THE CURRENT IMPORTANCE OF PLEADINGS 10: THE DUTIES ON A PARTY PLEADING ALLEGATIONS OF FRAUD OR DECEIT
Allegations of fraud have to be pleaded with care. Those pleading such assertions must have “reasonably credible material” to support them. Here we look at a case where allegations of deceit were made. The judge found that the allegations had…
PARTS OF A SOLICITORS’ WITNESS STATEMENT ARE STRUCK OUT: A REMINDER – A WITNESS STATEMENT IS A PLACE FOR FACTS, NOT OPINION, LEGAL ARGUMENTS OR ATTEMPTS TO GIVE EXPERT EVIDENCE: IT IS REALLY THAT SIMPLE
There are countless posts on this blog where judges have criticised the contents of witness statements. Here we are looking at a case where the judge struck out parts of a witness statement signed by a solicitor. Parts of the…
PERSONAL INJURY POINTS 3: A SOLICITOR INJURED AT WORK FAILS TO ESTABLISH LIABILITY: A DOOR IS NOT WORK EQUIPMENT
The question of what is work equipment can be a fairly fundamental one for personal injury lawyers. There can still be something akin to strict liability under the provisions of the Employer’s Liability (Defective Equipment) Act 1969. Here we consider…
ANOTHER (YES ANOTHER) CASE OF FAKE AUTHORITIES BEING CITED TO THE COURT: APPEAL STRUCK OUT AS AN ABUSE OF PROCESS
Unbelievably we are looking at another case where the court found that false authorities had been cited to it. The appeal was struck out as an abuse of process. “In my judgment, the Court needs to take decisive action…
THE DEFENDANT’S DELAY LEADS TO COURT OF APPEAL REFUSING TO SET ASIDE DEFAULT JUDGMENT: THE IMPORTANCE OF BEING PROMPT
Today we are looking at a case where a defendant waited 16 months before applying to set aside a default judgment. That application to set aside was successful at first instance but overturned by the Court of Appeal. The Court…
THE JUDGE’S DECISION TO GRANT RELIEF FROM SANCTIONS TO A DEFENDANT WAS APPROPRIATE: SOME WORDS AS TO HOW PEREMPTORY ORDERS SHOULD BE DRAFTED.
Today we are looking at a case where the Court of Appeal upheld a decision granting a defendant relief from sanctions. However this is a case of “two halves” in that the claimant had a more favourable decision in relation…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
PERSONAL INJURY POINTS 1: WHAT DISCOUNT SHOULD BE GIVEN WHEN CARE IS PROVIDED GRATUIOUSLY ? THE COURT REVIEWS THE “STANDARD APPROACH”
For a while now I have planned a series that gives a focal point to the many cases and examples that arise, and are sent to me, in relation to personal injury matters. Many people offer help but the procedural…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 21st MAY 2025
A defendant is entitled to make a Part 36 offer whenever it wants. The making of an early offer can cause major problems for claimants and their lawyers. An understanding of the rules, the relevant cases and the steps that…
THIRD PARTY HAD FUNDED THE LITIGATION AND WAS LIABLE TO PAY THE DEFENDANT’S COSTS : A “CHILDISH AND INEFFECTUAL ATTEMPT” TO DECEIVE THE COURT DID NOT PASS MUSTER
It is a well known principle that a third party funder can be liable to pay the costs of an action. However what happens when the funding agreement is dressed up as something else – a car sale for instance? …
CIVIL PROCEDURE BACK TO BASICS 102: HOW NOT TO WRITE A LEGAL LETTER (2): SOME EXAMPLES – THREATENING TO SUBJECT YOUR OPPONENT TO THE “LEGAL EQUIVALENT OF A PROCTOLOGY EXAM”
We are continuing with this back to basics series with some more examples of how not to write legal correspondence. We are looking at an (extreme) example, some guidance from the SRA and then the principles considered in more recent cases….
