Collateral attack (or collateral challenge) describes an attempt to undermine the validity or effect of an existing judgment, order, conviction, administrative decision or instrument in separate proceedings or indirectly (for example, by way of defence), rather than by the proper route of appeal, judicial review or statutory review. The expression is not defined in legislation; its contours are set by case law and the finality doctrines of res judicata, issue estoppel and abuse of process. In England and Wales and Northern Ireland, courts ordinarily bar collateral attacks on earlier determinations (e.g. Hunter v Chief Constable of the West Midlands Police), but permit a defendant to raise public law invalidity as a defence, particularly where the impugned measure is ultra vires or a nullity (e.g. Wandsworth LBC v Winder; Boddington v British Transport Police). In Scotland the same idea operates alongside res judicata; a direct challenge is by reduction, and collateral challenge is generally impermissible unless the prior act is void for lack of jurisdiction. In Ireland, usage is similar: collateral attacks on convictions or final orders are generally treated as an abuse, with exceptions where the earlier decision is void for want of jurisdiction or constitutional invalidity; the proper remedy remains appeal or judicial review. Practically, assess nullity, estoppel and abuse, and consider prompt direct challenge.

Dispute Resolution analysis: This judgment concerns the articulation, application, and interplay of the Phosphate Sewage test, named because of the decision in Phosphate Sewage v Molleson, the doctrine of collateral attack and abuse of the court’s process. Mr Allsop sued his former legal advisers who had acted in prior matrimonial proceedings. Mr Allsop appealed against the strike out of various aspects of his claims, including on grounds that the judge in the lower court had erred in applying the Phosphate Sewage test. The Court of Appeal allowed his appeal, agreeing that the judge should not have relied on the Phosphate Sewage test when finding that the claim constituted an abusive collateral attack on an order made in anterior civil proceedings. Written by Sandip Patel QC FCIArb, managing partner, at Aliant, London.

General principles A claimant is entitled to be compensated for their net losses. As a general rule, a claimant must give credit against their loss for any financial gains that they would not have received but for their injuries. The general rule is that benefits can only be set off against losses of the same type. For example, a pension received is not to be set off against a claim for loss of earnings but it may be set off against a claim for lost pension entitlement. The general rule is subject to certain exceptions. A collateral benefit is ignored when assessing damages so the claimant does not have to give credit for such items. The main examples of collateral benefits where a claimant is not required to give credit are: • insurance payments where the claimant paid or contributed to the insurance premium directly or indirectly (‘the insurance exception’) • charitable assistance by third parties but not the defendant, eg payments made gratuitously ('the benevolence exception') Statute may also create exceptions

Collateral consanguinity describes a blood relationship between people who share a common ancestor but do not descend from one another directly, such as siblings, cousins, aunts, uncles, nieces and nephews. In legal practice across England and Wales, Scotland, Northern Ireland and Ireland, it contrasts with “lineal consanguinity”, which covers ancestors and descendants (parents, children, grandparents, etc.). The concept is relevant in family law (prohibited degrees of marriage or civil partnership), succession and probate (rules of intestate succession and entitlement to estates), conflict of laws, and some capacity and ethics frameworks. Legislation commonly refers instead to “relationship”, “blood relationship” or “prohibited degrees”, but the distinction between lineal and collateral consanguinity is reflected in statutory schemes and case law on inheritance and family relationships. In inheritance law, collateral relatives frequently determine who inherits where there are no surviving spouses, civil partners or lineal descendants. Understanding collateral consanguinity is therefore important when mapping family trees, advising on intestacy, assessing potential claimants, and interpreting terms such as “issue”, “next of kin”, “heir-at-law” and “nearest relative”. Usage and underlying principles are broadly consistent across all four jurisdictions.

Dispute Resolution analysis: The High Court has refused an application for permission to provide documents disclosed and witness statements served in English proceedings to the United States Federal Bureau of Investigation. Hildyard J explained the authorities and clarified the two-part test for collateral use of documents. In a case where trial was imminent, particular emphasis was placed on the requirement for actual and immediate necessity for documents to be produced. Despite a US Subpoena, it was held that there was no true compulsion or pressing need for the documents immediately in order to assist the US investigation. Written by Daniel Webb, barrister at Selborne Chambers.

This Practice Note provides guidance on what, if any, collateral or subsequent use can be made of documents disclosed during the course of civil proceedings and witness statements. This is often referred to as the ‘collateral purpose rule’ and permission is sought under CPR 31.22 and CPR 32.12 in respect of witness statements. It also offers guidance on how you can seek to obtain permission collaterally to use disclosed documents and how you can seek to prevent disclosed documents being used for any purpose other than the proceedings in which they were disclosed. It also considers the use of documents disclosed in other proceedings in subsequent civil proceedings. This Practice Note should be read in conjunction with: • Disclosure—overview • Inspection—overview • Privilege and without prejudice communications—overview For more information on: • the use of documents disclosed in criminal investigations or proceedings, in subsequent civil proceedings—see Practice Note: Civil fraud—frequently asked questions (FAQ)—What if there are parallel civil and criminal fraud proceedings? • non-party access to court documents—see Practice Note: Non-party

Construction analysis: The Inner House of the Court of Session held that the pursuer’s claims against an architect under a collateral warranty were not time-barred. Central to the court’s decision was its finding that the prescriptive periods applying to claims under the collateral warranty and claims under the defender’s original appointment agreement were not coterminous. Rather, the prescriptive period for claims under the collateral warranty could not have begun until the warranty was granted—which was some years after the works were complete.

Consultant 1 The Consultant shall, within 14 days of the Employer's request to do so, execute and deliver a collateral warranty in favour of any Funder,

This diagram illustrates the parties that will typically provide collateral warranties to a funder, purchaser, tenant and/or other beneficiaries on a construction project which has been

This Checklist sets out the key issues to consider when drafting or reviewing a collateral warranty. For an introduction to collateral warranties generally, see Practice Note: What are collateral warranties? Requirement to provide warranties • Does the underlying building contract, consultant’s appointment or sub-contract (as appropriate) require the intended warrantor to provide the warranty (see for example: Collateral warranties clauses)? If not, the intended warrantor is not obliged to give the warranty that is being requested but, if asked, may agree to do so The beneficiaries • It is standard market practice for warranties to be provided to the following beneficiaries: ◦ funders ◦ any first purchaser of the whole or a substantial part ◦ any first tenant of the whole or a substantial part ◦ employer (if the warrantor is a novated consultant or sub-contractor) ◦ freeholder • Any other beneficiaries would be considered unusual and may be resisted by the warrantor (see table: Who gets a collateral warranty?) Consistency with underlying contract • Some provisions must be consistent with the corresponding

These training materials contain template PowerPoint slides and associated notes for use by a trainer when providing a training session on collateral warranties in construction law, to trainee solicitors or others who are new to construction. Topics covered include: what collateral warranties are, which parties would usually provide and receive collateral warranties, the key terms you can expect to find in a warranty and tips on drafting and practical points to note when dealing with collateral warranties. The materials are available in both PowerPoint and Word formats and are fully customisable. Click

A document which provides rights to a party (usually a developer/funder or owner) against a party with whom they have no privity of contract.