COST BITES 344: INSOLVENCY COURT HAS POWER TO MAKE A PRO BONO COSTS ORDER FOR THE COSTS OF COUNSEL: POINTS TO WARN ABOUT IF YOUR OPPONENTS ARE ACTING ON A PRO BONO BASIS
We have looked at pro bono costs orders several times. This case has an unusual twist in that the case was an insolvency case. The judge considered the Insolvency Rules and found that the court had power to make an…
THE PROFOUND DIFFICULTIES IN AMENDING PROCEEDINGS TO SUBSTITUTE A PARTY AFTER THE LIMITATION PERIOD HAS EXPIRED: COURT OF APPEAL DECISION TODAY: WHY CLAIMANTS HAVE TO BE CERTAIN OF WHO THEY ARE SUING…
This decision today emphasises the difficulties for a claimant who has waited until near the end of the limitation period, issued and then finds that they have not sued the correct defendant. It is now less likely that a court…
THROWBACK FRIDAY: MAKING SURE YOU ARE “LEGALLY STREETWISE”: “CLIENT’S MAY SEEK TO TAKE ADVANTAGE OF YOU” (FEBRUARY 2016)
This post started in an unusual way. It was originally an online post from a firm of solicitors (Darlingtons) and I obtained their permission to set out the key points. Unfortunately Darlingtons are no longer trading and the full post…
WHEN THE CLAIMANT IS A SOLICITOR’S FIRM AND THE PROGRESS OF THE CLAIM “HINDERED BY A SERIES OF PROCEDURAL BREACHES”: NOT A GREAT START TO THE CASE
It is a poor start to a solicitor’s application for judicial review of the Legal Ombudsman when the firm itself has failed to comply with rules and directions. We have such a case here. The claimant firm applied for judicial…
RELIEF FROM SANCTIONS DENIED AFTER A PATTERN OF DEFAULT DELAY AND EXCUSES: TO BREACH ONE UNLESS ORDER MAY BE REGARDED AS MISFORTUNE, TO BREACH TWO LOOKS LIKE …
Staying with the theme this week of the making and breaching of peremptory orders alongside applications for relief from sanctions, we are considering what, on any view, as an “ambitious” application for relief from sanctions. The defendant here had breached…
COURT SETS ASIDE A DECISION THAT A CLAIMANT HAD BREACHED A PEREMPTORY ORDER: THE ORDER WAS NOT DRAFTED “IN THE CLEAREST AND MOST PRECISE LANGUAGE” NECESSARY
There have been several cases this week about the drafting of, and compliance with, unless orders. We see this issue again here. The Court of Appeal held that the claimant litigant in person had complied with an order of the…
SERVICE POINTS 26: CAN THE COURT MAKE AN ORDER FOR THE ALTERNATIVE SERVICE OF DOCUMENTS “IN CIRCUMSTANCES THAT MAY NEVER ARISE”: A PRAGMATIC APPROACH
Can the court take a proactive approach to the service of documents when there are grounds for suspecting that a party will engage in “game playing” as to service in the future? That is the question considered here. The court’s…
THE CLAIMANTS FILED A NOTICE OF APPEAL OUT OF TIME: COURT REFUSES AN EXTENSION: SOME IMPORTANT LESSONS HERE: OUT OF TIME MEANS OUT OF COURT…
One thing anyone considering an appeal should know, with absolute certainty, is the date the appeal has to be lodged. This, in turn, involves knowing the date on which the period starts running. Here we see a case where the…
THE PARTIES SHOULD DRAFT ORDERS IN THE TERMS STATED BY THE JUDGE: THE DRAFTING SHOULD NOT BE LITIGIOUS BUT TRANSACTIONAL
We are looking at two interesting aspects of a decision here. Firstly the judge’s observations on attempts by the claimants to “re-draw” the order made by the judge at the hearing. Secondly the finding that there were no good reasons…
WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
RELIEF FROM SANCTIONS REFUSED : WHEN NON-COMPLIANCE ALMOST APPEARS TO BE A LITIGATION STRATEGY: HAVING A BONA FIDE CLAIM DOES NOT GIVE YOU A FREE PASS
Here we have a case where the Court of Appeal considered the Denton principles in some detail. The judgment provides a useful reminder of some basic principles. Firstly that a litigant seeking relief from sanctions cannot complain about the original…
