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 …
PERMISSION TO RELY ON A WITNESS SUMMARY: DOES THE APPLICANT NEED TO SHOW THE WITNESS HAS REFUSED TO GIVE A STATEMENT? RELIEF FROM SANCTIONS (OH, AND THAT WITNESS FORMERLY KNOWN AS “PRINCE”)
Cases on witness summaries are fairly rare. Here we have issues relating to witness summaries considered in the context of a high profile witness. The judgment explains when a witness summary can be used. More specifically whether a party can…
COST BITES 448: PART 36 AND FIXED COSTS: “VERY LATE” ACCEPTANCE OF A DEFENDANT’S OFFER LEADS TO THE CLAIMANT RECOVERING NO COSTS AT ALL
It was probably inevitable that there would be difficulties in the construction of fixed costs and the interplay with Part 36. We have such a case here. The Court had to consider the implications of the precise wording of fixed…
COST BITES 447: “THESE SUMS ARE ASTONISHING”: COURT OF APPEAL CONSIDERS £2 MILLION BRIEF FEE AND COSTS OF A FOUR-DAY APPEAL (AND IS NOT TOO IMPRESSED)
It is rare for the Court of Appeal to get involved in the minutiae of costs. We have an example here and the Court is, to say the least, forthright in its views. Leading Counsel’s brief fee of £2 million…
SERVICE POINTS 56 : PERSONAL SERVICE NOT EFFECTED: COURT RETROSPECTIVELY APPROVES ALTERNATIVE SERVICE OF DOCUMENTS IN CONTEMPT PROCEEDINGS
There are very particular issues relating to service of committal proceedings. Normally an application has to be served personally. Sometimes, however, this is not easy. In this case the judge retrospectively authorised service of a committal application by an alternative…
DID YOU KNOW THAT YOU COULD BE MADE BANKRUPT (OSTENSIBLY ON YOUR OWN APPLICATION), NOT KNOW ANYTHING ABOUT IT – AND THEN HAVE TO PAY THE TRUSTEE’S COSTS? THE IMPORTANCE OF GETTING KEY EVIDENCE BEFORE THE COURT
This is an unusual case. The appellant here had been made bankrupt, ostensibly on her own petition. She knew nothing about it. Despite this the court would not annul the bankruptcy until provision was made for payment of the Trustee’s…
THROWBACK FRIDAY: A CASE WHERE THE SOLICITORS’ EVIDENCE (OF THEIR OWN) LOSS WAS “WHOLLY INADEQUATE” (OCTOBER 2017)
The “Proving Things” series has recently passed number 300. A large number of the posts in that series are about a failure to prove things. We have here a claim brought by a firm of solicitors where the judge observed…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
“LITIGATION SHOULD BE CONDUCTED BY APPLICATIONS AND ORDERS”: “THESE EPISTOLARY COMMUNICATIONS WERE LESS THAN SATISFACTORY…”
There is one brief observation in this judgment which is of some importance in relation to the way that litigators communicate with the court. Attempting to manage a case by correspondence is usually not satisfactory. “Court systems are not well…
ENFORCEMENT BULLETIN 6: BEING SIGNED OFF WORK DOES NOT MEAN UNABLE TO ATTEND COURT: SUSPENDED COMMITTAL ORDER MADE AGAINST JUDGMENT DEBTOR (CLINICAL NEGLIGENCE AND PERSONAL INJURY LITIGATORS YOU MAY WANT TO READ THIS AS WELL…)
It is rare for a clinical negligence claimant to be involved in issues relating to the enforcement of judgments. We have an example here. Ironically enough it is also an example of inadequate medical evidence being presented in an an…
PROVING THINGS 301 : CAN AN APPLICANT IN COMMITTAL PROCEEDINGS RELY UPON A JUDGMENT GIVEN AT TRIAL? WHAT WEIGHT SHOULD BE GIVEN TO IT?
