The Civil Procedure Rules 1998

• (2) Subject to paragraphs (3) and (4) and to rule 36.12, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn.

(Rule 21.10 deals with compromise, etc. by or on behalf of a child or protected party.)

(Rules 36.9 and 36.10 deal with withdrawal of Part 36 offers.)

• (3) The court’s permission is required to accept a Part 36 offer where—

• (a) rule 36.15(4) applies;

• (b) rule 36.20 (3)(b) applies, the relevant period has expired and further deductible amounts have been paid to the claimant since the date of the offer;

• (c) an apportionment is required under rule 41.3A; or

• (d) a trial is in progress.

(Rule 36.15 deals with offers by some but not all of multiple defendants.)

(Rule 36.20 defines “deductible amounts”.)

(Rule 41.3A requires an apportionment in proceedings under the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934.)

• (4) Where the court gives permission under paragraph (3), unless all the parties have agreed costs, the court must make an order dealing with costs, and may order that the costs consequences set out in rule 36.13 apply.

Time for acceptance of a claimant’s Part 36 offer

36.12

• (1) This rule applies in any case where there has been a trial but the case has not been decided within the meaning of rule 36.3.

• (2) Any Part 36 offer which relates only to parts of the claim or issues that have already been decided can no longer be accepted.

• (3) Subject to paragraph (2) and unless the parties agree, any other Part 36 offer cannot be accepted earlier than 7 clear days after judgment is given or handed down in such trial.

Costs consequences of acceptance of a defendant’s Part 36 offer or Part 36 payment

36.13

• (1) Subject to paragraphs (2) and (4) and to rule 36.23, where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror.

...

• (2) Where—

• (a) a defendant’s Part 36 offer relates to part only of the claim; and

• (b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise.

• (3) Except where the recoverable costs are fixed by these Rules, costs under paragraphs (1) and (2) are to be assessed on the standard basis if the amount of costs is not agreed.

(Rule 44.3(2) explains the standard basis for the assessment of costs.)

(Rule 44.9 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.)

(Part 45 provides for fixed costs in certain classes of case.)

• (4) Where—

• (a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

• (b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or

• (c) subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time,

the liability for costs must be determined by the court unless the parties have agreed the costs.

• (5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—

• (a) the claimant be awarded costs up to the date on which the relevant period expired; and

• (b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

• (6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).

• (7) The claimant’s costs include any costs incurred in dealing with the defendant’s counterclaim if the Part 36 offer states that it takes it into account.

Costs consequences of acceptance of a claimant’s Part 36 offer

36.14

• (1) If a Part 36 offer is accepted, the claim will be stayed.

• (2) In the case of acceptance of a Part 36 offer which relates to the whole claim, the stay will be upon the terms of the offer.

• (3) If a Part 36 offer which relates to part only of the claim is accepted, the claim will be stayed as to that part upon the terms of the offer.

• (4) If the approval of the court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a Part 36 offer will take effect only when that approval has been given.

• (5) Any stay arising under this rule will not affect the power of the court—

• (a) to enforce the terms of a Part 36 offer; or

• (b) to deal with any question of costs (including interest on costs) relating to the proceedings.

• (6) Unless the parties agree otherwise in writing, where a Part 36 offer that is or includes an offer to pay or accept a single sum of money is accepted, that sum must be paid to the claimant within 14 days of the date of—

• (a) acceptance; or

• (b) the order when the court makes an order under rule 41.2 (order for an award of provisional damages) or rule 41.8 (order for an award of periodical payments), unless the court orders otherwise.

• (7) If such sum is not paid within 14 days of acceptance of the offer, or such other period as has been agreed, the claimant may enter judgment for the unpaid sum.

• (8) Where—

• (a) a Part 36 offer (or part of a Part 36 offer) which is not an offer to which paragraph (6) applies is accepted; and

• (b) a party alleges that the other party has not honoured the terms of the offer,

that party may apply to enforce the terms of the offer without the need for a new claim.

The effect of acceptance of a Part 36 offer or a Part 36 payment

36.15

• (1) This rule applies where the claimant wishes to accept a Part 36 offer made by one or more, but not all, of a number of defendants.

• (2) If the defendants are sued jointly or in the alternative, the claimant may accept the offer if—

• (a) the claimant discontinues the claim against those defendants who have not made the offer; and

• (b) those defendants give written consent to the acceptance of the offer.

• (3) If the claimant alleges that the defendants have a several liability(GL) to the claimant, the claimant may—

• (a) accept the offer; and

• (b) continue with the claims against the other defendants if entitled to do so.

• (4) In all other cases the claimant must apply to the court for permission to accept the Part 36 offer.

Payment out of a sum in court on the acceptance of a Part 36 payment

36.16

• (1) A Part 36 offer will be treated as “without prejudice except as to costs”.

• (2) The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided.

• (3) Paragraph (2) does not apply—

• (a) where the defence of tender before claim has been raised;

• (b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;

• (c) where the offeror and the offeree agree in writing that it should not apply; or

• (d) where, although the case has not been decided—

• (i) any part of, or issue in, the case has been decided; and

• (ii) the Part 36 offer relates only to parts or issues that have been decided.

• (4) In a case to which paragraph (3)(d)(i) applies, the trial judge—

• (a) may be told whether or not there are Part 36 offers other than those referred to in paragraph (3)(d)(ii); but

• (b) must not be told the terms of any such other offers unless any of paragraphs (3)(a) to (c) applies.

Acceptance of a Part 36 offer or a Part 36 payment made by one or more, but not all, defendants

36.17

• (1) Subject to rule 36.24, this rule applies where upon judgment being entered—

• (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or

• (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.

...

• (2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.

• (3) Subject to paragraphs (7) and (8), where paragraph (1)(a) applies, the court must, unless it considers it unjust to do so, order that the defendant is entitled to—

• (a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and

• (b) interest on those costs.

• (4) Subject to paragraph (7), where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to—

• (a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

• (b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

• (c) interest on those costs at a rate not exceeding 10% above base rate; and

• (d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—

• (i) the sum awarded to the claimant by the court; or

• (ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—

Amount awarded by the court	Prescribed percentage
Up to £500,000	10% of the amount awarded
Above £500,000	10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure.

• (5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—

• (a) the terms of any Part 36 offer;

• (b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;

• (c) the information available to the parties at the time when the Part 36 offer was made;

• (d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and

• (e) whether the offer was a genuine attempt to settle the proceedings.

