PROVING THINGS 285: THE DEFENDANT ESTABLISHES THAT THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: “IT IS NOT CONSISTENT WITH QOCS TO EXTEND IT TO CLAIMANTS WHO KNOWINGLY TELL UNTRUTHS ABOUT SOMETHING FUNDAMENTAL TO THEIR CLAIM…”
This is a judgment on fundamental dishonesty where the judge considers, in some detail, the burden of proof and what a defendant needs to establish. There are important observations about the burden of proof and consideration of the term “dishonesty”…
THE CURRENT IMPORTANCE OF PLEADINGS 64: THE DEFENDANT TRIES – AGAIN – TO RELY ON EXTERNAL REPORTS AS FACTUAL PARTS OF ITS DEFENCE…
We continue our examination of this judgment where the judge considered the factors relating to amending pleadings in detail. In this case the defendant attempted (for the second time) to rely on the contents of an external report. The judge…
MASTERING PD57AC – GETTING WITNESS STATEMENTS RIGHT IN THE COMMERCIAL COURTS (AND THE CONSEQUENCES IF YOU DON’T): WEBINAR 30th APRIL 2026
Witness statements can make—or break—your case in the Commercial Courts. Since the introduction of Practice Direction 57AC in April 2021, the courts have repeatedly emphasised that compliance is not optional. Yet many practitioners continue to fall into the same costly…
THE CURRENT IMPORTANCE OF PLEADINGS 63: WHEN ARE AMENDMENTS TO PLEADINGS “CONSEQUENTIAL” – DOES A PARTY HAVE “GENERAL RIGHT” TO INTRODUCE NEW MATTERS?
Here we continue with our examination of attempts to amend pleadings. We are looking at the same case as the previous post but a different judgment from a different judge. Here the claimant amended its Particulars of Claim and the…
THE CURRENT IMPORTANCE OF PLEADINGS 62: REFERRING TO AN EXTERNAL REPORT IN A DEFENCE MAY NOT BE HELPFUL: “A PLEADING NEEDS TO BE UNAMBIGUOUS AND COHERENT”
Today we are going to look in detail at attempts to amend a defence. There is much to learn about pleadings, pleading defences and applications to amend. We start off with an application made last year. However as we shall…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: A MANDATORY OBLIGATION OFTEN IGNORED
It is surprisingly common to see witness statements that fail to comply with the basic – and mandatory – requirement that the maker of the statement gives the source of any matters of information or belief they are giving evidence…
COURT OF APPEAL OVERTURNS REFUSAL TO GRANT ADJOURNMENT OF COMMITTAL APPLICATION: THE COURT HAD AN OBLIGATION TO ENSURE THAT A PARTY COULD AVAIL THEMSELVES OF LEGAL REPRESENTATION
In this case the Court of Appeal overturned a decision not to grant an adjournment of committal proceedings. The Court held that the judge below did not appear to be aware of the fact that a respondent to committal proceedings…
HOW A FIRM OF SOLICITORS SHOULD NOT CONDUCT THEMSELVES IN LITIGATION: A WORKING EXAMPLE: EVIDENCE THAT WAS “GENERALLY UNRRELIABLE” AND “LACKING IN CREDIBILITY”
Here we are looking at a judgment that contains some remarkable observations and findings about the conduct of a solicitor. The judge was concerned not only about the failure to comply with directions, the inadequate nature of the statement of…
PROVING THINGS 284: APPLICANT FOR INJUNCTION FAILS ON JUST ABOUT EVERY POINT: THE CASE WAS DIFFICULT TO UNDERSTAND; NO EVIDENCE OF A RISK OF DISSIPATION; MATTERS THAT LEAVE THE JUDGE “BAFFLED” AND UNCOMFORTABLE
The applicant in this case sought an injunction. The application was (unusually) made on notice. The respondent did not have the opportunity to put in evidence. The applicant failed on just about every point. It was unclear what the applicant’s…
GETTING YOUR CASE INTO THE RIGHT COURT: A BIZARRE DECISION TO PUT A CASE IN THE CHANCERY DIVISION: MAKING THE CORRECT SELECTION IS IMPORTANT AND MIGHT MATTER
It is important that cases are managed, and heard, in the appropriate specialist court. Here we have a case that went on a frolic of its own into the Chancery Division for a while before being put back into the…
THROWBACK FRIDAY: MAKING A MISTAKE AND THEN BIGGING A DEEPER HOLE FOR YOURSELF: MARCH 2018
Here we are looking at a set of circumstances that we have seen many time, both before and after this post from March 2018. A lawyer makes a mistake, panics and then makes horrendous decisions in an attempt to cover…
THE “SEVEN DAY” DOCUMENTS IN JUDICIAL REVIEW PROCEEDINGS: YOU DON’T PLAN NOT TO COMPLY – BUT…
In civil procedure it is often the failure to comply with clear and obvious rules that can cause difficulties or annoyance. We have an example here in the Planning Court (however the rules in question apply to all judicial review…
KEEPING TIME ESTIMATES UNDER REVIEW: JUDGE GIVES REASONS FOR ADJOURNING APPLICATION: AND (BY THE WAY) “JUDGES ARE NOT SUPERHUMAN”
It is rare that we see a detailed judgment on the reasons why an application has to be adjourned. Here the judge comments on the reasons for the adjournment but also observes that the initial time estimate for the application…
SOLICITORS REFERRALS, TOMLIN ORDERS, UNLAWFUL TERMS, ADMISSIONS AND ATTEMPTS TO WITHDRAW FROM THOSE ADMISSIONS: A LOT OF LEGAL LIFE IS HERE…
There have been many interesting cases relating to “admissions” on this site. Here we have a intriguing case relating to a solicitor’s dispute with a former member of staff. It involves Tomlin orders which were partially unlawful, admissions and attempts…
THE COURT REFUSES AN APPLICATION THAT A TRANSCRIPT BE OBTAINED AT PUBLIC EXPENSE: IF YOU ARE BROKE THEN WHY HAVEN’T YOU ATTENDED COURT TO PROVE THIS?
