v University Hospitals Coventry and Warwickshire Hospital NHS Trust [2017] EWCA Civ
792; [2017] 3 Costs L.R. 425 the Court of Appeal held that an approved budget is intended to
provide real transparency as to the costs likely to be awarded and therefore is more than just a cap
on the maximum costs allowable. The primary aims of costs budgeting are to reduce the number
of detailed assessments generally, to reduce the number of issues raised in any detailed assessments
that do take place, and to increase the level of certainty litigants can have as to the likely amount of
costs they will recover if they win or will have to pay if they lose (and see also, Merrix v Heart of
England NHS Foundation Trust [2017] EWHC 346 (QB); [2017] 1 Costs L.R. 91 (Carr J) which was
cited with approval in Harrison).

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by

the Civil Procedure (Amendment) Rules 2016 (SI 2016/234), the Civil Procedure (Amendment)
Rules 2017 (SI 2017/95) and the Civil Procedure (Amendment No.3) Rules 2020 (SI 2020/747).

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What amounts to a good reason to depart?

In Harrison the Court of Appeal decided not to proffer any guidance as to what will constitute a 3.18.3
“good reason” for departing from an agreed or approved budget, stating that this can safely be left
to the individual appraisal and evaluation of costs judges by reference to the circumstances of each

CPR 3
individual case. In doing so, costs judges should be expected not to adopt a lax or over-indulgent
approach to the need to find “good reason”. Costs judges should approach this topic having in
mind the three-stage test known as the Denton principles (as to which, see para.3.9.3). Thus the as-
sessing court might consider the significance of the departure from the approved budgeted figure,
the causes of it, and all the circumstances of the case including in particular (a) the need for litiga-
tion to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance
with rules, practice directions and court orders.
It is arguable that, on adopting the approach suggested in Harrison, a costs judge might be
entitled to reach conclusions as to the proportionality of budgeted costs, or as to the reasonableness
of the hourly rates upon which they were claimed, which depart from the conclusions reached by
the costs managing court. Two decisions by costs judges have been reported on this topic (both
available from the bailii website): RNB v Newham LBC [2017] EWHC B15 (Costs) and Nash v
Ministry of Defence [2018] EWHC B4 (Costs). Both decisions support the view that a costs judge may
depart from the last approved or agreed budget if satisfied that the total costs incurred are
disproportionate. However, they reach opposite conclusions on the significance of a ruling as to
hourly rates which are lower than those upon which an approved budget had been drawn. In RNB
this was held to amount to a good reason to depart from the budget. In Nash it was held that hourly
rates form only one of a variety of factors taken into account when setting a budget and should not
be treated as holding some special status, making it different from the other factors. Neither case is
being taken further by way of appeal.
In Barts Health NHS Trust v Salmon, 19 January 2019, unrep. (HH Judge Dight) the parties
agreed a settlement before all of the budgeted work had been undertaken and the claimant’s bill of
costs for detailed assessment claimed the budget sub-totals for completed phases and the actual
costs incurred for other phases. The learned judge ruled that the non-completion of budgeted
work in any phase of the budget can amount to a good reason to depart from the budget sub-total
for that phase. The learned judge further ruled that, once the court has decided to depart from a
budget sub-total, it may then hear submissions on the sum to be allowed for that phase. That sum
(as determined either by way of a line-by-line assessment or in a more broad brush way) may be a
sum lower than the costs actually incurred for that phase. There is no requirement to show a
second good reason to make this further departure from the budget sub-total. Thus, when assess-
ing the sum to allow in respect of an incomplete phase, the court is entitled to depart from, for
example, the hourly rates specified for fee earners in that phase ([24]).
In two subsequent cases doubts were expressed as to the reasoning, if not the decision, in Barts
Health NHS (above). In Chapman v Norfolk and Norwich University Hospital NHS Foundation Trust, 4
March 2020, unrep. (CC Birmingham), District Judge Lumb ruled that, even in respect of an
incomplete phase, the court should not enquire into the sum actually claimed unless there was very
clear evidence of obvious overspending ([11] and [13]). In Utting v City College Norwich [2020]
EWHC B20 (Costs) (available on bailii) Master Brown would not reduce the sums claimed for two
incomplete phases on the ground that the sums claimed fell substantially short of the budgeted
figures ([24] and [25]); and would not reduce the sum claimed for another phase on the ground
that that phase had been substantially completed ([27]).
The fact that a budget contains a substantial overstatement of the hourly rate applied for one or
more of the fee earners may amount to a good reason within the meaning of r.3.18 for departing
from the budget (MXX v United Lincolnshire NHS Trust [2019] EWHC 1624 (QB); [2019] Costs L.R.
1151).

Assessment of incurred costs

Paragraph (c) of r.3.18 relates only to the incurred costs as opposed to the budgeted costs (as to 3.18.4
this distinction, see further, para.3.12.6). It requires the assessing court to take into account any
comments the costs managing court has made about the incurred costs pursuant to r.3.15(4) which
are recorded on the face of any case management order. The requirement imposed on the assess-
ing court here is very much lighter than the requirement imposed upon it in r.3.18(b) (which ap-
plies only to budgeted costs). Taking into account the comments made by the costs managing court
in relation to incurred costs does not amount to a requirement to adopt and apply those comments
as decisions in the assessment and is not a requirement to depart from them only if some “good
reason” is shown (and see Harrison v University Hospitals Coventry and Warwickshire Hospital NHS
Trust [2017] EWCA Civ 792; [2017] 3 Costs L.R. 425, at [45] to [54]). On a detailed assessment,
the costs judge may have far more information than the costs managing judge had at the CMC. “It
seems to me that a Costs Judge is entitled, having taken a comment into account, to disagree with it
or to put it to one side, if on the detailed assessment a fuller picture emerges” (Chief Master
Marsh; Richard v BBC [2017] EWHC 1666 (Ch) at [3]).

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 SECTION A CIVIL PROCEDURE RULES 1998

III. Costs Capping

Costs capping orders—General1

3.19 3.19—(1) For the purposes of this Section—
(a) “costs capping order” means an order limiting the amount of
future costs (including disbursements) which a party may recover
pursuant to an order for costs subsequently made; and
(b) “future costs” means costs incurred in respect of work done after
the date of the costs capping order but excluding the amount of
any additional liability.
(2) This Section does not apply to judicial review costs capping orders
under Part 4 of the Criminal Justice and Courts Act 2015 or to protective
costs orders.
(Rules 46.16 to 46.19 make provision for judicial review costs capping
orders under Part 4 of the Criminal Justice and Courts Act 2015.)
(3) [Omitted]
(4) A costs capping order may be in respect of—
(a) the whole litigation; or
(b) any issues which are ordered to be tried separately.
(5) The court may at any stage of proceedings make a costs capping order
against all or any of the parties, if—
(a) it is in the interests of justice to do so;
(b) there is a substantial risk that without such an order costs will be
disproportionately incurred; and
(c) it is not satisfied that the risk in subparagraph (b) can be adequately
controlled by—
(i) case management directions or orders made under this Part;
and
(ii) detailed assessment of costs.
(6) In considering whether to exercise its discretion under this rule, the
court will consider all the circumstances of the case, including—
(a) whether there is a substantial imbalance between the financial
position of the parties;
(b) whether the costs of determining the amount of the cap are likely
to be proportionate to the overall costs of the litigation;
(c) the stage which the proceedings have reached; and
(d) the costs which have been incurred to date and the future costs.
(7) A costs capping order, once made, will limit the costs recoverable by
the party subject to the order unless a party successfully applies to vary the
order. No such variation will be made unless—
(a) there has been a material and substantial change of circumstances
since the date when the order was made; or
(b) there is some other compelling reason why a variation should be
made.
Section III: Effect of section
3.19.1 The rules in this Section of Pt 3 and PD 3F (Costs Capping) replace provisions formerly found
in former Pt 44 and in ss. 23A and 23B of the Costs PD. What were rr.44.18, 44.19 and 44.20 in
former Pt 44, are now, respectively, rr.3.19, 3.20 and 3.21 in Pt 3.
By the Civil Procedure (Amendment No.2) Rules 2016 (SI 2016/707), r.3.19(1) and (2) were
substituted, and (3) omitted, as a consequence of amendments made to Pt 46 (Costs—Special Cases)
by that statutory instrument and brought into effect on 8 August 2016, in particular the insertion
in that Part of Section VI (rr.46.16 to 46.19) (Judicial Review Costs Capping Orders under Pt 4 of
the Criminal Justice and Courts Act 2015), following upon the bringing into force of ss.88 to 90 of
the 2015 Act (see Vol.2 paras 9A-1312 to 9A-1314). In effect, by ss.88 to 90 and rr.46.16 to 46.19 a

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) and amended by

the Civil Procedure (Amendment No.2) Rules 2016 (SI 2016/707).