• (6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate.

• (7) Paragraphs (3) and (4) do not apply to a Part 36 offer—

• (a) which has been withdrawn;

• (b) which has been changed so that its terms are less advantageous to the offeree where the offeree has beaten the less advantageous offer;

• (c) made less than 21 days before trial, unless the court has abridged the relevant period.

• (8) Paragraph (3) does not apply to a soft tissue injury claim to which rule 36.24 applies.

(Rule 44.2 requires the court to consider an offer to settle that does not have the costs consequences set out in this Section in deciding what order to make about costs.)

Other cases where a court order is required to enable acceptance of a Part 36 offer or a Part 36 payment

36.18

• (1) This rule applies to a claim for damages for personal injury which is or includes a claim for future pecuniary loss.

• (2) An offer to settle such a claim will not have the consequences set out in this Section unless it is made by way of a Part 36 offer under this rule.

• (3) A Part 36 offer to which this rule applies may contain an offer to pay, or an offer to accept—

• (a) the whole or part of the damages for future pecuniary loss in the form of—

• (i) a lump sum;

• (ii) periodical payments; or

• (iii) both a lump sum and periodical payments;

• (b) the whole or part of any other damages in the form of a lump sum.

• (4) A Part 36 offer to which this rule applies—

• (a) must state the amount of any offer to pay or to accept the whole or part of any damages in the form of a lump sum;

• (b) may state—

• (i) what part of the lump sum, if any, relates to damages for future pecuniary loss; and

• (ii) what part relates to other damages to be paid or accepted in the form of a lump sum;

• (c) must state what part of the offer relates to damages for future pecuniary loss to be paid or accepted in the form of periodical payments and must specify—

• (i) the amount and duration of the periodical payments;

• (ii) the amount of any payments for substantial capital purchases and when they are to be made; and

• (iii) that each amount is to vary by reference to the retail prices index (or to some other named index, or that it is not to vary by reference to any index); and

• (d) must state either that any damages which take the form of periodical payments will be funded in a way which ensures that the continuity of payments is reasonably secure in accordance with section 2(4) of the Damages Act 1996 or how such damages are to be paid and how the continuity of their payment is to be secured.

• (5) Rule 36.6 applies to the extent that a Part 36 offer by a defendant under this rule includes an offer to pay all or part of any damages in the form of a lump sum.

• (6) Where the offeror makes a Part 36 offer to which this rule applies and which offers to pay or to accept damages in the form of both a lump sum and periodical payments, the offeree may only give notice of acceptance of the offer as a whole.

• (7) If the offeree accepts a Part 36 offer which includes payment of any part of the damages in the form of periodical payments, the claimant must, within 7 days of the date of acceptance, apply to the court for an order for an award of damages in the form of periodical payments under rule 41.8.

(Practice Direction 41B contains information about periodical payments under the Damages Act 1996.)

Restriction on disclosure of a Part 36 offer or a Part 36 payment

36.19

• (1) An offeror may make a Part 36 offer in respect of a claim which includes a claim for provisional damages.

• (2) Where the offeror does so, the Part 36 offer must specify whether or not the offeror is proposing that the settlement shall include an award of provisional damages.

• (3) Where the offeror is offering to agree to the making of an award of provisional damages, the Part 36 offer must also state—

• (a) that the sum offered is in satisfaction of the claim for damages on the assumption that the injured person will not develop the disease or suffer the type of deterioration specified in the offer;

• (b) that the offer is subject to the condition that the claimant must make any claim for further damages within a limited period; and

• (c) what that period is.

• (4) Rule 36.6 applies to the extent that a Part 36 offer by a defendant includes an offer to agree to the making of an award of provisional damages.

• (5) If the offeree accepts the Part 36 offer, the claimant must, within 7 days of the date of acceptance, apply to the court for an award of provisional damages under rule 41.2.

Costs consequences where claimant fails to do better than a Part 36 offer or a Part 36 payment

36.20

• (1) In this rule and rule 36.11—

• (a) “the 1997 Act” means the Social Security (Recovery of Benefits) Act 1997;

• (b) “the 2008 Regulations” means the Social Security (Recovery of Benefits)(Lump Sum Payments) Regulations 2008;

• (c) “recoverable amount” means—

• (i) “recoverable benefits” as defined in section 1(4)(c) of the 1997 Act; and

• (ii) “recoverable lump sum payments” as defined in regulation 1 of the 2008 Regulations;

• (d) “deductible amount” means—

• (i) any benefits by the amount of which damages are to be reduced in accordance with section 8 of, and Schedule 2 to the 1997 Act (“deductible benefits”); and

• (ii) any lump sum payment by the amount of which damages are to be reduced in accordance with regulation 12 of the 2008 Regulations (“deductible lump sum payments”); and

• (e) “certificate”—

• (i) in relation to recoverable benefits, is construed in accordance with the provisions of the 1997 Act; and

• (ii) in relation to recoverable lump sum payments, has the meaning given in section 29 of the 1997 Act, as applied by regulation 2 of, and modified by Schedule 1 to, the 2008 Regulations.

• (2) This rule applies where a payment to a claimant following acceptance of a Part 36 offer would be a compensation payment as defined in section 1(4)(b) or 1A(5)(b) of the 1997 Act.

• (3) A defendant who makes a Part 36 offer must, where relevant, state either—

• (a) that the offer is made without regard to any liability for recoverable amounts; or

• (b) that it is intended to include any deductible amounts.

• (4) Where paragraph (3)(b) applies, paragraphs (5) to (9) will apply to the Part 36 offer.

• (5) Before making the Part 36 offer, the offeror must apply for a certificate.

• (6) Subject to paragraph (7), the Part 36 offer must state—

• (a) the gross amount of compensation;

• (b) the name and amount of any deductible amounts by which the gross amount is reduced; and

• (c) the net amount of compensation.

• (7) If at the time the offeror makes the Part 36 offer, the offeror has applied for, but has not received, a certificate, the offeror must clarify the offer by stating the matters referred to in paragraph (6)(b) and (c) not more than 7 days after receipt of the certificate.

• (8) For the purposes of rule 36.17(1)(a), a claimant fails to recover more than any sum offered (including a lump sum offered under rule 36.6) if the claimant fails upon judgment being entered to recover a sum, once deductible amounts identified in the judgment have been deducted, greater than the net amount stated under paragraph (6)(c).

