SECOND (AND THIRD) APPLICATIONS FOR RELIEF THAT ARE, ESSENTIALLY, FOR THE SAME THING NOT ALLOWED TO PROCEED: THE APPLICATIONS WERE ABUSIVE
Here we are looking at a case where defendants, debarred from defending an action, made consecutive (and ultimately fruitless) applications to vary the orders that caused them to be debarred and several applications for relief from sanction. The court was…
WHEN SHOULD THE COURT GRANT A PARTY AN OPEN-ENDED STAY TO AWAIT EXTERNAL DEVELOPMENTS? THE ISSUE AND LEGAL PRINCIPLES CONSIDERED
When should the court grant a party a stay because that party asserts there may be external developments which are relevant to the issues the court has to consider? That was a question considered in this case. There is a…
FURTHER UPDATES TO HMCTS GUIDANCE ON USING THE DAMAGES CLAIM PORTAL: RAISING QUERIES WITHIN SYSTEM; INFORMING THE PORTAL OF SETTLEMENT AND PARTIAL DISCONTINUANCE (NOT EXCITING, BUT IMPORTANT…)
A few days (sometimes even a day) can be a long time in civil procedure. I wrote about the updated Guidance to the Damages Claim Portal at the end of last week. Today I am writing to tell you it…
PROFESSIONAL NEGLIGENCE NEWS (1): I’VE SUED THE WRONG DEFENDANT: CAN THE COURT DO ANYTHING TO HELP? FIRST OF (WHAT MAY WELL BE) A LONG RUNNING SERIES
There is much to be said for starting a new (and what may well be a long running) series looking at professional negligence cases, in particular the procedural and practical issues that arise. Firstly, if (as here) it is a…
COST BITES 248: SEEING A SUMMARY ASSESSMENT IN ACTION: WHY ARE THERE TWO STATEMENTS OF COSTS? AND WHY DO THEY VARY SO MUCH?
Somewhat counterintuitively the move to a membership subscription model has led to new, and a wider range, of readers to this site. It is for their benefit I repeat a point made recently that the purpose of this series is…
HOW SHOULD THE COURT EXERCISE ITS DISCRETION TO CASE MANAGE ACTIONS ONCE PART 8 PROCEEDINGS ARE ISSUED UNDER THE PAP? COURT OF APPEAL GIVES CLEAR GUIDANCE
Having determined that the court does have jurisdiction to case manage actions issued under Part 8 the Court of Appeal went on to make some trenchant observations in relation to avoiding the possibility of delay. (Applications to extend a stay…
COST BITES 247: SHOULD A SOLICITOR RESPOND TO PART 18 QUESTIONS ABOUT THE PAYMENT OF COMMISSION? THE HIGH COURT CONSIDERS THE POINT TODAY
Here we are looking at another round in the solicitor-own client assessment war of attrition. The question was whether a solicitor, in a solicitor and own client assessment, should reply to Part 18 requests for further information about premiums paid…
THE STATUS OF PRACTICE DIRECTIONS CONSIDERED : “I AM UNCOMFORTABLE WITH THE NOTION THAT A PRACTICE DIRECTION CAN HAVE THE EFFECT OF OVERTAKING THE DECISION OF THE SUPREME COURT…”
The precise legal status of Practice Directions is interesting. Here we have a case where a judge considered their status and came to a firm view that a statement made in the PD should not be followed as it was…
UPDATE TO HCMTS GUIDANCE ON USING THE DAMAGES CLAIM PORTAL
HMCTS has, this month, issued an updated version of the Guidance to using MyHMCTS. THE GUIDANCE The updated guidance is available here. Damages Claims Portal Issue to Respond Guidance June 2025 V1.6 THE OVERVIEW “Overview The Damages Claims Portal…
BANK’S CLAIM AGAINST SOLICITORS FOR “CAUSING LOSS BY UNLAWFUL MEANS” IS NOT STRUCK OUT, NOR ARE THE SOLICITORS GRANTED SUMMARY JUDGMENT: A LOT TO THINK ABOUT HERE
