THROWBACK FRIDAY: WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE (OCTOBER 2018)
We are going back eight years and looking at another highly familiar theme – non-compliant witness statements. We have another example earlier today in the blog. . We are looking at a post from October 2018. This post pre-dated PD…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … OPPOSING APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS AND A BONUS POINT ABOUT LISTS OF ISSUES
A blog about civil procedure has to have balance. The previous post considered applications to amend from the applicant’s perspective. Here we consider the position of those opposing an application. Litigators are as likely to be opposing an application as…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS FOR APPLICANTS (PLUS A “BONUS POINT” AND USEFUL LINKS…).)
The posts earlier this morning highlighted the major obstacles facing a litigant who wants to amend their pleadings at a very late stage. This is a good time to look at previous posts on amendments, together with links to the…
THE CURRENT IMPORTANCE OF PLEADINGS 98 : THE COURT REJECTS A LATE APPLICATION TO AMEND: THE CLAIMANT DID NOT HAVE A STRONG CASE
We have already look at this case in relation to the claimant’s application for relief from sanctions. The claimant was granted relief in relation to late service of the proposed amendments. However that did not, in fact, get the claimant…
THE CURRENT IMPORTANCE OF PLEADINGS 97 : CLAIMANT GIVEN LEAVE TO APPLY TO AMEND PLEADINGS THAT WERE SERVED LATE, BUT DIDN’T GET VERY FAR (OH, AND LEADING COUNSEL BEING ON HOLIDAY IS NOT A GOOD REASON FOR A BREACH…)
This is a case we are looking at in two parts. Firstly we are looking at the claimant’s application for relief from sanctions when it served amended Particulars of Claim outside the time period ordered by the court. A second…
FORMS FOR USE IN THE BUSINESS AND PROPERTY COURTS: UPDATED GUIDANCE
HM Courts and Tribunal Service have prepared an updated list of forms to be used in the Business and Property Courts. The forms are now in one useful place. THE UPDATED COLLECTION The updated collection can be found here. THE…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
COSTS BITES 461: WINNING THE CASE BUT LOSING THE MAIN BATTLE MEANS CLAIMANT RECOVERS 85% OF COSTS: DEFENDANT CANNOT SEEK THE ADVANTAGES OF PART 36 WITHOUT MAKING A PART 36 OFFER
It is wise for a party that is likely to be on the losing side of a case to make a Part 36 offer. A court is unlikely to have much sympathy for a litigant that has failed to protect…
PROVING THINGS 297 : THE COURT OF APPEAL OVERTURNED A FINDING THAT A SOLICITOR WAS DISHONEST: RECKLESSNESS AND CUTTING CORNERS ARE NOT THE SAME AS DISHONESTY
There are cases where a party has to prove dishonesty. This can be a difficult task, as this case shows. The test is very different to negligence or recklessness. The failure to address this test fully led to the overturning…
COST BITES 460: THE FACT THAT A DEFENDANT LOST ON A COUNTERCLAIM DID NOT PREVENT THE COURT FROM ORDERING THE CLAIMANT TO PAY 70% OF THEIR COSTS: ORDER UPHELD ON APPEAL TO THE HIGH COURT
There are certain cases that litigators should keep in their cabinets to show to clients who are overkeen to litigate. This is one of them. The parties were arguing over a boundary line, with one of the issues being whether…
EXPERT WATCH 76 : EXPERT EVIDENCE MAY ASSIST, BUT THAT DOES NOT MEAN IT IS REASONABLY REQUIRED: PERMISSION REFUSED IN AN APPEAL WORTH TENS OF MILLIONS
We are looking at a case where the tribunal considered whether a party should be granted permission to rely on expert evidence. The judge went back to first principles to consider the issue. It was a high value case with…
THE DISCLOSURE OF PART 36 OFFERS: IS THE DATE OF AN OFFER PART OF ITS “TERMS”? A QUESTION THAT HAS SOME PRACTICAL CONSEQUENCES: THE HIGH COURT CONSIDERS THE ISSUE
The rules allow the parties to disclose the existence of a Part 36 offer after a split trial. However the judge cannot be told the “terms” of the offer. Here the court considered the interesting (and important) issue of whether…
BACK TO BASICS MONDAY: 10 KEY POINTS ABOUT DRAFTING A DEFENCE AND THE POSTS THAT SHOW WHY THIS MATTERS
The post last Friday about the inadequate drafting of a defence was the 19th this year on the way in which defences are pleaded. This is a useful time to visit some basic principles in relation to how a defence…
