CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
WHEN ARE THERE GOOD REASONS NOT TO ORDER A PAYMENT ON ACCOUNT OF COSTS? WHAT IS A “REASONABLE FIGURE” FOR SUCH PAYMENT? THE ISSUES CONSIDERED IN THE HIGH COURT
When a party loses an application or a case and costs are not assessed immediately then the general principle is that the paying party will be ordered to pay “a reasonable sum on account of costs”. Here the court considered…
I’VE DISCONTINUED AGAINST A DEFENDANT BUT I DON’T WANT TO PAY THEIR COSTS: HOW DO WE THINK THIS GOES?
There have been a number of cases recently where discontinuing parties have sought to escape the costs consequences that normally apply. We have such a case here. The judge considers the relevant rules and case law in detail. It is…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
THE CURRENT IMPORTANCE OF PLEADINGS 25: COURT REFUSES PERMISSION TO AMEND PARTICULARS: “THE PLEADED AVERMENT IS NOT PLAUSIBLE”
We have looked recently at the principles relating to amendment when the application to amend is made late. Here we look at a case where refusal to amend was refused because, among other things, the proposed amended case was not…
INTRODUCING THE NEW CIVIL LITIGATION BRIEF “TOOLBOX” SERIES : WHERE’S THE BEST PLACE TO FIND WHAT YOU WANT
One of the purposes of this site is as a working “toolbox” for practitioners. To provide a useful and readily accessible source of information when particular issues arise. For that reason something new is starting on this site in the…
COURT REFUSES TO GRANT A DEFENDANT RELIEF FROM SANCTIONS WHEN AN ACKNOWLEDGMENT OF SERVICE WAS FILED (VERY) LATE: ALSO REJECTS “BRAVE” SUBMISSION THAT THIS WAS A “TECHNICAL” BREACH
There are dozens, possibly hundreds, of posts on this site about the application of the Denton criteria and relief from sanctions. We have another case here. A defendant applied for relief from sanctions when the acknowledgment of service was filed…
CHANGES TO RULES OF ACCEPTING SERVICE BY EMAIL: SOME VERY MODEST PROPOSALS: (AND BYE BYE TO THE FAX MACHINE)
The current consultation by the Civil Procedure Rule Committee relates to important issues of service that have featured many times in the courts, and on this site. Here we look at the issues being considered relation to the automatic agreement…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
WHAT IMPACT DOES A MAJOR DELAY IN HANDING DOWN A JUDGMENT HAVE ON THE APPPEAL COURT’S APPROACH TO A JUDGMENT AND FINDINGS OF FACT? THE ISSUES CONSIDERED
The period when you are waiting for a reserved judgment is always a time of tension and anxiety. If the judgment is subject to a severe delay then the disappointed (losing) litigant in particular may feel particularly aggrieved. How should…
COST BITES 257: SOLICITOR AND OWN CLIENT ASSESSMENTS AND “UNUSUAL COSTS”: WHY THE ATTENDANCE NOTE IS OFTEN THE SOLICITOR’S BEST FRIEND
A solicitor is under a specific duty to warn the client when “unusual costs “are being incurred, particularly those costs that may be irrecoverable on an inter party basis. Here we have an example of a (former) client asserting that…
MEMBER NEWS:YOU CAN CHANGE THE FREQUENCY OF WHEN YOU RECEIVE EMAILS FROM THE SITE: LOOKING AT THE “BACK CATALOGUE” 1: THE “BACK TO BASICS” SERIES
There has been an increase in the frequency of posts since this site became a membership site. Obviously this increases the number of emails members receive. It is possible to change your subscription so that you receive the updates daily…
THE CURRENT IMPORTANCE OF PLEADINGS 23: THE DEFENDANTS SHOULD NOT HAVE TO GUESS THE CASE THEY ARE SUPPOSED TO MEET: CLAIM AGAINST SOLICITOR STRUCK OUT
We are looking at another case where it was held that the claimant’s Particulars of Claim were pleaded in an unsatisfactory manner. Even at the third attempt of amendment the case did not make sense and the action struck out….