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 PART 3 THE COURT’S CASE AND COSTS MANAGEMENT POWERS

separate regime is provided for the granting of costs capping orders in judicial review proceedings.
The provisions of Section VI of Pt 46 do not apply to a costs capping order under r.3.19 (r.46.16(2)).
See further para.46.16.1.
Rule 3.19(5) states three preconditions which must each be satisfied before a costs capping order

CPR 3
(CCO) is made: (1) it is in the interests of justice to make a CCO; (2) there is a substantial risk that
without a CCO costs will be disproportionately incurred; and (3) the court is not satisfied that the
risk of disproportionate costs can be adequately controlled by costs budgeting or a detailed
assessment. If these preconditions are met, the court is not bound to make a CCO: it has a discre-
tion to do so. In a recent, unsuccessful, application for a CCO, Cavanagh J explained why, in his
judgment, it is unlikely that pre-condition (3) will ever be met: costs budgeting is a more
sophisticated and nuanced way of setting a costs figure than a CCO (Thomas v PGI Group Ltd [2021]
EWHC 2776 (QB) at [95]).
For the proper approach to the operation of r.3.19, see: Tidal Energy Ltd v Bank of Scotland Plc
[2014] EWCA Civ 847. The case suggests that given the terms of r.3.19(5)(c), the rule may be
limited to the rare cases in which there is evidence that the cost judge could not adequately
distinguish between costs reasonably incurred and costs unreasonably incurred, for instance, in
very extensive and detailed litigation on a technical matter.
Costs capping orders should not be used to remedy problems of access to finance for litigation,
or to counteract or minimise any substantial imbalance between the financial position of the parties
(Black v Arriva North East Ltd [2014] EWCA Civ 1115; on an appeal in a low value claim falling
outside the QOCS regime (as to which, see rr.44.13 to 44.17) the costs of insurance cover for the
risk of losing the appeal vastly exceeded the value of the damages likely to be awarded and was not
recoverable as costs; application for a costs capping order dismissed). Nor should they be used to
minimise the costs protection given to claimants falling within the QOCS regime (Thomas v PGI
Group Ltd [2021] EWHC 2776 (QB) at [92]–[94]).

Application for a costs capping order1

3.20—(1) An application for a costs capping order must be made on notice 3.20
in accordance with Part 23.
(2) The application notice must—
(a) set out—
(i) whether the costs capping order is in respect of the whole
of the litigation or a particular issue which is ordered to be
tried separately; and
(ii) why a costs capping order should be made; and
(b) be accompanied by a budget setting out—
(i) the costs (and disbursements) incurred by the applicant to
date; and
(ii) the costs (and disbursements) which the applicant is likely
to incur in the future conduct of the proceedings.
(3) The court may give directions for the determination of the application
and such directions may—
(a) direct any party to the proceedings—
(i) to file a schedule of costs in the form set out in paragraph 3
of Practice Direction 3F—Costs capping;
(ii) to file written submissions on all or any part of the issues
arising;
(b) fix the date and time estimate of the hearing of the application;
(c) indicate whether the judge hearing the application will sit with an
assessor at the hearing of the application; and
(d) include any further directions as the court sees fit.

Rule 3.20: Effect of rule

Before Section III of Pt 3 came into effect, this rule was found in former Pt 44 at r.44.19. For 3.20.1
relevant commentary, see para.44.19.1 in White Book 2013.

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

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 SECTION A CIVIL PROCEDURE RULES 1998

Application to vary a costs capping order1

3.21 3.21 An application to vary a costs capping order must be made by ap-
plication notice pursuant to Part 23.
Rule 3.21: Effect of rule
3.21.1 Before Section III of Pt 3 came into effect, this rule was found in former Pt 44 at r.44.20. For
relevant commentary, see para.44.20.1 in White Book 2013.

1 Introduced by the Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

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 PRACTICE DIRECTION 3A

PRACTICE DIRECTION 3A—STRIKING OUT A STATEMENT OF CASE

This Practice Direction supplements CPR Rule 3.4

Introductory

CPR 3
1.1 Rule 1.4(2)(c) includes as an example of active case management the 3APD.1
summary disposal of issues which do not need full investigation at trial.
1.2 The rules give the court two distinct powers which may be used to
achieve this. Rule 3.4 enables the court to strike out the whole or part of a
statement of case which discloses no reasonable grounds for bringing or defend-
ing a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or
otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)).
Rule 24.2 enables the court to give summary judgment against a claimant or
defendant where that party has no real prospect of succeeding on his claim or
defence. Both those powers may be exercised on an application by a party or on
the court’s own initiative.
1.3 This practice direction sets out the procedure a party should follow if
he wishes to make an application for an order under rule 3.4.
1.4 The following are examples of cases where the court may conclude that
particulars of claim (whether contained in a claim form or filed separately) fall
within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for
example “Money owed £5,000”,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true,
do not disclose any legally recognisable claim against the defendant.
1.5 A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or
obviously ill-founded.
1.6 A defence may fall within rule 3.4(2)(a) where:
(1) it consists of a bare denial or otherwise sets out no coherent statement of
facts, or
(2) the facts it sets out, while coherent, would not even if true amount in
law to a defence to the claim.
1.7 A party may believe he can show without a trial that an opponent’s case
has no real prospect of success on the facts, or that the case is bound to succeed
or fail, as the case may be, because of a point of law (including the construction
of a document). In such a case the party concerned may make an application
under rule 3.4 or Part 24 (or both) as he thinks appropriate.
1.8 The examples set out above are intended only as illustrations.
1.9 Where a rule, practice direction or order states “shall be struck out or
dismissed” or “will be struck out or dismissed” this means that the striking out
or dismissal will be automatic and that no further order of the court is required.

Claims which appear to fall within rule 3.4(2)(a) or (b)

2.1 If a court officer is asked to issue a claim form which he believes may 3APD.2
fall within rule 3.4(2)(a) or (b) he should issue it, but may then consult a judge
(under rule 3.2) before returning the claim form to the claimant or taking any
other step to serve the defendant. The judge may on his own initiative make an
immediate order designed to ensure that the claim is disposed of or (as the case
may be) proceeds in a way that accords with the rules.
2.3 The judge may allow the claimant a hearing before deciding whether to
make such an order.
2.4 Orders the judge may make include:
(1) an order that the claim be stayed until further order,
(2) an order that the claim form be retained by the court and not served
until the stay is lifted,
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 SECTION A CIVIL PROCEDURE RULES 1998

(3) an order that no application by the claimant to lift the stay be heard un-
less he files such further documents (for example a witness statement or
an amended claim form or particulars of claim) as may be specified in
the order.
2.5 Where the judge makes any such order or, subsequently, an order lifting
the stay he may give directions about the service on the defendant of the order
and any other documents on the court file.
2.6 The fact that a judge allows a claim referred to him by a court officer to
proceed does not prejudice the right of any party to apply for any order against
the claimant.

Defences which appear to fall within rule 3.4(2)(a) or (b)

3APD.3 3.1 A court officer may similarly consult a judge about any document filed
which purports to be a defence and which he believes may fall within rule
3.4(2)(a) or (b).
3.2 If the judge decides that the document falls within rule 3.4(2)(a) or (b)
he may on his own initiative make an order striking it out. Where he does so he
may extend the time for the defendant to file a proper defence.
3.3 The judge may allow the defendant a hearing before deciding whether
to make such an order.
3.4 Alternatively the judge may make an order under rule 18.1 requiring
the defendant within a stated time to clarify his defence or to give additional
information about it. The order may provide that the defence will be struck out
if the defendant does not comply.
3.5 The fact that a judge does not strike out a defence on his own initiative
does not prejudice the right of the claimant to apply for any order against the
defendant.

General Provisions
3APD.4 4.1 The court may exercise its powers under rule 3.4(2)(a) or (b) on applica-
tion or on its own initiative at any time.
4.2 Where a judge at a hearing strikes out all or part of a party’s statement
of case he may enter such judgment for the other party as that party appears
entitled to.

Applications for orders under rule 3.4(2)

3APD.5 5.1 Attention is drawn to Part 23 (General Rules about Applications) and to
Practice Direction 23A. The practice direction requires all applications to be
made as soon as possible and before allocation if possible.
5.2 While many applications under rule 3.4(2) can be made without
evidence in support, the applicant should consider whether facts need to be
proved and, if so, whether evidence in support should be filed and served.

Applications for summary judgment

3APD.6 6.1 Applications for summary judgment may be made under Part 24. Atten-
tion is drawn to that Part and to Practice Direction 24.

Vexatious litigants
3APD.7 7.1 This Practice Direction applies where a “civil proceedings order” or an
“all proceedings order” (as respectively defined under section 42(1A) of the
Senior Courts Act 1981) is in force against a person (“the litigant”).
7.2 An application by the litigant for permission to begin or continue, or to
make any application in, any civil proceedings shall be made by application
notice issued in the High Court and signed by the litigant.
7.3 The application notice must state:
(1) the title and reference number of the proceedings in which the civil
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 PRACTICE DIRECTION 3A

proceedings order or the all proceedings order, as the case may be, was
made,
(2) the full name of the litigant and his address,
(3) the order the applicant is seeking, and

CPR 3
(4) briefly, why the applicant is seeking the order.
7.4 The application notice must be filed together with any written evidence
on which the litigant relies in support of his application.
7.5 Either in the application notice or in written evidence filed in support
of the application, the previous occasions on which the litigant made an ap-
plication for permission under section 42(1A) of the said Act must be listed.
7.6 The application notice, together with any written evidence, will be placed
before a High Court judge who may:
(1) without the attendance of the applicant make an order giving the permis-
sion sought;
(2) give directions for further written evidence to be supplied by the litigant
before an order is made on the application;
(3) make an order dismissing the application without a hearing; or
(4) give directions for the hearing of the application.
7.7 Directions given under paragraph 7.6(4) may include an order that the
application notice be served on the Attorney General and on any person against
whom the litigant desires to bring the proceedings for which permission is be-
ing sought.
7.8 Any order made under paragraphs 6 or 7 will be served on the litigant
at the address given in the application notice. CPR Part 6 will apply.
7.9 A person may apply to set aside the grant of permission if:
(1) the permission allowed the litigant to bring or continue proceedings
against that person or to make any application against him, and
(2) the permission was granted other than at a hearing of which that person
was given notice under paragraph 7.
7.10 Any application under paragraph 7.9 must be made in accordance with
CPR Part 23.

