THE CURRENT IMPORTANCE OF PLEADINGS 103: “THE RESPONSIBILITY OF PLEADING THE CLAIM RESTS ON THE CLAIMANT” (OH, AND MATTERS CANNOT BE ADDED IN A SKELETON ARGUMENT SERVED THE DAY BEFORE TRIAL…)
Here we have a case where the claimant complained about the judge finding for the defendant on unpleaded matters. It was held on appeal that the claimant had not particularised the case fully and properly. The difficulty was added to…
THE POWER TO GRANT AN INJUNCTION NORMALLY REQUIRES A CAUSE OF ACTION: (ONE OF) THE DIFFICULTIES OF AN ANONYMOUS LITIGANT
There has been much press coverage, and much speculation, about the recent application to prevent publication of information by an anonymous celebrity. As litigators we are, of course, not interested in this. Of much more interest (to us) are the…
THE CRITICAL IMPORTANCE OF COMPLYING WITH TIME LIMITS: “THERE WAS A WHOLESALE FAILURE TO ACKNOWLEDGE THE DEFAULTS”; “IT WAS ALL AS IF COMPLIANCE WERE OPTIONAL”
Over the years we have seen some strongly worded judgments on failure to comply with the rules. Few are as strongly worded as this. The judge felt that the defendant felt it was entitled to provide documents late; there was…
BACK TO BASICS MONDAY: THE PROBLEMS THAT CAN OCCUR WITH THE CONTENTS OF THE CLAIM FORM: TEN KEY POINTS
Earlier this morning we looked at the revised form N1 and the problems that could be caused now there is an option to put the defendant’s email address on the form. This gives rise to an opportunity to look at…
BOOK REVIEW: CRIMINAL INJURIES COMPENSATION: A PRACTITIONER’S GUIDE BY NEIL SUGARMAN
This book is an essential and much needed guide to those who have to navigate the Criminal Injuries Compensation Scheme. It is both lucid and comprehensive. From our point of view it is practical. My own view (if this does…
PROVING THINGS 304 : FUNDAMENTAL DISHONESTY ESTABLISHED IN A £7 MILLION CLAIM: “THE WASTE OF PUBLIC RESOURCES CAUSED BY THE CLAIMANT’S DISHONESTY IS SCANDALOUS”
There are some cases that are on the “extreme” end of fundamental dishonesty litigation. This may well be one of them. The claimant brought a claim for £7 million in damages. However there was evidence that he had largely recovered…
TRYING TO RE-OPEN THE CASE AFTER BEING SENT A DRAFT JUDGMENT: “IT IS NOT INTENDED TO PROVIDE AN OPPORTUNITY TO ANY PARTY … TO REOPEN OR REARGUE THE CASE”
For the second time in a fortnight we are looking at an attempt to persuade a judge to re-open their decision after a draft judgment has been sent out. This approach had the same result as the previous case. “This…
FORM N1 HAS BEEN SLIGHTLY AMENDED: THIS COULD BE A TRAP FOR THE UNWARY: PUTTING THE DEFENDANT’S EMAIL ADDRESS ON THE CLAIM FORM DOES NOT CHANGE THE RULES FOR SERVICE…
Form N1 had a slight amendment made on the 23rd October. It is a very minor amendment, but one that practitioners need to be aware of. The one major problem that it could give rise to is if practitioners (or…
COST BITES 455 : LOOKING AT A SUMMARY ASSESSMENT WHEN COSTS ARE PAYABLE ON THE INDEMNITY BASIS
Here we look at a summary assessment that takes place when costs are being assessed on the indemnity basis. It is useful to look at the judge’s observations and decisions. “Mr Khan points out that the figure of £10,312.50 claimed…
EXPERT WATCH 84: THE TRIAL JUDGE’S APPROACH TO THE EXPERT EVIDENCE WAS WRONG: THE APPROACH IN TUI HAD TO BE CONSIDERED: AN IMPORTANT DECISION FOR HOUSING LAWYERS…