We are looking at a judgment from today where a bank has brought a claim against a firm of solicitors arguing that they have caused the bank loss because of the number and nature of complaints made by the solicitors’…
URGENT MESSAGE FROM H M COURTS AND TRIBUNAL SERVICE THIS MORNING: HMCTS PLATFORM IS STOPPING USERS FROM UPLOADING DOCUMENTS: WHAT TO DO IF UPLOADING IS URGENT
For those who have missed the email from HMCTS it is important to note that the HMCTS platform is not working at the moment. The email from HMCTS below makes practical suggestions as to what should be done if uploading…
DOES THE COURT HAVE POWER TO CASE MANAGE A CASE SUBJECT THE THE LOW VALUE PRE-ACTION PROTOCOL? THE ISSUE CONSIDERED BY THE COURT OF APPEAL
The Court of Appeal considered, on the face of it, a very simple question in this case as to the courts powers proceedings issued under Part 8 in a claim within the Pre-Action Protocol for Low Value RTA Claims. For…
THE CURRENT IMPORTANCE OF PLEADINGS 21: WHO PAID THE COSTS OF A PLEADINGS ISSUE AND HOW MUCH DID THEY PAY? SOME QUESTIONS WE NOW KNOW THE ANSWER TO
The reaction of many professional litigators to reading many of the cases on this site is (if truth be told) “who paid the costs” and “how much did all that cost? For that reason it is always of interest to…
WHEN A PARTY WANTS AN ADJOURNMENT: THE PRINCIPLES CONSIDERED
The law on adjournments sought for health reasons is relatively clear. Knowledge of the principles (or at least where to find them easily) is an essential part of the litigator’s toolkit, not least because applications tend to come “out of…
DOES THE HEADING MATTER? IS A PART 18 REQUEST VALID IF IT DOES NOT COMPLY WITH THE RULES?
What should the court’s approach be if a party serves a Part 18 request but, for various reasons, it does not comply with the rules? The respondent to the request in this case took the point. The Master had to…
HEARINGS WHEN WITNESSES GIVE EVIDENCE FROM ABROAD: SOME POINTS FOR PRACTITIONERS (AND JUDGES) TO WATCH: “IT WOULD ASSIST THE LOWER COURTS IF FORMAL CLARIFICATION IS GIVEN ADDRESSING THAT TENSION HEAD ON”
There have been a number of cases where litigants have run into difficulties because they have not complied with the requirements for witnesses who give evidence remotely from abroad. We see an example of this case where there a conflict…
NO RELIEF FOR CLAIMANTS WHO SERVED THE CLAIM FORM LATE: TAKING A POINT AS TO SERVICE IS NOT “PLAYING TECHNICAL GAMES”
It may be possible for a month to go by without a mis-service of the claim form issue arising in the courts, but it is not this month. We have here a case with the familiar litany of waiting to…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION: A LAWYER’S GUIDE 2O25: WATCH THIS SPACE…
Back in 2013 I wrote a series about avoiding negligence claims in litigation. This is an appropriate time to update and refresh that series (with the benefit of hindsight perhaps I should have done that annually). Some of the…
ANOTHER CASE ON ARTIFICIAL INTELLIGENCE AND “HALLUCINATED CASES”: PLUS THERE MAY BE “MISCHIEF” IN THE BACKGROUND
A few weeks ago I was cagey in reporting a case about AI generated false authorities because I could not believe any lawyer could do this and was wary of the accuracy (indeed authenticity) of the report. Today I am…
LITIGATION, INSOLVENT SOLICITORS, FUNDERS, NEGLIGENCE, INSURERS – AND THE SCOPE OF DISCLOSURE UNDER PD57AD: A LOT OF OF LITIGATION LIFE IS CONSIDERED IN THIS COURT OF APPEAL DECISION
