WHICH EXPERT WITNESS IS GOING TO BE PREFERRED? ONE EXPERT TOOK AN “UNREALISTIC APPROACH”
Knowing the reasons why a judge may prefer the evidence of one expert over another is an important part of a litigator’s skill. Each case is, of course, fact specific, but there are clear trends that can be discerned. Here…
WHAT ARE THE CONSEQUENCES WHEN A WITNESS BREAKS THE “PURDAH” RULES? THE ISSUES CONSIDERED IN THE HIGH COURT
The “purdah” rule – that a witness cannot discuss the case and their evidence with others, including their legal team, once they have started giving evidence is of utmost significance. Here we are looking at a case where a witness…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO HAD PURSUED A “HOPELESS” CASE: ATTEMPTS TO RELY ON PRIVILEGE WERE A RESORT TO A MERE “FIG LEAF”
It is rare for a wasted costs order to be made against a solicitor for pursuing what is seen as a “hopeless” case. However we have such an order in the case we are considering here. The Master found the…
NON-PARTY COSTS ORDERS: WHAT IS THE SIGNIFICANCE OF A PARTY’S SOLICITOR BEING INVOLVED IN THE COMPANY AGAINST WHICH A COSTS ORDER IS SOUGHT?
Many, if not all, of those involved in credit hire legislation will already have read the Court of Appeal decision last week with care. The Court also considered the question of whether the fact that there are close commercial, or…
COSTS AND OTHER CONSEQUENCES CONSIDERED WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: CIRCUIT COMMERCIAL COURT DECISION: HOW IS THE ADDITIONAL LIABILITY CALCULATED WHEN THE JUDGMENT IS NOT IN STERLING?
We are looking at a case where the claimant beat its own Part 36 offer and the court had to consider the consequences. There were some unusual aspects in that the judgment was not given in sterling. However the judge…
THE RULES OF COURT DO NOT ALLOW A PARTY TO COMPEL ITS OPPONENT TO EXPLAIN HOW ERRORS WERE MADE IN WITNESS STATEMENTS:
Can the court compel a party to file a witness statement explaining, in detail, why mistakes were made in earlier witness statements? That was the issue considered in the case we are looking at today. The judge considered the provisions…
COMMITTAL PROCEEDINGS: SOME IMPORTANT POINTS TO NOTE: THE CORRECT COURT WHEN A DEFENDANT IS APPEALING AND THE SCOPE OF APPEAL: ISSUES CONSIDERED IN THE COURT OF APPEAL
There are two important procedural points considered here relating to to appeals relating to committal proceedings. The first relates to the court to which an appeal has to be made, the second to the scope of an appeal. Here we…
COST BITES 244: WHEN ARE INDEMNITY COSTS APPROPRIATE? SHOULD THE FEES OF JUNIOR COUNSEL BE RECOVERED IN FULL? A SUMMARY ASSESSMENT IN THE COMMERCIAL COURT CONSIDERED
I periodically remind people (and remind myself) that one of the purposes of this series is to look at what is happening “on the ground” in relation to costs, including the summary assessment of costs. Practitioners may only have limited…
ARE SOLICITORS WORKING ON A CONDITIONAL FEE AGREEMENT IN THE SAME BASIC POSITION AS CAR HIRE COMPANIES? THE COURT OF APPEAL CONSIDER THE POSITION
We may well be mining the Court of Appeal decision on the liability of car hire companies for costs across a number of further posts. Here, however, we are taking a look at the sections in the judgment that considered…
A COURT ORDER SO AMBIGUOUS THAT IT WAS IMPOSSIBLE TO ENFORCE : SOME ESSENTIAL POINTS ABOUT DRAFTING HERE
Here we are looking at a Court of Appeal decision about the drafting and construction of court orders. The order made in this case was totally deficient, consequently it could not be enforced. (Absolute precision is demanded here…) “……
INDEMNITY COSTS ORDERED AGAINST SOME (BUT NOT ALL) CLAIMANTS: A NUANCED HIGH COURT DECISION
We are returning to the same case as the previous post but looking at a different issue. The judge considered whether to make an order for indemnity costs against the claimants. The case is unusual in that such an award…
WHEN QOCS DOES NOT APPLY TO THE WHOLE OF A CLAIM: WHAT PERECENTAGE SHOULD THE CLAIMANTS PAY: THE MATTER CONSIDERED IN THE HIGH COURT
For the second time today we are looking at the rules relating to Qualified one way costs shifting (QOCS) and its exceptions. Here the defendant had spent £2 million successfully defending a claim, only part of that action was a…
THE COURT OF APPEAL DECISION ON THE LIABILITY OF CREDIT HIRE COMPANIES TO PAY COSTS: THE SPECIFIC CASES EXAMINED
This is the second post about the Court of Appeal judgment today in relation to the liability of credit hire companies to pay costs. Here we look at the decisions made in relation to each of the two cases under…
WILL A COSTS ORDER NORMALLY BE MADE AGAINST A CREDIT HIRE COMPANY? COURT OF APPEAL DECISION THIS MORNING
This is the first of several points that will look in detail at the Court of Appeal decision today in relation to the liability of credit hire companies to pay costs. This first post outlines the main findings. Later posts…