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PRACTICE DIRECTION 3B—SANCTIONS FOR NON-PAYMENT OF FEES

This Practice Direction supplements CPR Rules 3.7, 3.7A1 and 3.7AA

3BPD.1 1. If a claim is struck out under rule 3.7, the court will send notice that it
has been struck out to the defendant. If a claim or counterclaim is struck out
under rule 3.7A1 or 3.7AA, the court will send notice that it has been struck
out to both the claimant and the defendant.
3BPD.2 2. In relation to the notice sent out under rule 3.7 or 3.7A1, the notice will
also explain the effect of rule 25.11. This provides that any interim injunction
will cease to have effect 14 days after the date the claim is struck out under rule
3.7. Paragraph (2) provides that if the claimant applies to reinstate the claim
before the interim injunction ceases to have effect, the injunction will continue
until the hearing of the application unless the court orders otherwise. If the
claimant makes such an application, the defendant will be given notice in the
ordinary way under rule 23.4.

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PRACTICE DIRECTION 3C—CIVIL RESTRAINT ORDERS

This Practice Direction supplements CPR Rule 3.11

Introduction

CPR 3
1. This practice direction applies where the court is considering whether to 3CPD.1
make—
(a) a limited civil restraint order;
(b) an extended civil restraint order; or
(c) a general civil restraint order,
against a party who has issued claims or made applications which are totally
without merit.
Rules 3.3(7), 3.4(6) and 23.12 provide that where a statement of case or ap-
plication is struck out or dismissed and is totally without merit, the court order
must specify that fact and the court must consider whether to make a civil
restraint order. Rule 52.20(6) makes similar provision where the appeal court
refuses an application for permission to appeal, strikes out an appellant’s notice
or dismisses an appeal.

Limited Civil Restraint Orders

2.1 A limited civil restraint order may be made by a judge of any court 3CPD.2
where a party has made 2 or more applications which are totally without merit.
2.2 Where the court makes a limited civil restraint order, the party against
whom the order is made—
(1) will be restrained from making any further applications in the proceed-
ings in which the order is made without first obtaining the permission
of a judge identified in the order;
(2) may apply for amendment or discharge of the order provided he has
first obtained the permission of a judge identified in the order; and
(3) may apply for permission to appeal the order and if permission is
granted, may appeal the order.
2.3 Where a party who is subject to a limited civil restraint order—
(1) makes a further application in the proceedings in which the order is
made without first obtaining the permission of a judge identified in the
order, such application will automatically be dismissed—
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order
which are totally without merit, the court may direct that if the party
makes any further application for permission which is totally without
merit, the decision to dismiss the application will be final and there will
be no right of appeal, unless the judge who refused permission grants
permission to appeal.
2.4 A party who is subject to a limited civil restraint order may not make an
application for permission under paragraphs 2.2(1) or 2.2(2) without first serv-
ing notice of the application on the other party in accordance with paragraph
2.5.
2.5 A notice under paragraph 2.4 must—
(1) set out the nature and grounds of the application; and
(2) provide the other party with at least 7 days within which to respond.
2.6 An application for permission under paragraphs 2.2(1) or 2.2(2)—
(1) must be made in writing;
(2) must include the other party’s written response, if any, to the notice
served under paragraph 2.4; and
(3) will be determined without a hearing.
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2.7 An order under paragraph 2.3(2) may only be made by—

(1) a Court of Appeal judge;
(2) a High Court judge or Master; or
(3) a Designated Civil Judge or their appointed deputy.
2.8 Where a party makes an application for permission under paragraphs
2.2(1) or 2.2(2) and permission is refused, any application for permission to ap-
peal—
(1) must be made in writing; and
(2) will be determined without a hearing.
2.9 A limited civil restraint order—
(1) is limited to the particular proceedings in which it is made;
(2) will remain in effect for the duration of the proceedings in which it is
made, unless the court otherwise orders; and
(3) must identify the judge or judges to whom an application for permission
under paragraphs 2.2(1), 2.2(2) or 2.8 should be made.

Extended Civil Restraint Orders

3CPD.3 3.1 An extended civil restraint order may be made by—
(1) a judge of the Court of Appeal;
(2) a judge of the High Court; or
(3) a Designated Civil Judge or their appointed deputy in the County Court,
where a party has persistently issued claims or made applications which are
totally without merit.
3.2 Unless the court otherwise orders, where the court makes an extended
civil restraint order, the party against whom the order is made—
(1) will be restrained from issuing claims or making applications in—
(a) any court if the order has been made by a judge of the Court of Ap-
peal;
(b) the High Court or the County Court if the order has been made by
a judge of the High Court; or
(c) the County Court if the order has been made by a Designated Civil
Judge or their appointed deputy,
concerning any matter involving or relating to or touching upon or lead-
ing to the proceedings in which the order is made without first obtain-
ing the permission of a judge identified in the order;
(2) may apply for amendment or discharge of the order provided he has
first obtained the permission of a judge identified in the order; and
(3) may apply for permission to appeal the order and if permission is
granted, may appeal the order.
3.3 Where a party who is subject to an extended civil restraint order—
(1) issues a claim or makes an application in a court identified in the order
concerning any matter involving or relating to or touching upon or lead-
ing to the proceedings in which the order is made without first obtain-
ing the permission of a judge identified in the order, the claim or ap-
plication will automatically be struck out or dismissed—
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order
which are totally without merit, the court may direct that if the party
makes any further application for permission which is totally without
merit, the decision to dismiss the application will be final and there will
be no right of appeal, unless the judge who refused permission grants
permission to appeal.
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3.4 A party who is subject to an extended civil restraint order may not make
an application for permission under paragraphs 3.2(1) or 3.2(2) without first
serving notice of the application on the other party in accordance with
paragraph 3.5.

CPR 3
3.5 A notice under paragraph 3.4 must—
(1) set out the nature and grounds of the application; and
(2) provide the other party with at least 7 days within which to respond.
3.6 An application for permission under paragraphs 3.2(1) or 3.2(2)—
(1) must be made in writing;
(2) must include the other party’s written response, if any, to the notice
served under paragraph 3.4; and
(3) will be determined without a hearing.
3.7 An order under paragraph 3.3(2) may only be made by—
(1) a Court of Appeal judge;
(2) a High Court judge; or
(3) a Designated Civil Judge or their appointed deputy.
3.8 Where a party makes an application for permission under paragraphs
3.2(1) or 3.2(2) and permission is refused, any application for permission to ap-
peal—
(1) must be made in writing; and
(2) will be determined without a hearing.
3.9 An extended civil restraint order—
(1) will be made for a specified period not exceeding 3 years;
(2) must identify the courts in which the party against whom the order is
made is restrained from issuing claims or making applications; and
(3) must identify the judge or judges to whom an application for permission
under paragraphs 3.2(1), 3.2(2) or 3.8 should be made.
3.10 The court may extend the duration of an extended civil restraint order,
if it considers it appropriate to do so, but it must not be extended for a period
greater than 3 years on any given occasion.
3.11 If they consider that it would be appropriate to make an extended civil
restraint order—
(1) a Master or a District Judge in a district registry of the High Court must
transfer the proceedings to a High Court judge; and
(2) a Circuit Judge or a District Judge in the County Court must transfer
the proceedings to the Designated Civil Judge.

