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…
THE SECRETARY OF STATE REQUIRED RELIEF FROM SANCTIONS: “AN APPALLING MANIFESTATION OF A LAX CULTURE OF NON-COMPLIANCE”
For (at least) the third time in recent weeks we are considering defaults or mistakes made on behalf of a Secretary of State. The delays and mistakes here were manifold. The Secretary of State was fortunate in obtaining an extension…
WEBINAR ON PART 36: NOW AVAILABLE “ON DEMAND”: WATCH IT WHEN AND WHERE YOU WANT…
I have had some enquiries about whether the webinar given today on Recent Developments in Part 36 is available this webinar is available “on demand. It is now available – the details are available here. (The CLB Member discount…
THROWBACK FRIDAY: THE COURT OF APPEAL ON THE CREDIBILITY OF AN EXPERT WHO HAD HIDDEN THE FACT THAT THEY HAD BEEN A COLLEAGUE OF THE DEFENDANT (FEBRUARY 2017)
Here we look at a case where the Court of Appeal addressed the issue of witness credibility head on. An expert giving evidence for the defendant in a clinical negligence case failed to disclose the fact that he and the…
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
COURT OF APPEAL DECISION ON PART 36 FIXED COSTS AND LATE ACCEPTANCE HEARD – DECISION PENDING (PLUS A FINAL PLUG FOR THE WEBINAR ON PART 36 ON THE 26th FEBRUARY 2026)
The Court of Appeal has heard an appeal against the decision in Laura Attersley v UK Insurance Limited [2025] EWHC 884 (KB). This is an interesting decision on Part 36. I understand that judgment is pending. This was one of many…
EXPERT WATCH 38: AN EXPERT HAD NOT BREACHED THEIR DUTY BY ACCEPTING LIMITED INSTRUCTIONS: BUT WHEN SHOULD AN EXPERT REFUSE INSTRUCTIONS?
Here we are considering some important observations in relation to the duties of an expert who is given limited instructions. The judge considered whether this involved a breach of the expert’s duty to the court. On the facts of this…
COST BITES 358: WHAT DOES THE COURT DO IF THE PARTIES HAVE COMPROMISED AN APPLICATION BUT CANNOT AGREE ON WHO SHOULD PAY THE COSTS?
There are occasions where the parties agree the terms of an application but cannot agree who should pay the costs – the court is asked to adjudicate. There are difficulties for the judge in this situation. In particular judges are…
MAZUR MATTERS 51: WHY THE HEARING IS NOT BEING “LIVESTREAMED”: A QUICK WORD FOR THE CONSPIRACY THEORISTS
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP continues today. There were (I am told) some 400 people watching remotely. This has not stopped a large number of people online putting forward (sometimes bizarre) theories as to…
THE CURRENT IMPORTANCE OF PLEADINGS 58: THE DEFENDANTS’ PLEADING DID NOT CONTAIN AN “ADMISSION”: APPLICATION TO STRIKE OUT AMENDMENTS DISMISSED
This is a case where the court had to consider whether a defence had originally contained an “admission” such that the defendants required express permission to resile from it. The court found that, on close analysis, there was no such…
COST BITES 358: JUDGE DOES NOT AWARD COSTS ON AN APPLICATION FOR PERMISSION TO APPEAL BECAUSE THE RESPONDENT (INITIALLY) ASKED FOR TOO MUCH
It is not unusual for a party, on an interlocutory application, to put in a schedule of costs that covers the entire action. Sometimes this is justified, often it is not. Here we have a case where this backfired. The initial…
MAZUR MATTERS 50: THE CALM BEFORE THE STORM: GETTING READY FOR THE APPEAL THIS AFTERNOON: BUT IF YOU WANT TO WATCH – YOU HAVE TO ASK…
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP begins at 2.00 today, it continues on Wednesday and Thursday. It is not being live streamed (To be fair I have been sent a link – the Court…
![PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER - YES THEY CAN]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/02/Par36Interest.png?resize=150%2C150&ssl=1)
PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER – YES THEY CAN]
The judgment here considers an interesting point in relation to Part 36. The judge had, in the substantive judgment, considered issues relating to the interest to be paid by the defendant. The defendant had failed to beat a Part 36…
EXPERT WATCH 37: THE COURT SHOULD MAKE FINDINGS OF FACT FIRST AND NOT ABDICATE THIS TASK TO AN EXPERT: A FIRST INSTANCE DECISION WITH A “FUNDAMENTAL FLAW”
We are looking at a family law case which considers several significant aspects of expert evidence. Firstly it makes clear that it is not for an expert to make findings of fact. Further a judge cannot simply abdicate they key…
MEMBER NEWS: USEFUL LINKS: REMEMBER TO LOOK AT THE END OF THE POST: A REMINDER OF MEMBER DISCOUNTS
There have been developments on this site that readers should be aware of. Firstly the development of the “useful links” at the end of each post. Secondly the discount codes for webinars taking place over the next few weeks. …
BACK TO BASICS MONDAY: WHAT HAS TO HAPPEN WHEN A LEGAL REPRESENTATIVE SIGNS THE STATEMENT OF TRUTH: A STARK REMINDER
There are major dangers when a lawyer signs a statement of truth on behalf of their client. I had actually planned a post on this issue before seeing the judgment last week which features below.. For many years this site…
THE CURRENT IMPORTANCE OF PLEADINGS 56: SHOULD THE COURT STRIKE OUT THE ACTION WHEN THE CLAIMANT HAS PLEADED FALSE FACTS IN THE PARTICULARS OF CLAIM ?
We are continuing to look at an unusual case in relation to pleadings. The claimant had pleaded false matters in the Particulars of Claim and admitted their falsity. The defendant applied to strike out the entire action. This judgment looks…
MORE DECISIONS ABOUT ARTIFICIAL INTELLIGENCE AND “HALLUCINATED” CASES: THE UPPER TRIBUNAL IS FAR FROM HAPPY: LEGAL PROFESSIONALS WHO DELEGATE THEIR WORK REMAIN RESPONSIBLE FOR ENSURING ITS ACCURACY
As I’ve said before the hallucinated cases just keep on coming. The issues were considered by the Upper Tribunal (Immigration and Asylum Chamber) here. There are important points about the need to supervise staff who undertake legal research. It is…
THE CURRENT IMPORTANCE OF PLEADINGS 55: THE PARTICULARS OF CLAIM CONTAINED A (SIGNIFICANTLY) FALSE FACT: JUDGE FINDS THAT THIS WAS PRINCIPALLY DUE TO THE FAULT OF “BARRISTER M”
It is rare for a judgment about pleadings to be “gripping” reading. We have such a case here. From the opening lines, to the detailed consideration of how the pleadings went wrong, the narrative is compelling. We even have an…
COST BITES 356: DO FIXED COSTS APPLY WHEN THE CASE IS TRANSFERRED AWAY FROM A FIXED COSTS REGIME TO ONE WHERE COSTS ARE “AT LARGE”
Here we are considering a Court of Appeal decision about what costs order should be made when an action is transferred from a fixed costs regime to one where costs are at large. On the face of it the decision…
LIMITATION IN ALLEGED SEXUAL ABUSE CASES: THE COURT DECLINED TO EXERCISE ITS DISCRETION UNDER S.33 “THE DELAY HAS ALREADY SIGNIFICANTLY UNDERMINED THE COGENCY OF THE EVIDENCE ABOUT WHETHER THE ABUSE TOOK PLACE AT ALL”
Here we have a case where the court refused to exercise its discretion under Section 33 of the Limitation Act in relation to allegations of sexual abuse that took place in the 1980s. As the judgment notes this is an…
SERVICE POINTS 28 : EFFECTIVE SERVICE ON A RESIDENCE IN ENGLAND COULD NOT TAKE PLACE WHEN THE DEFENDANT WAS IN FACT ABROAD – AND LEGALLY PREVENTED FROM RETURNING