DECODING THE DIRECTORIES: ALSO WHO ASSESSES THOSE WHO ASSESS US: CAN LAWYERS BITE BACK? A WHOLLY FICTIONAL EXAMPLE…
I first wrote about the “true meaning” of entries into directories eight years ago. Since they are in the news this week this is a good opportunity to remind people of what those phrases actually mean. However recent developments have…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PROVING DAMAGES: 10 KEY POINTS AND LOTS OF RELEVANT LINKS
The post earlier this morning identifying a case, from 2015, where a claimant failed to prove any damages, highlighted the need for a recap on this topic. There are a large number of posts on this very topic. In the…
THE CURRENT IMPORTANCE OF PLEADINGS 96: WHEN YOU HAVE PLEADED AN INADEQUATE DEFENCE IT IS NOT A GOOD PLAN TO DEMAND THAT THE CLAIMANT PAY FOR ADEQUATE PARTICULARS TO BE PROVIDED…
Here is a classic case of a failure to draft a Defence properly. It contains a number of surprising elements. Firstly the defendant, having filed an inadequately particularised Defence, stated it would provide further particulars only if the claimant paid…
ONLINE POSSESSION PROCEEDINGS: A USEFUL CHECKLIST FOR PRACTITIONERS
The post earlier this morning set out the major elements of the new Practice Direction on the Online Procedure Rules for Possession Proceedings. At the moment these have limited geographical scope. However it is likely that they will apply more…
CARE CLAIMS IN PERSONAL INJURY AND CLINICAL NEGLIGENCE LITIGATION: WEBINAR 8th OCTOBER 2026
This webinar provides a practical and detailed examination of claims for care and assistance in personal injury and clinical negligence litigation. It explores the legal principles underpinning such claims while focusing on how they should be properly prepared, evidenced, and…
COST BITES 458 : SHOULD A COURT ORDER A THIRD PARTY TO PAY THE COSTS? CAN (OR SHOULD) AN ORDER BE MADE FOR PAYMENT BY BITCOIN? THE COURT OF APPEAL HAS ITS DOUBTS…
Here we look at specific issues as to the payment of costs arising from cryptocurrency, Bitcoin in particular. Firstly the costs order made had the effect of ordering a party (who had not been ordered to pay costs) to, in…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES THE ABSENCE OF DOCUMENTS JUSTIFY AN ADVERSE INFERENCE ON SUMMARY JUDGMENT? IS THE WITNESS EVIDENCE DEFINITIVE?
The issue of how far a court can take witness statements at face value at an interlocutory hearing is always an interesting one. Similar issues arise in considering the question of the extent to which a court can take into…
WHO IS A PARTY AFFECTED BY A SUMMARY JUDGMENT? THE CPR; CRYPTOCURRENCY; DELAY IN APPLYING AND THE MERITS OF THE CASE CONSIDERED IN A COURT OF APPEAL JUDGMENT TODAY
We are likely to see much litigation, and quite a few procedural wrangles, arising from Bitcoin and similar “currencies”. Here we have an interesting, and important, question under CPR 40.9. Firstly in relation to whether a party was “directly affected”…
GUIDE TO FATAL ACCIDENTS 5th EDITION: PUBLISHED LATER THIS YEAR: AVAILABLE TO PRE-ORDER
The latest (the 5th) edition of the Guide to Fatal Accidents is now available to pre-order. Details are available here. Fatal accident litigation presents lawyers with legal, evidential and practical problems that are distinct from those encountered in non-fatal…
SUPREME COURT PRACTICE DIRECTIONS AMENDED: REPLIES TO OBJECTIONS, BUNDLES, COURT DRESS AND DRAFT ORDERS: WHAT THIS MEANS IN PRACTICE
The Supreme Court announced, on the 21st September 2026, that the Court’s Practice Directions had been amended on the 18th September 2026. To stop anyone being taken by surprise here is a summary of the changes. Those responsible for preparing…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … HOUSING LAW, COSTS AND PROCEDURE: 10 KEY POINTS AND USEFUL LINKS
There are much more specialist blogs available for housing lawyers and I’m glad to say that “Nearly Legal” is recommencing next month. The posts on this site concentrate on procedure and costs and the Ten Key Points here reflect that. …
INTERIM PAYMENTS: THE EXISTENCE OF DISPUTED DEFENCES AND COUNTERCLAIMS DID NOT PREVENT AN AWARD OF £1.4 MILLION
Lord Denning once observed of Cashflow that “It is the very lifeblood of the enterprise”. This remains the case for most modern businesses. In this respect an application for an interim payment can be a powerful tool. Sometimes essential to…