General Civil Restraint Orders

4.1 A general civil restraint order may be made by— 3CPD.4
(1) a judge of the Court of Appeal;
(2) a judge of the High Court; or
(3) a Designated Civil Judge or their appointed deputy in the County Court,
where the party against whom the order is made persists in issuing claims or
making applications which are totally without merit, in circumstances where an
extended civil restraint order would not be sufficient or appropriate.
4.2 Unless the court otherwise orders, where the court makes a general civil
restraint order, the party against whom the order is made—
(1) will be restrained from issuing any claim or making any application in—
(a) any court if the order has been made by a judge of the Court of Ap-
peal;
(b) the High Court or the County Court if the order has been made by
a judge of the High Court; or
(c) the County Court if the order has been made by a Designated Civil
Judge or their appointed deputy,
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without first obtaining the permission of a judge identified in the order;

(2) may apply for amendment or discharge of the order provided he has
first obtained the permission of a judge identified in the order; and
(3) may apply for permission to appeal the order and if permission is
granted, may appeal the order.
4.3 Where a party who is subject to a general civil restraint order—
(1) issues a claim or makes an application in a court identified in the order
without first obtaining the permission of a judge identified in the order,
the claim or application will automatically be struck out or dismissed—
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order
which are totally without merit, the court may direct that if the party
makes any further application for permission which is totally without
merit, the decision to dismiss that application will be final and there will
be no right of appeal, unless the judge who refused permission grants
permission to appeal.
4.4 A party who is subject to a general civil restraint order may not make an
application for permission under paragraphs 4.2(1) or 4.2(2) without first serv-
ing notice of the application on the other party in accordance with paragraph
4.5.
4.5 A notice under paragraph 4.4 must—
(1) set out the nature and grounds of the application; and
(2) provide the other party with at least 7 days within which to respond.
4.6 An application for permission under paragraphs 4.2(1) or 4.2(2)—
(1) must be made in writing;
(2) must include the other party’s written response, if any, to the notice
served under paragraph 4.4; and
(3) will be determined without a hearing.
4.7 An order under paragraph 4.3(2) may only be made by—
(1) a Court of Appeal judge;
(2) a High Court judge; or
(3) a Designated Civil Judge or their appointed deputy.
4.8 Where a party makes an application for permission under paragraphs
4.2(1) or 4.2(2) and permission is refused, any application for permission to ap-
peal—
(1) must be made in writing; and
(2) will be determined without a hearing.
4.9 A general civil restraint order—
(1) will be made for a specified period not exceeding 3 years;
(2) must identify the courts in which the party against whom the order is
made is restrained from issuing claims or making applications; and
(3) must identify the judge or judges to whom an application for permission
under paragraphs 4.2(1), 4.2(2) or 4.8 should be made.
4.10 The court may extend the duration of a general civil restraint order, if
it considers it appropriate to do so, but it must not be extended for a period
greater than 3 years on any given occasion.
4.11 If they consider that it would be appropriate to make a general civil
restraint order—
(1) a Master or a District Judge in a district registry of the High Court must
transfer the proceedings to a High Court judge; and
(2) a Circuit Judge or a District Judge in the County Court must transfer
the proceedings to the Designated Civil Judge.
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General
5.1 The other party or parties to the proceedings may apply for any civil 3CPD.5
restraint order.
5.2 An application under paragraph 5.1 must be made using the Part 23

CPR 3
procedure unless the court otherwise directs and the application must specify
which type of civil restraint order is sought.
5.3 Examples of a limited civil restraint order, an extended civil restraint
order and a general civil restraint order are annexed to this practice direction.
These examples may be modified as appropriate in any particular case.
Editorial note
The following forms which are annexes to this PD can be found under Civil Procedure Forms in 3CPD.6
the online Civil Procedure Forms Volume:
D N19
D N19A
D N19B

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PRACTICE DIRECTION 3D—MESOTHELIOMA CLAIMS

This Practice Direction supplements CPR Rule 3.1

Scope
3DPD.1 1. This Practice Direction applies to claims for compensation for
mesothelioma.
“Mesothelioma”
3DPD.1.1 Mesothelioma is a highly aggressive cancer. The majority of cases originate in the pleura, but it
is sometimes peritoneal or pericardial. It is a rare cancer in persons who have not been exposed to
the inhalation of asbestos dust. Characteristically there is a long latency period between the first
exposure to asbestos dust and the first clinical signs of mesothelioma, more than 30 years in most
cases, but intervals of as little as 10 years are found and less in rare cases. There is no upper limit
to the latency period. That period is not the same as the period in which the tumour grows, which
period is thought to commence on average 10 years before clinical signs of the tumour appear.
All types of asbestos fibres can cause mesothelioma but they differ in potency. Crocidolite (blue
asbestos) is thought to be the most potent, then amosite (brown or grey asbestos) and chrysotile
(white asbestos) is thought to be the least potent. The cancer may occur after low levels of exposure
but the risk of contracting it increases in proportion to the dose received, though the severity of the
cancer does not. Successive periods of exposure each increase the risk that the cancer will occur
and consequently, Mesothelioma is characterised as an “indivisible” disease.
The rate of occurrence of mesothelioma in the UK has been characterised as an epidemic. In
2004 the authors of a paper in the British Medical Journal (Treasure et al, Radical Surgery for
Mesothelioma (31 January 2004) stated that there were at that time over 1,800 deaths per year in
Britain (that is, about 1 in 200 of all deaths in men and 1 in 1,500 in women) and that the number
was still increasing. They predicted that the peak of the epidemic was to be expected in 2015 to
2020 when the death rate was likely to be 2,000 a year in the UK. Experience to date does not chal-
lenge that prediction.
In May 2002 a special list for asbestos related illness claims was set up at the Royal Courts of
Justice (RCJ), which is now conducted by Master Eastman, Master Fontaine, Master Davison, Master
Gidden, Master Thornett and some Deputy Masters of the Queen’s Bench Division, and
administered by staff there (contact: [Link]@[Link]). Over the years, an efficient
practice has been developed in that list to resolve claims for damages for mesothelioma (most of
which are made against former employers) quickly and wherever possible, to provide compensation
during the lifetime of the victim of exposure either by interim payment or full assessment of
damages. Experience in that list has shown that in a very high percentage of claims, there is no real
prospect of success of any defence and that if liability can be eliminated as an issue at an early
stage, by pro-active use of the court’s case management powers, then almost all claims can be
quickly timetabled and managed to settlement of the issue of quantum. Experience has also shown
that in many claims in which life expectancy is short and which need to be dealt with expeditiously,
where there is some probability of a real prospect of a defence being shown which relates to
exposure and breach of duty, the alleged victim’s evidence should be taken on deposition and
recorded on a DVD and a transcript made available, in case death occurs before any sort of trial
can be arranged and the victim’s evidence is lost.
In 2007 the Civil Justice Council brought together the RCJ and other courts where these claims
are issued and representative claimant and defendant lawyers, to establish by consensus a standard
method of resolving these claims based on the system in use at the RCJ. This Practice Direction, in
force from 6 April 2008 is the result. For an up to date description of the procedure in the asbestos
disease court at the RCJ see the judgment of Master McCloud in Yates v Commissioners for Her
Majesty’s Revenue & Customs [2014] EWHC 2311 (QB); [2014] P.I.Q.R. P24; [2014] B.T.C. 39 at
[10] to [21]. As mentioned at [1] of the judgment in this case, it should be noted that it is the
established practice of the Asbestos List in the RCJ to apply provisions of the Practice Direction to
all asbestos disease cases, not just mesothelioma claims. Parties should not, however, seek to bring
other lung disease claims, such as those for silicosis or berylliosis, in the Asbestos List.
CE Filing is now the appropriate vehicle for issuing and filing documents for asbestos claims, as
with all others. Further there is a dedicated email address, [Link]@[Link], which should
be used as the continuing point of contact for claims issued in the RCJ as well as emailing direct to
the relevant Masters.
The Compensation Act 2006
3DPD.1.2 In ss.16 and 17, this Act establishes two basic principles which modify the law as laid down by
the House of Lords in Barker v Corus (UK) Plc [2006] UKHL 20 and which apply to all
mesothelioma claims:
(1) a person who has exposed a victim in circumstances amounting to a breach of duty, who
has consequently contracted mesothelioma, will be liable for all the damage flowing and
will not be able to reduce that liability by reference to any other exposure:
(a) by any other person whether it was tortious or non-tortious or

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(b) by the victim, of himself, unless that exposure can found a defence of contributory
negligence;
(2) where more than one person has exposed the victim in breach of duty the liability of each
such person will be for all the damage and will be joint and several.

CPR 3
The Mesothelioma Act 2014
This Act received Royal Assent on 30 January 2014. Its purpose is to establish a payment 3DPD.1.3
scheme for victims of mesothelioma (and their eligible dependants) where their employer or
employers’ liability insurance company cannot be traced, and to make provision about the resolu-
tion of certain insurance disputes. The scheme is to be funded by a levy on insurance companies
that are currently active in the employers’ liability insurance market. The provisions of the Act
resulted from a prior public consultation, which also led to a government decision not to introduce
a dedicated protocol for Mesothelioma claims. The diseases protocol and this PD therefore remain
the primary sources of procedural guidance. The “Diffuse Mesothelioma Payment Scheme” set up
under this Act came into effect from 1 July 2014.

Pre-Action disclosure of HMRC work records of deceased parties

With the passing of s.85 of the Deregulation Act 2015, the need for the Yates v Commissioners for 3DPD.1.4
Her Majesty’s Revenue & Customs [2014] EWHC 2311 QB applications has passed and such records
should be provided by HMRC upon proper request.