For the second time today we are looking at a case involving the fallout following solicitors being involved in litigation and the funding thereof. It also involves companies in administration and allegations of cases being mishandled. The sums involved are…
THE CURRENT IMPORTANCE OF PLEADINGS 19: AN UNKIND OR CYNICAL READER OF THE DEFENCE “MIGHT BE TEMPTED TO CONCLUDE THAT THEIR VERY COMPLEXITY AND LENGTH WERE INTENDED TO CONCEAL THE LACK OF ESSENTIAL SUBSTANCE AT THEIR VERY HEART”
We are looking at a case where – in no short measure – the judge was highly critical of the defendant’s pleadings. They were described as “the very antithesis” of the paradigm urged upon pleaders by the guidance given in…
COST BITES 245: WHAT IS THE APPROPRIATE RESPONSE IF A SCHEDULE OF COSTS IS SERVED LATE? THE RULES, THE GUIDANCE AND THE CASE LAW CONSIDERED
What is the appropriate response of the court if a schedule of costs is served late? This is an issue considered in a recent High Court judgment. It provides a good opportunity to review the rules, the guidance, and previous…
SHOULD SKELETON ARGUMENTS BE MADE AVAILABLE TO THE PRESS (AND OTHERS) ?: ADVOCATES MUST BE PREPARED
Is a person attending a public hearing entitled to sight of the skeleton arguments being used? Is disclosure confined to the press? What should happen if the skeleton refers to matters that fall foul of reporting restrictions? These are important…
“THE COURT’S CONSCIENCE IS SHOCKED” BY THE CLAIMANT’S ADMITTED BEHAVIOUR: USE OF A RECORDING OF MATTERS THAT WERE CONFIDENTIAL: STRONG WORDS WHEN A JUDGE OVERTURNS AN INJUNCTION GRANTED WITHOUT NOTICE
There have been some strong judicial criticisms recorded on this site over the years. I cannot recall much stronger than this case where the judge stated that “the court’s conscience was shocked” at the conduct of the claimant, both in…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO HAD PURSUED A “HOPELESS” CASE: ATTEMPTS TO RELY ON PRIVILEGE WERE A RESORT TO A MERE “FIG LEAF”
It is rare for a wasted costs order to be made against a solicitor for pursuing what is seen as a “hopeless” case. However we have such an order in the case we are considering here. The Master found the…
COSTS AND OTHER CONSEQUENCES CONSIDERED WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: CIRCUIT COMMERCIAL COURT DECISION: HOW IS THE ADDITIONAL LIABILITY CALCULATED WHEN THE JUDGMENT IS NOT IN STERLING?
We are looking at a case where the claimant beat its own Part 36 offer and the court had to consider the consequences. There were some unusual aspects in that the judgment was not given in sterling. However the judge…
THE RULES OF COURT DO NOT ALLOW A PARTY TO COMPEL ITS OPPONENT TO EXPLAIN HOW ERRORS WERE MADE IN WITNESS STATEMENTS:
Can the court compel a party to file a witness statement explaining, in detail, why mistakes were made in earlier witness statements? That was the issue considered in the case we are looking at today. The judge considered the provisions…
COMMITTAL PROCEEDINGS: SOME IMPORTANT POINTS TO NOTE: THE CORRECT COURT WHEN A DEFENDANT IS APPEALING AND THE SCOPE OF APPEAL: ISSUES CONSIDERED IN THE COURT OF APPEAL
There are two important procedural points considered here relating to to appeals relating to committal proceedings. The first relates to the court to which an appeal has to be made, the second to the scope of an appeal. Here we…
A COURT ORDER SO AMBIGUOUS THAT IT WAS IMPOSSIBLE TO ENFORCE : SOME ESSENTIAL POINTS ABOUT DRAFTING HERE
