COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
COST BITES 435: £4 MILLION SPENT IN COSTS AND NEITHER PARTY WILL RECOVER A PENNY FROM THE OTHER: A “PYRHHIC” VICTORY LEADS TO NO ORDER FOR COSTS…
This is case that should be considered by every litigator, and litigant. It involves legal expenditure on a major scale, with very little benefit to the parties at the end. The final result is unlikely to please either of the…
GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION: REMEMBER IT CAN COME BACK TO BITE (AND SOMETIMES BITE HARD…)
When a party obtains an injunction they, usually, have to give an undertaking as to damages. There are now a number of cases where litigants have been found liable to pay damages as a result of that undertaking. We have…
CAN DELAY IN APPLYING TO STRIKE OUT AN ACTION FOR ABUSE OF PROCESS BE AN ABUSE OF PROCESS IN ITSELF? THE DANGERS OF LETTING TIME GO BY
Here we have a case where it was argued that the defendant’s delay in bringing an application to strike out for abuse of process was an abuse of process in itself. The case points to authorities that “acquiescing” in an…
THROWBACK FRIDAY: SIMILAR FACT EVIDENCE IN CIVIL CASES: AN OVERVIEW AND THE RELEVANT GUIDANCE CONSIDERED (AUGUST 2020)
Man of the posts in August 2020 concerned the impact of Covid. This post is the exception. It arose out of a Court of Appeal decision that month that reviewed the principles relating to similar fact evidence in civil cases….
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
ATTEMPTS TO “REVISIT” THE PRELIMINARY ISSUES REFUSED: ALSO THE JUDGE WOULD HAVE PREFERRED TO SEE WITNESS STATEMENTS NOT JUST DOCUMENTS…
This is another case where a party attempts to “revisit” preliminary issues/a statement of issues that have been agreed and approved by the court. That application did not get very far. Further the judge observed that, although the parties were…
ADVOCACY THE JUDGE’S VIEW A RECAP OF THE SERIES 3: “THERE IS A SPECIAL RING IN HELL FOR A CERTAIN TYPE OF ADVOCATE”: WHY ALL LITIGATORS SHOULD KNOW THESE THINGS…
Back in the dim and distant days of 2018 this site ran its third series on “Advocacy: the Judge’s View”. A new series will start shortly. However before that we are “recapping” on the guidance given in the four previous…
WITNESS EVIDENCE WEDNESDAY: THE PAUCITY OF EVIDENCE PROVIDED BY THE DEFENDANTS: AN APPLICATION FOR SUMMARY JUDGMENT CANNOT BE DEFENDED BY “BARE ASSERTION”
The need to provide evidence and not simply make bare assertions is as important in applications as at trial. Here we see a case where the claimant obtained summary judgment in the face of a “paucity of evidence” from the…
COST BITES 433: WHAT ARE “SIGNIFICANT DEVELOPMENTS” WHEN YOU WANT TO VARY A COSTS BUDGET? WHY THERE WERE NO SUCH DEVELOPMENTS HERE
We are continuing our consideration at the appeal case where the defendant’s appeal against a decision to vary the claimant’s budget. The first reason the appeal was successful was because the first instance judge found that there were no “significant…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
COST BITES 431: A CASE WHERE BOTH SIDES NEEDED RELIEF FROM SANCTIONS SO THAT THEY COULD ARGUE ISSUES OF COSTS: THE PROBLEMS FLOCK TOGETHER…
Here we look at a case where both parties required an extension of time in order to raise very significant arguments in relation to costs. The claimant had been late in filing essential documents for his own costs protection, the…
SERVICE POINTS 53: HOW DOES THE COURT PROTECT THE POSITION OF A PARTY WHO WANTS TO APPEAL DECISION IN RELATION TO JURISDICTION BUT RISKS “ACCEPTING” JURISDICTION IN THE MEANTIME? A PUZZLE SOLVED BY THE COURT OF APPEAL
This judgment highlights the risk that a party who wishes to dispute jurisdiction can accidentally accept it. What, if any, steps should the courts take to protect an appellant in these circumstances. The litigant may wish to appeal to a…
SHOULD AN ASSESSMENT OF DAMAGES GO AHEAD PENDING AN APPEAL? £8 MILLION COSTS COULD HELP AVOID £45 MILLION: THE TRIAL COULD MATERIALLY ADVANCE THE LITIGATION AND NARROW FUTURE DISPUTES
Here the court considered whether an assessment of damages should be stayed pending the claimants’ application for permission to appeal. This raised issues in relation to costs management and proportionality. The judge engaged in an exercise of looking at the…