CIVIL PROCEDURE BACK TO BASICS 101: HOW NOT TO WRITE A LEGAL LETTER : DIMISSING CRUCIAL POINTS AS “COSMETIC” ERRORS LEADS TO REFERRAL TO THE SRA
There has not been a post in this series for some time. There was one case last week that made me decide to restart the series. It is not difficult to guess which case caused me concern. …
SERVICE OF THE CLAIM FORM UNDER THE ELECTRONIC PILOT: SERVICE BY EMAIL OF AN ELECTRONICALLY SEALED COPY OF THE CLAIM FORM IS GOOD SERVICE
CPR PD510 provides for the electronic issue of a claim form. The claim form will be sealed electronically. What are the consequences for service of the claim form when service takes place by email? This issue was considered (albeit on…
THE COURT DOES NOT REQUIRE EXPERT EVIDENCE TO CONSTRUE A TERM IN AN AGREEMENT: AN EXPERT CANNOT BE USED TO USURP THE FUNCTION OF THE COURT
Is an expert needed to construe a contractual agreement. Here we have a case where the Master was very much against the applicant who sought permission to rely on an expert. An expert was not needed to report on market…
THE CURRENT IMPORTANCE OF PLEADINGS 9: THE PRIMARY FACTS UNDERLYING ALLEGATIONS OF DISHONESTY MUST BE PLEADED
Parties alleging dishonesty and fraud have to be very careful in the way they plead their case. These matters cannot be pleaded lightly, and there are professional obligations on the pleader to ensure that there is reasonably credible material that…
WITNESS STATEMENTS AND FINDINGS OF DISHONESTY BY AN EMPLOYMENT TRIBUNAL: EDMUND BURKE CITED “YOUR REPRESENTATIVE OWES YOU, NOT HIS INDUSTRY ONLY, BUT HIS JUDGEMENT: AND HE BETRAYS YOU INSTEAD OF SERVING YOU IF HE SACRIFIES IT TO YOUR OPINION”
It is rare for this blog to look at Employment Tribunal decisions. However examining the drafting of witness statements is part of its everyday fare. Here we look at a decision where the Tribunal was certain that witness statements had…
EXPERT EVIDENCE AND THE RISKS OF “ANCHORING”: THE EXPERT “GAVE THE SENSE OF TRYING TO ARGUE THE CLAIMANT’S CASE”
Today we are looking at a case where the judge had considerable reservations about expert evidence called on behalf of a claimant. Not all the problems that occurred were the fault of the expert. However she was the third expert…
DEFENDANT REFUSED RELIEF FROM SANCTIONS AND WAS NOT ABLE TO ARGUE ABOUT COSTS (BUT WAS ALLOWED TO ARGUE ABOUT THE WASTED COSTS)
Here we are looking at another aspect of the case we looked at yesterday. Most of the attention in that case relates to the fake cases that the claimant relied upon. However there was criticism of the defendant too. The…
WITNESS STATEMENTS: WHEN THE JUDGE REFERS TO MONKEYS WRITING SHAKESPEARE AND THE CHANCES OF SIMILARITIES BEING AKIN TO THE HEAT DEATH OF THE UNIVERSE – YOU ARE PROBABLY IN TROUBLE
There are countless posts about witness statements on this blog. Most of them reflect judicial commentary that is far from favourable in relation to the way that the statements have been drafted. We see considerable criticism in this case where…
COST BITES 237: “THROUGHOUT HISTORY, LAWYERS HAVE HAD A BAD REPUTATION”: COMMONSENSE AND PROPORTIONALITY CONSIDERED IN THE FAMILY COURTS
Why spend £13,000 to recover a remedy that will only be worth £1,500? That is the issue considered by Deputy District Judge Hodgson [Professor David Hodson OBE KC (Hons)]. An application was made late. The gain to the applicant was…
WHEN CASES RELIED UPON IN WRITTEN ARGUMENTS WERE SIMPLY “FALSE”: WASTED COSTS ORDER MADE AGAINST COUNSEL AND SOLICITORS
This blog celebrates its 12th anniversary next month. Civil Litigation Brief started as a column in the Solicitors Journal 35 years ago. Over that time many people have helpfully sent me and pointed me me to cases of interest. In…