HIGH COURT TACKLES SOME DIFFICULT PROCEDURAL ISSUES (1): IS A PREVIOUS BREACH NECESSARY FOR A PEREMPTORY ORDER TO BE MADE
We are looking at judgment that is, essentially, all about procedural compliance and the court’s approach to making “unless orders”. The approach of the appellate court to case management decisions could be added to that list. It is a detailed…
HIGH COURT SETS ASIDE AN ORDER MADE FOLLOWING AN APPLICATION WITHOUT NOTICE : THIS IS A REHEARING IN FULL – THE APPLICANT DOES NOT HAVE TO SHOW AN ERROR SUCH AS TO WARRANT SETTING ASIDE THE ORIGINAL ORDER
Here we look at a case where the court set aside an order made without notice. The Master found that the evidence presented to him at the initial hearing was “neither full nor frank”. It is a reminder of the…
THE CURRENT IMPORTANCE OF PLEADINGS 52 : IF THE DEFENDANTS WERE PLEADING THAT INVIDIVIDUALS WERE INVOLVED IN POSITIVE DECEPTION THEN THAT SHOULD HAVE BEEN PLEADED
Here we have a case where the judge found that the defendants’ case was pleaded in such a way that it did not allow them to make specific allegations of deception about particular individuals. If the defendants had a case…
MAZUR MATTERS 49: NEWS FROM CILEX ON LITIGATION PRACTICE RIGHTS: THERE MAY BE A SLIGHT CHANGE OF STANCE BY CILEX
One matter I continue to celebrate is when CILEx members announce that they have been granted Litigation Rights. I know that there are major questions as to whether they are necessary. However in the interim it is most probably prudent…
BACK TO BASICS MONDAY: APPLYING TO VARY A COSTS BUDGET: WHAT YOU NEED TO SHOW
What does an applicant need to show if it wants to persuade the court to vary an existing costs budget? There was a helpful summary of the principles set out in a case we looked at last week. An application…
A FURTHER EXAMPLE OF ARTIFICIAL INTELLIGENCE GENERATING PHANTOM REFERENCES AND FALSE QUOTATIONS
We see the another example of the dangers of the use of Artificial Intelligence in this case. Two authorities relied upon by a respondent did not contain the words attributed to them, none of them supported the propositions that had…
THE STATEMENT OF TRUTH WAS NOT SIGNED BY AN AUTHORISED PERSON: IT REQUIRES “FACTS” NOT INFORMATION: A SOLICITOR EMPLOYEE SHOULD NOT HAVE SIGNED IN THE NAME OF THE FIRM
Here we have an example of a Statement of Truth that was non-compliant it contained the wrong wording and was signed by the wrong person in the wrong way. It shows the need to ensure that the rules in relation…
PART 36 OFFERS ON COSTS: JUDGE ALLOWS DEFENDANT’S APPEAL: THE OFFER HAD NOT BEEN BEATEN, THE COSTS OF PREPARING THE BILL WERE NOT RECOVERABLE
I am grateful to barrister James Miller for sending me a copy of this decision which highlights an important issue in relation to Part 36 and the assessment of costs. At first instance a Deputy District Judge found that the…
MAZUR MATTERS 48: THE INTERIM REPORT: REGULATOR’S GUIDANCE ON THE CONDUCT OF LITIGATION WAS “NOT ALWAYS ARTICULATED WITH SUFFICIENT PRECISION”
The snappily titled “Interim Report: Regulatory review of advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies” from the Legal Services Board is five pages long (including one page spent on…
THROWBACK FRIDAY: ADEQUATE TIME ESTIMATES (JANUARY 2020): 30 MINUTES WAS NOT REALLY LONG ENOUGH: REVISITING THE PREVIOUS POSTS
The issue of time estimates has been a regular source of posts for this site. This provides an opportunity to look at the judge’s observations that the original time estimate of 30 minutes before the District Judge was inadequate. We…
PART 36 IN THE PAST 12 MONTHS: WHAT PRACTITIONERS NEED TO KNOW: WEBINAR 26th FEBRUARY 2.00 pm (THREE TRACTORS, TWO FIELDS AND FAILING TO BEAT AN OFFER BY A “WHISKER”)