PREPARING A SCHEDULE AND PROVIDING EVIDENCE IN A FATAL CLAIM 2025: WEBINAR 18th JUNE 2025
It is a difficult task to summarise the value of a life in one document. This is what happens when a schedule is drafted in a fatal claim. It is a task that has to be done carefully and with…
AN IMPORTANT POINT ABOUT TRIAL BUNDLES: REDACTION SHOULD NOT NORMALLY TAKE PLACE: IT MAKES THE COURT’S JOB MORE DIFFICULT
There is always room for another case about bundles on this site. It is a subject of endless fascination to most litigators, and endless frustration for many judges. Here we are looking at a case where the trial judge observed…
PROVING THINGS 264: CLAIMANTS FAIL TO PROVE THAT THEY ARE ENTITLED TO AN INJUNCTION: “THE EVIDENCE PRESENTED BY THE CLAIMANTS DOES NOT COME CLOSE TO DEMONSTRATING A COMPELLING JUSTIFICATION FOR THE ORDER”
We are looking at a case where there was clear example of a failure to prove things. The claimants did not have sufficient evidence to satisfy the court it should make the order they were seeking. In fact the judgment…
WHAT COSTS REGIME APPLIES WHERE A JUDGE FINDS THAT A SUCCESSFUL CLAIMANT SHOULD HAVE USED THE LOW VALUE PERSONAL INJURY PORTAL? THE ISSUES CONSIDERED ON APPEAL
For the second time this week we are looking at the issue of whether, or not, it was reasonable for a claimant’s solicitor to conclude that a matter should have been commenced outside the Low Value Personal Injury Portal. This…
CHANGES TO THE COMMERCIAL COURT AND LONDON CIRCUIT COMMERCIAL COURT PRACTICE ON THE VALUE OF CLAIMS
A Practice Note issued issued earlier this month sets out changes to the practice of the Commercial Court in relation to the value which it will consider transferring claims to other courts. These changes take effect from the 1st July…
THE CORRECT PROCEDURE IF A PARTY WANTS TO ATTEMPT TO RELY ON “WITHOUT PREJUDICE” DOCUMENTS: THE EXCEPTIONS TO THE WP RULE CONSIDERED
We are looking at a judgment from today which considers the “without prejudice” rule in some detail. In particular the steps a party should take if it wishes to argue that it should be able to rely on without prejudice…
LAWYERS HEAVILY CRITICISED IN A JUDGMENT: COURT OF APPEAL REFUSES PERMISSION TO APPEAL: A CASE THAT BRISTLES WITH CONDUCT AND PROCEDURAL ISSUES
We have a case here where a solicitor and KC involved in a case were heavily criticised by the trial judge. The solicitor attempted to appeal those findings and the Court of Appeal considered, among many other things, their Article…
CIVIL PROCEDURE BACK TO BASICS 104: YOU CAN’T ACT ON BEHALF OF BOTH SIDES IN LITIGATION – YOU REALLY CAN’T
How does one firm act on behalf of both sides in litigation? Entering judgment for a claimant and then applying, on behalf of the defendant, to have that judgment set aside? The easy answer is that it can’t. This…
SHOULD THIS CASE HAVE BEEN STARTED IN THE LOW VALUE PERSONAL INJURY PROTOCOL? DID IT FALL OUTSIDE IT? THESE ISSUES CONSIDERED
The question of whether a case should have been started using the Low Value Protocol is often a difficult one. The lawyer for the claimant has to make a decision on this important issue without the benefit of any medical…
COURT OF APPEAL CONSIDER ISSUES OF KNOWLEDGE, SERVICE OF THE CLAIM FORM AND “LAST KNOWN ADDRESS”: THINGS DO NOT GO WELL FOR THE CLAIMANT
Problems occur when a claimant fails to take appropriate steps to ensure that the defendant is in fact living at the address where a claim form has served. This was the issue considered by the Court of Appeal today. The…
PROVING THINGS 263: “IT IS A FUNDAMENTAL PRINCIPLE OF LITIGATION THAT A CLAIMANT MUST PROVE THEIR LOSS… THEY MUST ALSO SATISFY THE COURT AS TO THE AMOUNT OF ANY LOSS WHICH THEY HAVE SUFFERED”
This series has now covered hundreds of examples where litigants have failed to prove their case. We are looking at another example here where a counterclaiming defendant adduced no substantive evidence of a claim said to be worth nearly £500,000. …
SOME QUICK NOTES ABOUT CORPORATE SUBSCRIPTIONS: NEW GROUP NUMBERS ADDED – YOU CAN NOW SUBSCRIBE FOR UP TO 1,000 SEATS (AND MORE BY ARRANGEMENT)
A number of people have been in touch asking whether the site can accommodate larger groups than those set out in the original plan (someone has asked whether there can be “limitless” numbers on a subscription). As a result of…
MISCONDUCT IN ASSESSMENT AND REDUCTIONS IN COSTS 3: A REVIEW OF THE CASES 3: A CASE WHERE COSTS WERE HALVED AND A WASTED COSTS ORDER MADE AGAINST THE RECEIVING PARTY’S SOLICITOR
This is the third in this series looking at cases where misconduct has been alleged, or found, in the costs assessment process. We have here a bill of costs that was reduced substantially, which failed to beat a Part 36…
WHEN YOU LEAVE IT UNTIL THE LAST MINUTE TO COMPLY WITH COURT ORDER: THE COURT HAS VERY LITTLE SYMPATHY – WHO WOULD HAVE GUESSED?
