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…
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…
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…
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…
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…
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…
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,…
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…
BOOK REVIEW: “A PRACTICAL GUIDE TO COSTS IN HOUSING DISREPAIR CASES”: MAY HELP FIX GAPS IN ROOFS AND CERTAINLY FILLS A GAP IN THE MARKET…
Costs in housing disrepair costs have become somewhat of a battleground. This battle starts at the allocation stage and re-commences on assessment. This has become more acute because housing disrepair cases are not subject to the fixed costs regime. This…
INSURER’S APPLICATION TO COMMIT STRUCK OUT AS AN ABUSE OF PROCESS: LITIGATION IS NOT CONDUCTED ON THE BASIS THAT, NOTWITHSTANDING THE ABSENCE OF EVIDENCE, A PARTY MAY BE ABLE TO PUT MATTERS RIGHT AT SOMETIME IN THE FUTURE…
In this case an insurer’s application to commit a personal injury claimant to prison was struck out. This was because the insurer applicant failed to satisfy the court that it had any right to bring the action in the name…
“ALL DOCUMENTS HAD AT LEAST TWO NUMBERS AND TECHNICALLY 3 IN SOME CASES”: A SMALL POINT ABOUT BUNDLES AND NUMBERING
For several years a post on bundles and “Sedley’s Laws” was the most read post on this site. Ever since then the preparation, presentation and numbering of bundles for applications and trials have formed a regular part of the material…
LIMITATION AND SEXUAL ABUSE CLAIMS: THE LAW CHANGED AFTER EVIDENCE AND SUBMISSIONS BUT BEFORE JUDGMENT: THE AMENDED ACT APPLIES
We have looked before at how the new sections 11ZA and 11ZB into the Limitation Act 1980 have already been considered by the courts. Here was have another example. The new provisions were held to apply in a case where…
THE DANGERS OF SUING A DISSOLVED COMPANY WHICH HAS BEEN RESTORED TO THE REGISTER: COURT REFUSES TO EXTEND TIME BEYOND THE PERIOD OF DISSOLUTION
Here we have an important judgement pointing out that, in effect, the limitation period starts running again once a company is restored to the register. The court cannot grant an order under the Companies Act which extends limitation beyond the…
APPELLANT HAS £2.8 MILLION APPEAL STRUCK OUT: RELIEF FROM SANCTIONS REFUSED: THE DANGERS OF INACTIVITY: “THE SERIOUSNESS OF THE CONSEQUENCES CANNOT DETERMINE THE OUTCOME”
Here we see case where an appellant lost the chance to pursue an appeal worth £2.8 million primarily because of a failure to appoint new representatives or inform the Tribunal of details of how he could be contacted. Inactivity led…
WITNESS EVIDENCE WEDNESDAY: YOU CANNOT NECESSARILY RELY ON INTERLOCUTORY WITNESS STATEMENTS AT TRIAL
Here we have a case where the claimant, wrongfully, believed that she could rely on witness statements that had been served in the course of the proceedings in addition to the statement served for trial. She was given permission to…
COST BITES 441: NO ORDER FOR COSTS – EVEN THOUGH THE APPLICANT WAS SUCCESSFUL: THERE ARE MANY LESSONS TO LEARN HERE…
Last week this blog had a fairly detailed review of those circumstances which often lead to no order for costs being made. We have another example here. The applicant had succeeded in the application it had made, however the judge…
COST BITES 440: WHY INDEMNITY COSTS WERE ORDERED A LOOK AT THE CLAIMANTS’ PLEADED CASE: FIRSTLY IT WAS PLEADED TOO WIDELY, SECONDLY THERE WERE THEN ATTEMPTS TO PUT THE CASE OUTSIDE THE PLEADINGS
We look again at the award of indemnity costs in the Associated Newspaper case. The reasons for this were manifold. However there were two important factors relating to the statements of case. Firstly the case was pleaded far too widely;…
CIVIL LITIGATION BRIEF WEBINARS COMING UP LATER THIS YEAR: A NEW DISCOUNT CODE
CLB members have a discount to a series of webinars on damages that start in September. The series is intended to provide practical guidance for practitioners dealing with claims of every size, from straightforward road traffic accidents to catastrophic injury litigation….