It is always interesting to see the sequel of cases we have looked at earlier. We have an example here. We looked at this case in the context of a finding of fundamental d dishonesty. Different issues arise in relation…
EXPERT WATCH 79: WHEN A LITIGANT INSTRUCTS AN EXPERT AND THEN SEEKS PERMISSION TO RELY ON THEM: MIXED RESULTS
A party instructing an expert without obtaining permission from the court in advance runs a risk. Considerable expenditure can be incurred and yet the court may refuse permission. However, on occasions, it is necessary to actually have the report to…
WITNESS EVIDENCE WEDNESDAY: WHERE ARE WE NOW ON “MISSING” WITNESSES AND EVIDENCE ? TEN KEY POINTS WITH USEFUL LINKS
Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise. However there is an important element in relation to missing evidence and “missing” witnesses. What inferences should the court draw if a…
THE CURRENT IMPORTANCE OF PLEADINGS 101: PUTTING A FIGURE IN THE PARTICULARS OF CLAIM DOES NOT NECESSARILY ENTITLE A CLAIMANT TO DEFAULT JUDGMENT FOR THAT SUM
Does the fact that a specific sum is claimed in the Particulars entitle a claimant to enter default judgment in that sum? Sometimes the answer to that question is no. That was the issue being considered in in this case. …
EXPERT WATCH 78 : “ROWING BACK”?: WHEN AN EXPERT CHANGES THEIR VIEW AFTER THE JOINT REPORT: “THAT IS NOT THE FAIR OR PROPER WAY FOR PUTTING NEW EXPERT EVIDENCE BEFORE THE COURT”
Here we look at a case where an expert essentially changed their mind after a joint report. Although the expert stated that he had not “rowed back” the judge was clear that there had been a change of view and…
SERVICE POINTS 55: THE SOLICITORS DISCIPLINARY TRIBUNAL FINDS THAT A SOLICITOR WAS TELLING LIES ABOUT SERVICE: SOLICITOR STRUCK OFF (DON’T LET THIS HAPPEN TO YOU…)
We have looked many times at issues relating to non or mis-service of the claim form. Here we have a case where a solicitor’s evidence as to service was disbelieved by a Circuit Judge. The case shows many familiar mistakes…
LIMITATION: WHEN DID BLACK CAB DRIVERS HAVE “THE KNOWLEDGE”? CLAIM AGAINST UBER WAS STATUTE BARRED
This is a judgment about s.32 of the Limitation Act. In particular about the date of knowledge. The claimants were not successful. The judge held that they had the relevant knowledge more than six years prior to issue. It was…
CONDITIONAL FEE AGREEMENTS, CHANGE OF SOLICITORS AND RATIFICATION AND INFORMED ADVICE: IT IS NOT SO EASY TO SIMPLY RECOMMEND A CHANGE OF SOLICITORS…
It is not unknown for a client to wish to change solicitors part way through a case. Where the matter is being conducted on a conditional fee agreement this can lead to complex problems. We see this here. The key…
THE CURRENT IMPORTANCE OF PLEADINGS: SPECIAL REVIEW EDITION: WHAT CAN WE LEARN FROM THE FIRST HUNDRED POSTS?