A common feature of litigation is the leaving of matters until the last minute. Be it service of the claim form, costs budgets or compliance with a court order. Here we have a case of a party delaying in complying…
A QUICK NOTE ABOUT CORPORATE MEMBERSHIP: HOW TO ADD COLLEAGUES (AND WHAT TO DO IF YOU WANT MORE THAN 50 MEMBERS)
This is the first day of this site as a subscription site and people have been very supportive. There have been very few teething problems. It will help if I address two issues: (i) how to add colleagues if you…
“ARTIFICIAL INTELLIGENCE” ON TRIAL: WHEN QUESTIONED CHAT GPT WILL TELL YOU ITS MADE THINGS UP: THIS IS “A HALLUCINATION RATHER THAN A REAL LEGAL AUTHORITY”
Artificial Intelligence and legal “research” has been very much in the news of late. I am grateful to my colleague Steven Turner for sending me an example where, upon being questioned, Chat GPT readily conceded that a case it had…
NEW COURT OF APPEAL (CIVIL DIVISION) GUIDE 2025: A USEFUL LINK TO AN ESSENTIAL GUIDE
A new Court of Appeal (Civil Division) Guide has been published. It provides an essential guide to Court of Appeal cases. THE PURPOSE OF THE GUIDE “The main purpose of this Guide is to set out as clearly as…
HOW FAR IS A SOLICITOR’S ESTIMATE OF COSTS BINDING? THE RELEVANT PRINCIPLES CONSIDERED AND APPLIED: A HIGH COURT APPEAL
Many, if not all, litigators will be familiar with the scenario whereby an estimate of costs is given and events develop so that the estimate is overtaken. This scenario was considered in the case we are considering today. An estimate…
SHOULD A PARTY BE ABLE TO INSTRUCT THEIR OWN EXPERT WHEN THEY DISAGREE WITH THE REPORT OF A JOINTLY INSTRUCTED EXPERT? THE ISSUES CONSIDERED
Here we are looking at a case where a party, dissatisfied with the approach of a jointly instructed expert, applied to the court for permission to instruct their own expert. The judgment contains a useful summary of the relevant principles….
THE CURRENT IMPORTANCE OF PLEADINGS 16: THE CASE AGAINST ALL REMAINING DEFENDANTS WAS STRUCK OUT: THE CLAIMANT CANNOT SIMPLY PLEAD “SOMEONE HERE” MUST BE TO BLAME
We are looking at a case where the court struck out the claimant’s case against three defendants because of the inadequate way in which the case was pleaded. General assertions that someone here must be to blame were not sufficient. The…
BECOME A MEMBER TO KEEP UP TO DATE: THIS SITE IS BECOMING A MEMBERSHIP SUBSCRIBER SITE – MAKING CLB BIGGER AND BETTER
On the 10th June 2025* this site is becoming a membership site. All the past posts, and the vast majority of future posts will only be available to members who have joined. This post explains what readers need to do…
SAD NEWS: THE DEATH OF DISTRICT JUDGE BRANCHFLOWER
I was saddened to learn yesterday of the death of District Judge George Branchflower. This is a sad loss to his family, his friends and the legal profession. GEORGE’S ROUTE TO THE BAR George had an unusual route to…
CITING FALSE CASES TO THE COURT 4: THE COURT’S REVIEW OF CASES WHERE AI HAD CAUSED TROUBLE – AT HOME AND ABROAD
The use of AI which cites “false” cases is extremely worrying. It is clear that this is a widespread issue. In an appendix to the judgment the Divisional Court reviewed the cases, including many from foreign jurisdictions, where AI had…
UNDERSTANDING THE LAW AS TO FATAL ACCIDENTS 2025: WEBINAR 11th JUNE 2025
Part of a series on fatal accident litigation this webinar takes you through the essential elements you have to consider before you can advise whether a claim for fatal accident damages can be brought. Booking details available here WHAT THE…
CITING FALSE CASES TO THE COURT 3: THE PROBLEMS, THE GUIDANCE AND THE PENALTIES: PERVERTING THE COURSE OF JUSTICE HAS A MAXIMUM SENTENCE OF LIFE IMPRISONMENT…
We are returning to (and not for the last time) to the Divisional Court judgment in relation to the citation of false authorities due to the use of Artificial Intelligence. The Court reviews the dangers, the guidance and the sanctions…