BACK TO BASICS MONDAY: RELIEF FROM SANCTIONS: THE RELEVANCE OF THE CLIENTS BEING SOLELY AT FAULT: SOME DIFFICULT ISSUES TO TACKLE
In many cases relating to breach from sanctions the fault may lie with the solicitor rather than the client. This case considers that question directly. The clients’ innocence was an important factor in the court’s discretion. “I take from the…
COST BITES 438 : CLAIMANT’S UNTENABLE ARGUMENTS LEADS TO REDUCTION IN COSTS RECOVERED: HOURLY RATES FAR TOO HIGH, EVEN WHEN THE CLAIM WAS “ONLY” FOR £9 MILLION
This decision as to costs gives rise to two interesting issues. Firstly the claimant’s costs of an injunction application were reduced substantially because assertions were put forward on a basis that were “unsustainable” and which should never have been pursued,…
THROWBACK FRIDAY: AVOIDING NEGLIGENCE CLAIMS IN LITIGATION AN 8 POINT SURVIVAL GUIDE (AUGUST 2019): AND LOOK AT THE LINKS…
This week we go back to August 2019 with a simple (but I hope effective) post on avoiding negligence claims in civil litigation. Eight of the major problem areas were identified and succinct solutions offered. (There have been hundreds of…
EXPERT WATCH 66: RED FLAGS AND EXPERTS (1) :THE DUTY TO CONSIDER THE RANGE OF OPINIONS: OFTEN “HONOURED IN THE BREACH”; OFTEN FATAL TO A PARTY’S CASE
This short series is looking at how you can spot “red flags” when looking at an expert report. There are often aspects of reports that “don’t fare well” when put under scrutiny at trial. “His response was that he usually…
EXPERT WATCH 65 : WHEN THE JUDGES SAY “WE ATTACH VERY LITTLE WEIGHT” TO A REPORT IT IS CLEAR THAT SOMETHING HAS GONE WRONG
This judgment is critical of the way in which an expert report was prepared. The problems were manifold in relation to the way in which the information was obtained, the way it was presented and the failure to consider primary…
ANOTHER INTERESTING DISCUSSION (ABOUT INTEREST…): THE STARTING POINT IS THAT THE CLAIMANT IS ENTITLED TO BE COMPENSATED FOR BEING OUT OF ITS MONEY (NO MATTER WHAT IT WOULD HAVE DONE WITH IT…)
Here is a relatively short judgment on an important point – if the purpose of interest is compensatory what is the position if a claimant would never have earned interest on the money in any event? As we shall see…
WHEN A COURT MAY MAKE NO ORDER FOR COSTS: THE FACTORS CONSIDERED: 12 KEY POINTS AND A USEFUL CHECKLIST FOR PRACTITIONERS
Some posts earlier this week concentrated on a case where the judge made no order for costs. This is an unusual outcome, but still one that has to be considered and the client warned about. Here we take a…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
A WIDOW CANNOT BRING AN ACTION UNDER THE FATAL ACCIDENTS ACT WHERE HER HUSBAND SETTLED THE PERSONAL INJURY ACTION AGAINST A CONCURRENT TORTFEASOR IN HIS LIFETIME
This case emphasises a long existing principle that a second action cannot be brought if a claimant, now deceased, has settled proceedings in their lifetime. This principle extends to concurrent tortfeasors. There are also important observations outside the realm of…
COST BITES 436: THE DEFENDANT FAILED TO BEAT THE CLAIMANT’S PART 36 OFFER: WAS IT UNJUST FOR THE USUAL CONSEQUENCES TO APPLY? THE IMPORTANCE OF INTEREST
Here we look at a judgment where the court considered an argument that the claimant had not beaten its own Part 36 offer. The judge held that the defendant’s argument fell at the first post because it failed to take…
COST BITES 435: ANOTHER APPLICATION TO REVISE A COSTS BUDGET (DURING A TRIAL): WITH A DIFFERENT RESULT: SOME INTERESTING COMMENTS ON CONDUCT ALONG THE WAY…
We have had a number of cases relating to amending costs budgets recently. This one has a different result. The need to revise the budget arose from the judge’s decision that there should be a separate hearing on damages. This,…
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
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