(Section 15(2) of the 1997 Act provides that the court must specify the compensation payment attributable to each head of damage. Schedule 1 to the 2008 Regulations modifies section 15 of the 1997 Act in relation to lump sum payments and provides that the court must specify the compensation payment attributable to each or any dependant who has received a lump sum payment.)

• (9) Where—

• (a) further deductible amounts have accrued since the Part 36 offer was made; and

• (b) the court gives permission to accept the Part 36 offer,

the court may direct that the amount of the offer payable to the offeree shall be reduced by a sum equivalent to the deductible amounts paid to the claimant since the date of the offer.

(Rule 36.11(3)(b) states that permission is required to accept an offer where the relevant period has expired and further deductible amounts have been paid to the claimant.)

Costs and other consequences where claimant does better than he proposed in his Part 36 offer

36.21

• (1) This rule applies in any case where the offeror is treated as having filed a costs budget limited to applicable court fees, or is otherwise limited in their recovery of costs to such fees.

(Rule 3.14 provides that a litigant may be treated as having filed a budget limited to court fees for failure to file a budget.)

• (2) “Costs” in rules 36.13(5)(b), 36.17(3)(a) and 36.17(4)(b) shall mean—

• (a) in respect of those costs subject to any such limitation, 50% of the costs assessed without reference to the limitation; together with

• (b) any other recoverable costs.

Interest

36.22

• (1) This Section applies where a claim is one to which Section VI, Section VII or Section VIII of Part 45 applies.

• (2) In this Section—

• (a) “fixed cost medical report” and “soft tissue injury claim” have the meaning ascribed by paragraph 1.1(10A) and (16A) respectively of the RTA Protocol;

• (b) for the purposes of rules 36.23 and 36.24, a defendant’s Protocol offer is either—

• (i) defined in accordance with rules 36.26 and 36.27; or

• (ii) if the claim leaves the Protocol before the Court Proceedings Pack Form is sent to the defendant—

• (aa) the last offer made by the defendant before the claim leaves the Protocol; and

• (bb) deemed to be made on the first business day after the claim leaves the Protocol; and

• (c) reference to—

• (i) the “Court Proceedings Pack Form” is a reference to the form used in the Protocol; and

• (ii) “business day” is a reference to a business day as defined in rule 6.2.

Deduction of benefits

36.23

• (1) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to—

• (a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which notice of acceptance was served on the offeror; and

• (b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII of Part 45 incurred in any period for which costs are payable to them.

• (2) Where—

• (a) a defendant’s Part 36 offer relates to part only of the claim; and

• (b) at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant is entitled to the fixed costs in paragraph (1).

• (3) Subject to paragraphs (4) and (5), where a defendant’s Part 36 offer is accepted after the relevant period—

• (a) the claimant is entitled to—

• (i) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which the relevant period expired; and

• (ii) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them; and

• (b) the claimant is liable for the defendant’s costs in accordance with paragraph (8).

• (4) Where a claim no longer continues under the RTA or EL/PL Protocol, then, subject to paragraph (5), where the claimant accepts the defendant’s Protocol offer after the date on which the claim leaves the Protocol—

• (a) the claimant is entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 10 or Table 11 in Practice Direction 45; and

• (b) the claimant is liable for the defendant’s costs in accordance with paragraph (8).

• (5) In a soft tissue injury claim, if the defendant makes a Part 36 offer before the defendant receives a fixed cost medical report, paragraphs (3) and (4) shall only have effect if the claimant accepts the offer more than 21 days after the defendant received the report.

• (6) Fixed costs shall be calculated by reference to the amount of the offer which is accepted.

• (7) Where the parties do not agree the liability for costs, the court must make an order as to costs.

• (8) Subject to paragraph (9) where the court makes an order for costs in favour of the defendant, the defendant is entitled to—

• (a) the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date of acceptance; and

• (b) any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them,

less the fixed costs to which the claimant is entitled under paragraph (3)(a)(i) or (4).

• (9) Where—

• (a) an order for costs is made pursuant to paragraph (3); and

• (b) the stage applicable at the date on which the relevant period expires and the stage applicable at the date of acceptance are the same,

the defendant is entitled to the fixed costs applicable to that stage.

• (10) The parties are entitled to disbursements allowed in accordance with Section IX of Part 45 incurred in any period for which costs are payable to them.

PART 37 — MISCELLANEOUS PROVISIONS ABOUT PAYMENTS INTO COURT

Money paid into court under a court order	Rule 37.1
Money paid into court where defendant wishes to rely on a defence of tender before claim	Rule 37.2
Payment out of money paid into court	Rule 37.3
Payment into court under enactments	Rule 37.4

Money paid into court under a court order

37.1

A party who makes a payment into court under a court order must—

• (a) serve notice of the payment on every other party; and

• (b) in relation to each such notice, file a certificate of service.

Money paid into court may be treated as a Part 36 payment

37.2

• (1) Where a defendant wishes to rely on a defence of tender before claim (GL) he must make a payment into court of the amount he says was tendered.

• (2) If the defendant does not make a payment in accordance with paragraph (1), the defence of tender before claim will not be available to him until he does so.

Money paid into court where defendant wishes to rely on defence of tender before claim

37.3

Money paid into court under a court order or in support of a defence of tender before claim (GL) may not be paid out without the court’s permission except where—

• (a) a Part 36 offer is accepted without needing the permission of the court; and

• (b) the defendant agrees that a sum paid into court by him should be used to satisfy the offer (in whole or in part).

(Rule 36.11 sets out when the court’s permission is required to accept a Part 36 offer)

Proceedings under Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934—apportionment by court

37.4

A practice direction may set out special provisions with regard to payments into court under various enactments.

PART 38 — DISCONTINUANCE

Scope of this Part	Rule 38.1
Right to discontinue claim	Rule 38.2
Procedure for discontinuing	Rule 38.3
Right to apply to have notice of discontinuance set aside	Rule 38.4
When discontinuance takes effect where permission of the court is not needed	Rule 38.5
Liability for costs	Rule 38.6
Discontinuance and subsequent proceedings	Rule 38.7
Stay of remainder of partly discontinued proceedings where costs not paid	Rule 38.8

Scope of this Part

38.1

• (1) The rules in this Part set out the procedure by which a claimant may discontinue all or part of a claim. A “claim” includes a cause of action or part of one.

