LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (5): “THE HEARING WAS A SALUTARY LESSON IN HOW AI MAY PROMPT LAY PERSONS TO SAY THE RIGHT THINGS IN PLEADINGS, BUT CANNOT FURNISH THE EVIDENCE NEEDED TO ESTABLISH THOSE STATEMENTS”
This morning we are travelling to Scotland to look at a case where the judge indicated that the use of AI had led the pursuers (claimants) to bring forward a claim that was largely unsupported by evidence. This led to…
THE DUTY OF FULL AND FRANK DISCLOSURE: USEFUL GUIDANCE AND AN ESSENTIAL CHECKLIST WHEN MAKING AN APPLICATION TO SERVE OUT…
The case we looked at in the previous post highlighted the dangers of failing to comply with the duties owed on a without notice application, an application to serve out in particular. The same judgment had some important guidance for…
A COURT SETS ASIDE AN ORDER MADE WITHOUT NOTICE: ANOTHER CASE THAT EMPHASISES THE IMPORTANCE OF FAIR PRESENTATION AT THESE APPLICATIONS: A LAWYER CANNOT SIMPLY PROMOTE A “CONSPIRACY THEORY” BUT MOST ACT OBJECTIVELY AND CAREFULLY
We have looked many times at cases where “without notice” applications have come under fire. In particular in relation to arguments that the applicants have failed in their duty of full and frank disclosure to the court. We see that…
THE REPLY: THE THEME OF THE DAY: SIX USEFUL CHECKLISTS: MAKING SURE YOUR PLEADING DOESN’T FAIL THE BASIC TESTS
A post earlier today promised checklists on the essential elements that need to be considered when drafting a Reply. There are six here (we will deal with drafting a Defence to counterclaim separately). These should be useful in relation to…
DRAFTING A DEFENCE TO COUNTERCLAIM: SOME IMPORTANT POINTS: YOU HAVE TO COMPLY WITH CPR 16 AND DO IT FULLY AND PROPERLY
The posts earlier today dealt with service and the drafting of a Reply. They emphasised that a Defence to Counterclaim is wholly different from a Reply.A Reply is generally optional. A Defence to Counterclaim is not.A party that fails to…
DRAFTING A REPLY: WHAT IT SHOULD CONTAIN AND WHAT IT SHOULD NOT: THE KEY ISSUES CONSIDERED
You may have noted that the theme of today is the Reply. Here we look at how a Reply should be drafted if a decision is made that one should be served. “A Reply should not, however, be used to…
BACK TO BASICS MONDAY: THE RIGHT TO REPLY: WHEN MUST YOU DO IT AND WHEN SHOULD YOU DO IT? THE CRITICAL IMPORTANCE OF A DEFENCE TO COUNTERCLAIM
There are a surprising number of cases that deal with the drafting of a Reply. Today we are having a detailed look of the rules and case law relating to the Reply. Here we take a look at the rules…
COST BITES 449 : YOUR CASE AGAINST ME WAS DISMISSED BECAUSE YOU HAD NO PROPER CAUSE OF ACTION: SHOULD I GET 100% OF MY COSTS ON THE INDEMNITY BASIS? (LIFE IS MORE NUANCED THAN THIS…)
Here we look at a case where a defendant was successful in having an action against him struck out because there was no viable cause of action. The questions addressed here were – should the claimant recover 100% of his…
THE IMPORTANCE OF MAKING AN APPLICATION TO EXTEND TIME BEFORE THE DATE OF COMPLIANCE: THE COURT DOES NOT CONSIDER DENTON PRINCIPLES EVEN IF THE APPLICANT FAILS TO MEET THEIR OWN PROPOSED TIMETABLE
What is the situation if a party seeks a prospective application of time for compliance but, whilst the application is pending, does not act by the date they proposed? Is this still and “in-time” application? Should it be treated any…
EXPERT WATCH 71: “I DO NOT ATTACH WEIGHT TO THIS REPORT AS EXPERT EVIDENCE”: THE EXPERT WAS “ADVOCATING” AND “HE TRESPASSES INTO THE ROLE RESERVED TO THE TRIBUNAL”