“LESS IS MORE” WHEN DRAFTING NOTICES OF APPEAL: THE “KITCHEN SINK” APPROACH DOES NOT PERSUADE THE COURT OF APPEAL TO GRANT PERMISSION
When a Lord Justice of Appeal looks at a notice of appeal and skeleton and refers to a “kitchen sink” approach, we can probably surmise that a proposed appellant is going to have some difficulty here. When of their colleagues…
IF A CLAIMANT ISSUES AND LITIGATES WHEN THEY DO NOT HAVE CAPACITY – ARE THEY LIABLE FOR THE COSTS INCURRED? COURT OF APPEAL SCRUTINISES EXPERT EVIDENCE AND FINDS IT WANTING
Yesterday we looked at issues relating to the capacity of a solicitor’s client and their consequent liability to pay costs. Today we look at a case about inter partes costs. If a claimant brings proceedings but does not, in fact,…
COMMITTAL PROCEEDINGS “BROUGHT FOR COLLATERAL PURPOSES” DISMISSED: NOTICE TO SHOW CAUSE ISSUED AGAINST THE CLAIMANT’S SOLICITORS: WHY THIS IS A VERY DANGEROUS STRATEGY
There are many ways in which a litigant, dissatisfied with a judgment of the court can respond. They can apply to set the judgment aside; they can appeal; they can issue fresh proceedings attempting to argue that the action was…
ACTION STRUCK OUT BECAUSE CLAIMANT FAILED TO COMPLY PROPERLY WITH AN UNLESS ORDER FOR DETAILS OF FUNDING: DECISION UPHELD ON APPEAL
Here we look at a case where the Court of Appeal upheld a decision that the claimant had failed to comply with the terms of a peremptory order. The action was, therefore, struck out. It is a salutary and important…
SHOULD THE DEFENDANT PAY COSTS IMMEDIATELY AFTER A SPLIT TRIAL? THE “MEAN FIDDLER” CONSIDERED IN DETAIL
For the second time within a few weeks we are looking at a case where the judge had to consider whether to make a costs order following a claimant being successful after a split trial. Here the judge took a…
A QUICK POINT ABOUT AMENDING PLEADINGS: MAKE A FORMAL APPLICATION TO AMEND AND HAVE THE PROPOSED AMENDED PLEADINGS TO HAND: THE COURT OF APPEAL DECISION CONSIDERED
The post earlier today on the striking out of pleadings contained observations about the need for a party, seeking relief from sanctions on the grounds that it should be able to amend its pleadings, having those amended pleadings to hand…
BANKRUPTCY PETITION DISMISSED: THE PRECISE SUMS DUE (IF ANY) COULD, AND SHOULD, BE DETERMINED IN THE COUNTY COURT
One way to enforce a debt higher than £5,000 is to issue a bankruptcy petition. However problems for the would be petitioner can occur if the debt is disputed. We see such a case here. The judge held that there…
SOME IMPORTANT ISSUES IN RELATION TO THE FIXED COSTS REGIME: WHAT IS THE APPROPRIATE ORDER WHEN THERE ARE TWO DEFENDANTS? WHAT STAGE HAD THE CASE REACHED WHEN THE ACTION WAS STRUCK OUT? WHAT IS THE APPROPRIATE SUM TO BE PAID TO LITIGANTS IN PERSON?
Here we are dealing with a case that bristles with issues in relation to the fixed costs regime. We have already looked at the same case in relation to the striking out of numerous actions because of defective Particulars of…
THE CURRENT IMPORTANCE OF PLEADINGS 22: WHOLE BATCHES OF CASES STRUCK OUT BECAUSE THE PARTICULARS WERE DEFICIENT: RELIEF FROM SANCTIONS REFUSED
Here we are looking at a case where numerous actions brought by the claimant were struck out because the Particulars of Claim were wholly deficient. They remained wholly deficient even after the court had made a peremptory order compelling the…
CLAIMANT GRANTED RELIEF FROM SANCTIONS (ON APPEAL) FOLLOWING LATE SERVICE OF A COSTS BUDGET (TWO YEARS AND FIVE MONTHS LATE…): BUT AT A COST…
Cases relating to late service of the costs budget are still filtering through. Rarely, however, does the failure extend over 2 years and 4 months as it does here. Despite the delay the claimant’s successfully appealed against the initial refusal…
WHEN CAN A JUDGE HEAR AN ISSUE THAT IS NOT “LISTED”? THE ISSUES CONSIDERED IN THE HIGH COURT
If an action is listed for hearing on a specific issue when can the judge hear, and make an order in relation to a different issue? This is an issue considered in the case we are looking at here. The…
MEMBER NEWS: THE SEARCH FACILITY ON THIS SITE AND FINDING RELATED MATERIAL
It is now three weeks and a day since this site took up the membership subscription model. It has been an interesting time. Not least it has enabled me to fully appreciate the full range of the site’s readership ,…
SOME MORE POINTS ABOUT A NOTICE OF DISCONTINUANCE: “CLOUD CUCKOO LAND”, “A TRAP FOR THE UNWARY” AND SOME ISSUES YET TO BE DETERMINED
We are looking again at the implications of serving a notice of discontinuance. The judgment here leaves open the question of whether a claimant who has served a notice of discontinuance in circumstances that are to their detriment can, in…
CLAIMANT COMES TO GRIEF BECAUSE OF A WHOLLY SELF-IMPOSED PROBLEM: SUBSTITUTING A DEFENDANT WHEN THE ACTION HAS BEEN DISCONTINUED – LEADS TO MAJOR PROBLEMS
There have been some interesting cases on this site recently relating to the substitution of parties. However none of them are as peculiar as the case we are looking at here – where the claimant’s problems were primarily self-inflicted. The…
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
HOW IS A VERY, VERY LATE APPLICATION TO RELY ON EXPERT EVIDENCE GOING TO FARE? THE CONSEQUENCES FOR THE DEFENDANT AREN’T GOOD…
We are considering here a very, very, late application by a defendant to call expert evidence. Unsurprisingly the application did not find favour with the court. The judge then went on to consider the consequences given that the claimant had…
STATEMENTS OF CASE, DRAFTING DANGERS AND PITFALLS IN 2025: WEBINAR 4th JULY 2025
The “Current Importance of Pleadings” series has developed far quicker than I had anticipated. There have been manifold cases where problems have occurred because of issues to do with statements of case. This webinar takes a close look at the…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
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 TO 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…
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