• (2) A claimant who—

• (a) claims more than one remedy; and

• (b) subsequently abandons their claim to one or more of the remedies but continues with their claim for the other remedies,

is not treated as discontinuing all or part of a claim for the purposes of this Part.

Right to discontinue claim

38.2

• (1) At any time, a claimant may discontinue all or part of a claim against one or more defendants.

• (2) However—

• (a) a claimant must obtain the permission of the court if they wish to discontinue all or part of a claim in relation to which—

• (i) the court has granted an interim injunction(GL); or

• (ii) any party has given an undertaking to the court;

• (b) where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if—

• (i) the defendant who made the interim payment consents in writing; or

• (ii) the court gives permission;

• (c) where there is more than one claimant, a claimant may not discontinue unless—

• (i) every other claimant consents in writing; or

• (ii) the court gives permission.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure for discontinuing

38.3

• (1) To discontinue a claim or part of a claim, a claimant must—

• (a) file a notice of discontinuance; and

• (b) serve a copy of it on every other party to the proceedings.

• (2) The claimant must state in the notice of discontinuance that they have served notice of discontinuance on every other party to the proceedings.

• (3) Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

• (4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

• (5) A notice of discontinuance must be in Form N279 unless the court permits otherwise.

Right to apply to have notice of discontinuance set aside

38.4

• (1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).

• (2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on them.

When discontinuance takes effect where permission of the court is not needed

38.5

• (1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on them under rule 38.3(1).

• (2) Subject to rule 38.4, the claim is brought to an end as against that defendant on that date.

• (3) However, this does not affect proceedings to deal with any question of costs.

Liability for costs

38.6

• (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

• (2) If proceedings are only partly discontinued—

• (a) the claimant is liable under paragraph (1) for costs relating only to the discontinued part of the proceedings ...; and

• (b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

• (3) This rule does not apply to claims allocated to the small claims track.

Discontinuance and subsequent proceedings

38.7

• (1) A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if—

• (a) they discontinued the claim after the defendant filed a defence or, in a Part 8 claim, filed an acknowledgment of service or written evidence; and

• (b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

• (2) If the claimant considers that permission is needed, the application for permission shall be included in the claim form and claim will proceed only if permission is granted.

• (3) The defendant shall inform the court in writing as soon as practicable whether the defendant asserts that permission is needed and, if so, whether the defendant consents to permission being granted.

• (4) If the parties agree that permission should be granted, the court shall issue an order granting permission on the papers or make such other order as it thinks fit.

• (5) If the parties disagree about whether permission should be granted, the court shall determine the issue either at a hearing or, in its discretion, on the papers after receiving written representations.

• (6) The defendant is not required to file an acknowledgment of service unless and until permission is granted.

Stay of remainder of partly discontinued proceedings where costs not paid

38.8

• (1) This rule applies where—

• (a) proceedings are partly discontinued;

• (b) a claimant is liable to—

• (i) pay costs under rule 38.6; or

• (ii) make a payment pursuant to an order under section 194(3) of the Legal Services Act 2007; and

• (c) the claimant fails to pay those costs or make the payment within 14 days of—

• (i) the date on which the parties agreed the sum payable by the claimant; or

• (ii) the date on which the court ordered the costs to be paid or the payment to be made.

• (2) Where this rule applies, the court may stay(GL) the remainder of the proceedings until the claimant pays the whole of the costs which the claimant is liable to pay under rule 38.6 or makes the payment pursuant to an order under section 194(3) of the Legal Services Act 2007

(Rules 44.9 and 46.7 contain provisions about applying for an order under section 194(3) of the Legal Services Act 2007.)

PART 39 — MISCELLANEOUS PROVISIONS RELATING TO HEARINGS

Interpretation	Rule 39.1
General rule—hearing to be in public	Rule 39.2
Failure to attend the trial	Rule 39.3
Timetable for trial	Rule 39.4
Trial bundles	Rule 39.5
Representation at trial of companies or other corporations	Rule 39.6
Impounded documents	Rule 39.7
Communications with the court	Rule 39.8
Recording and transcription of proceedings	Rule 39.9
Discontinuance and settlement	Rule 39.10

Interpretation

39.1

• (1) In this Part—

• (a) “hearing” means the occasion on which any interim or final decision is or may be made by a judge, at which a person is, or has the right be, heard in person, by telephone, by video or by any other means which permits simultaneous communication; and

• (b) “judge” has the same meaning as in rule 2.3(1).

• (2) This Part is subject to rule 62.10 (hearings in arbitration claims).

General rule—hearing to be in public

39.2

• (1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).

• (2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.

• (2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.

• (3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice—

• (a) publicity would defeat the object of the hearing;

• (b) it involves matters relating to national security;

• (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

• (d) a private hearing is necessary to protect the interests of any child or protected party;

• (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

• (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

• (g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

• (4) The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of any person.

• (5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.

Failure to attend the trial

39.3

• (1) The court may proceed with a trial in the absence of a party but—

• (a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;

• (b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

• (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

• (2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

• (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).

• (4) An application under paragraph (2) or paragraph (3) ... must be supported by evidence.

• (5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant—

• (a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;

• (b) had a good reason for not attending the trial; and

• (c) has a reasonable prospect of success at the trial.

Timetable for trial

39.4

When the court sets a timetable for a trial in accordance with rule 28.5 (fixing or confirming the trial date and giving directions ...) or rule 29.8 (setting a trial timetable and ...confirming the trial date or week—multi-track) it will do so in consultation with the parties.

Trial bundles

39.5

• (1) Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by—

• (a) a relevant practice direction; and

• (b) any court order.

• (2) The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.

Representation at trial of companies or other corporations

39.6

A company or other corporation may be represented at trial by an employee if—

• (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and

• (b) the court gives permission.

Impounded documents

39.7

• (1) Documents impounded by order of the court must not be released from the custody of the court except in compliance—

• (a) with a court order; or

• (b) with a written request made by a Law Officer or the Director of Public Prosecutions.

• (2) A document released from the custody of the court under paragraph(1)(b) must be released into the custody of the person who requested it.

• (3) Documents impounded by order of the court, while in the custody of the court, may not be inspected except by a person authorised to do so by a court order.

