“LITIGANTS IN PERSON SHOULD BE WARY OF UNQUALIFIED INDIVIDUALS WHO ENCOURAGE THEM TO DEFEND OR PURSUE CASES BY REFERENCE TO SPURIOUS LEGAL ARGUMENTS, WHICH HAVE NOTHING TO DO WITH THE SUBSTANCE OF THE CASE”
It is rare for this blog to look at judgments from other jurisdictions. However some words from the High Court of Ireland caught my eye. It offers advice, in particular, to litigants in person. (This is not a warning in…
THE CLAIMANT RELIED ON A FALSE AUTHORITY: THE CONTEXT OF THIS CASE MADE IT DIFFICULT FOR THE LITIGANT TO CHECK THE CITATION
We are looking again at the phenomenon of “false” authorities. However in this case the courts were more forgiving of the litigant who had relied on a non-existent case. The judgment does, however, show the need for care in legal…
PROVING THINGS 273: COURT OF APPEAL OVERTURNS FINDINGS OF FACT: IT “BEGGARS BELIEF” THAT THE DEFENDANT DID NOT KNOW OF THE RELEVANT MATTERS
Here we look at a case where the Court of Appeal overturned the trial judge’s findings of fact at trial. Usually this is difficult, or the court acts with some reticence, here the Court uses the phrase “it beggars belief”…
MAZUR MATTERS 33: MAZUR IN PARLIAMENT (2): THE LETTER FROM THE MINISTER TO THE JUSTICE COMMITTEE
We continue with our rare trip inside the Houses of Parliament by looking at the response that the Minister for Courts and Legal Services to the letter from the Chair of the Justice Committee. (We are seeing how Mazur…
DEFAULT AND SANCTIONS CASES IN THE COURTS IN 2025: WEBINAR 12th NOVEMBER 2025: LOOKING AT MISTAKES IN LITIGATION TO AVOID REPEATS NEXT YEAR…
It is that time of year when we can look back and reflect on events of the previous 12 months. Here we are looking at what lessons can be learnt from cases on default and sanctions since November 2024. As…
MAZUR MATTERS 32: MAZUR IN PARLIAMENT (1): THE LETTER FROM THE JUSTICE COMMITTEE TO THE MINISTER
It is rare for there to be Parliamentary consideration of the matters discussed in this blog. Quite often we are trying to divine what it is that Parliament actually meant when it drafted a statute. In the Mazur case Parliament…
COST BITES 305: THE JUDGE WAS WRONG TO AWARD COSTS AGAINST A PARTY WHEN TWO ACTIONS WERE “JOINED” AND NOT “CONSOLIDATED”: AN IMPORTANT DISTINCTION IN THE RULES
We are looking at a case where the appellant was successful in overturning an award for costs made against him in relation to one set of proceedings. The judgment highlights the important distinction between “joinder” and “consolidation”. That distinction can…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
MAZUR MATTERS 31: THE LEGAL SERVICES BOARD REVIEW OF “WHY MAZUR WAS A SURPRISE” – AND WHAT CHANGED AFTERWARDS?
The Legal Services Board has set out the scope of its review of “advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies”. Stripped down to its basics the question being asked…
THE CURRENT IMPORTANCE OF PLEADINGS 34: APPEAL ALLOWED (IN PART) WHERE TRIAL JUDGE AWARDED DAMAGES BASED ON UNPLEADED ALLEGATIONS
Here we have a case where the claimants’ case was based (in part) on conduct by one of the defendants that was not pleaded. The defendant appealed on that basis. On appeal the judge was not persuaded by the respondents’…
DEFENCES STRUCK OUT BECAUSE OF A FAILURE TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: SHOULD RELIEF FROM SANCTIONS BE GRANTED?
Here we look at a case where the defendants failed to comply with a peremptory order for disclosure. The defences stood struck out. The issue the judge had to determine was whether relief from sanctions should be granted. This in…
COST BITES 304: “NEGLIGENCE” HAS A PARTICULAR MEANING IN A WASTED COSTS APPLICATION: THERE MUST BE “SOMETHING AKIN TO AN ABUSE OF PROCESS”.
The judgment here considers what is meant by “negligent” when wasted costs are sought against a legal representative. The review of the authorities makes it clear that it has a specific meaning. (There is a Lord Denning judgment where he…
COST BITES 304: IN A DISPUTED WILL CASE WHO SHOULD PAY THE COSTS? WHAT SHOULD THE BASIS OF THE ORDER BE? SHOULD THERE BE AN INTERIM ORDER FOR COSTS?