CITING FALSE CASES TO THE COURT 2: A LAWYER IS NOT ENTITLED TO RELY ON THEIR LAY CLIENT FOR THE ACCURACY OF CITATIONS OF AUTHORITY
We are continuing with the examination of the Court’s judgment in relation to cases where false authorities have been cited as a result of a reliance on false authorities, generated by artificial intelligence. Here we have a case where the…
CITING “FALSE” CASES TO THE COURT 1: JUDGMENT ON THE CONTEMPT OF COURT HEARINGS 1: THE CASE OF AYINDE
This blog has already considered the case of Frederick Ayinde, R (on the application of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) on several occasions. False (presumably AI generated) authorities were put before the court. That case,…
“THIS PRELIMINARY ISSUE TRIAL IS NOT A REHEARSAL”: THE DIFFICULTIES A CLAIMANT HAS IN A CLAIM UNDER THE THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010
Here we look at a case where the claimant suggested that a preliminary issue trial be adjourned. The court was firm in its rejection of that suggestion. The judge stated that the trial “is not a rehearsal” and that if…
PROVING THINGS 262: CLAIMANTS DID NOT HAVE THE EVIDENCE AT TRIAL TO PROVE THE DAMAGES SOUGHT: AN EXHAUSTING JOB
This series may well be misnamed. A more apt description may well be “not proving things”. That is what we are considering in looking at the case today. There was a lengthy trial with a substantial claim for damages. The…
THE CURRENT IMPORTANCE OF PLEADINGS 15: THE CLAIMANT HAD NOT PLEADED AN ISSUE SHE WANTED TO RELY ON AT TRIAL: THE ISSUE WAS “NOT PURSUED”
This series is giving rise to more cases than I initially thought. Here we look at an example of a claimant wishing to pursue a specific line of argument but having to accept that it was not pleaded and that…
FOUR PART 36 WEBINARS – ALL AVAILABLE ON YOUTUBE: WHAT A TREAT – POTENTIALLY A WHOLE NIGHT’S VIEWING…
The webinar on Part 36 that I broadcast earlier this week is now available on YouTube and can be found here. Links to previous webinars on Part 36 can be found below. MATTERS COVERED IN THE 2025 WEBINAR This…
WRITING TO THE JUDGE AFTER THE DRAFT JUDGMENT HAS BEEN SENT OUT: THIS IS NOT AN OPPORTUNITY TO ADVANCE FURTHER ARGUMENT
There have been a large number of cases where the courts have been critical of attempt to “re-open” judgments at the stage where the draft judgment is circulated. We see another example here. The judge reviewed the cases on this…
PARTS OF WITNESS STATEMENT STRUCK OUT – THIS “CARRIES NO WEIGHT AS EVIDENCE”:DOORS FIRMLY SHUT IN RELATION TO INADMISSIBLE COMMENTARY
If we had a pound for every word in witness statements served in just one single month that was irrelevant or inadmissible we could probably go a long way to paying off the national debt. The costs, however, are probably…
FATAL ACCIDENT LAW AND PRACTICE: SEVEN WEBINARS TO HELP YOU UNDERSTAND LAW, PROCEDURE AND PRACTICE
Fatal accidents claims are often some of the most challenging areas for the litigator. Claims have to be investigated (and defended) with great care and sensitivity. To add to the difficulties the law relating to damages is almost wholly based…
THE CLAIMANT DID NOT NEED TO ANSWER THE PART 18 REQUESTS MADE: THESE REQUESTS ARE AKIN TO THE “PRE CPR-PROCEDURE”
There have been a number of cases recently relating to Part 18 questions and questions to experts. Here we are looking at a case where the defendant raised numerous requests to the claimant and sought a peremptory order when it…
PART 35 QUESTIONS TO EXPERTS A POINT ABOUT THE CASE LAW: HOW FAR CAN THE QUESTIONS GO? A CLOSE LOOK AT THE COURT OF APPEAL DECISION IN MUTCH
The previous post about when experts should be called to give evidence also contained a consideration of the nature of questions that can be put to experts. One of my colleagues has suggested that the summary relating to the questioning…
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