PART 40 — JUDGMENTS, ORDERS, SALE OF LAND ETC

Scope of this Part	Rule 40.1
Standard requirements	Rule 40.2
Drawing up and filing of judgments and orders	Rule 40.3
Service of judgments and orders	Rule 40.4
Power to require judgment or order to be served on a party as well as his solicitor	Rule 40.5
Consent judgments and orders	Rule 40.6
When judgment or order takes effect	Rule 40.7
Time from which interest begins to run	Rule 40.8
Who may apply to set aside or vary a judgment or order	Rule 40.9
Judgment against a State in default of acknowledgment of service	Rule 40.10
Time for complying with a judgment or order	Rule 40.11
Correction of errors in judgments and orders	Rule 40.12
Cases where court gives judgment both on claim and counterclaim	Rule 40.13
Judgment in favour of certain part owners relating to the detention of goods	Rule 40.14

Scope of this Part

40.1

This Section sets out rules about judgments and orders which apply except where any other of these Rules or a practice direction makes a different provision in relation to the judgment or order in question.

Standard requirements

40.2

• (1) Every judgment or order must state the name and judicial title of the person who made it, unless it is—

• (a) default judgment entered under rule 12.4(1) (entry of default judgment where judgment is entered by a court officer) or a default costs certificate obtained under rule 47.11;

• (b) judgment on admission entered under Part 14 where judgment is entered by a court officer;

• (c) a consent order under rule 40.6(2) (consent orders made by court officers) ;

• (d) an order made by a court officer under rule 70.5 (orders to enforce awards as if payable under a court order); or

• (e) an order made by a court officer under rule 71.2 (orders to obtain information from judgment debtors).

• (2) Every judgment or order must—

• (a) bear the date on which it is given or made; and

• (b) be sealed(GL) by the court.

• (3) Paragraph (4) applies where a party applies for permission to appeal against a judgment or order at the hearing at which the judgment or order was made or any adjournment of that hearing.

• (4) Where this paragraph applies, the judgment or order shall state—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) whether an appeal lies from the judgment or order and, if so, to which appeal court , with an indication of the division of the High Court where the High Court is the appeal court;

• (c) whether the court gives permission to appeal; and

• (d) if not, the appropriate appeal court , including the appropriate division where relevant, to which any further application for permission may be made.

Drawing up and filing of judgments and orders

40.3

• (1) Except as is provided at paragraph (4) below or by any Practice Direction, every judgment or order will be drawn up by the court unless—

• (a) the court orders a party to draw it up;

• (b) a party, with the permission of the court, agrees to draw it up;

• (c) the court dispenses with the need to draw it up; or

• (d) it is a consent order under rule 40.6.

• (2) The court may direct that—

• (a) a judgment or an order drawn up by a party must be checked by the court before it is sealed(GL); or

• (b) before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms.

• (3) Where a judgment or an order is to be drawn up by a party—

• (a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed(GL) by the court; and

• (b) if he fails to file it within that period, any other party may draw it up and file it.

• (4) Except for orders made by the court of its own initiative and unless the court otherwise orders, every judgment or order made in claims proceeding in the King’s Bench Division at the Royal Courts of Justice, other than in the Administrative Court, will be drawn up by the parties, and rule 40.3 is modified accordingly.

Service of judgments and orders

40.4

• (1) Where a judgment or an order has been drawn up by a party and is to be served by the court—

• (a) the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties; and

• (b) once it has been sealed(GL), the court must serve a copy of it on each party to the proceedings.

• (2) Unless the court directs otherwise, any order made otherwise than at trial must be served on—

• (a) the applicant and the respondent; and

• (b) any other person on whom the court orders it to be served.

(Rule 6.21 sets out who is to serve a document other than the claim form.)

Power to require judgment or order to be served on a party as well as his solicitor

40.5

Where the party on whom a judgment or order is to be served is acting by a solicitor, the court may order the judgment or order to be served on the party as well as on his solicitor.

Consent judgments and orders

40.6

• (1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

• (2) A court officer may enter and seal(GL) an agreed judgment or order if—

• (a) the judgment or order is listed in paragraph (3);

• (b) none of the parties is a litigant in person; and

• (c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

• (3) The judgments and orders referred to in paragraph (2) are—

• (a) a judgment or order for—

• (i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or

• (ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.

• (b) an order for—

• (i) the dismissal of any proceedings, wholly or in part;

• (ii) the stay(GL) of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;

• (iii) the stay(GL) of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;

• (iv) the setting aside under Part 13 of a default judgment which has not been satisfied;

• (v) the payment out of money which has been paid into court;

• (vi) the discharge from liability of any party;

• (vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.

• (4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders entered and sealed(GL) by a court officer under paragraph (2) as it applies to other judgments and orders.

• (5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.

• (6) The court may deal with an application under paragraph (5) without a hearing.

• (7) Where this rule applies—

• (a) the order which is agreed by the parties must be drawn up in the terms agreed;

• (b) it must be expressed as being “By Consent”;

• (c) it must be signed by the legal representative acting for each of the parties to whom the order relates or, where paragraph (5) applies, by the party if he is a litigant in person.

When judgment or order takes effect

40.7

• (1) A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.

• (2) This rule applies to all judgments and orders except those to which rule 40.10 (judgment against a State) applies.

Time from which interest begins to run

40.8

• (1) Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838[^f00048] or section 74 of the County Courts Act 1984[^f00049], the interest shall begin to run from the date that judgment is given unless—

• (a) a rule in another Part or a practice direction makes different provision; or

• (b) the court orders otherwise.

• (2) The court may order that interest shall begin to run from a date before the date that judgment is given.

Who may apply to set aside or vary a judgment or order

40.9

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Judgment against a State in default of acknowledgment of service

40.10

• (1) Where the claimant obtains default judgment under Part 12 on a claim against a State where the defendant has failed to file an acknowledgment of service, the judgment does not take effect until 2 months after service on the State of—

• (a) a copy of the judgment; and

• (b) a copy of the evidence in support of the application for permission to enter default judgment (unless the evidence has already been served on the State in accordance with an order made under Part 12).

• (2) In this rule, “State” has the meaning given by section 14 of the State Immunity Act 1978[^f00050].

Time for complying with a judgment or order

40.11

A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless—

• (a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);

• (b) any of these Rules specifies a different date for compliance; or

• (c) the court has stayed the proceedings or judgment.

Correction of errors in judgments and orders

40.12

• (1) The court may at any time correct an accidental slip or omission in a judgment or order.

• (2) A party may apply for a correction without notice.

Cases where court gives judgment both on claim and counterclaim

40.13

• (1) This rule applies where the court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.

• (2) If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.