Definitions
2. In this Practice Direction— 3DPD.2
“show cause procedure” means (without prejudice to the court’s general
case management powers in Pt 3 of the CPR) the procedure set out in
para.6;
“outline submissions showing cause” means an outline or skeleton argu-
ment of the defendant’s case within the show cause procedure; and
“standard interim payment” means the standard payment in respect of
interim damages, and (if appropriate) interim costs and disbursements as
determined from time to time by the Head of Civil Justice. The amount of
this payment is currently £50,000.
“show cause procedure”
See the notes to para.6 below. 3DPD.2.1
“standard interim payment”
The making of a standard interim payment order in the majority of cases avoids the expense of 3DPD.2.2
a separate application and prolonged argument over the correct level of payment during CMCs
that are usually allocated no more than half an hour of the court’s time. The payment also provides
early interim payment to living victims in cases in which liability is no longer in issue. The practice
at the RCJ is that the standard payment is seldom exceeded though it may be cut back in low value
claims where the standard level of payment would far exceed a reasonable proportion of the dam-
ages likely to be payable. The figure is currently £50,000 and it is usually determined by the lower
level of damages for mesothelioma in the JSB Guide to Damages.

Starting proceedings
3.1 The claim form and every statement of case must be marked with the 3DPD.3
title “Living Mesothelioma Claim” or “Fatal Mesothelioma Claim” as
appropriate.
3.2 In order for the court to adopt the show cause procedure in the first
case management conference, the claimant must file and serve any witness
statements about liability (as are available)—
(1) either—
(a) at the same time as filing and serving the claim form and (where
appropriate) the particulars of claim; or
(b) as soon as possible after filing and serving the claim form and
(where appropriate) the particulars of claim; and
(2) in any event not less than 7 days before the case management conference.
3.3 Any witness statement about liability must identify as far as is possible—
(1) the alleged victim’s employment history and history of exposure to
asbestos;
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(2) the identity of any employer where exposure to asbestos of the alleged
victim is alleged;
(3) details of any self employment in which the alleged victim may have
been exposed; and
(4) details of all claims made and payments received under the Pneumoco-
niosis etc. (Workers’ Compensation) Act 1979.
3.4 The claimant must also attach to the claim form—
(1) a work history from H M Revenue and Customs (where available); and
(2) any pre-action letter of claim.
“adopt … in the first case management conference”
3DPD.3.1 It is a key part of the process of these claims that a CMC is called as early as possible and
certainly as soon as possible after a defence has been filed. The court may not wait for all defences
to be filed in a multi-defendant claim as in most such claims in relation to mesothelioma there will
be defendants who will not respond. Unless it is able to concede liability or has already done so
before the first CMC, the defendant may be called on to do so at that conference. Some defendants
at that CMC will consent to judgment. Some will not be able to consent, but will not oppose and
judgment may then be entered. Others will ask for more time to investigate liability or obtain
factual or expert evidence. In many cases, where sufficient time for investigation has passed since
the receipt of the pre-action protocol letter, defendants will be unable to produce any (or any
relevant) factual evidence of their own and there will be no reason on the face of the claimant’s
expert medical evidence to allow a defendant to obtain its own such evidence. However, unless
judgment is consented to or not opposed, the Court will not normally enter judgment in those
circumstances without seeing the claimant’s evidence. In some cases the totality of the evidence will
be available at the first CMC. The court will decide the matter as far as possible on the material
that would be available at a trial and in particular the factual and expert evidence. Hence the
requirement here for the claimant to ensure that that evidence is before the court at the first CMC
if the show cause procedure is to be invoked at that time. This paragraph of the PD sets out what
material should be included where possible. In some cases, where the defendant is an extant
company known to have contemporary evidence, the claimant may wish the normal procedure of
simultaneous exchange of evidence to be followed and then seek to invoke the show cause procedure
at a later stage in the proceedings. In para.2 of the PD it is made clear that the show cause
procedure is without prejudice to the court’s general case management powers in Pt 3 of the CPR.

Claimants with severely limited life expectancy

3DPD.4 4.1 Where the claimant believes that the claim is particularly urgent then on
issue of the claim form, the claimant—
(1) may request in writing that the court file is placed immediately before a
judge nominated to manage such cases in order to fix a case manage-
ment conference; and
(2) must explain in writing to the court why the claim is urgent.
4.2 Where the court decides that the claim is urgent (and notwithstanding
that a claim has not yet been served or a defence has not yet been filed) it will—
(1) fix the date for the case management conference to take place within a
short period of time; and
(2) give directions as to the date by which the claimant must serve the claim
form if it has not been served already.
“Claimants with a severely limited life expectancy … the claim is particularly urgent”
3DPD.4.1 The default trigger of the case management process in mesothelioma claims is the filing of any
defence or the making of a default judgment (see para.5 below). In some claims in which the al-
leged victim is still alive, the prognosis is such that the claim should be case managed by the court
with extreme urgency and a date fixed for a CMC without waiting for the time for acknowledg-
ment and defence to expire. This paragraph explains that in such cases the claimant’s solicitor may
request an urgent CMC when the claim is issued, giving an explanation in writing (which includes
email where such communication is accepted by the court in question) and the file will then be
referred to the judge or Master. If the court accepts that there is such urgency, it may fix a CMC
and require the claim form to be served, if it has not already been served and set a timetable for
acknowledgment and defence or it may simply order a CMC. Experience in the RCJ list has shown
that frequently (notwithstanding the terms of the pre-action protocol) little or no investigation of li-
ability has been carried out by defendants before the issue of proceedings and in cases where the
alleged victim is still alive and has an uncertain prognosis, urgent case management is not only
beneficial but also necessary if the aim of bringing living claims to either a trial on assessment of
damages or a trial of liability as a preliminary issue, followed by the standard interim payment, can

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be achieved within 16 weeks of service of proceedings (see para.7.1 below). It is however to be

noted that the court will use this discretion sparingly—all living mesothelioma claims are urgent
which is why the procedure exists in the first place—and so applications should only be made in
extreme cases, and costs sanctions could be imposed if the judge considers such an application to
be unnecessary, or indeed tactical.

CPR 3
Fixing the case management conference for other claims
5.1 Where paragraph 4 does not apply and— 3DPD.5
(1) a defence is filed by the defendant or one of the defendants (where
there is more than one); or
(2) the claimant has obtained a default judgment,
the court file will be referred to a judge nominated to manage such cases and
the judge will give directions for the date of the case management conference.
5.2 Claims marked ‘Living Mesothelioma Claim’ will be given priority when
fixing a case management conference.
“where paragraph 4 does not apply”
Paragraph 5 applies (a) to claims by alleged victims who are alive but whose life expectancy is 3DPD.5.1
such that the normal period for acknowledgment and defence (as extended by agreement by the
parties if appropriate) will be acceptable, and (b) to claims in which the alleged victim has died
before proceedings were commenced. Both types of claim are covered by the PD because the
methods that can be used for expeditious resolution of mesothelioma claims are the same for both
living and fatal claims, the difference being that there is not the same need for an urgent timetable
in fatal claims. Nevertheless it has been the aim at the RCJ to dispose of fatal claims, where pos-
sible, within six months of service of proceedings.
Living mesothelioma claims given priority when fixing CMC
Paragraph 7.1 of the PD aims for a period of 16 weeks from service of the claim form to a trial 3DPD.5.2
(if necessary of liability as a preliminary issue) or assessment of damages in claims where the al-
leged victim is still alive therefore even in the case of less urgent live claims under this paragraph
there will be a need to set a case management conference within weeks in order for this to be
achievable. In such cases the normal notice requirement for CMCs will often have to be abridged.
Fatal claims lack the urgency of living claims but the aim of the PD to eliminate the issue of li-
ability at an early stage where possible means that as early a CMC date as possible should be set
after any defence has been filed.
However, it must be stressed that priority listing is not to be requested from QB Asbestos,
especially not before the defence, simply on the basis that the claim concerns a living claimant.
Costs budgeting at the CMC in mesothelioma and other asbestos disease cases
The convention of dispensing with costs budgeting in asbestos disease cases has been reinforced 3DPD.5.3
by the introduction of PD 3E para.2(b) which indicates that in all cases where there is limited or
severely impaired life expectation (five years or less remaining) the court will ordinarily disapply
cost management.