Here is a judgment that contains a central irony. The applicant had failed to attend court to be examined about his means and as a result his passport was confiscated. His application to have the passport returned was refused. In…
WITNESS EVIDENCE WEDNESDAY: MAKING ASSERTIONS WITH NO CORROBORATIVE EVIDENCE LEADS TO APPLICATION BEING REJECTED: THE EVIDENCE WAS SO “UNSPECIFIC” THAT IT FAILED TO PROVE THE APPLICANT’S CONCERNS
Here we look at the judge’s assessment of the evidence produced in support of an application that details of the applicant should not be disclosed. The judge held that the evidence was “unspecific” and was not corroborated. There was a…
COST BITES 368: THERE WERE NO “SPECIAL CIRCUMSTANCE” WHICH MEANT THE SOLICITOR’S BILL SHOULD BE ASSESSED OUT OF TIME: THERE IS NOTHING THAT CALLS FOR AN EXPLANATION
We are returning to the previous case to look at the second half of the Cost Judge’s decision. Having determined that the bills were statute bills the judge then considered whether there were “special circumstances” which would entitle the claimant…
COST BITES 367: THE SOLICITOR’S TERMS OF BUSINESS MEANT THAT BILLS RENDERED WERE EACH FINAL BILLS: THE TERMS OF ENGAGEMENT WERE “UNEQUIVOCALLY CLEAR”
The issue of whether “interim” bills rendered by solicitors were “statute” bills or “Chamberlain” bills is one that can have profound practical importance. If they are not statute bills then they may be open to a Solicitors Act assessment. If…
COURT ORDER PREVENTS CLAIMANTS FROM SENDING COURT DOCUMENTS TO CERTAIN PARTIES: THE CLAIMANT’S CONDUCT AMOUNTED TO AN ABUSE OF PROCESS OF THE COURT: THE DEROGATION FROM THE OPEN JUSTICE PRINCIPLE IS JUSTIFIED
Here we have an unusual order under CPR 31.22 (2) made in unusual circumstances. The claimant was precented from sending documents disclosed to in proceedings, and mentioned in open court, to various specified entities. It is a reminder of the…
THE APPELLATE JUDGE SHOULD NOT HAVE ALLOWED THE APPELLANTS TO RUN A NEW ISSUE : THE ABILITY TO PAY COSTS IS AN IMPORTANT FACTOR AND WAS NOT CONSIDERED PROPERLY
Here we have a case where the appellants were, initially, allowed to argue a point that had not been argued in the court below. The Court of Appeal was clear in its view that the judge should not have allowed…
SERVICE POINTS 31: RELIEF FROM SANCTIONS GRANTED WHEN THE CLAIMANT FAILED TO APPLY IN TIME TO LIFT A STAY: A RARE SUCCESS ON A CLAIM FORM ISSUE
Here we are looking at an unusual set of facts in relation to service of the claim form, not least because it led to the issues being considered under the Denton criteria and is a (relatively rare) example of a…
THE CURRENT IMPORTANCE OF PLEADINGS 61: CLAIM FOR LIBEL WAS NOT PROPERLY PLEADED: “MUCH OF THIS ESSENTIAL DETAIL IS MISSING”
As we shall see there are very strict and precise requirements for pleading libel. There are numerous cases where the claimant has failed to get past the preliminary stages because of inadequate pleadings. We look at such a case here….