We are looking at a successful appeal by two claimants which succeeded largely on the grounds that the trial judge’s approach to the expert evidence was wrong. The trial judge failed to take into account the totality of the evidence…
COST BITES 454: PERSISTENT DISHONESTY LEADS TO INDEMNITY COSTS AGAINST ALL THE DEFENDANTS : “THEY WERE ALL IN IT TOGETHER”: LIMITED MEANS DID NOT JUSTIFY REFUSING AN ORDER FOR AN INTERIM PAYMENT OF COSTS
There are a number of costs issues considered in this judgment. Should indemnity costs be awarded? Should each defendant be liable to the same extent? Should the defendants’ financial position play a part in the decision on costs? Should there…
THROWBACK FRIDAY “AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED” (WITH THE ADDED BONUS OF AN OBJECT LESSON IN HOW NOT TO DRAW UP A COURT ORDER): NOVEMBER 2013
This case provides two object lessons. Firstly in how not to conduct litigation; secondly in how not to draw up a court order. Both points are important. The second issue is a remarkable attempt by a part to “re-write” a…
LITIGATOR’S LIFELINE 2: WHEN A SOLICITOR MOVES FIRMS: TEN POINTS ON FORMER CLIENTS, CONFIDENTIAL INFORMATION AND INFORMATION BARRIERS
Earlier this week we looked at a case where a defendant made an application to prevent the claimant’s solicitors continue acting. This was on the basis that a solicitor who he had dealings with at a previous firm had now…
WRITING LETTERS TO THE JUDGE AFTER A DRAFT JUDGMENT IS CIRCULATED: “THIS IS ABOUT AS FAR AWAY FROM THE CONDUCT OF SOLICITORS CONDUCTING LITIGATION AS IT IS POSSIBLE TO GET”
We have had many examples of parties writing to the court after receiving a draft judgment. On occasions such correspondence has been ill-advised. However I cannot recall any case where the letter from a losing party’s solicitor was as vitriolic…
PROVING THINGS 303: PROVING POSTAL SERVICE: “A MERE ASSERTION OF NON-RECEIPT DOES NOT SUFFICE TO REBUT THE PRESUMPTION”
Even in this day and age disputes arise as to whether something has been posted or received. We have a consideration of the issues in this First-tier tribunal judgment. The respondent established service of some documents, but not others. Further…
COST BITES 453: COSTS AWARD TO A LITIGANT IN PERSON: “… THESE ASSESSMENTS ARE MADE WITH A FAIRLY BROAD BRUSH”: THESE ARE NOT NOMINAL AMOUNTS
There are relatively few cases where the court assesses the costs of litigant in person. We have an example here. It is a useful reminder of the “upper limit” the rules apply to costs claimed and the factors the courts…
COST BITES 452: COURT DOES NOT SET ASIDE PREVIOUS COSTS ORDERS MADE IN PROCEEDINGS WHERE THE DEFENDANTS WERE ULTIMATELY SUCCESSFUL
A litigant can win a case at trial but still be liable for interlocutory costs orders made against it. This is highly frustrating for the litigant in question. Here we look at an attempt to overturn a costs order made…
REMEMBER THAT GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION CAN BE EXPENSIVE (VERY EXPENSIVE) IN THIS CASE IT MAY RUN INTO TENS OF MILIONS (OF DOLLARS…)
An applicant for an injunction normally has to give an undertaking as to damages. We have seen several cases where the applicant has had to pay damages and where this has been an expensive process. We have another example here. …