AVOIDING PROBLEMS WITH CLAIMS FOR LOSS OF EARNINGS: A WEBINAR (& CHECKLIST): 14th MAY 2025
There are many ways in which a court can approach a claim for loss of earnings. There are as many ways in which a claim for loss of earnings can go wrong. In recent weeks I have written about cases…
COURT REFUSES DEFENDANT SOLICITORS APPLICATION FOR SUMMARY JUDGMENT: THE ONGOING CONSEQUENCES OF FAILING TO SERVE A CLAIM FORM PROMPTLY
The case we are looking at today involves the consequences, for the solicitors, of failing to serve a claim form. In an earlier case extensions of time for service of a claim form were set aside. The client instructed new…
DOES AN ELECTRONICALLY ISSUED AND SUBSEQUENTLY AMENDED CLAIM FORM REQUIRED RE-SEALING AND FILING PRIOR TO SERVICE? AN IMPORTANT ISSUE CONSIDERED
If a claimant serves a “amended” claim form that has not been resealed does that amount to good service? That issue was considered in the case we are considering today. The result is of considerable practical significance. However it pays…
THE ROLE OF LEADING COUNSEL IN RELATION TO EXPERT REPORTS AND WITNESS STATEMENTS: A CLIENT CAN PAY FOR WHAT THEY WANT, BUT THESE COSTS WILL NOT BE RECOVERABLE INTER PARTES
How far should leading counsel, or counsel generally, be involved in the preparation of expert reports and witness statements? One obvious reply is “not at all”, given that the evidence should come from the expert or witness. These issues were…
COST BITES 236 : COSTS BUDGETING CAN BE RETROSPECTIVE : BUDGET CONSIDERED FROM THE DATE OF THE CCMC NOT 11 MONTHS LATER
Can the court ever set a costs budget retrospectively? In this case the judge held that it could, further there were good reasons for doing so in this case. “I do not accept that the Court is unable to…
DEDUCTIONS OF INSURANCE PAYMENTS FROM PERSONAL INJURY DAMAGES: TWO RECENT CASES CONSIDERED: A POINT FOR BOTH CLAIMANTS AND DEFENDANTS TO WATCH
The principle that insurance payments are sometimes deducted from a claim for personal injury damages is overlooked. Here we are looking at two recent cases where this principle was considered and applied. In one case, at least, the principle does not…
COST BITES 235: HOW IMPORTANT ARE ESTIMATES WHEN DETERMINING SOLICITOR AND OWN CLIENT COSTS?
Most clients will want to know how much legal work is going to cost them. Most lawyers provide an estimate. The question in this case is how significant is that original estimate in a subsequent solicitor and own client assessment? …
CLAIMANT NOT ENTITLED TO SECURITY FOR COSTS: APPLICATION BY A THIRD PARTY WAS NOT A “NEW CLAIM”
Normally only a defendant can apply for security for costs. In this case the claimant applied for security for costs when a third party made an application. The question for the court was – in these circumstances can the applicant…
THE CURRENT IMPORTANCE OF PLEADINGS 8: “ASSERTED LOSS” DID NOT COMPLY WITH THE RULES AND THE CLAIM WAS STRUCK OUT
We are looking at a case where the entire case was struck out on various grounds. The claimant did not attend the hearing to dispute the issues. However I have isolated one ground of the judgment which relates to a…
CHIEF CORONER’S GUIDANCE FOR CORONERS ON THE BENCH: A USEFUL SOURCE OF INFORMATION FOR ALL THOSE INVOLVED IN INQUESTS
Today has been a day for sending out useful links. Here we have a useful link for all those who are involved in inquests. A link to the Chief Coroner’s Guidance for Coroners on the Bench which was revised earlier…
NEW EDITION OF THE KINGS BENCH GUIDE: THE GENERAL CHANGES AND THE GUIDANCE ON ANONYMITY ORDERS
There is a new edition of the King’s Bench Guide. There are some additions and changes. In particular the Guide notes the difference between an application for an anonymity order made at an approval hearing and one that is not….