WHEN FUNDING AND CFA SCHEMES GO BADLY WRONG: A CASE THAT EXAMINES THE FALLOUT: £48 MILLION PAID OUT TO DATE … AND COUNTING
Here we have an important decision for litigators, litigation funders, legal insurers and clients. It is a challenge to summarise this case, but it is essential reading nevertheless. Here, as an initial view, is an overview of the funding scheme…
NEW EDITION OF THE KING’S BENCH GUIDE: WHERE TO FIND IT AND THE SIGNIFICANT CHANGES
A new edition of the King’s Bench Guide has been published. There are many useful points for litigators, in particular using CE-FILE, the new email addresses and some corrected links. “The Guide does not have the status of a Practice…
CIVIL LITIGATION BRIEF HAS ITS OWN LINKEDIN PAGE (“ABOUT TIME TOO” – APPARENTLY)
Civil Litigation Brief now has its own LinkedIn page. It is another way of following the posts on this site. Posts will be posted as they are published and it is another way of being able to keep up to…
COST BITES 364: THE PHILOSOPHY OF THE CPR IS “PAY AS YOU GO”: JUDGE SUMMARILY ASSESSES COSTS OF SUMMARY JUDGMENT ISSUES AT £109,576 PLUS VAT
Here we are returning to a case we looked at yesterday. The judge granted the claimant summary judgment on certain issues. The defendants elected not to attend the application. The defendants were ordered to pay costs on the indemnity basis. …
CLINICAL NEGLIGENCE CORNER 7: CLAIM FOR PSYCHIATRIC INJURY AS A RESULT OF BEING PRESENT AT BIRTH WAS STRUCK OUT: TESTING THE PARAMETERS OF PAUL -v- WOLVERHAMPTON
This case represents an attempt to sidestep the decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1. As we shall see it was not successful. This is one of the first, if not the first, reported case since…
SOME PROCEDURAL POINTS ABOUT APPLICATIONS FOR SUMMARY JUDGMENT: APPLYING FOR SUMMARY JUDGMENT BEFORE SERVICE OF THE CLAIM FORM (AN ERROR THAT WAS FORGIVEABLE IN THIS CASE)
This case gives rise to some interesting procedural issues in relation to applications for summary judgment. The application for summary judgment was made prior to the proceedings being served. This was in breach of the rules, however on the facts…
WITNESS EVIDENCE WEDNESDAY: YOU ARE DEFINITELY NOT TELLING LIES – BUT I STILL DON’T BELIEVE YOU: CREDIBILITY IS NOT NECESSARILY THE SAME AS HONESTY…
One of the most difficult things to explain to clients and witnesses is that they may well believe they are telling the truth. They may well not be liars. However this does not mean that the court will accept their…
DECISION TODAY IN RELATION TO RECOVERABILITY AND ASSESSMENT OF FEES CHARGED BY MEDICAL REPORTING ORGANISATIONS: ANOTHER ROUND IN A VERY LONG WAR…
We are looking at another round in the ongoing “costs of medical reporting organisations” series of battles. As the judge anticipated this may well not be the last round. Here I provide a brief summary of the conclusions. A more…
COST BITES 363: A SUMMARY ASSESSMENT OF A HEAVY COMMERCIAL APPLICATION TO STRIKE OUT IN PRACTICE: £87,698 REDUCED TO £70,158.64 (BUT NOT TO £39,460): “COMPARATIVE SPEND CAN BE A CROSS-CHECK; IT IS NOT DETERMINATIVE”
We are continuing with the practice of looking at summary assessments. These receive relatively little attention, however they can play a large part in the economics of litigation. Here we see some interesting arguments in relation to hourly rates, the…
BACK TO BASICS MONDAY: THE IMPORTANCE OF SERVING THE PARTICULARS OF CLAIM WITHIN THE TIME FOR SERVICE OF THE CLAIM FORM: THE “BEAR TRAP” IN WAITING
The back to basics point today is based on a recent case which shows the importance of serving the particulars of claim within the four month period allowed for service of the claim form. The claimant served the particulars three…
RELIEF FROM SANCTIONS REFUSED AFTER CLAIMANT FAILS TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: “THE CONSEQUENCE IS THAT THE PROCEEDINGS ARE STRUCK OUT”
Here we look at the “second half” of the decision considered in the previous post. Having rejected the claimant’s submissions that breaches of a peremptory order should be considered under CPR 3.10 the judge then went on to consider the…
THE BREACH OF A PEREMPTORY ORDER IS A SERIOUS MATTER: IT CANNOT SIMPLY BE DEALT WITH UNDER CPR 3.10
Here we look at an interesting, but eventually futile, about the approach the court should take when a party was in breach of a peremptory order. The claimant in breach argued that the court should consider the matter under CPR…
WITNESS EVIDENCE AND RELIABILITY: THE WITNESS WHO USED “SMART GLASSES” TO ASSIST IN GIVING ANSWERS TO CROSS-EXAMINATION
Here we have a case where the judge made clear findings that a witness had been using “smart glasses” when giving answers to cross-examination in court. It is another example of how technology can be mis-used during the trial process…
THROWBACK FRIDAY: PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC: (MARCH 2015)
The issues raised in the Current Importance of Pleadings series are not new. We see points as to pleading raised in March 2015. Here the judge considered a pleading that “leaves much to be desired.” “The overall result of these…
COST BITES 362: WHETHER A BREAKDOWN SHOULD BE PROVIDED ON A DISBURSEMENT: READ THE JUDGMENT
An earlier post related to this case which deals with the question of whether a party should provide a breakdown of an invoice from a translator. Ben Williams KC has kindly provided me with a copy of the judgment. “In my judgment,…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
WHEN CAN A JUDGE CHANGE THEIR MIND? THE PRINCIPLES CONSIDERED: AN “AMBUSH” LEADS TO A POINT BEING RECONSIDERED
Here we look at a case where the judge had given a decision on an issue but, on consideration, decided that their initial view may be wrong. The judgment sets out the relevant case law and principles in some detail….