The past 12 months have seen some important cases about Part 36. Every civil litigator needs to keep up to date with these developments. This webinar looks at the cases and considers the practical implications for litigators. DATE AND TIME…
COST BITES 340: CLAIMANTS’ CONDUCT, FAILURE TO COMPLY WITH PRE-ACTION PROTOCOL AND EFFECTIVE REFUSAL TO MEDIATE LEADS TO NO ORDER FOR COSTS
Here we have a case where the claimants were (largely) successful but the court made no order for costs between the parties. There were three major factors (i) the way in which the claimants conducted the action; (ii) the failure…
PROVING THINGS 277: FARMER’S WIDOW HAD SUFFERED A LOSS OF £55,000 A YEAR EVEN THOUGH THE FARM WAS NOT MAKING A PROFIT: AN IMPORTANT ELEMENT OF FATAL ACCIDENT DAMAGES CONSIDERED AND APPLIED
Here we have an interesting example of the application of one of the important principles of Fatal Accident Act damages. When the deceased person was running a business, the business may continue to operate after the death. However the dependants…
COST BITES 338: COURT AWARDS THE DEFENDANT INDEMNITY COSTS: THE CLAIMANT’S HAD AN “ENTIRELY, UNREASONABLE AND ALMOST IRRATIONAL APPROACH TO THIS LITIGATION”
We have looked many times at cases where the courts have considered whether or not costs should be awarded on an indemnity basis. I do not recall a judgment where the judge has decided this issue so emphatically. There were…
IT IS NOT THE JUDGE’S JOB TO ADD A PENAL NOTICE TO THE ORDER: THE APPLICANT SHOULD ASK: PENAL NOTICES CONSIDERED
There are a remarkable number of cases about penal notices. Questions such as “are they part of the court order?”; “are the essential for committal proceedings to be brought?” “when should they be added and who should add them” arise…
COST BITES 337: CLAIMANT FAILS IN ATTEMPTS TO ARGUE “SPECIAL CIRCUMSTANCES” UNDER THE SOLICITORS ACT
A client has a limited amount of time to challenge a solicitor’s bill. If the bill is challenged 12 months after delivery or payment then the power to order assessment can only be exercised if the court accepts that there…
AVOIDING THE PITFALLS: PROCEDURAL DEFAULT, SANCTIONS AND OTHER ISSUES THAT CAUSE ACTIONS TO FAIL: WEBINAR 6th FEBRUARY 2026: REMEMBER WE LOOK AT THESE PROBLEMS TO TRY TO MAKE SURE YOU DON’T HAVE THEM
The next webinar in the “Avoiding the Pitfalls” series is a 90 minute long webinar on the 6th February 2026. The webinar examines the most common procedural problems and practical difficulties that arise in civil litigation. It explores where and…
MAZUR MATTERS 47: MAZUR CITED IN SUBMISSIONS FOR APPLICATION TO ADJOURN: “THIS IS NOT RELEVANT”
Mazur has not featured in many reported cases. However it is mentioned in passing here. For the sake of completeness of the series I have included it. It is (I suspect not the first) where it appears to have been…
COST BITES 336: MOST OF THESE THINGS ARE NOT “SIGNIFICANT DEVELOPMENTS” AND DO NOT JUSTIFY A VARIATION IN THE BUDGET: THE JUDGE NOT PERSUADED ON THE USE OF LEADING COUNSEL, NEW SOLICITORS WITH HIGHER HOURLY RATES AND THINGS MISSED FROM THE FIRST BUDGET
Here we have a detailed analysis of a defendant’s application to vary (that is more than double) its original costs budget. At the PTR stage the defendant applied to double its costs budget, some of this was allowed, most was…
ONE OF THE PERILS OF OBTAINING AN INJUNCTION: AN INTERVENER GIVEN LIBERTY TO APPLY TO BRING A POTENTIAL CLAIM FOR DAMAGES CAUSED BY AN INJUNCTION: LITIGATORS MUST GIVE CAREFUL ADVICE…
A party seeking an injunction is usually required to give an undertaking as to damages. That undertaking normally extends to the defendants/respondents to the injunction. However the terms of the injunction often give third parties affected by the injunction a…