We have seen that judge jealously (and rightly) guard against experts trespassing into the judicial role of fact finding. They are also suspicious of experts that take the role of advocates rather than independent experts. We see both of these…
THROWBACK FRIDAY: ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE (SEPTEMBER 2018)
Some things are timeless in litigation. The fact that it carries risks is without doubt one of those things. Here we look at a post that considered the duty to advise on the risks of litigation and how to fulfil…
MORE ABOUT THE CASE AGAINST A SOLICITOR BEING STRUCK OUT: THE ABSENCE OF AN ASSUMPTION OF RESPONSIBILITY MEANT THERE WAS NO CASE: A CLAIMANT CANNOT HOPE THAT “SOMETHING WILL TURN UP” ON DISCLOSURE…
We looked at this case earlier today in relation to the procedural aspects. However the substantive judgment, on which the defendant was successful, is of considerable interest to the legal profession generally. There are also issues as to how the…
WILL AN INSURER PAY FOR THIS? ONE OF THE MOST ESSENTIAL QUESTIONS IN LITIGATION CONSIDERED: WEBINAR 30th OCTOBER 2026
The post earlier this week on the claimant’s inability to use TUPE to bring a claim against a defendant highlights the very real difficulties that exist when there is no defendant who can pay the claim. In that case the…
THE IMPORTANT DISTINCTION BETWEEN AN APPLICATION TO STRIKE OUT AND ONE FOR SUMMARY JUDGMENT: DECISION TO STRIKE OUT ALLOWED ON APPEAL BECAUSE THE JUDGE HAD WRONGLY CONSIDERED THE MERITS
There is an important distinction between the striking out of a statement of a case and summary judgment. Striking out considers whether there is an arguable claim pleaded; summary judgment relates to whether that claim has any merits. This distinction…
CLAIM AGAINST A SOLICITOR WAS STRUCK OUT: THERE HAD BEEN NUMEROUS PROCEDURAL DEFAULT AND THESE WOULD HAVE BEEN FORGIVEN…
We are looking at a case where a claim against a defendant solicitor was struck out. It was struck out because there was no arguable case against the solicitor. However the claimants had also breached numerous rules before and after…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (4): EXPERTS AND THE USE OF AI: A LOT OF DANGER AREAS HERE: 20 KEY POINTS
Here we consider the risks that occur when experts use AI when they prepare a report or give evidence. We have seen several examples on this blog of evidence going awry. Here we draw upon guidance from previous posts, but…
CAN THE HIGH COURT ISSUE AN INJUNCTION PREVENTING THE ISSUE OF PROCEEDINGS IN THE COUNTY COURT? A QUESTION WITH A ONE WORD ANSWER…
Can the court grant an injunction to prevent the issue of proceedings in this jurisdiction? That was the question considered here. The answer was clear, and the judgment brief… “in my judgment, the court does not have jurisdiction to grant…
LOSS OF EARNINGS CLAIMS 2026: WEBINAR 16th SEPTEMBER 2026
This year has seen some important cases in relation to the way in which the courts approach claims for loss of earnings. This webinar provides a practical and comprehensive examination of claims for loss of earnings in personal injury litigation….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (3): AI AND WITNESS EVIDENCE: VERY DANGEROUS BEDFELLOWS: TWENTY KEY POINTS
We have looked several times at the dangers of using Artificial Intelligence to draft witness statements. It would be naive to believe that this issue is not going to arise again. Indeed it may well already be a common feature…
TUPE DOES NOT PASS ON LIABILITIES TO THIRD PARTIES: COURT OF APPEAL DECISION TODAY
The Court of Appeal today found that TUPE does not transfer an employer’s pre-transfer vicarious liability to third-party claimants. This has important practical implications for many practitioners, particularly in the fields of personal injury and clinical negligence. “… just standing…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (2): HOW TO SPOT “FALSE” AUTHORITIES AND WHAT TO DO ABOUT IT (PLUS SOME USEFUL LINKS)