THE COURT REFUSES DEFENDANT’S APPLICATION FOR AN ORDER THAT THE CLAIMANT’S SOLICITORS CEASE TO ACT FOR HER: THERE IS NO AUTOMATIC CONFLICT AND EVIDENCE IS REQUIRED
It is not at all unusual for solicitors to move firms. It is often the case that the new firm will be engaged in cases which involve the solicitor’s previous firm. Is the “new” firm conflicted thereafter and must it…
WITNESS EVIDENCE WEDNESDAY: DOUBLE HEARSAY IS STILL EVIDENCE: COURT OF APPEAL OVERTURNS BANKRUPTCY ORDER AFTER WITNESS EVIDENCE WAS WRONGLY DISCOUNTED
For many litigators the way in which the courts approach written evidence is just as (arguably more) important than the way witness evidence is considered at trial. A working knowledge of the way in which the court treats evidence in…
ANOTHER CASE ABOUT SETTLEMENT: “FULL AND FINAL SETTLEMENT” OF WHAT? THE IMPORTANCE OF KNOWING PRECISELY WHAT HAS BEEN SETTLED
Issues relating to the settlement of cases have been a theme this week. Here we look at a case where the defendant argued that the action against it should be struck out because it had been resolved in an earlier…
HERE WE HAVE A CLAIMANT TAKING A LOT OF CHANCES IN RELATION TO COMPLIANCE AND PROCEDURE: BUT THEY LIVE TO FIGHT ANOTHER DAY
This case is an example of a claimant taking a number of chances in relation to procedure. Firstly in not complying with the pre-action protocol; secondly in not serving the particulars of claim timeously; then applying for a stay after…
MORE HALLUCINATION POINTS TO WATCH: AI CAN SIMPLY MAKE THINGS UP (ANOTHER WARNING FROM THE COURTS): THE MATERIAL PRODUCED CAN BE “PLAUSIBLE BUT INACCURATE”
We are looking at another case where the use of Artificial Intelligence has led to a litigant having problems. We have many examples of AI hallucinating cases. Here AI simply added words to legislation. Those words did not exist… …
WHICH CITY IS BEST FOR THE TRIAL? A JUDGMENT FROM THE USA AND ITS (IMAGINED) ENGLISH EQUIVALENT: “THE COURT CAN FURTHER REASSURE VISITING PRACTITIONERS THAT THE COURTHOUSE HAS ELECTRIC LIGHTING, INDOOR PLUMBING AND DOORS WHICH OPEN WITHOUT THE ASSISTANCE OF A WHIPPET.”
We have looked many times at decisions as to which particular city is most appropriate for a case to be heard. Someone recently brought my attention to the judgment of District Judge Kent set out below. This is a judgment…
COST BITES 451: THE IMPACT OF A STATUTORY REQUIREMENT ON A COSTS BUDGET: THE STATUTE TAKES PRECEDENCE OVER THE CPR: THE DIFFERENCE TO A BUDGET WHEN THE COURT IS COMPELLED TO TAKE THE FINANCIAL POSITION OF THE PARTIES INTO ACCOUNT
The Court of Appeal considered an unusual aspect of costs budgeting. Does a statutory requirement that the courts take into account the financial position of the parties when considering costs have any impact on the budgeting process? If it does…
WHAT YOU SAY (OR DON’T SAY) IN A MEDIATION, AND AFTERWARDS, CAN BE OF CRITICAL IMPORTANCE: COURT SETS ASIDE A SETTLEMENT AGREEMENT AND ORDERS REPAYMENT
This is an unusual case in which the claimant successfully set aside an agreed settlement. It argued that there had been fraudulent misrepresentation. Even more unusually it obtained an order for repayment and recission on a summary judgment application. “In…
LITIGATOR’S LIFELINES 1: PRUDENT STEPS TO TAKE WHEN ADVISING ON SETTLEMENT: LINKS AND GUIDANCE (FROM THROUGHOUT THE WORLD..)