SHOULD A LOSING PARTY FACE THE NORMAL CONSEQUENCES OF FAILING TO BEAT A PART 36 OFFER? A REMINDER THAT THIS IS A HIGH HURDLE WITH A “FORMIDABLE BURDEN”
A litigant who fails to beat a Part 36 offer can normally expect to face the consequences set out in the rules. There is an exception if that litigant can satisfy the court that it is “unjust” for those consequences…
PART 36: DOES A JUDICIAL READING DAY COUNT IN THE CALCULATION OF “21 DAYS” ? WHAT A DIFFERENCE A (READING) DAY MAKES…
We have seen numerous cases on this blog where matters have been left the “last minute” and the rules as to the calculation of time become important. Here we have an interesting example in relation to Part 36. An offer…
THE COURT REFUSES TO SET ASIDE A PEREMPTORY ORDER IN A SOLICITOR – CLIENT ACTION: LOTS TO LEARN HERE IN TERMS OF BOTH COSTS AND PROCEDURE
Here we are looking at a case that bristles with issues both in relation to solicitor and own client costs, but also in relation to civil procedure and compliance with court orders. It serves as a reminder that a client…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
SUMMARY JUDGMENT ON SPECIFIC ISSUES: WHEN SHOULD A “COMPELLING REASON” PREVENT JUDGMENT BEING GIVEN? (NOT HERE…)
One ground for resisting an application for summary judgment is that there is a “compelling reason why the case or issue should be disposed of at trial”. It is unusual for the issue of a “compelling reason” to be considered,…
COURT REFUSES DEFENDANT’S APPLICATION FOR THE ADJOURNMENT OF A SUMMARY JUDGMENT APPLICATION: YOU HAVE NO RIGHT TO TAKE PART IN THE HEARING SO WHY SHOULD THE APPLICATION BE GRANTED?
This case illustrates an important point about procedure in Part 8 proceedings. In particular the fact that a defendant who fails to acknowledge service has no right to be heard at any subsequent hearing. Here the defendant’s application for an…
THE CURRENT IMPORTANCE OF PLEADINGS 51: TOO LATE TO AMEND A REPLY WHICH WAS INADEQUATELY PARTICULARISED IN ANY EVENT
There has been a recent flurry in cases about late amendment and also about Replies. Both issues are considered her. The claimant applied to amend its Reply five weeks before trial. The revised Reply attempted to put forward a “counterfactual”…
THE CURRENT IMPORTANCE OF PLEADINGS 50: A CHANGE OF COUNSEL IS NOT A GOOD REASON TO PERMIT AMENDED PLEADINGS(AKA WHY FAMILY LAWYERS NEED TO READ THIS SERIES…)
I cannot recall dealing with a case in this series which involved the Family Courts. However we have a detailed exposition and consideration of the relevant principles relating to late amendment here. One factor is the absence of a good…
COST BITES 333: REMEMBER THE GENERAL RULE IS THAT DETAILED ASSESSMENT TAKES PLACE AT THE END OF PROCEEDINGS, NOT AFTER THE TRIAL OF A PRELIMINARY ISSUE
We are returning to a point that can easily be overlooked by a party that has been successful at a split trial or a trial of a preliminary issue. Although the court may make an order in that party’s favour,…
COST BITES 331: SOLICITOR FAILS TO SHOW THEY WERE OWED £573,529 IN COSTS: NEITHER A LIEN OR THE LEGAL AID CHARGE NECESSARILY GIVES RISE TO A DEBT FROM THE CLIENT
This is an unusual case where a third party challenged a solicitor’s right to be a creditor in an insolvency arrangement. The third party argued that the sums claimed by the solicitors were not in fact recoverable from the respondent. …
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 3: SO WHY DID THE CLAIMANT LOSE? PLUS – THE STING IN THE TAIL FOR DEFENDANTS…
Earlier posts have shown that the claimant was successful on two of the key issues in relation to the appeal. However litigation can be cruel. A litigant can win on many issues but still lose the case. So it is…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER (1): WHAT IS THE DIFFERENCE BETWEEN A “JUDGMENT” AND AN “ORDER” ?