The show cause procedure

6.1 The show cause procedure is a requirement by the court, of its own 3DPD.6
initiative and usually on a “costs in the case” basis, for the defendant to identify
the evidence and legal arguments that give the defendant a real prospect of
success on any or all issues of liability. The court will use this procedure for the
resolution of mesothelioma claims.
6.2 At the first case management conference, unless there is good reason
not to do so, the defendant should be prepared to show cause why—
(1) a judgment on liability should not be entered against the defendant; and
(2) a standard interim payment on account of damages and (if appropriate)
costs and disbursements should not be made by the defendant by a
specified date.
6.3 At the first case management conference if liability remains in issue the
court will normally order that the defendant show cause within a further given
period.
6.4 The order requiring the defendant to show cause within a further given
period will direct—
(1) that the defendant file and serve on the claimant by a specified date
outline submissions showing cause and—
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(a) if the outline submissions are not filed and served by a specified
date, judgment, for a sum to be determined by the court, will be
entered against the defendant without the need for any further
order and the defendant will be ordered to make a standard interim
payment by a specified date; or
(b) if the outline submissions are filed and served by the specified date,
the claim will be listed for a show cause hearing; or
(2) that the defendant show cause at a hearing on a date fixed by the court.
6.5 At the first case management conference the court will—
(1) fix the date or trial window for the determination of damages and give
any other case management directions as appropriate where the defend-
ant admits liability or judgment is entered;
(2) fix the date or trial window for the determination of damages and give
any other case management directions as appropriate where an order to
show cause under paragraph 6.3 has been made (if the defendant
subsequently shows cause then the determination date or trial window
may be utilised for the trial of any issue); or
(3) in cases in which there is to be a trial on liability, give directions includ-
ing the date or window for the trial.
6.6 Where the defendant fails to show cause on some issues, the court will
normally enter judgment on those issues.
6.7 Where the defendant fails to show cause on all issues, the court will
enter judgment for a sum to be determined and will normally order that a
standard interim payment be made.
6.8 Where the defendant succeeds in showing cause on some or all issues,
the court will order a trial of those issues. The court may also require the issue
of quantum or apportionment (as appropriate) to be dealt with at the trial
provided that it does not delay the date for the fixing of the trial.
“show cause procedure”
3DPD.6.1 This is defined as a requirement by the court, of its own initiative and usually on a “costs in the
case” basis, for the defendant to identify the evidence and legal arguments that give the defendant
a real prospect of success. Applying the test for summary judgment, the burden of showing that the
defendant has no real prospect of success remains on the claimant. Further, at a show cause hear-
ing it is for the claimant to adduce credible evidence in support of their case, and it is only if they
do so that the defendant becomes subject to an evidential burden to show cause: Silcock v H M
Revenue and Customs [2009] EWHC 3025 (QB). The justification for the court imposing this filter
rather that requiring a full blown application under Pt 24 to be initiated by the claimant, is the fact
that the RCJ experience has shown that in many claims there is no such defence and a summary
judgment application simply duplicates work and increases costs unnecessarily. The requirement to
“show cause” may be imposed on successive occasions, i.e. at the first CMC and then at a later
substantive “show cause hearing”’ if the defendant is able to persuade the court to allow more time.
The court’s order is to show cause not only as to liability but also as to why the usual standard
interim payment should not be made.
Any subsequent application for judgment should be made under Pt 24, not under this procedure.
“The show cause procedure … usually on a costs in the case basis”
3DPD.6.2 This is a summary judgment filter imposed by the court which utilises the documents and
evidence prepared in the normal course of the interlocutory process, thus avoiding the need for the
preparation of a specific Pt 24 application and supporting evidence. By this method the court
ensures that only cases with a real prospect of a defence on any issue go forward to use trial listing
resources. In those circumstances the practice at the RCJ has been to order the costs of any “show
cause hearings” to be “in the case” whatever the outcome. There is overall fairness in this approach
because the procedure is imposed by the court and not by choice of the parties and if a defendant
is able to go to trial there is nothing unfair in that defendant losing the costs of having shown cause
if it fails at trial or in gaining them from the claimant if it succeeds at trial. The practice also
avoids lengthy argument over costs at show cause hearings which are seldom given more than one
hour of the court’s time, or at CMCs which are seldom given more than half an hour.
“unless there is good reason not to do so”
3DPD.6.3 Good reason usually consists of some acceptable reason for allowing a defendant more time to
investigate or to obtain and rely on further evidence, either from factual witnesses, forensic

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engineers or medical witnesses. It will not usually be a good reason to allow more time (or at least
to allow more than a week or two) that there has been a failure by the defendant to investigate li-
ability and find witnesses in the period following the pre-action protocol letter. In the case of a
company which is extant and trading, it is the responsibility of that company as defendant to
investigate (either themselves or through solicitors) and not to leave it to brokers or insurers once

CPR 3
they have been traced, sometimes several weeks later. There is nothing unacceptable in trying to
trace insurers who can respond to the claim, but not at the expense of urgent investigation of
liability.

“within a further given period” “The order requiring the defendant to show cause”
The RCJ practice is to order either (1) that unless the defendant files (this may, in courts which 3DPD.6.4
accept it, be done by email) and serves outline submissions by a certain date, judgment on the issue
of liability will be entered without need for further order and the standard interim payment will be
made within 14 days and if submissions are filed the court will conduct a “show cause hearing” or
(2) simply, that the defendant will show cause at a hearing the date of which is fixed there and
then. The latter course is the one usually taken where it is clear that the defendant is likely to want
to show cause.

“At the first case management conference the court will …”

It is the practice in all mesothelioma claims for the court not only to order an early CMC but 3DPD.6.5
also at that first CMC wherever possible to set the date for (and timetable to) an assessment of dam-
ages, on the supposition that the defendant will not be, or has not been, able to show cause. If the
defendant does show cause that date or one as near to it as possible can be used for a trial. Direc-
tions will be issued based upon PF 52A (April 2016 edition) and no other standard form.

“Where the defendant fails to show cause”

If this happens at the first CMC or at a later hearing set for showing cause, the court will enter 3DPD.6.6
judgment and make the interim payment order. Where the “unless” form of show cause order has
been made, the judgment will normally have been ordered to be entered automatically without
need for further order.

“Where the defendant succeeds in showing cause”

What happens at this stage will depend on a number of factors; the urgency of the claim, the 3DPD.6.7
delay in obtaining further expert evidence if necessary, etc. In claims by living victims, where there
is nothing more to do in relation to liability except have a trial, either because there is only a
factual dispute or there is a dispute on the expert opinions but the evidence is ready, then a trial
will often be ordered to take place within weeks, so that an interim payment can be made if the
claimant succeeds. If quantum can be assessed at that early time as well then the court will order a
full trial rather that the trial of a preliminary issue.

Setting the trial date

7.1 In Living Mesothelioma Claims the date of the determination of dam- 3DPD.7
ages or the trial will generally not be more than 16 weeks following service of
the claim form.
7.2 In Fatal Mesothelioma Claims the hearing date may be more than 16
weeks following service of the claim form.
“16 weeks following service of the claim form”
This is a reference to either a full trial if that is possible or a trial of liability only followed by an 3DPD.7.1
interim payment. Where it is necessary to obtain expert evidence, particularly expert engineering /
health and safety evidence, it will not always be possible to have a trial, even of liability only within
such a time limit, because of the shortage of experts in this field. However, generally the 16 week
timetable for disposal should be the aim and this requires efficient listing of CMCs and trials if it is
to be achieved.

Taking evidence by deposition

8 Any party who for good reason wishes evidence to be taken by deposition 3DPD.8
may apply to the court at any time for such an order. However, the court will
normally expect that such a request is made at a case management conference.
The order will include a direction for the recording of such evidence on DVD
and for the provision of a transcript. The parties must also be prepared to ar-
range for the provision of equipment to view the DVD by the court.
(Part 34 contains provisions for evidence to be taken by deposition.)
“who for good reason wishes evidence to be taken by deposition”
At the first CMC where the alleged victim is still alive, the court should always consider making 3DPD.8.1
an order that the claimant’s evidence be taken on deposition by a certain date or that the claimant’s

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 SECTION A CIVIL PROCEDURE RULES 1998

solicitors have permission to have it taken on short notice if the claimant’s health deteriorates. The
importance of a live victim as a primary source of evidence cannot be over stressed, particularly in
cases where the defendant is likely to be able to put forward its own live witnesses at a trial. The
live victim is also a valuable source of information for the defendants for them to assess their
chances of success on liability and to be able to take an early decision thereon. Many disputes on
liability are conceded after evidence is taken on deposition. If there is any likelihood that the claim-
ant might be lost as a source of evidence then that claimant’s evidence should be taken as soon as
possible so that the defendant can also cross examine as to its case. The invariable practice at the
RCJ is to order the evidence to be recorded on a DVD as well as having the usual transcript made
available. The DVD medium is readily useable on judicial laptops. This evidence is most likely to
be used at a trial after the alleged victim has died or is too ill to attend trial and often when the
defendants are able to call witnesses. The deployment of this evidence on DVD “levels the playing
field” as much as possible in those circumstances. It is particularly useful to order evidence to be
taken on deposition, where possible, after the closing date in the court’s order for the production
of witness statements although in particularly urgent cases it may be done earlier. If the evidence
has been taken and the claimant then dies or is too ill to give further evidence or assistance, it
would be unusual for the court to consider allowing the defendants to put in further evidence.

Compliance with pre-action protocols

3DPD.9 9 In Living Mesothelioma Claims the court may decide not to require strict
adherence to Practice Direction (Pre-Action Conduct) and any relevant pre-
action protocol.
“strict adherence to any relevant pre-action protocol”
3DPD.9.1 Although a specific pre-action protocol for mesothelioma claims is under discussion it is not
likely to be promulgated for some time. The protocol that applies to these and other asbestos
induced illness claims is the Disease and Illness Protocol in which mesothelioma is specifically
mentioned at para.2.5 where it is made clear that in cases where a claimant has mesothelioma the
timescales of the protocol may be too long. In claims where the alleged victim is still alive, if it
seems that the defendant is not investigating liability after the pre-action protocol letter has been
sent, that fact will often justify the immediate issue of proceedings so that the court can set an
urgent timetable.