SERVICE POINTS 30 : A PROCEDURAL DEBACLE: THE DEFENDANT HAD LEFT IT FAR TOO LATE TO TAKE A POINT AS TO SERVICE OF THE CLAIM FORM
Many cases relating to service of the claim form involve a procedural debacle. It is rare that they present a “dogs breakfast” such as this. The defendant took a point that the claim had been issued out of time, that…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 29th APRIL 2026
The Court of Appeal’s decision in Attersley v UK Insurance Ltd has sharpened the costs risks faced by claimants who accept a Part 36 offer outside the relevant period. While a claimant who accepts late remains subject to fixed recoverable costs…
COST BITES 361: THE STEPS A CLAIMANT SHOULD TAKE IF THEY WISH TO RECOVER PRE-ALLOCATION COSTS ON THE BASIS THAT THE CASE WOULD HAVE PROCEEDED IN THE FAST TRACK
I am grateful to Andrew Hogan for sending me a copy of this decision which relates to pre-allocation costs in housing cases. It deals with the question of how the court should address pre-allocation costs where a housing disrepair claim…
THE DEFENDANTS’ APPLICATION WAS AN ABUSE OF PROCESS: THE DANGERS OF TRYING SIMILAR THINGS A SECOND TIME AROUND: “THE HENDERSON AND HUNTER PRINCIPLES APPLY TO INTERLOCUTORY HEARINGS AS MUCH AS TO FINAL HEARINGS”
This is an interesting case on the relevance of the “Henderson” principles to applications, in this case for reverse summary judgment/to strike out the claim. A similar application had been made much earlier in the litigation. The judge found for…
IMPORTANT COURT OF APPEAL DECISION TODAY: A CLAIM IS BROUGHT WHEN A CLAIM FORM IS SENT TO THE COURT EVEN IF IT DOES NOT HAVE THE CORRECT ISSUE FEE
This Court of Appeal decision today clarifies the position when a claimant files a claim at court but mistakenly does not pay the correct fee. The Court held that the claim was “delivered” when the claim was filed at court….
CCC AND LOST YEARS IN THE SUPREME COURT: THE POTENTIAL STING IN THE TAIL FOR CLAIMANTS: “WAGES IN HEAVEN SHOULD NOT BE AWARDED WHEN THEY ARE NEEDED ON EARTH”
Here we are looking at some of the observations made by Lord Burrows in the recent judgment given by the Supreme Court. In the short term it is good news for seriously injured child claimants. However Lord Burrows has laid…
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
SERVICE POINTS 29: WOULD THE COURT STRIKE OUT THE ACTION WHEN THE CLAIMANT FAILED TO COMPLY WITH A r. 7.7 NOTICE?
It is unusual to see cases about the operation of CPR 7.7. This rule allows a defendant to serve a notice requiring that a claim form be served. In this case the claimant did not comply and the defendant applied…
A PART 36 OFFER CANNOT BE OUTSIDE THE SCOPE OF THE PLEADINGS: NOR CAN THE OFFEROR ARGUE THAT IT WAS NOT, IN FACT, A PART 36 OFFER AT ALL
Here we have a case where the defendant argued that a second action against it by a claimant was an abuse of process because an earlier action had settled by way of the claimant accepting a Part 36 offer. The…
PREPARING BUNDLES: A GUIDE FOR LITIGANTS IN PERSON (FAMILY GUIDANCE – BUT MUCH FOR OTHERS TO LEARN…)
We all know that the preparation of bundles can be a tricky job, even for legal professionals. The rules in relation to Bundles in family proceedings changed today. The Office of the President of the Family Division has published guidance…
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