• (3) In a case to which this rule applies, the court may make a separate order as to costs against each party.

Judgment in favour of certain part owners relating to the detention of goods

40.14

• (1) In this rule “part owner” means one of two or more persons who have an interest in the same goods.

• (2) Where—

• (a) a part owner makes a claim relating to the detention of the goods; and

• (b) the claim is not based on a right to possession,

any judgment or order given or made in respect of the claim is to be for the payment of damages only, unless the claimant had the written authority of every other part owner of the goods to make the claim on his behalf as well as for himself.

• (3) This rule applies notwithstanding anything in subsection (3) of section 3 of the Torts (Interference with Goods) Act 1977[^f00051], but does not affect the remedies and jurisdiction mentioned in subsection (8) of that section.

PART 41 — DAMAGES

I – PROCEEDINGS TO WHICH SECTION 32A OF THE SUPREME COURT ACT 1981 OR SECTION 51 OF THE COUNTY COURTS ACT 1984 APPLIES	I – PROCEEDINGS TO WHICH SECTION 32A OF THE SUPREME COURT ACT 1981 OR SECTION 51 OF THE COUNTY COURTS ACT 1984 APPLIES
Application and definitions	Rule 41.1
Order for an award of provisional damages	Rule 41.2
Application for further damages	Rule 41.3
IA APPORTIONMENT IN FATALITY CASES	IA APPORTIONMENT IN FATALITY CASES
Apportionment in fatality cases	Rule 41.3A
II – PERIODICAL PAYMENTS UNDER THE DAMAGES ACT 1996	II – PERIODICAL PAYMENTS UNDER THE DAMAGES ACT 1996
Scope and interpretation	Rule 41.4
Statement of case	Rule 41.5
Court’s indication to parties	Rule 41.6
Factors to be taken into account	Rule 41.7
The award	Rule 41.8
Continuity of payment	Rule 41.9
Assignment or charge	Rule 41.10

Application and definitions

41.1

• (1) This Section of this Part applies to proceedings to which SCA s.32A or CCA s.51 applies.

• (2) In this Section—

• (a) “SCA s.32A” means section 32A of the Supreme Court Act 1981[^f00052];

• (b) “CCA s.51” means section 51 of the County Courts Act 1984[^f00053]; and

• (c) “award of provisional damages” means an award of damages for personal injuries under which—

• (i) damages are assessed on the assumption referred to in SCA s.32A or CCA s.51 that the injured person will not develop the disease or suffer the deterioration; and

• (ii) the injured person is entitled to apply for further damages at a future date if he develops the disease or suffers the deterioration.

Order for an award of provisional damages

41.2

• (1) The court may make an order for an award of provisional damages if—

• (a) the particulars of claim include a claim for provisional damages; and

• (b) the court is satisfied that SCA s.32A or CCA s.51 applies.

Application for further damages

41.3

• (1) The claimant may not make an application for further damages after the end of the period specified under rule 41.2(2), or such period as extended by the court.

• (2) Only one application for further damages may be made in respect of each disease or type of deterioration specified in the award of provisional damages.

• (3) The claimant must give at least 28 days written notice to the defendant of his intention to apply for further damages.

• (4) If the claimant knows—

• (a) that the defendant is insured in respect of the claim; and

• (b) the identity of the defendant’s insurers,

he must also give at least 28 days written notice to the insurers.

• (5) Within 21 days after the end of the 28 day notice period referred to in paragraphs (3) and (4), the claimant must apply for directions.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 42 — CHANGE OF SOLICITOR

Solicitor acting for a party	Rule 42.1
Change of solicitor—duty to give notice	Rule 42.2
Order that a solicitor has ceased to act	Rule 42.3
Removal of solicitor who has ceased to act on application of another party	Rule 42.4

Solicitor acting for a party

42.1

• (1) Where the address for service of a party is the business address of that party’s solicitor, the solicitor will be considered to be acting for that party until the provisions of this Part have been complied with.

• (2) For the purposes of this Part, “solicitor” has the meaning set out in rule 6.2(d).

Change of solicitor—duty to give notice

42.2

• (1) This rule applies where—

• (a) a party for whom a solicitor is acting wants to change his solicitor;

• (b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); or

• (c) a party, after having conducted the claim by a solicitor, intends to act in person.

• (2) Where this rule applies, the party or his solicitor (where one is acting) must—

• (a) file notice of the change; and

• (b) serve notice of the change on every other party and, where paragraph (1)(a) or (c) applies, on the former solicitor.

• (3) Except in the case of notice filed at court using MyHMCTS, the notice must state the party’s new address for service.

• (4) The notice filed at court must state that notice has been served as required by paragraph (2)(b).

• (5) Subject to paragraph (6), where a party has changed his solicitor or intends to act in person, the former solicitor will be considered to be the party’s solicitor unless and until—

• (a) notice is filed and served in accordance with paragraph (2); or

• (b) the court makes an order under rule 42.3 and the order is served as required by paragraph (3) of that rule.

• (6) Where the determination that a person qualifies for civil legal services under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is provided is revoked or withdrawn—

• (a) the solicitor who acted for that person will cease to be a solicitor acting in the case as soon as the solicitor’s retainer is determined under regulation ... 41 of the Civil Legal Aid (Procedure) Regulations 2012; and

• (b) if that person wishes to continue—

• (i) where he appoints a solicitor to act on his behalf, paragraph (2) will apply as if he had previously conducted the claim in person; and

• (ii) where he wants to act in person, he must give an address for service.

(Rules 6.23 and 6.24 contain provisions about a party’s address forservice.)

...

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Order that a solicitor has ceased to act

42.3

• (1) A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.

• (2) Where an application is made under this rule—

• (a) notice of the application must be given to the party for whom the solicitor is acting, unless the court directs otherwise; and

• (b) the application must be supported by evidence.

• (3) Where the court makes an order that a solicitor has ceased to act—

• (a) a copy of the order must be served on every party to the proceedings; and

• (b) if it is served by a party or the solicitor, the party or the solicitor (as the case may be) must file a certificate of service.

Removal of solicitor who has ceased to act on application of another party

42.4

• (1) Where—

• (a) a solicitor who has acted for a party—

• (i) has died;

• (ii) has become bankrupt;

• (iii) has ceased to practice; or

• (iv) cannot be found; and

• (b) the party has not given notice of a change of solicitor or notice of intention to act in person as required by rule 42.2(2),

any other party may apply for an order declaring that the solicitor has ceased to be the solicitor acting for the other party in the case.