There are particular rules that relate to costs in probate proceedings. Here we look at a decision on costs that is of more general interest. The judge considered the issue of whether the unsuccessful defendant should pay the costs, the…
MAZUR MATTERS 30: BREAKING NEWS: LEGAL SERVICES BOARD GRANTS CILEX’S APPLICATION FOR STAND ALONE LITIGATION RIGHTS
The Legal Services Board has today approved an application from CILEx Regulation to allow legal executives to obtain standalone litigation practice rights. Here we have the announcement and the Decision Notice. The finer detail will be considered when it becomes…
SERVICE POINTS 16: DID THE COURT HAVE POWER TO STATE THAT SERVICE OF A CLAIM FORM AT THE HOUSE COMMONS COULD BE RATIFIED RETROSPECTIVELY?
We have already looked at this case at first instance, see Service Points 9, the initial decision was considered by the Court of Appeal in the case we look at here. The Court here was concerned with whether the courts…
MAZUR MATTERS 29: MORE USEFUL LINKS: THE FOIL RESPONSE
Here we are looking at another useful link. FOIL (the Federation of Insurance Lawyers) has produced a document dealing with the potential consequences of Mazur for its members. (FOIL has always been such a clever name. This link shows that…
SOLICITORS HAD GOOD GROUNDS TO TERMINATE THEIR RETAINER BUT COULD NOT RECOVER THEIR FEES: A LOT TO THINK ABOUT HERE.
Here we are looking at a case where an action for negligence against a firm of solicitors failed. The trial judge found that the solicitors had good grounds to terminate their retainer. However the solicitors’ counterclaim for fees failed. There…
COST BITES 303: THE SOLICITOR CANNOT PASS ON RESPONSIBILITY FOR A DEFECTIVE BILL TO THE COSTS LAWYER: A 75% REDUCTION BECAUSE OF THE WAY IN WHICH THE BILL WAS DRAFTED
Here we are looking at a case involving a bill of costs that was wholly defective that the costs judge was invited to strike it out. The judge came very close, but reduced the bill by 75% instead. There…
AS IT STARTS TO GET DARK: LAWYERS HALLOWEEN STORIES: DIGGING UP THE PAST…
Way back in the mists of antiquity (2017) I invited lawyers on Twitter (Now “X”) to share their views on what scares the legal profession most. The first post came from Megan Boyd (based in Atlanta, Georgia). This shows that…
NON-COMPLIANCE WITH A STATUTORY OBLIGATION TO OBTAIN PERMISSION PRIOR TO ISSUE LEADS TO AN ACTION BEING A NULLITY
We are looking here at at case where an action was struck out because of a failure to obtain permission of the court to issue proceedings. The judge rejected the claimant’s contention that the statute in question should be read…
DOES THE COUNTY COURT HAVE JURISDICTION TO DECIDE AN ACTION BROUGHT ON A FOREIGN JUDGMENT? SHOULD THE ACTION BE STRUCK OUT?
Here we have the County Court considering an unusual issue of jurisdiction. Does it have jurisdiction to decide an action brought at common law on a foreign judgment? If it does not should the action be struck out or simply…
MAZUR(ISH) MATTERS 28: IT WAS “SLIGHTLY SURPRISING” THAT A PARALEGAL “DID NOT KNOW MORE ABOUT THE REGULATORY ENVIRONMENT APPLICABLE TO NON-SOLICITORS”
Here we look at a judge’s comments outside the ambit of litigation. Nevertheless it shows that the issue of professional regulation and the use of “non-authorised” employees within solicitor’s firms may well become a more important issue in the future….
MAZUR MATTERS 27: TWO MORE USEFUL LINKS: A USEFUL GUIDE FROM INSURERS: PLUS THE FIRST “REAL WORLD” CASE WHERE MAZUR HAS LED TO A SUBSTANTIAL REDUCTION IN COSTS
The commentary on Mazur continues. Here I want to look at two useful links. The first relates to guidance given by an insurer. The second relates to the first report (I have seen) on Mazur having an impact on costs….
EXPERT WATCH 24: WHEN AN EXPERT IN A CLINICAL NEGLIGENCE DOES NOT UNDERSTAND THE “BOLAM” TEST (WHICH IS REFERRED TO IN THEIR OWN REPORT)THIS IS NOT DETERMINATIVE: BUT IT DOESN’T HELP
This is not the first time we have looked at a case where an expert in a clinical negligence has revealed in cross-examination that they do no really understand the “Bolam” test for negligence. We look at such a case…
SHOULD A DEFENDANT BE ALLOWED TO WITHDRAW ADMISSION MADE BY MISTAKE? A TEN YEAR OLD CASE THAT IS STILL OF INTEREST: CANDOUR HELPS A LOT
This is a case about mistakes in litigation and the rules relating to allowing the withdrawal of a pre-action admission. The judgment was given 10 years ago, but arrived on BAILII today. The issues raised here remain highly relevant. In…
MAZUR MATTERS 26: SHOULD THE PROFESSION HAVE SEEN THIS COMING? THERE WERE CLUES…: TODAY IS THE 18th ANNIVERSARY OF THE LEGAL SERVICES ACT 2007 COMING INTO FORCE: SHOULD WE HAVE BEEN SURPRISED?