When this series started in March 2025 I suspected that there would be enough material for a few posts. There have now been 100. The cases have involved claims and defences, replies and counterclaims, personal injury, commercial disputes, professional negligence…
THE CURRENT IMPORTANCE OF PLEADINGS 100: PRIVY COUNCIL CONFIRM THAT THE DEFENDANT WAS NOT ENTITLED TO RELY ON A DEFENCE NEVER PLEADED
For post one hundred in this series it is perhaps fitting that we look at a Privy Council decision that shows, in categorical and clear terms, that a failure to plead essential points cannot be dismissed as a technicality. Here…
COST BITES 466: COURT OF APPEAL UPHOLDS ABILITY TO AWARD INTEREST ON COSTS TO LITIGANTS CONDUCTING LITIGATION ON A CFA
Here we have a case where the Court of Appeal upheld a decision to award pre-judgment interest on costs. Interest can be awarded even though the action is being conducted on a Conditional Fee Agreement. This is an important point…
THIRD PARTY DISCLOSURE SHORTLY BEFORE TRIAL: “WHAT ONE PERSON REGARDS AS OPPORTUNISM MIGHT EQUALLY WELL BE ANOTHER PERSON’S CREATIVE LAWYERING”
This is a case about a late application for third party disclosure. The order was granted despite the trial date being imminent. The respondents complained of “opportunism” the judge observed that this may well be described as “creative lawyering”. “…litigation…
BACK TO BASICS MONDAY: THE WISDOM OF MAKING A PROMPT AND REALISTIC PART 36 OFFER IN AN ASSESSMENT ON COSTS: 10 KEY POINTS WITH USEFUL LINKS
We are looking at the wisdom in making an early and realistic Part 36 offer on costs. “This appeal emphasises the need for paying parties who wish to protect themselves against the costs consequences of CPR 47.19 to make realistic…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
A SUCCESSFUL JUDICIAL REVIEW OF A DECISION TO REFUSE PERMISSION TO APPEAL: GRANTING JUDGMENT AFTER AN EARLY NEUTRAL EVALUATION: A “WHOLLY EXCEPTIONAL COLLAPSE OF FAIR PROCEDURE”
It is rare for a judicial review of a judicial decision to succeed. It succeeded here because the judge found that there was (among other things) a “frustration or corruption of the… judicial process”. Essentially it is a decision about…
PROVING THINGS 300: COMPANY FAILS TO PROVE ITS OWN FINANCIAL SITUATION: APPLICATION FOR A STAY REFUSED
A major theme of this series has been a failure by litigants to put evidence before the court to establish their case. That is a feature of this case. The defendant company was arguing that its own financial position was…
THROWBACK FRIDAY: “STAYING SANE AS A LITIGATOR: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…” (OCTOBER 2019)
Today we go back to a post in October 2019. It was part of a series of posts about “staying sane as a litigator”. This was the fifth in the series and makes the point that things go wrong in…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
IF YOU CAN’T PROVE IT THEN YOU DON’T GET IT: LIFE IS REALLY THAT SIMPLE: WEBINAR ON PROVING DAMAGES: 22nd OCTOBER 2026
We have looked many times on this blog at cases where litigants have simply failed to prove things. There have been numerous occasions when this relates to a failure to prove damages. This webinar looks at how litigators can avoid…
COST BITES 463: HOW SHOULD A COSTS ORDER BE PHRASED? MAKING SURE THAT IT DOES NOT JUST OVER “COUNSEL STANDING ON THEIR FEET DURING THE APPLICATION”
Here we have an unusual disagreement about how an order for costs should be phrased. The judge made it clear that the order should make it clear that it was not just covering advocacy. “I prefer the Bourlakovas’ formulation. It…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… INTERIM ORDERS FOR COSTS: 10 KEY POINTS AND USEFUL LINKS
We have looked at the issue of interim costs twice over the past few days. It is an important element of litigation. An order for costs does not put money in the receiving party’s bank account. Detailed assessment may take…
COST BITES 462: A “TOP-HEAVY” LEGAL TEAM AND £929,000 CLAIMED IN COSTS: COURT ORDERS A PAYMENT ON ACCOUNT OF LESS THAN 50%: THE “RULE OF THUMB” OF 60% IS NO ALWAYS APPROPRIATE
We are returning to the case we looked at yesterday. Having determined that it was appropriate for the court to order the applicants to pay the respondents’ costs of the application the judge then considered the question of the amount…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
WITNESS EVIDENCE WEDNESDAY (ii): THE DEFENDANT’S WITNESS HAD NO FIRST HAND KNOWLEDGE OF THE ISSUES, KEY DOCUMENTS AND KEY WITNESSES WERE NOT PRESENT
Here we look at another case where witness evidence was found wanting. Again this is because of a failure to identify the source of information or belief. This was coupled with the fact that crucial witnesses who could give first…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
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