CLAIMANT’S SUCCESSFUL APPEAL AGAINST THE STRIKING OUT OF A CASE BECAUSE A WITNESS STATEMENT HAD NOT BEEN PROVIDED: THE SMALL CLAIMS PROTOCOL IS (VERY) DIFFERENT…
I am grateful to barrister Simon Murray for sending me a copy of this decision that deals with some important procedural issues on the Small Claims Track. In particular it highlights the fact that witness statements are not mandatory on…
BACK TO BASICS MONDAY: THE 70 KEY POINTS OF THE DENTON JUDGMENT: REVISITING THE BASICS AFTER TWELVE YEARS…
It is now twelve years since the judgment in Denton -v- White [2014] EWCA Civ 906. However it is still a judgment that appears regularly in the reports (we will be looking at such a case this week). Over the years…
COST BITES 429: A REMINDER THAT A CLAIMANT IS STILL LIABLE TO PAY COSTS EVEN IF PROCEEDINGS ARE NEVER SERVED: SOMETHING ABOUT PRE-ACTION CONDUCT TOO…
This judgment illustrates two important things. Firstly that a claimant’s liability to pay costs starts upon issue and remains even if proceedings are never served. Secondly that pre-action conduct can have an impact on the decision that a judge makes…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: WHAT IF ONE OF THE PARTIES WAS INNOCENT? COURT OF APPEAL CONSIDERS THE ISSUE: SOMETHING ABOUT LACHES TOO…
Setting aside a judgment obtained by fraud is very different to other applications to set aside. It requires a separate action and there is a high burden of proof. However what should happen if one of the parties to the…
ENFORCEMENT BULLETIN 5: AN APPLICATION FOR RECOVERY OF MONEY PAID TO ENFORCEMENT AGENT DISMISSED: IT WAS TOO LATE AND MISCONCEIVED IN ANY EVENT
There are several issues in the case of general importance, particularly for those seeking to challenge Enforcement Agents. Firstly as to the strict timetable involved; secondly as to what constitutes “controlled goods” and finally as to the appropriate means for…
A MYRIAD OF PROCEDURAL ISSUES A BANKRUPT CLAIMANT; AN APPLICATION TO RESILE FROM AN ADMISSION AND AN ATTEMPT TO STRIKE OUT A COUNTERCLAIM FOR “WAREHOUSING”
This is a case that bristles with procedural issues. Firstly as to what happens when a claimant, involved in a partnership with others, goes bankrupt. Secondly whether that litigant could withdraw an admission that he had not status. Thirdly whether…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
THE CURRENT IMPORTANCE OF PLEADINGS 87: A CLAIM CAN BE STRUCK OUT ON AN ANALYSIS OF THE PLEADED CASE
This judgment confirms a decision to strike out a case on the basis of inadequate pleadings. It emphasises the fact that there is no need to wait for a defence to be filed before such an application is heard. It…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
COURT REFUSES PERMISSION TO CHANGE NAME OF THE CLAIMANT AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE DANGERS OF LEAVING THINGS LATE
Many of the “problem” cases we look at on this blog have similar themes. Leaving the issue of proceedings until the last possible moment and then compounding that by leaving service until the last minute. This case has an additional…
THIS CASE SHOULD BE HEARD IN MANCHESTER: ANOTHER ADMINISTRATIVE COURT CASE TRANSFERRED AWAY FROM LONDON
We have looked many times at judgments where the courts have determined that regional centres are the appropriate venue for certain cases. We have another example here. The claimant wanted the matter heard in London. The court directed it be…
SERVICE POINTS 52: $28 MILLION CLAIM LOST BECAUSE OF A FAILURE TO SERVE A CLAIM FORM PROPERLY (THESE CAN BE EXPENSIVE MISTAKES…)
This is a case ostensibly about limitation. However the central point for most litigators is that, in reality, it is about a failure to serve a claim form properly. The first claim was issued within the limitation period (following a…
“GRASPING THE NETTLE”: “THERE HAS BEEN ENOUGH DELAY” IN THIS APPEAL: COURT CUTS THROUGH ISSUES AND REQUIRES APPELLANT TO MAKE AN ELECTION AS TO WHETHER HE REQUIRES AN ORAL HEARING
In this case an order for possession was obtained because of arrears of rent. The tenant appellant appealed. The arrears stand at £73,000 and there was a risk of further delay. The judge “grasped the nettle” in making the appellant…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
COST BITES 425: THE EAT OVERTURNS AN ORDER “ASSESSING” COSTS: THE ET APPLIED THE WRONG TEST IN RELATION TO THE CLAIANT’S MEANS, AND THEN FAILED TO SHOW IT HAD ASSESSED THE COSTS SCHEDULE AT ALL..