The reason why we litigators are infinitely wise is that we always deal with things in retrospect. We have the perfect vision of hindsight. Litigation is full of “why did you do that?”, “If you say that now why didn’t…
THE CURRENT IMPORTANCE OF PLEADINGS 33: COURT OF APPEAL UPHOLDS STRIKING OUT OF SCHEDULE OF DAMAGES: “OVER-COMPLICATED”, “UNCLEAR”. “LACKING IN THE MOST BASIC INFORMATION NECESSARY” (OH AND MANY OF THE CLAIMS WERE UNPLEADED…)
It is rare for a schedule of damages to come under close scrutiny prior to the trial itself. Here the Court of Appeal upheld a decision to strike out large parts of the appellants’ claim for damages. Many of the…
TAKING A CASE TO THE WIRE: TIME LIMITS IN DOMESTIC VIOLENCE CASES: WHEN DOES TIME START TO RUN? WHY IS THIS RELEVANT TO YOU?
Here we are looking at a case where the issue of proceedings was left until the last day. There is nothing unusual in that on this blog. We are, however, looking at a criminal case, albeit a decision of the…
WITNESS EVIDENCE WEDNESDAY: HOW JUDGES DECIDE CIVIL CASES: “JUDGES ARE HUMAN. THEY DO NOT POSSESS SUPERNATURAL POWERS”
This week we are looking at a judgment that sets out in detail the process by which judges determine issues in a civil case. Ranging from the burden and standard of proof , the role of judges, the fallibility of…
EXPERT WATCH 23: NOW THINGS GET EVEN MORE REMARKABLE: EXPERT WRITES TO THE COURT TO SAY “MY EVIDENCE WAS WRONG”: REGULATORY BODY THINKS THE REPORT WAS VERY WRONG…
The previous post recorded how it is still possible to be surprised by what goes on in litigation. We see that again here, but to a greater extent. After a trial and a judgment was given an expert wrote to…
EXPERT WATCH 22: JUST WHEN YOU THINK YOU MAY HAVE SEEN IT ALL: THE CLIENT (BASICALLY) DRAFTS THE JOINT STATEMENT: THE JUDGE THINKS THEY MAY HAVE PLAYED A LARGE PART IN THE DRAFTING OF THE REPORT ITSELF…
No matter how long, and how much, you write about civil procedure cases can still come along which surprise – if not astonish. We have such a case here. The judge found that, essentially, it was the client who played…
COST BITES 302: WAS THE JUDGE WRONG TO IMPOSE A WASTED COSTS ORDER? ISSUES OF CAUSATION AND “NEGLIGENCE” CONSIDERED IN THE COURT OF APPEAL
We are looking at a case where the Court of Appeal considered a wasted costs order in critical terms. Although we are considering a decision in the criminal courts the principles relating to wasted costs are of general application. Firstly…
MEMBER NEWS: UPDATE ON THE CIVIL LITIGATION BRIEF WEBINAR SERIES: THIS SITE WILL BE OFFLINE FOR AN HOUR ON THE 29th OCTOBER
There are two pieces of news. Firstly the site is having a short “rest” on the 29th October, this is only for an hour – but it will be back newly invigorated. Secondly a reminder of some of the webinars…
COST BITES 301: THE AARHUS COST CAP FIGURES ARE NOT SETT IN STONE: BUT IT VERY DIFFICULT TO PERSUADE A COURT TO CHANGE THEM
This may be the first time we have looked at the issue of costs and badgers. We are looking at a case where the defendant sought to change the amounts of the “Aarhus cap” on the recoverability of costs in…
SEEKING PERMISSION TO APPEAL AND TO EXTEND TIME: THE OPPORTUNITY TO SEEK PERMISSION CAN EASILY BE MISSED: SOMETHING FOR WOULD BE APPELLANTS TO WATCH OUT FOR
The circumstances in which a judge at first instance can grant permission to appeal from their own decision are circumscribed by the rules. Permission can only be given at the hearing itself, or any adjournment thereof. The same applies to…
LITIGATORS: SLEEP LIKE A BABY NEXT YEAR BY NOT REPEATING ALL THE CLAIM FORM MISTAKES PEOPLE HAVE MADE THIS YEAR: WEBINAR 5th NOVEMBER 2025
Needless to say there have been plenty of cases this year relating to service (or mis-service) of the claim form. This webinar looks at cases over the past 12 months with the primary aim of ensuring that you are not…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
HIGH COURT REFUSES RELIEF FROM SANCTIONS WHEN SKELETON ARGUMENT WAS SERVED LATE: BREACHES OF EVEN A DAY OR TWO SHOULD NOT BE REGARDED WITH EQUANIMITY
If a skeleton argument is served late then relief from sanctions is required. The case we are looking at here makes it clear that it is prudent to make a formal application rather than assume relief will be granted “on…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? (3): ARE THE CPR PROVISIONS RELATING TO VULNERABILITY RELEVANT? WHOSE JOB IS IT TO CONSIDER THEM IN THIS CONTEXT?