THE RICS PRACTICE ALERT ON ACTING AS AN EXPERT WITNESS IN HOUSING DISREPAIR AND OTHER HIGH VOLUME CASES: OF INTEREST TO ALL EXPERTS (AND THOSE WHO INSTRUCT THEM)
The RICS has produced a Practice Alert aimed specifically at those acting as expert witnesses in housing disrepair and other high volume cases. It some ways the Alert is surprising in that it says nothing new, that is most of…
ANOTHER CASE OF SOMEONE BREACHING THE EMBARGO ON A DRAFT JUDGMENT: THE DRAFT SHOULD NOT BE HANDED OVER THE THE LAWYER’S MARKETING DEPARTMENT
It is difficult to believe that cases about lawyers accidently breaching a judgment embargo still happen. However the reports keep coming. Prominent firms of solicitors, and barristers’ chambers have, over the years fallen foul of the rules. In particular a…
JUDGE STRIKES OUT CLAIM FOR LOSS OF EARNINGS: IT IS “INCOHERENT” AND OBSTRUCTS THE JUST DISPOSAL OF THE CLAIM
It is an easy matter for a claimant to insert a claim for a substantial loss of earnings into a schedule of damages. However a claimant then has to prove that loss. Further, even prior to trial, a defendant is…
COST BITES 234: A REMINDER THAT A SOLICITORS ACT ASSESSMENT CAN SOMETIMES BE AN EXPENSIVE PROCESS FOR A CLAIMANT
A central aim of this series is to look at what actually happens when costs are assessed. We see an example in the case we are looking at here. It was the claimant’s application for a Solicitors Act assessment of bills…
DEALING WITH THE COUNTER-SCHEDULE AND THE DEFENDANT’S ARGUMENTS IN RELATION TO DAMAGES: WEBINAR 7th MAY 2025
Much of the task of the claimant lawyer concentrates on the task of building up the claim for damages to ensure proper compensation. However it is essential that the lawyer if fully aware of the arguments, case law and principles…
COST BITES 233: VARDY -v- ROONEY: SOME EXTRA TIME ON THE COSTS ISSUES: CLAIMANT’S CONDUCT DID NOT CROSS THE LINE -NO REDUCTION OF COSTS OF APPEAL
In Rebekah Vardy v Coleen Rooney [2025] EWHC 1027 (KB) Mr Justice Cavanagh made some further costs rulings following the dismissal of the defendant’s appeal on issues relating to costs. Firstly he rejected the defendant’s arguments that the claimant’s costs should be…
DEFENDANT GRANTED AN EXTENSION OF TIME TO FILE A DEFENCE : “I AM IN NO DOUBT THAT I SHOULD GRANT THE RETROSPECTIVE APPLICATION OF OF ONE DAY…”
In Ahmad v Comptroller-General of Patents, Designs and Trade Marks [2025] EWHC 936 (Pat) Mr Justice Mellor granted the defendant an extension of one day to file a defence, this had the effect of making the defendant’s applications to strike…
RELIEF FROM SANCTIONS AFTER BREACHING A PEREMPTORY ORDER AND FAILING TO PLEAD A CASE PROPERLY: CLAIMANT ALLOWED TO CONTINUE (IN PART)
We are looking again at the judgment in Michele Carrington v American International Group UK Limited [2025] EWHC 1010 (TCC). This time in relation to the issue of relief from sanctions. The claimant had failed to comply with a peremptory order to…
COST BITES 232: COSTS JUDGE REJECTS ARGUMENT THAT THERE SHOULD BE A “SHORT CUT” TO APPROVAL OF SOLICITOR AND OWN CLIENT COSTS FROM A PROTECTED PARTY’S DAMAGES
A solicitor who wishes to deduct “solicitor and own client” costs in a case involving a minor or protected party requires approval by the Court. Here we have a case where the claimant’s solicitors argued, robustly, that the current process…