EXPERT WATCH 73: AN “AD HOMINEM ATTACK” ON A PARTY’S EXPERT FAILS TO IMPRESS THE JUDGE
The Intellectual Property Enterprise Court is usually the most genteel of courts particularly when it comes to the treatment of expert evidence. That is one of the reasons this judgment comes as somewhat of a surprise. The strategy adopted in…
BACK TO BASICS MONDAY: DOCUMENTS ARE ADMISSIBLE WHEN THEY ARE IN AN AGREED TRIAL OR APPLICATION BUNDLE BUT…
Agreeing a trial or application bundle can have consequences that are easy to overlook. Documents in an agreed bundle are usually admissible as evidence of their contents. That does not mean that the parties agree that everything written in them…
PROPORTIONALITY AND LITIGATION (4): 10 POINTS TO WATCH OUT FOR ON THE ASSESSMENT OF COSTS TOGETHER WITH USEFUL LINKS
The very word “proportionality” still plays a major part in many cost assessments. The Points of Dispute state, often vehemently, that the costs are wholly disproportional. The Points of Reply respond, usually twice as vehemently, that proportionality is not just…
DOES AN APPLICATION TO STRIKE OUT AMOUNT TO A “STEP IN THE ACTION” SO THAT AN ARBITRATION CLAUSE IS DISPLACED? AN IMPORTANT QUESTION CONSIDERED ON APPEAL
If the parties have agreed to an arbitration clause and one of them issues proceedings then the right to seek a stay of that action can be lost if the defendant takes a “step in the action”. This case considers…
THE CURRENT IMPORTANCE OF PLEADINGS 95: THE DEFENDANT’S ARGUMENT THAT THE JUDGE HAD AWARDED THE CLAIMANTS MORE THAN THEIR PLEADED CASE
This is another case relating to pleading damages. Here the objection was that the judge had awarded the claimants more than they had pleaded. In some circumstances this may have made a difference. On the facts of this case it…
EXPERT WATCH 72: THE DEFENDANT HAD LEFT IT TOO LATE TO OBJECT TO THE CLAIMANTS’ EXPERT EVIDENCE: THIS SHOULD HAVE BEEN DONE AT TRIAL NOT AT THE APPEAL STAGE
If a party is going to object to their opponents relying on expert evidence this is best done promptly. Leaving it to the appeal stage is dangers – as this case shows. The defendant received a report, commented on the…
THROWBACK FRIDAY: FOR WANT OF A PAGE IN A BUNDLE THE DAMAGES WERE LOWER… (SEPTEMBER 2015)
Here we look at a post from 2015 about a missing page in a trial bundle. The claimant argued that the missing page meant that damages had been too low. The judge held that that an application the day after…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT – GUIDANCE FOR A PAYING PARTY: A 10 POINT CHECKLIST, USEFUL LINKS AND THE DISCOUNT CODE FOR THE WEBINAR AND BOOK THE PAYING PARTY’S MANUAL
Here we look at those points and posts of particular interest to those representing a paying party. It is the forerunner to the webinar on the 12th November and the accompanying book “The Paying Party’s Handbook”. At the foot of…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PLEADING DAMAGES? A 10 POINT CHECKLIST TO AVOID YOUR CLIENTS (AND YOU…) GETTING INTO DIFFICULTIES…
The two posts earlier today on the judgment in Amaal Ventures Ltd v Eros Ltd looked at problems arising because of a failure to plead damages. This is not an new issue. Here we use the CLB archive to provide…
THE CURRENT IMPORTANCE OF PLEADINGS 94: OK SO WE DIDN’T ACTUALLY PLEAD THE CLAIM FOR £2.569 MILLION BUT CAN WE HAVE PERMISSION TO AMEND NOW?
Here we have a claimant who, unsuccessfully, argued that it did not need permission to amend its pleadings to claim damages of £2.569 million. Having lost that argument its fallback position was that the court should grant permission to amend. …
THE CURRENT IMPORTANCE OF PLEADINGS 93 : CAN YOU CLAIM £2.569 MILLION IN DAMAGES WHEN YOU HAVEN’T PLEADED IT? NOW THAT’S AN IMPORTANT QUESTION…
If ever there was a case that would persuade you of the importance of pleadings it is this one. The claimant had succeeded on many issues at a trial. It now wanted to claim £2,569 million in damages. However an…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
WITNESS EVIDENCE WEDNESDAY: WAIVING LEGAL PROFESSIONAL PRIVILEGE BY MENTIONING IT IN A WITNESS STATEMENT
Issues of legal professional privilege have been in the news this week. This makes it an opportune time to revisit those cases where litigants have inadvertently waived privilege by mentioning legal advice in witness statements. “… there is a distinction…
PROPORTIONALITY AND LITIGATION (2): WHERE DOES IT ALL START TO GO WRONG? (AND HOW DO YOU AVOID IT?)