• (2) Where an application is made under this rule, notice of the application must be given to the party to whose solicitor the application relates unless the court directs otherwise.

• (3) Where the court makes an order made under this rule—

• (a) a copy of the order must be served on every other party to the proceedings; and

• (b) where it is served by a party, that party must file a certificate of service.

PART 43 — SCOPE OF COST RULES AND DEFINITIONS

Scope of this Part	Rule 43.1
Definitions and application	Rule 43.2
Meaning of summary assessment	Rule 43.3
Meaning of detailed assessment	Rule 43.4

Scope of this Part

43.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions and application

43.2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of summary assessment

43.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of detailed assessment

43.4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 44 — General Rules about Costs

	SECTION I GENERAL
44.1	Interpretation and application
44.2	Court’s discretion as to costs
44.3	Basis of assessment
44.4	Factors to be taken into account in deciding the amount of costs
44.5	Amount of costs where costs are payable under a contract
44.6	Procedure for assessing costs
44.7	Time for complying with an order for costs
44.8	Legal representative’s duty to notify the party
44.9	Cases where costs orders deemed to have been made
44.10	Where the court makes no order for costs
44.11	Court’s powers in relation to misconduct
44.12	Set off
	SECTION II QUALIFIED ONE-WAY COSTS SHIFTING
44.13	Qualified one-way costs shifting: scope and interpretation
44.14	Effect of qualified one-way costs shifting
44.15	Exceptions to qualified one-way costs shifting where permission not required
44.16	Exceptions to qualified one-way costs shifting where permission required
44.17	Transitional provision
	SECTION III DAMAGES-BASED AGREEMENTS
44.18	Award of costs where there is a damages-based agreement

Scope of this Part

44.1

• (1) In Parts 44 to 47, unless the context otherwise requires—

• “authorised court officer” means any officer of— the County Court;a district registry;the the Family Court; the High Court; or the Costs Office,whom the Lord Chancellor has authorised to assess costs;

• “conditional fee agreement” means an agreement enforceable under section 58 of the Courts and Legal Services Act 1990 ;

• “costs” includes fees, charges, disbursements, expenses, remuneration, reimbursement allowed to a litigant in person under rule 46.5 and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track;

• “costs judge” means a taxing master of the Senior Courts;

• “Costs Office” means the Senior Courts Costs Office;

• “costs officer” means—a costs judge;a District Judge; oran authorised court officer;

• “detailed assessment” means the procedure by which the amount of costs is decided by a costs officer in accordance with Part 47;

• “the Director (legal aid)” means the person designated as the Director of Legal Aid Casework pursuant to section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or a person entitled to exercise the functions of the Director;

• ‘fixed costs’ means costs, the amounts of which are fixed by these Rules;

• “free of charge” has the same meaning as in section 194(10) of the 2007 Act;

• “fund” includes any estate or property held for the benefit of any person or class of person and any fund to which a trustee or personal representative is entitled in that capacity;

• “HMRC” means HM Revenue and Customs;

• “legal aid” means civil legal services made available under arrangements made for the purposes of Part 1of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

• “paying party” means a party liable to pay costs;

• “the prescribed charity” has the same meaning as in section 194(8) of the 2007 Act;

• “pro bono representation” means legal representation provided free of charge;

• “receiving party” means a party entitled to be paid costs;

• “summary assessment” means the procedure whereby costs are assessed by the judge who has decided the case or application or where rule 44.6(2) applies;

• “VAT” means Value Added Tax;

• “the 2007 Act” means the Legal Services Act 2007 .

(“Legal representative” has the meaning given in rule 2.3).

• (2) The costs to which Parts 44 to 47 apply include—

• (a) the following costs where those costs may be assessed by the court—

• (i) costs of proceedings before an arbitrator or umpire;

• (ii) costs of proceedings before a tribunal or other statutory body; and

• (iii) costs payable by a client to their legal representative; and

• (b) costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.

• (3) Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under Parts 44 to 47 notwithstanding that the client is liable to pay the legal representative’s fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.

Solicitor’s duty to notify client

44.2

• (1) The court has discretion as to—

• (a) whether costs are payable by one party to another;

• (b) the amount of those costs; and

• (c) when they are to be paid.

• (2) If the court decides to make an order about costs—

• (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

• (b) the court may make a different order.

• (3) The general rule does not apply to the following proceedings—

• (a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

• (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

• (4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—

• (a) the conduct of all the parties;

• (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

• (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

• (5) The conduct of the parties includes—

• (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

• (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

• (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; ...

• (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim ; and

• (e) whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution.

• (6) The orders which the court may make under this rule include an order that a party must pay—

• (a) a proportion of another party’s costs;

• (b) a stated amount in respect of another party’s costs;

• (c) costs from or until a certain date only;

• (d) costs incurred before proceedings have begun;

• (e) costs relating to particular steps taken in the proceedings;

• (f) costs relating only to a distinct part of the proceedings; and

• (g) interest on costs from or until a certain date, including a date before judgment.

• (7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.

• (8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.

• (9) In respect of a SLAPP claim, a court may not exercise its discretion so as to order a defendant to pay a claimant’s costs except where, in the court’s view, misconduct of the defendant in relation to the claim justifies such an order.

• (10) For the purposes of paragraph (9), a SLAPP claim is strategic litigation against public participation being a SLAPP claim within the meaning of section 195 of the Economic Crime and Corporate Transparency Act 2023.

(Rules 20.2 and 20.3 provide that counterclaims and other additional claims are treated as claims and that references to a claimant or a defendant include a party bringing or defending an additional claim.)

Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs

44.3

• (1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs—

• (a) on the standard basis; or

• (b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)

• (2) Where the amount of costs is to be assessed on the standard basis, the court will—

• (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

• (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

(Factors which the court may take into account are set out in rule 44.4.)

• (3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

• (4) Where—

• (a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

• (b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis,

the costs will be assessed on the standard basis.

• (5) Costs incurred are proportionate if they bear a reasonable relationship to—

• (a) the sums in issue in the proceedings;

• (b) the value of any non-monetary relief in issue in the proceedings;

• (c) the complexity of the litigation;

• (d) any additional work generated by the conduct of the paying party; ...

• (e) any wider factors involved in the proceedings, such as reputation or public importance ; and

• (f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.