THE CURRENT IMPORTANCE OF PLEADINGS 7: “THE CLAIMANT AND WILL NOT BE PERMITTED TO PLEAD SUCH A CLAIM IN BROAD AND VAGUE TERMS”: A CLAIMANT HAS TO PLEAD HOW THE ALLEGED BREACHES HAVE CAUSED THE ALLEGED LOSS
Here we are looking at an application that was all about the claimant’s inadequate pleadings. After putting the defects right (at at third attempt) the case was allowed to proceed – but it was a lengthy and expensive process for…
COST BITES 231: THE CLAIMANT’S REASONABLE VALUATION OF THE CASE MEANT IT DID NOT COME WITHIN THE PRE-ACTION PROTOCOL (HOWEVER THE FACTS OF THE ACCIDENT ITSELF WOULD NOT HAVE TAKEN IT OUTSIDE THE PROTOCOL)
In Julie Johnson v Choice Support [2025] EWHC 1020 (SCCO) Deputy Costs Judge Erwin-Jones decided that the claimant’s initial valuation of a case made it reasonable to start it outside the Pre-Action Valuation Protocol for Low Value Claims. There is also an…
LIABILITY FOR ACCIDENTS INVOLVING OUTDOOR PURSUITS: WEBINAR 3rd SEPTEMBER 2025
As recent events have shown the consequences of proper training, supervision and knowledge of those responsible for running outdoor activities lead to major injuries and fatalities. This webinar considers the key issues and cases on the topic. Booking details are…
CLAIMANT’S CLAIM AGAINST INSURER FAILS: THE INSURED’S FAILURE TO NOTIFY WAS A CONDITION PRECEDENT
Today we are looking at a case where the court considered the impact of The Third Party (Rights against Insurers) Act 2010 in detail. The court decided that the insurer was not liable to indemnify a claimant who had been…
COST BITES 230: CLIENT UNSUCCESSFUL IN APPLICATION FOR ASSESSMENT OF BILLS RENDERED MORE THAN 12 MONTHS PRIOR TO ISSUE: CLAIMANT’S ARGUMENTS GO NOWHERE…
There are numerous cases on this blog where solicitor defendants have encountered major problems, and often come to grief, when faced with applications by clients for solicitor and own client assessments. The judgment of Costs Judge Whalan in Mehta v…
COST BITES 229: THE CORRECT WAY OF CALCULATING A SUCCESS FEE IN A PERSONAL INJURY CASE: THE SOLICITOR DOES NOT HAVE AN AUTOMATIC ENTITLEMENT TO 25% OF THE DAMAGES
The calculation of a “success fee” in a personal injury action is a subject that has been the subject of several cases over the years. The issues were considered by District Judge Lumb in SJ (a minor suing by his mother…
ADDING AN ADDITIONAL PARTY TO A PERSONAL INJURY ACTION AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE TEST IS THAT OF DESIRABILITY RATHER THAN NECESSITY
In Doroudvash v Zurich Insurance PLC [2025] EWCC 10 HHJ Holmes identified a route whereby the claimant in a personal injury case could join an additional defendant into an action after the expiry of the initial limitation period. This construction…
DRAFTING SCHEDULES OF DAMAGES: EFFECTIVE DRAFTING AND AVOIDING THE PITFALLS: WEBINAR 29th APRIL 2025
Over the past few months we have looked at cases where claimants have claimed damages for working 24.4 hours a day, where the contents of a a schedule were found to amount to fundamental dishonesty and where a schedule was…
APPELLANT FILED APPEAL WITH TWO MINUTES TO SPARE: HOWEVER IT WAS FILED IMPROPERLY AND THE APPEAL DISMISSED: THE DANGERS OF HYPERLINKS…
The judgment of Mr Justice Dexter Dias in Kumar v The General Medical Council (Rev1) [2025] EWHC 820 (Admin) contains an important lesson for all litigants. An appellant left filing a notice of appeal until two minutes before the expiry…