Virtually all litigators advise on settlement most of the time. Yesterday we looked at a case where a client, dissatisfied with the terms of a settlement, brought proceedings against their former solicitors. That action was spectacularly unsuccessful. However the fact…
PROFESSIONAL NEGLIGENCE NEWS 6 : CLAIMANT FAILS TO PROVE SOLICITORS WERE NEGLIGENT IN ADVISING UPON SETTLEMENT (IN FACT IT FAILS TO PROVE A LOT OF OTHER MATTERS AS WELL…)
Most disputed claims eventually settle. Some clients may be dissatisfied with the terms of settlement. Here we look at a case where the claimants allege that their former solicitors had been negligent in settling two sets of proceedings. The case…
BACK TO BASICS MONDAY: WHEN A SOLICITOR APPLIES TO COME OFF THE RECORD: THE NEED FOR EVIDENCE, NOTICE AND PROOF OF SERVICE
Here we are using a recent judgment to look at some basic points about a solicitor’s application to come off the court record. There are nine basic points here. There is also a reminder that the fact that a solicitor…
COST BITES 450 : SHOULD THE COURT DELAY THE DATE ON WHICH INTEREST ACCRUES ON COSTS? THE HIGH COURT CONSIDERS AN INTERESTING QUESTION
Here the Court considered the question of whether it was appropriate to defer the date on which interest on costs became payable. The paying parties argued that the receiving party’s failure to set out the claim for the costs with…
COST BITES 449: HAD A CLAIMANT BEATEN ITS OWN PART 36 OFFER? IT IT HAD WAS IT UNJUST FOR THE NORMAL CONSEQUENCES TO APPLY? MINING THE RULES FOR AN ANSWER…
Here was have a complex case where the claimant made a complex Part 36 offer. The judge had to consider whether the claimant had considered it was effective. If it was effective was it “unjust for the normal consequences to…
EXPERT WATCH 82: THE PROFOUND DANGERS OF AN EXPERT USING AI: “A SIGNIFICANT GAP BETWEEN THE VOICE AND OPINION OF THE EXPERT AND THE REPORT WHICH SHE HAS FILED”
We have here another case where the use of AI by an expert has led to the judge having major doubts about the overall validity of that expert’s report. There is a “sliding scale” as to what is acceptable and…
SERVICE POINTS 58: ACCIDENT IN ENGLAND, CLAIMANTS LIVING IN AUSTRALIA: DEFENDANT’S APPLICATION TO CHALLENGE JURISDICTION REFUSED
This post comes within the “Service Points” series because the defendant here made an application to set aside the claim form and its service coupled with seeking a declaration that the court had no jurisdiction to try the claim. It…
EXPERT WATCH 81: EXPERT EVIDENCE ON APPEAL: COMPANY PERMITTED TO RELY ON IT EXPERT TO EXPLAIN WHY ITS DIRECTORS THOUGHT A REGULATOR’S EMAIL WAS A PHISHING ATTEMPT
Here we have a consideration of whether an appellant should be allowed to adduce expert evidence for the first time at the appeal stage. This appeal was subject to specific rules and should not be taken as an indication that…
THROWBACK FRIDAY: IN THE RUN UP TO HALLOWEEN: MISSIVES FROM THE BENCH (OCTOBER 2021): “THAT ONE’S HALF BLIND AND HALF DEAF. I CALL HIM THE COURT OF APPEAL…”
Here we go back a few years to look at a post written in the run up to Halloween. There was a series of “horror” stories relating to the law. This one was about interventions from the bench, provided by…
THE DEFENDANT SHOULD NOT PICK AND CHOOSE THE EVIDENCE IT PUTS BEFORE THE COURT: A WITNESS STATEMENT BREACHED THE DUTY OF CANDOUR OWED: WHAT YOU LEAVE OUT CAN SOMETIMES BE MORE IMPORTANT THAT WHAT YOU PUT IN…
In this case the judge was critical of the defendant’s phrasing of a witness statement. A party to judicial review proceedings owes a duty of candour to the court. A statement by a council employee that “no substantive response” had…
NO FINDING OF FUNDAMENTAL DISHONESTY WHERE A CLAIMANT GAVE AN ACCOUNT DIFFERENT TO HER LETTER OF CLAIM: (CLINICAL NEGLIGENCE CASE)
We have monitored cases relating to fundamental dishonesty for many years. It is as important to note cases where this is not found as those where it is established. We have an example here. “… when it comes to whether…
“THIS IS NOT THE MANNER IN WHICH AN APPLICATION SHOULD BE MADE”: EMAILS TO THE COURT CANNOT TAKE THE PLACE OF APPLICATIONS
We have seen a large number of cases where a party, or a proposed party, writes directly to the court to seek an order in their favour. Here we have a case where this course of action was adopted. The…