This short series on proportionality is aimed, primarily, at protecting the client and the lawyer. A client may be exposed to excessive costs and the lawyers get blamed for this. There are (it is to be hoped) few cases where…
WHAT HAS CIVIL LITIGATION BRIEF EVER DONE FOR US? PERSONAL INJURY INJURY LAWYERS AND ISSUES OF LIABILITY
This series enables us to pick up key topics from this blog over the past 13 years and relate them to specific areas of practice. The aim is to highlight the fact that the site is a useful resource as…
THE SRA CANNOT COMPEL A SOLICITOR TO DISCLOSE A CLIENT’S PRIVILEGED DOCUMENTS: THE FUNDAMENTAL IMPORTANCE OF LEGAL PROFESSIONAL PRIVILEGE
This is an important case about legal professional privilege. The headline result is that the SRA have no power to override such privilege when carrying out an investigation. It also highlights the hurdles any party can face when seeking to…
PROPORTIONALITY IN LITIGATION (1): A TEN POINT GUIDE FOR CIVIL LITIGATORS: A REVIEW OF CASE LAW AND POSTS OVER THE PAST 13 YEARS
Yesterday we looked at a judgment in the Court of Appeal where the sum at stake was £25. The court was, shall we say, “sceptical” about whether this litigation was for the benefit of the actual client. For a while…
COST BITES 456: LET US ALL REMEMBER THAT THE DISPUTE THAT REACHED THE COURT OF APPEAL TODAY WAS OVER THE PRINCELY SUM OF £25: “THE CLIENT HAS NEVER HAD ANY REAL ECONOMIC INTEREST IN THE PURSUIT OF THIS COSTLY LITIGATION”
The judgment given today in the Court of Appeal was the second appeal on the issue. It involved two junior counsel on each side. The sums involved were not large, the Court estimated it to be £25.00. In every other…
COST BITES 455: COURT OF APPEAL DECISION TODAY ON WHETHER A CLIENT IS ENTITLED TO RAISE PART 18 QUESTIONS AS TO WHETHER THE SOLICITOR OBTAINED COMMISSION ON AN ATE PREMIUM
In this judgment today the Court of Appeal held that it is not appropriate for a former client to raise Part 18 questions as to whether their former solicitors had received a commission on an ATE policy. This is important…
BACK TO BASICS MONDAY: THE NEED TO SERVE A SEALED CLAIM FORM: LITIGATORS HAVE BEEN COMING TO GRIEF ON THIS ISSUE FOR WELL OVER A DECADE (AT LEAST…)
Last week we looked at (another) case where a claimant had come to grief when it failed to serve a sealed claim form in time. This is an opportune time to remind readers of the basic point that to be…
COST BITES 453: YOU ARE NOT GETTING A SUMMARY ASSESSMENT JUST BECAUSE YOU ALL WANT ONE: THE BROADBRUSH IS TOO BLUNT A TOOL FOR THIS PROCESS
We are returning to the previous case to look at the judgment in relation to the judge’s comments on the method of assessment. All the parties favoured a summary assessment, the Senior Costs Judge found that this was not appropriate….
COST BITES 452: WHAT COSTS ORDER SHOULD THE COURT MAKE FOLLOWING THE DECISION IN THE MEDICAL REPORTING CASE? “WE ALL WON – SAY THE PARTIES” AND “WE’RE ALL APPEALING ANYWAY…”
We have the latest chapter in the ongoing saga of whether a receiving party needs to provide a breakdown of the costs of a medical report. Fittingly (and unsurprisingly) this judgment is about costs. It is an unusual case in…
COST BITES 451 : INTEREST ON COSTS A RECENT JUDGMENT, A REVIEW OF POSTS AND USEFUL CHECKLISTS FOR THE RECEIVING PARTY
Here we look at a recent decision on interest on costs. It also provides an opportunity to review previous posts on the topic and use them to look at a checklist on these issues for the receiving party. “I was…
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