Many practising lawyers will now have seen cases where AI has been used to put forward legal propositions. Sometimes this involves “hallucinated” cases, statutes or rules. More problematically a real case or statute is cited, however the citation is wrong…
BACK TO BASICS MONDAY: LAWYERS AND ARTIFICIAL INTELLIGENCE (1): THREE IMPORTANT PRINCIPLES: YOU OWN THE WORK; AI IS NOT AN AUTHORITATIVE SOURCE OF LAW; IT IS NOT ENOUGH THAT THE CASE EXISTS…
The post earlier today on the misuse of AI when defending an SDT hearing has led me to start a short series about the dangers of lawyers (litigators in particular) using AI. This is not an anti-AI stance. There is…
MORE ON THE USE OF ARTIFICIAL INTELLIGENCE AND “HALLUCINATING” CASE LAW AND LEGAL PRINCIPLES: THE SOLICITORS DISCIPLINARY TRIBUNAL GIVES A CLEAR VIEW…
We have now looked at numerous court cases where lawyers have come to grief because of the use of Artificial Intelligence to cite law incorrectly, or simply manufacture false cases and equally false legal principles and citations. Here we have…
PROVING THINGS 296 : PROVING THE EARNINGS POTENTIAL OF AN INJURED CHILD: THE LOST YEARS CALCULATION CONSIDERED AND APPLIED
When the Supreme Court gave the judgment in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5 it was clear that there were going to be major evidential issues…
EXPERT WATCH 70: EXPERTS’ FAILURES TO REPORT ON THE RANGE OF OPINIONS LEADS TO THEIR VIEWS BEING REJECTED: ESSENTIAL READING FOR EVERY PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYER, ANYONE WHO INSTRUCTS AN EXPERT (AND ANY EXPERT…)
This blog has considered, many times, the (almost universal) failure of expert reports to comply with CPR PD 35.2 – that is the mandatory duty of an expert to consider whether there is a range of opinions in the matters…
WEBINAR ON PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: 9th SEPTEMBER 2026: USEFUL GUIDANCE, CHECKLISTS AND QUESTIONNAIRES
This webinar provides a practical and up-to-date analysis of the law and practice relating to provisional damages and periodical payments in personal injury litigation. It begins with a review of recent case law, including a professional negligence claim arising from…
SHOULD (OR CAN) THE COURT MAKE AN ORDER FOR PRE-ACTION DISCLOSURE WHEN THE PROPOSED DEFENDANT IS BASED IN ITALY? ANOTHER PAD APPLICATION COMES TO GRIEF…
Earlier today I promised a second post on pre-action disclosure. This case considered a number of issues, including whether the court actually has jurisdiction to make a PAD order when the respondent is based abroad. The judgment goes further than…
THROWBACK FRIDAY:”WITNESS STATEMENTS: WHEN THINGS GO WRONG BLAME THE SOLICITOR” (SEPTEMBER 2016)
Here we are looking at a post from September 2016 on an issue that remains extremely current. When a witness statement is found to be inaccurate that witness will often blame their solicitor, or the person responsible for drafting the…
SHOULD THE COURT ORDER PRE-ACTION DISCLOSURE? THE JURISDICTIONAL REQUIREMENTS ARE NOT SATISFIED AND THE COURT WOULD NOT EXERCISE ITS DISCRETION IN ANY EVENT
This is the first of two posts today about applications for pre-action disclosure. The applicants were, eventually, unsuccessful in each. Here the judge found that the applicants had not met the first jurisdictional requirement for disclosure. Even if they had…
COST BITES 446 : SHOULD THE COURT HAVE MADE A NON-PARTY COSTS ORDER? SHOULD THE APPELLANT HAVE BEEN CROSS-EXAMINED AND WAS THE COURT BOUND TO ACCEPT HIS EVIDENCE?