There are some interesting issues raised in the Court of Appeal decision on Part 36 today that every practitioner should be aware of. The case has been helpfully summarised by my colleague Elliot Kay here. I wanted to break down…
COURT OF APPEAL DECISION ON PART 36 THIS MORNING: AN OFFER OF 90% ON LIABILITY COULD POTENTIALLY HAVE PART 36 CONSEQUENCES WHEN A CLAIM IS APPROVED ON DAMAGES (BUT DID NOT IN THIS CASE).
I am grateful to my colleague Elliot Kay for sending me a note of a Court of Appeal decision on Part 36 given this morning. The issue relates to Part 36 offers on liability where the matter is compromised and…
THROWBACK FRIDAY: EXTENDING TIME FOR SERVICE OF THE CLAIM FORM ALWAYS WAS (AND REMAINS) A RISKY BUSINESS
This week we go back to January 2016. It is a post about the dangers of applying for extensions of time to serve the claim form. The points made a decade ago remain equally valid today. We saw several cases…
COST BITES 329: THE COURT’S APPROACH TO INTERIM PAYMENTS ON COSTS THAT ARISE FROM APPLICATIONS AND CLAIMS FOR “OVERSPENDS” – COSTS OUTSIDE THE BUDGET
Some of the basic principles upon which the courts make orders for interim payments are well established, particularly when the case has been budgeted. This case considers the appropriate approach when there is a claim for costs arising from interlocutory…
COST BITES 328: A CAREFULLY NUANCED DECISION ABOUT LIABILITY FOR COSTS, INTERIM PAYMENTS FOR COSTS, INCLUDING COSTS OUTSIDE THE BUDGET
The question of “who won” is usually the starting point of assessing liability to pay costs. Complications arise when one party “won a bit” but not all it was seeking. We have a detailed consideration of these issues here. (Whether…
COST BITES 327: THE COSTS OF FILING AN ERRANT REPLY CONSIDERED: AN APPLICATION PURSUED “AGGRESSIVELY” – COSTS REDUCED TO 10% OF THOSE CLAIMED
Here we have the defendant making a justified, and successful, application to strike out a Reply. However the judge was unhappy with the manner in which the application (and the litigation generally) was being conduced (by both sides). He found…
THE CURRENT IMPORTANCE OF PLEADINGS 49: THE COURT STRIKES OUT TWO HUNDRED PARAGRAPHS OF A REPLY
We are looking at a case that has many procedural points of interest to litigators. We are starting by looking at the judge’s observations on the claimants’ Reply which was described as “Defective” and large parts struck out. There are…
DEFENDANT REFUSED RELIEF FROM SANCTIONS WHEN COSTS BUDGET WAS SERVED THE DAY BEFORE THE CCMC: “THIS IS HIGH COURT LITIGATION WHICH IS SUBJECT TO RULES WHICH MUST BE COMPLIED WITH”
Here we see another litigant coming to grief because of a failure to file a costs budget on time. The litigant had been warned of the consequences and the judge found that there was no good reason for the breach. …
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