• (6) Where the amount of a solicitor’s remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974 , the amount of the costs to be allowed in respect of any such business which falls to be assessed by the court will be decided in accordance with those general orders rather than this rule and rule 44.4.

• (7) Paragraphs (2)(a) and (5) do not apply in relation to—

• (a) cases commenced before 1st April 2013; or

• (b) costs incurred in respect of work done before 1st April 2013,

and in relation to such cases or costs, rule 44.4.(2)(a) as it was in force immediately before 1st April 2013 will apply instead.

Basis of assessment

44.4

• (1) The court will have regard to all the circumstances in deciding whether costs were—

• (a) if it is assessing costs on the standard basis—

• (i) proportionately and reasonably incurred; or

• (ii) proportionate and reasonable in amount, or

• (b) if it is assessing costs on the indemnity basis—

• (i) unreasonably incurred; or

• (ii) unreasonable in amount.

• (2) In particular, the court will give effect to any orders which have already been made.

• (3) The court will also have regard to—

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

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

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

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

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

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

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

• (f) the time spent on the case;

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

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

(Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert.)

Factors to be taken into account in deciding the amount of costs

44.5

• (1) Subject to paragraphs (2) and (3), where the court assesses (whether by summary or detailed assessment) costs which are payable by the paying party to the receiving party under the terms of a contract, the costs payable under those terms are, unless the contract expressly provides otherwise, to be presumed to be costs which—

• (a) have been reasonably incurred; and

• (b) are reasonable in amount,

and the court will assess them accordingly.

• (2) The presumptions in paragraph (1) are rebuttable. Practice Direction 44 – General rules about costs sets out circumstances where the court may order otherwise.

• (3) Paragraph (1) does not apply where the contract is between a solicitor and client.

Fixed costs

44.6

• (1) Where the court orders a party to pay costs to another party (other than fixed costs) it may ...—

• (a) make a summary assessment of the costs; ...

• (b) give directions for the summary assessment of the costs to be made at a later date; or

• (c) order detailed assessment of the costs by a costs officer,

unless any rule, practice direction or other enactment provides otherwise.

(Practice Direction 44 – General rules about costs sets out the factors which will affect the court’s decision under paragraph (1).)

• (2) Where a direction has been given under paragraph (1)(b), another judge who could have decided the claim or application which gave rise to the costs order may make the summary assessment if there is good reason to do so.

• (3) A party may recover the fixed costs specified in Part 45 in accordance with that Part.

Procedure for assessing costs

44.7

• (1) A party must comply with an order for the payment of costs within 14 days of—

• (a) the date of the judgment or order if it states the amount of those costs;

• (b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or

• (c) in either case, such other date as the court may specify.

(Part 47 sets out the procedure for detailed assessment of costs.)

Time for complying with an order for costs

44.8

Where—

• (a) the court makes a costs order against a legally represented party; and

• (b) the party is not present when the order is made,

the party’s legal representative must notify that party in writing of the costs order no later than 7 days after the legal representative receives notice of the order.

(Paragraph 10.1 of Practice Direction 44 defines “party” for the purposes of this rule.)

Costs on the small claims track and fast track

44.9

• (1) Subject to paragraph (2), where a right to costs arises under—

• (a) rule 3.7 or 3.7A1 (defendant’s right to costs where claim is struck out for non-payment of fees);

• (a1) rule 3.7B (sanctions for dishonouring cheque);

• (b) rule 36.13 (1) or (2) (claimant’s entitlement to costs where a Part 36 offer is accepted); or

• (c) rule 38.6 (defendant’s right to costs where claimant discontinues),

a costs order will be deemed to have been made on the standard basis , save that where the claim is one to which the provisions of Part 27 or Part 45 would otherwise apply, the costs shall be determined in accordance with those Parts.

• (2) Paragraph 1(b) does not apply where a Part 36 offer is accepted before the commencement of proceedings.

• (3) Where such an order is deemed to be made in favour of a party with pro bono representation, that party may apply for an order under section 194(3) of the 2007 Act.

• (4) Interest payable under section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984 on the costs deemed to have been ordered under paragraph (1) will begin to run from the date on which the event which gave rise to the entitlement to costs occurred.

Limitation on amount court may allow where a claim allocated to the fast track settles before trial

44.10

• (1) Where the court makes an order which does not mention costs—

• (a) subject to paragraphs (2) and (3), the general rule is that no party is entitled—

• (i) to costs; or

• (ii) to seek an order under section 194(3) of the 2007 Act,

in relation to that order; but

• (b) this does not affect any entitlement of a party to recover costs out of a fund held by that party as trustee or personal representative, or under any lease, mortgage or other security.

• (2) Where the court makes—

• (a) an order granting permission to appeal;

• (b) an order granting permission to apply for judicial review; or

• (c) any other order or direction sought by a party on an application without notice,

and its order does not mention costs, it will be deemed to include an order for applicant’s costs in the case.

• (3) Any party affected by a deemed order for costs under paragraph (2) may apply at any time to vary the order.

• (4) The court hearing an appeal may, unless it dismisses the appeal, make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.

• (5) Subject to any order made by the transferring court, where proceedings are transferred from one court to another, the court to which they are transferred may deal with all the costs, including the costs before the transfer.

Costs following allocation and re-allocation

44.11

• (1) The court may make an order under this rule where—

• (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or

• (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.

• (2) Where paragraph (1) applies, the court may—

• (a) disallow all or part of the costs which are being assessed; or

• (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.

• (3) Where—

• (a) the court makes an order under paragraph (2) against a legally represented party; and

• (b) the party is not present when the order is made,

the party’s legal representative must notify that party in writing of the order no later than 7 days after the legal representative receives notice of the order.

Cases where costs orders deemed to have been made

44.12

• (1) Where a party entitled to costs is also liable to pay costs, the court may assess the costs which that party is liable to pay and either—

• (a) set off the amount assessed against the amount the party is entitled to be paid and direct that party to pay any balance; or

• (b) delay the issue of a certificate for the costs to which the party is entitled until the party has paid the amount which that party is liable to pay.

Special situations

44.13

• (1) This Section applies to proceedings which include a claim for damages—

• (a) for personal injuries;

• (b) under the Fatal Accidents Act 1976; or

• (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,

but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.

• (2) In this Section, “claimant” means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.

Court’s powers in relation to misconduct

44.14

• (1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for , or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.

• (2) For the purposes of this Section, orders for costs includes orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.