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 PRACTICE DIRECTION 3E

PRACTICE DIRECTION 3E—COSTS MANAGEMENT

This Practice Direction supplements Part 3

CPR 3
A. Production of Costs Budgets
1. In cases where the Claimant has a limited or severely impaired life expecta- 3EPD.1
tion (5 years or less remaining) the court will ordinarily disapply cost manage-
ment under Section II of Part 3.
2. An order for the provision of costs budgets with a view to a costs manage-
ment order being made may be particularly appropriate in the following cases—
(a) unfair prejudice petitions under section 994 of the Companies Act 2006;
(b) disqualification proceedings pursuant to the Company Directors
Disqualification Act 1986;
(c) applications under the Trusts of Land and Appointment of Trustees Act
1996;
(d) claims pursuant to the Inheritance (Provision for Family and Depend-
ants) Act 1975;
(e) any Part 8 or other claims or applications involving a substantial dispute
of fact and/or likely to require oral evidence and/or extensive disclosure;
and
(f) personal injury and clinical negligence cases where the value of the
claim is £10 million or more.

B. Documents to be lodged for costs budgeting purposes

3.(a) Save in exceptional circumstances or where the court orders 3EPD.2
otherwise, the parties are not expected to lodge any documents other
than Precedent H and the budget discussion report. Both are an-
nexed, to this practice direction. If the Excel format precedent on the
MOJ website is used, the calculation on page one will calculate the
totals automatically and the phase totals are linked to this page also.
(b) Precedent T, also annexed to this practice direction, is to be used in
the event of variation of a budget pursuant to rule 3.15A.

C. Budget format
4.(a) Unless the court otherwise orders, a budget must be in the form of 3EPD.3
Precedent H annexed to this Practice Direction. It must be in
landscape format with an easily legible typeface.
(b) In cases where a party’s total costs (incurred and estimated) do not
exceed £25,000 or the value of the claim as stated on the claim form
is less than £50,000, the parties must only use the first page of
Precedent H.
(The wording for a statement of truth verifying a budget is set out in Practice
Direction 22.)
5. In deciding the reasonable and proportionate costs of each phase of the
budget the court will have regard to the factors set out at Civil Procedure Rules
44.3(5) and 44.4(3) including a consideration of where and the circumstances
in which the work was done as opposed to where the case is heard.
6. The table below identifies where within the budget form the various
items of work, in so far as they are required by the circumstances of your case,
should be included. The time estimated may have to be justified on the budget
hearing along with the grade of fee earner doing the work.
7. Allowance must be made in each phase for advising the client, taking
instructions and corresponding with the other party/parties and the court in
respect of matters falling within that phase.
8. The time spent in preparing the budget and associated material must not
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 SECTION A CIVIL PROCEDURE RULES 1998

be claimed in the draft budget under any phase. The maximum figures permit-
ted under rule 3.15(5) should be inserted once the costs budget has been ap-
proved by the court.
9. The ‘contingent cost’ sections of this form should be used for anticipated
costs which do not fall within the main categories set out in this form. Examples
might be the trial of preliminary issues, applications to amend, applications for
disclosure against third parties or (in libel cases) applications re meaning. Costs
which are disputed (such as the need for a particular expert) should be set out
in the appropriate phase of the budget and if necessary marked as disputed.
Only costs which are more likely than not to be incurred should be included.
(Variation of an approved or agreed budget is dealt with in rule 3.15A.)

D Assumptions
3EPD.4 10.(a) The assumptions that are reflected in the table below are not to be
repeated. Include only those assumptions that significantly impact
on the level of costs claimed such as the duration of the proceed-
ings, the number of experts and witnesses or the number of interim
applications envisaged. Brief details only are required in the box
beneath each phase. Additional documents should only be prepared
in exceptional circumstance and, where they are disregarded by the
court, the cost of preparation may be disallowed.
(b) Written assumptions are not normally required by the Court in
cases where the parties are only required to lodge the first page.

Phase Includes Does NOT include

3EPD.5 Pre-action D Pre-Action Protocol correspondence D Any work already
D Investigating the merits of the claim and incurred in
advising client relation to any
D Settlement discussions, advising on other phase of
settlement and Part 36 offers the budget
D All other steps taken and advice given
pre action
Issue/statements D Preparation of Claim Form
D Issue and service of proceedings
of case D Preparation of Particulars of Claim,
Defence, Reply, including taking
instructions, instructing counsel and any
necessary investigation
D Considering opposing statements of case
and advising client
D Part 18 requests (request and answer)
D Any conferences with counsel primarily
relating to statements of case
D Updating schedules and counter
schedules of loss
D Amendments to statements of case
CMC D Completion of DQs D Preparation of
D Arranging a CMC costs budget for
D Reviewing opponent’s budget first CMC
D Correspondence with opponent to agree
directions and budgets, where possible
D Preparation for, and attendance at, the
CMC
D Finalising the order
D Any further CMC that is built into the
proposed directions order

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Phase Includes Does NOT include

Disclosure D Obtaining documents from client and D Applications for
advising on disclosure obligations specific
D Reviewing documents for disclosure, disclosure

CPR 3
preparing disclosure report or D Applications and
questionnaire response and list requests for non-
D Inspection party disclosure
D Reviewing opponent’s list and
documents, undertaking any appropriate
investigations
D Correspondence between parties about
the scope of disclosure and queries
arising
D Consulting counsel, so far as
appropriate, in relation to disclosure
Witness D Identifying witnesses D Arranging for
D Obtaining statements witnesses to
Statements D Preparing witness summaries attend trial
D Consulting counsel, so far as (include in trial
appropriate, about witness statements preparation)
D Reviewing opponent’s statements and
undertaking any appropriate
investigations
D Applications for witness summaries
Expert Reports D Identifying and engaging suitable D Obtaining
expert(s) permission to
D Reviewing draft and approving report(s) adduce expert
D Dealing with follow-up questions of evidence (include
experts in CMC or a
D Considering opposing experts’ reports separate
D Any conferences with counsel primarily application)
relating to expert evidence D Arranging for
D Meetings of experts (preparing agenda experts to attend
etc.) trial (include in
trial preparation)
PTR D Bundle D Assembling
D Preparing and agreeing chronology, case and/or copying
summary and dramatis personae (if the bundle (this
ordered and not already prepared is not fee earners’
earlier in case) work)
D Completing and filing pre-trial checklists
D Correspondence with opponent to agree
directions
D Preparation for and attendance at the
PTR
Trial Preparation D Trial bundles D Assembling
D Witness summonses, and arranging and/or copying
D for witnesses to attend trial Any final the trial bundle
factual investigations Supplemental (this is not fee
disclosure and statements (if required) earners’ work)
D Counsel’s brief fee D Counsel’s
D Agreeing brief fee refreshers
D Any pre-trial conferences and advice
from counsel
D Pre-trial liaison with witnesses
Trial D Solicitors’ attendance at trial D Preparation for
D All conferences and other activity trial
outside court hours during the trial D Counsel’s brief
Attendance on witnesses during the trial fee for trial
D Counsel’s trial refreshers (include in trial
D Dealing with draft judgment and preparation)
D related applications
ADR/Settlement D Any conferences and advice from
counsel in relation to settlement
D Work directed to settlement negotiations

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 SECTION A CIVIL PROCEDURE RULES 1998

Phase Includes Does NOT include

and meetings between the parties and
any other ADR (including mediation), to
include Part 36 and other offers and
advising the client
D Approval of settlement if needed
D Drafting settlement agreement or
Tomlin order
D Advice to the client on settlement
(excluding advice included in the pre
action phase)

E. Budget discussion reports

3EPD.6 11. The budget discussion report required by rule 3.13(2) must set out—
(a) those figures which are agreed for each phase;
(b) those figures which are not agreed for each phase; and
(c) a brief summary of the grounds of dispute.
The parties are encouraged to use the Precedent R Budget Discussion Report
annexed to this practice direction.

F. Costs management orders

3EPD.7 12. When reviewing budgeted costs, the court will not undertake a detailed
assessment in advance, but rather will consider whether the budgeted costs fall
within the range of reasonable and proportionate costs.

G. Oppressive behaviour
3EPD.8 13. Any party may apply to the court if it considers that another party is
behaving oppressively in seeking to cause the applicant to spend money
disproportionately on costs and the court will grant such relief as may be
appropriate.
Editorial note
3EPD.9 The Precedents attached to this Practice Direction (Precedents H (costs budget), R (budget
discussion report) and Precedent T (particulars for the variation of a budget)) can be found under
Civil Procedure Forms in the online Civil Procedure Forms Volume. Before October 2020 the diagram
which now forms part of Practice Direction 3E (see para.3EPD.5) was set out in a separate Guid-
ance Note. In October 2019 many amendments were made to the Guidance Note. As a result, the
format of budgets first drafted before October 2019 may differ from the current format. Before
October 2019:
D In Phase 2 (Issue/statements of case) the topic “Amendments to statements of case” appeared
in the “Does not include” column for this phase.
D In Phase 3 (CMC) a new topic “Subsequent CMCs” appeared in the “Does not include”
column for this phase.
D In Phase 8 (Trial Preparation) the item “Counsel’s brief fee” appeared in the “Does not
include” column for this phase.
D In Phase 9 (Trial) the item “Counsel’s brief fee and any refreshers” appeared in the
“Includes” column.
D Phase 10 was then entitled “Settlement” and a reference to ADR was made only in the
“Does not include” column. No reference was made to the topic of “Approval of settlement
if needed”.