Here we are looking at a Court of Appeal decision about the drafting and construction of court orders. The order made in this case was totally deficient, consequently it could not be enforced. (Absolute precision is demanded here…) “……
INDEMNITY COSTS ORDERED AGAINST SOME (BUT NOT ALL) CLAIMANTS: A NUANCED HIGH COURT DECISION
We are returning to the same case as the previous post but looking at a different issue. The judge considered whether to make an order for indemnity costs against the claimants. The case is unusual in that such an award…
PROVING THINGS 264: CLAIMANTS FAIL TO PROVE THAT THEY ARE ENTITLED TO AN INJUNCTION: “THE EVIDENCE PRESENTED BY THE CLAIMANTS DOES NOT COME CLOSE TO DEMONSTRATING A COMPELLING JUSTIFICATION FOR THE ORDER”
We are looking at a case where there was clear example of a failure to prove things. The claimants did not have sufficient evidence to satisfy the court it should make the order they were seeking. In fact the judgment…
CHANGES TO THE COMMERCIAL COURT AND LONDON CIRCUIT COMMERCIAL COURT PRACTICE ON THE VALUE OF CLAIMS
A Practice Note issued issued earlier this month sets out changes to the practice of the Commercial Court in relation to the value which it will consider transferring claims to other courts. These changes take effect from the 1st July…
THE CORRECT PROCEDURE IF A PARTY WANTS TO ATTEMPT TO RELY ON “WITHOUT PREJUDICE” DOCUMENTS: THE EXCEPTIONS TO THE WP RULE CONSIDERED
We are looking at a judgment from today which considers the “without prejudice” rule in some detail. In particular the steps a party should take if it wishes to argue that it should be able to rely on without prejudice…
LAWYERS HEAVILY CRITICISED IN A JUDGMENT: COURT OF APPEAL REFUSES PERMISSION TO APPEAL: A CASE THAT BRISTLES WITH CONDUCT AND PROCEDURAL ISSUES
We have a case here where a solicitor and KC involved in a case were heavily criticised by the trial judge. The solicitor attempted to appeal those findings and the Court of Appeal considered, among many other things, their Article…
SHOULD THIS CASE HAVE BEEN STARTED IN THE LOW VALUE PERSONAL INJURY PROTOCOL? DID IT FALL OUTSIDE IT? THESE ISSUES CONSIDERED
The question of whether a case should have been started using the Low Value Protocol is often a difficult one. The lawyer for the claimant has to make a decision on this important issue without the benefit of any medical…
WHEN YOU LEAVE IT UNTIL THE LAST MINUTE TO COMPLY WITH COURT ORDER: THE COURT HAS VERY LITTLE SYMPATHY – WHO WOULD HAVE GUESSED?
A common feature of litigation is the leaving of matters until the last minute. Be it service of the claim form, costs budgets or compliance with a court order. Here we have a case of a party delaying in complying…
HOW FAR IS A SOLICITOR’S ESTIMATE OF COSTS BINDING? THE RELEVANT PRINCIPLES CONSIDERED AND APPLIED: A HIGH COURT APPEAL
Many, if not all, litigators will be familiar with the scenario whereby an estimate of costs is given and events develop so that the estimate is overtaken. This scenario was considered in the case we are considering today. An estimate…
SHOULD A PARTY BE ABLE TO INSTRUCT THEIR OWN EXPERT WHEN THEY DISAGREE WITH THE REPORT OF A JOINTLY INSTRUCTED EXPERT? THE ISSUES CONSIDERED
Here we are looking at a case where a party, dissatisfied with the approach of a jointly instructed expert, applied to the court for permission to instruct their own expert. The judgment contains a useful summary of the relevant principles….