NON-COMPLIANT CLAIMANTS ARE IN THE LAST CHANCE SALOON (AND THERE ARE 5,000 OF THEM): BUT PARTICULARS MUST BE SERVED AND ADVERSE COSTS STILL PAID
The problem with large scale litigation is that when problems occur there tend to lead to large scale difficulties. We have an example here. Some 5,000 claimants missed a key deadline. As a result they are now outside the terms…
![WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT...]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/10/Shamelessplug.png?resize=150%2C150&ssl=1)
WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT…]
This blog, inevitably, tends to cover cases where things have gone wrong (for someone). The primary aim is to stop the same thing happening to you. This webinar aims to encapsulate the lessons from procedural problems and issues in 2026. …
CLAIMANT’S CLAIM AGAINST INSURER FAILS: COURT OF APPEAL UPHOLD DECISION THAT THE INSURED’S FAILURE TO NOTIFY WAS A CONDITION PRECEDENT
The question “Will and Insurer Pay for this?” is a crucial one for most personal injury litigants in particular. In this case the Court of Appeal upheld a decision that an insurer was not liable to pay an injured claimant…
“NEW” EVIDENCE AND A SECOND APPLICATION DOES NOT GIVE RISE TO A SECOND CHANCE: ABUSE OF PROCESS LEADS TO STRIKE OUT
This is a case that shows the importance of putting your best case forward at the first opportunity. Litigants can never assume they will obtain a second chance. The judge held that a second (similar) application made to prevent a…
THE CURRENT IMPORTANCE OF PLEADINGS 102: THE CLAIMANTS FAILURE TO PLEAD A COUNTERFACTUAL PROPERLY MEANS THE PARTICULARS NEED SUBSTANTIAL AMENDMENT
This is not the first time we have looked at a claimant that has difficulty in pleading a “counterfactual”. That is what they would have done and what would have happened if the defendant had not (allegedly) breached the duties…
WITNESS EVIDENCE WEDNESDAY: INTERMEDIARIES IN CIVIL PROCEEDINGS: DEFENDANT WITH ADHD ENTITLED TO ASSISTANCE WHEN GIVING EVIDENCE, BUT NOT THROUGHOUT THE TRIAL
There are relatively few cases where the courts have considered the use of intermediaries in civil cases. Here we have a detailed consideration of whether a defendant required an intermediary. The judge did not accept that an intermediary was…
WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (2): EMBARGOED JUDGMENTS: TEN KEY POINTS AND SUGGESTIONS FOR HOW A LETTER TO THE CLIENT SHOULD BE DRAFTED
The previous post looked at the latest case in relation to breaches of an embargo on a draft judgment. The judge observed that the solicitor had given good advice and stated “I do not know what the answer to that…
ANOTHER CASE ON BREACH OF A JUDGMENT EMBARGO: WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (1)?
There are numerous cases on breach of a draft judgment embargo on this blog. In this case the solicitor had given clear advice about the embargo but the client, inadvertently, breached it. The case highlights the need for litigants (on…
PROVING THINGS 302 : THE COURT DREW ADVERSE INFERENCES WHEN THE CLAIMANT FAILED TO TEST THE METER IT WAS RELYING ON
Much of the discussion relating to a court drawing adverse inferences relates to a failure to call relevant witnesses. Here, the judge applied them to the absence of a physical object and the test evidence it could have provided. “……
SERVICE POINTS 57: PRESENCE IN THE JURISDICTION, A LAST KNOWN ADDRESS AND THE COST OF GETTING IT WRONG: UNSUCCESFUL CLAIMANT FACES A COSTS BILL OF £500,000…
Once again we are looking at a case where a claimant fails to effect service properly. The claimant failed for two reasons. Firstly the defendant was not “present” in the jurisdiction when the claim form was served. Secondly it appeared…
BACK TO BASICS MONDAY: SOME KEY POINTS ABOUT WITNESS SUMMARIES
The post this morning on witness summaries provides an opportunity to revisit the rules about witness summaries. It is notable that many of the cases relating to this topic also deal with applications for relief from sanctions when the summaries…
EXPERT WATCH 80: WHEN EXPERTS ARE ON THE METER: ONE EXPERT WAS NOT ALWAYS INDEPENDENT, THE OTHER DID NOT APPRECIATE HIS DUTY TO THE COURT
Here we have what are almost “classical” issues about the role of experts (in the sense we have seen this many times before). Both parties in this litigation called experts. The judge found one expert not to be fully independent …
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