We are looking at a Court of Appeal judgment today which overturned a finding that a defendant had been properly served at an address in England. The defendant was not living in England when proceedings were served and, indeed, there…
CASE FAILED BECAUSE CLAIMANTS’ SOLICITORS ATTEMPTED TO ISSUE USING THE WRONG METHOD: THE DANGERS OF LEAVING THINGS TO THE LAST MINUTE
There are always profound dangers in leaving the issue of proceedings to the last minute. This case illustrates that danger. The claimants left it to days before the expiry of the limitation period before applying to issue. They used the…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
COST BITES 355: VARYING A BUDGET (3): PROPOSED VARIATIONS DISALLOWED BECAUSE THEY WERE NOT MADE “PROMPTLY”
This is the final part of today’s trilogy considering applications to vary costs budget. We have already seen that the judge determined that many issues in the case were “significant developments” which could, in theory, lead to a variation of…
COST BITES 354: VARYING A BUDGET (2) HOW WAS THE ISSUE OF “SIGNIFICANT DEVELOPMENTS” CONSIDERED IN PRACTICE?
The previous post looked at the judge’s consideration of the principles relating to variations in a costs budget. Here we look at how this worked out in practice with the judge considering whether various issues amounted to “significant developments”. Some…
PART 36: RECENT CASES, KEY ISSUES AND KEY PROBLEMS CONSIDERED: WEBINAR 26th FEBRUARY 2026
A detailed working knowledge of Part 36 in practice is no longer optional for litigators. Recent decisions show the courts applying the rules with increasing rigour, exposing parties to serious and often unexpected costs consequences. This webinar cuts through…
SERVICE POINTS 27 : EXTENSION OF TIME TO SERVE CLAIM FORM SET ASIDE: FAILURES IN THE DUTY TO GIVE FULL DISCLOSURE PLAY A MAJOR PART
We have got to the middle of February and this is (I think) the first case about failures of service of the claim form this year. This case has a history we have seen a lot on this site. The…
COST BITES 352: S.106 OF THE PATENTS ACT HAS NO IMPACT UPON THE COURT’S DECISIONS IN RELATION TO COSTS BUDGETING
There are several interesting issues raised in this judgment. The fundamental point is whether the costs budgeting exercise is an “award of costs or expenses”. The judge decided that it is not. This, in turn, had an impact upon whether…
PROVING THINGS 280: DEFENDANT FAILS TO PROVE THAT AN ACTION HAD BEEN COMPROMISED: THE TERMS “SUBJECT TO CONTRACT” MEAN THAT ACCEPTANCE DID NOT GIVE RISE TO A BINDING COMPROMISE
Documents are often marked “subject to contract”. This case considers the practical implications of such markings. In particular whether an apparent acceptance of an agreement gave rise to a binding agreement. As we shall see the wording was found to…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION (2): CONTRIBUTIONS FROM THE NICE PEOPLE OF TWITTER:
I am here summarising the Advice given by lawyers on the social media site formerly known as Twitter. In April 2019 I asked lawyers what their advice would be for their colleagues in the profession when things go wrong. Specifically…
PROVING THINGS 279: THE TRIAL JUDGE WAS ENTITLED TO FIND IMPECUNIOSITY EVEN THOUGH THERE HAD BEEN OMISSIONS IN DISCLOSURE
Credit hire litigation has given rise to a number of reported cases over the years. It gives rise to particular issues of procedure and evidence. In particular the need for a claimant to establish “impecuniosity” in order to justify the…
BACK TO BASICS MONDAY: THE DIFFERENCE BETWEEN THE DATE OF RECEIPT AT COURT FOR LIMITATION PURPOSES AND DATE OF ISSUE FOR THE PURPOSES OF SERVICE: AVOID TESTING THIS DISTINCTION IF YOU CAN