Here we are (unusually) looking at a decision of the Employment Appeal Tribunal. The case is unusual because the EAT overturned an order as to costs that had been made by the Employment Tribunal. One of the grounds may be…
SHOULD UNDUE DELAY AND “GROVIT” ABUSE LEAD TO AN ACTION BEING STRUCK OUT UNLESS THERE ARE COMPELLING REASONS NO TO DO SO? THE COURT OF APPEAL CONSIDER THE ISSUES
This is an important decision by the Court of Appeal on how the court should respond to an abuse of process caused by delay. The answer is that this kind of abuse is treated similarly to other types of abuse….
BACK TO BASICS MONDAY: WHAT DOCUMENTS NEED TO BE IN AN APPEAL BUNDLE? A JUDGMENT ON THAT VERY POINT:”DOCUMENTS GENUINELY REQUIRED FOR DETERMINATION OF THE APPEAL”
Over the years we have seen many dozens of cases where judges have been critical of the contents of bundles. I cannot recall a case where a judge has determined the contents in advance. We now have an example here. …
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
THE NEW LAW ON LIMITATION AND SEXUAL ABUSE CLAIMS CONSIDERED IN THE HIGH COURT: THE NEW SECTION 11ZA ONLY EXTENDS TO THE SEXUAL ABUSE ASPECTS OF A CLAIM
New sections of the Limitation Act 1980 came into force on the 29th June this year. These make a considerable difference where the court is considering issues of limitation in sexual abuse claims. The new provisions are considered in this…
ENFORCEMENT BULLETIN 4: THE COURT SETS ASIDE A MENTAL HEALTH CRISIS MORATORIA AND ALLOWS BANKRUPTCY PROCEEDINGS TO CONTINUE
There is sometimes a suspicion that the Breathing Space Moratoria and Mental Health Crisis Moratoria are capable of being misused as an attempt to avoid payment. That issue is considered this judgment. The applicant applied to set aside a Mental…
COST BITES 422: THE ORDER FOR INTERIM COSTS IN THE AMY WINEHOUSE CASE : THE JUDGE WAS UNIMPRESSED WITH CLAIMANT’S “WEAK ARGUMENTS TO BOLSTER HIS ALREADY WEAK COSTS SUBMISSIONS”
We are looking at a case where the trial judge made an order for interim payment on costs following a decision that the claimant should pay the defendants’ costs on the indemnity basis. The judge also considered an issue, raised…
SERVICE POINTS 51: HIGH COURT REFUSES TO SET ASIDE AN ORDER ALLOWING SERVICE BY EMAIL ON THE DEFENDANT’S SOLICITORS
In this case the defendant, a judgment debtor, attempted to set aside an order that a claim form could be served by email on their solicitors. The situation was an unusual one in that the claimant had a judgment against…
TWO PROCEDURAL POINTS TO WATCH: GIVING REMOTE EVIDENCE FROM ABROAD: SEEKING COSTS BEFORE THE FIRST-TIER TRIBUNAL
Here we are looking “preliminary matters” in a judgment that highlight two procedural issues. One of them is of general relevance, the other more specific but still of significance, particularly for those who are unfamiliar with procedure in the General…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
ANOTHER BREACH OF JUDGMENT EMBARGO CASE: WHY SOLICITORS MUST BADGER THEIR CLIENTS ABOUT COMPLIANCE: “THE COURT EMBARGO IS FUNDAMENTALLY DIFFERENT FROM JOURNALIST EMBARGO”
Here we have yet another breach of the embargo on the handing down of a court judgment. The breach appears to have occurred because of a misunderstanding as to the important distinction between a court embargo and a journalism embargo. …
WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
SEEKING A STAY PENDING AN APPEAL: “GENERALISED ASSERTIONS ARE NO SUBSTITUTE FOR EVIDENCE”: COURT REFUSES APPLICATION
This judgment emphasises the point that a party seeking a stay of a judgment cannot obtain this by “generalised assertions”. There are clear and well established criteria for the court to consider. A party making such an application must make …
SERVICE POINTS 50: IS SERVICE OF A TENANT AND AN ADDRESS STATED IN THE LEASE GOOD SERVICE WHEN THE TENANT IS NOT THERE? DOES THE CONTRACT OVERRIDE THE CPR?
This Court of Appeal decision considers issues in relation to contractual service. Does a contractual term in a lease saying that service of documents can take place at the property in question override the CPR provisions as to service? In…
GENERAL DAMAGES FOR PSYCHIATRIC INJURY – THE KEY ISSUES CONSIDERED: WEBINAR 30th JULY 2026
Psychiatric injury claims raise some of the most challenging issues in personal injury litigation. Questions frequently arise as to whether a claimant has suffered a recognised psychiatric illness, how damages should be assessed, the role of expert evidence, and how…
COST BITES 418: THE PARTIES SHOULD SHARE THE COSTS OF AN ELECTRONIC PLATFORM (INITIALLY): THIS MULTI-CLAIMANT CASE IS MOST DEFINITELY SUITABLE FOR COSTS BUDGETING
There are two distinct issues of interest to litigators here. Firstly who should (initially at least) bear the costs of hosting on an electronic platform. Secondly whether a major multi-Claimant action should be subject to costs budgeting. “… costs budgeting…
AN APPLICATION TO STRIKE OUT FOR ABUSE OR PROCESS ADJOURNED – TO SEE WHETHER THIS NEED HAPPEN ON A “ROLLING BASIS”: ONE THOUSAND CLAIMANTS STARTED BUT ARE UNLIKELY TO FINISH…
Here we have a case where it appears that 1,000 claimants involved in Group Litigation will seek to discontinue. This fact becoming clear less than a month after the Group Litigation Order was made. The judge declined to strike out…
“THE PRACTICES I HAVE IDENTIFIED MUST STOP”: THE COURT LAYS DOWN A CLEAR WARNING IN RELATION TO INADEQUATE TIME ESTIMATES
This is far from being an isolated complaint from the judiciary about inadequate time estimates. The warning given here is clear. Inadequate time estimates “must stop”. In future cases are likely to be adjourned if it is clear that the…
BACK TO BASICS MONDAY: WHEN A DOCTOR PROVIDES A NOTE ABOUT THE CAPACITY OF A WITNESS: WHAT THE COURT REQUIRES
The issue of medical evidence to support a claim that a witness cannot attend trial, or requires some dispensation, have been some recurrent issues in litigation over the years. Many problems come from the medical evidence in support failing to…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
COST BITES 417: THE LIABILITY FOR COSTS OF EACH CLAIMANT WHEN A MULTI-CLAIMANT ACTION WAS DISCONTINUED: BEING PART OF SUCH AN ACTION MAY NOT BE CHEAP…
There has been much publicity recently about liability for costs when “multi-claimant” actions fail, are struck out or discontinued. We have a case that considers those issues here, albeit on a relatively small scale. Each claimant was liable to pay…
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