We are looking again at the case in which the claimant applied for permission to withdraw their Part 36 offer. The claimant had capacity, however at the hearing it was argued that he came within the definition of “vulnerable” litigant…
LIGHT IN ALL THE HEAT: ENSURING THAT AN AUTHORISED PERSON HAS “CONDUCT OF LITIGATION”: A PRACTICAL GUIDE: WEBINAR 31st OCTOBER 2025
There are many heated responses to the Mazur decision. There are articles suggesting that the judge got the law wrong. (Apparently the judge should not have listened to the submissions of both the Law Society and SRA which supported his…
WHEN A RESPONDENT’S NOTICE IS REALLY A CROSS-APPEAL: SHOULD THE COURT GRANT AN EXTENSION OF TIME TO ALLOW THE “APPEAL” TO BE ARGUED?
Sometimes a respondent’s notice is really a cross-appeal attempting to disguise itself. We are looking at such a case here. The “respondent’s notice” was served late, and permission was given to serve it. However on closer examination at the appeal…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? (2): THE PRINCIPLES CONSIDERED
We continue with the consideration of the recent case in which a claimant applied for permission to withdraw a Part 36 offer. The judge also considered the relevant rules and case law in detail. (You need the court’s permission to…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? IS A “CHANGE OF MIND” A “CHANGE OF CIRCUMSTANCES”: THE ISSUE CONSIDERED IN THE HIGH COURT
There are few cases which involve a claimant seeking to withdraw their own Part 36 offer we have a decision today here. The claimant made an offer and attempted to withdraw is shortly afterwards. The defendant accepted the offer within…
MAZUR MATTERS 25: WHAT DIFFERENCE WILL MAZUR MAKE TO THE ASSESSMENT OF COSTS?(2) : HOW ABOUT – “A LITTLE AND POSSIBLY QUITE A LOT”?
The commentary on the implications of the Mazur case continues apace. In particular there has been much discussion about whether it affects liability to pay costs. LinkedIn contains reports that “Mazur” issues are already being raised in Points of Dispute. …
OCCUPIER’S LIABILITY CASES IN THE COURTS: A PRACTICAL APPROACH: WEBINAR 29th OCTOBER 2025
This webinar looks at how the courts are dealing with occupiers liability cases and the duty of care. It takes a practical look at they way in which cases are decided and the factors which determine whether liability is established…
SERVICE POINTS 15: THE CLAIM FORM CASE IN THE COURT OF APPEAL (2): LEAVING A CLAIM FORM OUT FOR THE DX TO COLLECT WAS NOT EFFECTIVE SERVICE
The Court of Appeal has been busy recently with issues relating to service of the claim form. On the whole claimants (or rather their representatives) have not fared well. Here we look at the claimant’s argument that leaving a claim…
SERVICE POINTS 14: ANOTHER DAY, ANOTHER CLAIM FORM CASE IN THE COURT OF APPEAL – AND ANOTHER CLAIMANT COMING TO GRIEF (1): NO “GET OUT OF JAIL FREE” CARD HERE…
Here we look at a Court of Appeal decision that overturned a claim form decision that favoured the claimant. It highlights (if highlighting were ever needed) the dangers relating to service of the claim form). The one argument that can…
COST BITES 300: THE SERIES TO DATE: IT STARTED WITH A “BOUTIQUE FIRM”, YESTERDAY IT WAS ABOUT CONDUCT, AND IS UNLIKELY TO END SOON…
This series started in July 2022. I wanted to make sure that we got to look at the “smaller” issues in relation to costs as well as major decisions. Those “incidental” issues, summary assessments, judicial commentary and the like can…
COST BITES 299: PUTTING FORWARD A OVER-LARGE BILL IN NEGOTATIONS ON COSTS: SHOULD THIS LEAD TO THE BILL BEING REDUCED BY 75%?
It is not unusual for a receiving party to make an offer on costs before detailed assessment proceedings begin, indeed this is a normal practice. Here the court considered the question of whether serving a draft bill in negotiations that…
COST BITES 298: SHOULD THE DEFENDANT PAY ALL THE COSTS WHEN THE CLAIMANT DISCONTINUED AGAINST OTHER DEFENDANTS
We are looking here at an issue relating to a defendant’s liability to pay the costs of other defendants against whom no order for costs was made. Was the “paying” defendant also liable to pay the costs that the claimant…
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