This is a case about non-party costs orders that has some unusual elements. Firstly an argument that since the appellant was not cross-examined the court was bound to accept his assertions that he had no direct financial interest in the…
DO YOU WANT TO BECOME A HOUSING LAW BLOGGER? NEARLY LEGAL REQUIRES A TEAM OF WRITERS
I wrote earlier this year about the sad death of Giles Peaker the revered blogger on Housing Law. The blog “Nearly Legal” is, I am glad to saying, continuing. However, such was Giles’ work rate a team of writers is…
DEALING WITH FISH FILES, PROCRASTINATION AND DELAY: THE LITIGATOR’S FRIEND: A REMINDER OF USEFUL LINKS, POSTS AND GUIDANCE AND SOME USEFUL CHECKLISTS
Many of the problem areas of litigation we look at regularly (possibly daily) are often the result of human error. Sometimes there are mistakes as to substantive law, more often there are mistakes as to procedure. One major theme is…
LIMITATION PERIODS AND CONSUMER CREDIT ACT CLAIMS: IT MUST “BE RECOGNISED THAT NOT ALL CLAIMS ARE SUBJECT TO LIMITATION PERIODS”: (HOWEVER THERE IS A STING IN THE EXHAUST PIPE FOR CLAIMANTS…)
Here we have an interesting decision on limitation. The judge found that the claimant’s action was not subject to the Limitation Act 1980 and allowed an appeal against a finding that it was. However there was a sting in the…
SETTING ASIDE A DEFAULT JUDGMENT, DENTON AND DELAY: SHOULD THE COURT REFUSE THE DEFENDANT RELIEF BECAUSE THEY HAD CAUSED UNNECESSARY DELAY AND COSTS?
For many years now there have been issues relating to how far the “Denton” criteria run alongside the rules relating to applications to set aside a default judgment. We have such a case here. There was clearly an arguable defence,…
WITNESS EVIDENCE WEDNESDAY: “BACKDATING LETTERS” TO DELIBERATELY MISLEAD COULD COST YOU: £4.58 MILLION IN THIS CASE: (METADATA COMES INTO PLAY NOW)
We are looking here at a judgment about witness credibility made by an Employment Tribunal several years ago. In particular the Tribunal found that the Defendants’ witnesses had deliberately backdated letters in an attempt to mislead. The reason we are…
THE CURRENT IMPORTANCE OF PLEADINGS 90: THE COURT OF APPEAL WAS WRONG TO HOLD ONE DEFENDANT TO HIS PLEADED CASE WHILST EXONERATING A CO-DEFENDANT: THIS LED TO A FINDING THAT WAS AN “ABSURDITY”
In this case the Judicial Committee of the Privy Council considered whether the Court of Appeal in Trinidad and Tobago was correct to hold one defendant in a clinical negligence case to their pleaded case whilst, effectively, exculpating a co-defendant. …
COST BITES 445: USEFUL CHECKLISTS (2): A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR DEFENDANTS) TOGETHER WITH SOME USEFUL LINKS
Yesterday we looked at a checklist on costs for claimants in housing disrepair cases. In the interest of balance I said the next in the series would be aimed at defendants. Here is the checklist as promised. It encourages litigators…
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
ADVOCACY THE JUDGE’S VIEW SERIES 4: A RECAP OF THE PREVIOUS SERIES AND THE DEADLY SINS OF ADVOCATES: DON’T BE CONFUSING OR BORING
The fourth series on the Judge’s views of advocacy only had two posts. The second post in the series consisted of a tweet from an (anonymous) judge “Get to the Point Quickly”. The first in the series contained a…
CAN YOU HAVE AN INTERIM INJUNCTION WHEN YOU HAVE BEEN REFUSED IDENTICAL RELIEF IN THE PAST? CLAIMANTS NOT ALLOWED A SECOND BITE OF THE CHERRY
Can a party who has an application for an injunction dismissed then issue proceedings and seek an injunction in identical terms? The answer in this case is no. The principles that prevent litigants seeking “two bites of the cherry” apply…
COST BITES 443: USEFUL CHECKLISTS: A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR CLAIMANTS)
The review on the book on Costs in Housing Disrepair cases last week led me to consider a series of checklists on costs. I am starting with costs for claimant housing lawyers. However this site is even handed, the next…
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