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 PRACTICE DIRECTION 3F

PRACTICE DIRECTION 3F—COSTS CAPPING

This Practice Direction supplements Section III of CPR Part 3

Section I—General Rules about Costs Capping

CPR 3
When to make an application
1.1 The court will make a costs capping order only in exceptional 3FPD.1
circumstances.
1.2 An application for a costs capping order must be made as soon as pos-
sible, preferably before or at the first case management hearing or shortly
afterwards. The stage which the proceedings have reached at the time of the
application will be one of the factors the court will consider when deciding
whether to make a costs capping order.

Costs budget
2 The budget required by rule 3.20 must be in the form of Precedent H an- 3FPD.2
nexed to Practice Direction 3E—Costs Management.

Schedule of costs
3 The schedule of costs referred to in rule 3.20(3)— 3FPD.3
(a) must set out—
(i) each sub-heading as it appears in the applicant’s budget (column 1);
(ii) alongside each sub-heading, the amount claimed by the applicant in
the applicant’s budget (column 2); and
(iii) alongside the figures referred to in subparagraph (ii) the amount
that the respondent proposes should be allowed under each sub-
heading (column 3); and
(b) must be supported by a statement of truth.

Assessing the quantum of the costs cap

4.1 When assessing the quantum of a costs cap, the court will take into ac- 3FPD.4
count the factors detailed in rule 44.5 and the relevant provisions supporting
that rule in the Practice Direction supplementing Part 44. When considering a
party’s budget of the costs they are likely to incur in the future conduct of the
proceedings, the court may also take into account a reasonable allowance on
costs for contingencies.

Section II—Costs Capping in Relation to Trust Funds

Costs capping orders in relation to trust funds

5.1 In this Section, “trust fund” means property which is the subject of a 3FPD.5
trust, and includes the estate of a deceased person.
5.2 This Section contains additional provisions to enable—
(a) the parties to consider whether to apply for; and
(b) the court to consider whether to make of its own initiative,
a costs capping order in proceedings relating to trust funds.
5.3 This Section supplements rules 3.19 to 3.21 and Section I of this Practice
Direction.
5.4 Any party to such proceedings who intends to apply for an order for the
payment of costs out of the trust fund must file and serve on all other parties
written notice of that intention together with a budget of the costs likely to be
incurred by that party.
5.5 The documents mentioned in paragraph 5.4 must be filed and served—
(a) in a Part 7 claim, with the first statement of case; and
(b) in a Part 8 claim, with the evidence (or, if a defendant does not intend to
serve and file evidence, with the acknowledgement of service).
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 SECTION A CIVIL PROCEDURE RULES 1998

5.6 When proceedings first come before the court for directions the court
may make a costs capping order of its own initiative whether or not any party
has applied for such an order.

226
 PRACTICE DIRECTION 3G

PRACTICE DIRECTION 3G—REQUESTS FOR THE APPOINTMENT OF AN

ADVOCATE TO THE COURT
This Practice Direction supplements CPR, rule 3.1

CPR 3
Introduction
1. The following provisions are taken from a memorandum agreed between 3GPD.1
the Attorney General and the Lord Chief Justice dated 19 December 2001.
They give guidance about making a request for the appointment of an Advocate
to the Court (formerly called an “amicus curiae”).
2. In most cases, an Advocate to the Court is appointed by the Attorney
General, following a request by the court. In some cases, an Advocate to the
Court will be appointed by the Official Solicitor or the Children & Family
Court Advisory Service (CAFCASS) (see paragraphs 11 and 12 below).

The role of an Advocate to the Court

3. A court may properly seek the assistance of an Advocate to the Court 3GPD.2
when there is a danger of an important and difficult point of law being decided
without the court hearing relevant argument. In those circumstances the At-
torney General may decide to appoint an Advocate to the Court.
4. It is important to bear in mind that an Advocate to the Court represents
no-one. Their function is to give to the court such assistance as they are able on
the relevant law and its application to the facts of the case. An Advocate to the
Court will not normally be instructed to lead evidence, cross-examine wit-
nesses, or investigate the facts. In particular, it is not appropriate for the court
to seek assistance from an Advocate to the Court simply because a defendant in
criminal proceedings refuses representation.
5. The following circumstances are to be distinguished from those where it
will be appropriate for the court to seek the assistance of an Advocate to the
Court—
(a) where a point of law which affects a government department is being
argued in a case where the department is not represented and where the
court believe that the department may wish to be represented;
(b) where the Attorney believes it is necessary for them to intervene as a
party in the Attorney’s capacity as guardian of the public interest;
(c) where the court believes it is appropriate for a litigant in person to seek
free (pro bono) assistance;
(d) where, in a criminal trial, the defendant is unrepresented and the
Advocate to the Court would be duplicating the prosecutor’s duty as a
minister of justice “to assist the court on all matters of law applicable to
the case”;
(e) where in a criminal case in relation to sentencing appeals there are is-
sues of fact which are likely to arise and the prosecution ought to be
represented, or it would be reasonable to ask the prosecutor to be present
and address the court as to the relevant law.
6. In the first of these five cases, the court may invite the Attorney to make
arrangements for the advocate to be instructed on behalf of the department. In
the second, the court may grant the Attorney permission to intervene, in which
case the advocate instructed represents the Attorney. In neither case is the
advocate an Advocate to the Court.
7. In the third case the court may grant a litigant in person an adjournment
to enable them to seek free (pro bono) assistance. In doing so, the court should
bear in mind that it is likely to take longer to obtain free (pro bono) representa-
tion than funded representation. In contrast to an Advocate to the Court, a free
(pro bono) legal representative will obtain their instructions from the litigant
and will represent the interests of that party. Their role before the court and
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 SECTION A CIVIL PROCEDURE RULES 1998

duty to the court will be identical to that of any other representative of the
parties. Accordingly, it will not be appropriate for the court to take such a
course where the type of assistance required is that provided by an Advocate to
the Court.
8. In the fourth case the prosecutor’s special duty is akin to an Advocate to
the Court. In the fifth case, in relation to appeals against sentence where the
defendant is represented, it may be preferable to request the attendance of the
prosecutor who will be able to address the court on issues of fact and law. It
would not be proper for an Advocate to the Court to take instructions from the
prosecuting authority in relation to factual matters relating to the prosecution.
An Advocate to the Court should only be asked to address the court as to the
relevant law.

Making a request to the Attorney General

3GPD.3 9. A request for an Advocate to the Court should be made by the Court as
soon as convenient after it is made aware of the point of law which requires the
assistance of an Advocate to the Court. The request should set out the
circumstances which have occurred, identifying the point of law upon which
assistance is sought and the nature of the assistance required. The court should
consider whether it would be sufficient for such assistance to be in writing in
the form of submissions as to the law, or whether the assistance should include
oral submissions at the hearing. The request should ordinarily be made in writ-
ing and be accompanied by the papers necessary to enable the Attorney to
reach a decision on the basis of a proper understanding of the case.
10. The Attorney will decide whether it is appropriate to provide such as-
sistance and, if so, the form such assistance should take. Before reaching a
decision, the Attorney may seek further information or assistance from the
court. The Attorney will also ask the court to keep under review the need for
such assistance. Where the circumstances which gave rise to the original request
have changed, such that the court may now anticipate hearing all relevant argu-
ment on the point of law without the presence of an Advocate to the Court,
either the Court or the Attorney may ask the Advocate to the Court to withdraw.

Requests to the Official Solicitor or CAFCASS

3GPD.4 11. A request for an Advocate to the Court may be made to the Official
Solicitor or CAFCASS (Legal Services and Special Casework) where the issue is
one in which their experience of representing children and adults under dis-
ability gives rise to special experience. The division of responsibility between
them is outlined in Practice Notes reported at [2001] 2 FLR 151 and [2001] 2
FLR 155.
12. The procedure and circumstances for requesting an Advocate to the
Court to be appointed by the Official Solicitor or CAFCASS are the same as
those applying to requests to the Attorney General. In cases of extreme urgency,
telephone requests may be made. In some cases, the Official Solicitor will be
appointed as Advocate to the Court. The Official Solicitor may be given direc-
tions by the Court authorising the Official Solicitor to obtain documents,
conduct investigations and enquiries and to advise the Court. The Official
Solicitor may appear by counsel or an in-house advocate.
Requests for an Advocate to the Court should be addressed as follows—
The Legal Secretary, The Legal Secretariat to the Law Officers, Attorney
General’s Office, 5–8 The Sanctuary, London SW1P 3JS
Telephone: 020 7271 2492
Office of the Official Solicitor to the Senior Courts, Victory House, 30–34
Kingsway, London WC2B 6EX
Telephone: 020 3681 2600
Fax: 020 3681 2762
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 PRACTICE DIRECTION 3G

E-mail: enquiries@[Link]
CAFCASS (Legal Services [and Special Casework]) 3rd Floor, 21 Bloomsbury
Street, London, WC1B 3HF
Telephone: 0175 323 5272

CPR 3
For information about free (pro bono) services contact:
Bar Pro Bono Unit, 48 Chancery Lane, London WC2A 1JF
Telephone: 020 7092 3960.

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