Here we look at an issue that can cause confusion, it is important from the point of view of determining the date from which the date of service runs. The relevant date for limitation purposes is the date of receipt…
PERSONAL INJURY POINTS 11: THE LOCAL AUTHORITY COULD NOT TAKE INTO ACCOUNT PERSONAL INJURY TRUSTS AND REFUSE TO PROVIDE CARE
Here was have a case where the local authority ceased providing funds for a seriously injured person, indeed they demanded money back. The local authority contended that money in a personal injury trust should properly be taken into account. Further…
COST BITES 349 : THE CLAIMANT SHOULD HAVE BEEN GRANTED 100% OF THEIR COSTS: THE SECRETARY OF STATE’S FAILURE TO COMPLY WITH THE PRE-ACTION PROTOCOL WAS A HIGHLY RELEVANT FACTOR
It is rare for the Court of Appeal to overturn a first instance decision as to costs. We see an example of this happening here. The Upper Tribunal awarded the claimant 75% of his costs of a judicial review application…
COST BITES 348 : A PARTY SEEKING SECURITY FOR COSTS SHOULD HAVE INCLUDED TIME SPENT IN SETTLEMENT AND ADR
There is an interesting comment at the end of the judgment. The judge made an order for security for costs. However he also expressed concern that the defendant’s estimated costs did not include anything in relation to the costs of…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
MEMBER NEWS: A REMINDER OF MEMBER BENEFITS AND WHERE TO FIND THE DISCOUNT CODES: ESSENTIAL TOPICS COVERED IN WEBINARS THROUGHOUT THE YEAR
A reminder that member subscribers have access to discounts on webinars being presented throughout the year. The details of the webinars, the discounts and how to find the discount codes are below. The first webinar sets out the practical consequences…
EXPERT WATCH 34: THE COURT REFUSES TO REPLACE A JOINTLY INSTRUCTED EXPERT BUT ALLOWS SOME OF THE PARTIES TO INSTRUCT THEIR OWN EXPERT
When it is appropriate for a court to replace a jointly instructed expert? That issue was considered in this case. The judge rejected the allegations made about the jointly instructed expert, however given that expert evidence was central to the…
WHEN PERMISSION IS (AND IS NOT) REQUIRED TO DISCONTINUE A CLAIM BROUGHT ON BEHALF OF MINORS: IT STILL HAS SERIOUS COSTS CONSEQUENCES THOUGH
Here we are looking at an interesting issue relating to discontinuance. In some circumstances a claim brought by a minor or protected party cannot be discontinued without the court’s permission; in other circumstances no permission is required. The distinction is…
AVOIDING THE PITFALLS OF LIMITATION AND MAKING SECTION 33 APPLICATIONS: WEBINAR 20th FEBRUARY 2026 (MAKE SURE YOU’RE ON TIME…)
We have seen a few interesting cases about limitation in the past 12 months. Misunderstanding, and missing, limitation periods remains a frequent issue in modern litigation. This webinar deals with common issues and problems that arise with limitation in practice….
COST BITES 347: CLAIMANTS FAILURE TO “CUT THEIR CLOTH” MEANT COSTS OF BUDGETING PROCESS WERE REDUCED BY 20%
We have seen several cases where an “overambitious” costs budget has led to a reduction or disallowance in the costs of budgeting. We have another example here. The claimants were effectively given a second chance to produce budgets having had…
THE CIVIL PROCEDURE (AMENDMENT) RULES 2026 (2): THE COURT CAN ORDER A PARTY TO REQUEST ANY PERSON TO PRODUCE DISCLOSURE AND INSPECTION
We are continuing with our look at the The Civil Procedure (Amendment) Rules 2026 which come into force on the 6th April 2026. Here we look at a totally new provision which gives the court power to order a party to…
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