CITING FALSE CASES TO THE COURT 2: A LAWYER IS NOT ENTITLED TO RELY ON THEIR LAY CLIENT FOR THE ACCURACY OF CITATIONS OF AUTHORITY
We are continuing with the examination of the Court’s judgment in relation to cases where false authorities have been cited as a result of a reliance on false authorities, generated by artificial intelligence. Here we have a case where the…
“THIS PRELIMINARY ISSUE TRIAL IS NOT A REHEARSAL”: THE DIFFICULTIES A CLAIMANT HAS IN A CLAIM UNDER THE THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010
Here we look at a case where the claimant suggested that a preliminary issue trial be adjourned. The court was firm in its rejection of that suggestion. The judge stated that the trial “is not a rehearsal” and that if…
WRITING TO THE JUDGE AFTER THE DRAFT JUDGMENT HAS BEEN SENT OUT: THIS IS NOT AN OPPORTUNITY TO ADVANCE FURTHER ARGUMENT
There have been a large number of cases where the courts have been critical of attempt to “re-open” judgments at the stage where the draft judgment is circulated. We see another example here. The judge reviewed the cases on this…
PARTS OF WITNESS STATEMENT STRUCK OUT – THIS “CARRIES NO WEIGHT AS EVIDENCE”:DOORS FIRMLY SHUT IN RELATION TO INADMISSIBLE COMMENTARY
If we had a pound for every word in witness statements served in just one single month that was irrelevant or inadmissible we could probably go a long way to paying off the national debt. The costs, however, are probably…
THE CLAIMANT DID NOT NEED TO ANSWER THE PART 18 REQUESTS MADE: THESE REQUESTS ARE AKIN TO THE “PRE CPR-PROCEDURE”
There have been a number of cases recently relating to Part 18 questions and questions to experts. Here we are looking at a case where the defendant raised numerous requests to the claimant and sought a peremptory order when it…
THE CURRENT IMPORTANCE OF PLEADINGS 14: THE DEFENDANT COULD GIVE EVIDENCE OF MATTERS THAT WERE NOT PLEADED
Today we are looking at a case where the judge rejected an argument that evidence could not be given because the particular issue had not been pleaded. The judge held that, on the facts of this case, the evidence was…
CAN THE COURT ORDER A CLAIMANT TO DELIVER UP REPLIES TO PART 18 QUESTIONS BEFORE A DEFENCE IS FILED? THE ISSUE CONSIDERED IN THE HIGH COURT
There are relatively few cases on procedural issues relating to Part 18. In this case the judge considered whether the court had power to compel a claimant to reply to Part 18 questions from the defendant before a defence was filed. …
THE CURRENT IMPORTANCE OF PLEADINGS 13: INAPPROPRIATE PLEADING OF FRAUD LEADS TO COSTS ON AN INDEMNITY BASIS
I am not sure whether there are more cases about pleadings recently, or whether I am noticing them more having started this series. However issues relating to statements of case keep arising. Here we look at a case where the…
THE JUDGE WAS WRONG TO GRANT THE DEFENDANT SUMMARY JUDGMENT IN A PERSONAL INJURY CASE: THIS SHOULD NOT BE A “MINI TRIAL”
Today we are looking at a case where the claimants were successful on appeal in overturning an order granting the defendant summary judgment. The case shows the limits of applications for summary judgment, in particular arguments that evidence was not…
PERSONAL INJURY POINTS 6: HOW IS THE COURT GOING TO APPROACH THE COSTS OF ACCOMMODATION WHEN THE CLAIMANT HAS A REDUCED LIFE EXPECTANCY – & HOW DOES THE COURT DEAL WITH THIS ON AN APPLICATION FOR AN INTERIM PAYMENT?
The decision in Swift -v- Carpenter set out the approach the courts should normally take when a claimant needs to purchase accommodation because of their injuries. However that judgment, expressly, left open issues relating to the approach the courts should take…
A SERVICE OF THE CLAIM FORM CASE WITH A TWIST IN THE TAIL: AND WHAT A TALE THIS IS…IT LEADS TO A LOT OF WASTED COSTS (AND A POTENTIAL WASTED COSTS ORDER)
Today we are looking at a case about a failure to serve the claim form properly. The claimant did not consider whether they knew, or had served, on the defendant’s “last known residence”. As a result a default judgment, order…
THE CURRENT IMPORTANCE OF PLEADINGS 11: THE COURT WON’T STRIKE OUT PARTS OF THE DEFENCE BECAUSE… ITS ACTUALLY THE PARTICULARS OF CLAIM THAT DON’T MAKE MUCH SENSE
NB – SEE THE APPEAL JUDGMENT ON ONE ISSUE IN THIS CASE IN Prudence v Gloucestershire Hospitals NHS Foundation Trust [2026] EWHC 96 (KB) Here we are looking at a judgment that is all about statements of case (or at…
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