SERVICE POINTS 46: A CLAIMANT WHO HAS NOT SERVED THE CLAIM FORM IN TIME CANNOT RELY ON CPR 6.15 OR 6.16: ANOTHER ACTION COMES TO GRIEF…
This case emphasises a number of important points about service: (1) There is always a duty on a claimant to serve the claim form in time, no matter what type of proceedings; (2) when a claim form has not been…
PARTS OF A DEFENCE WERE STRUCK OUT AS AN ABUSE OF PROCESS: THE DEFENDANT COULD NOT ATTEMPT TO REARGUE FACTUAL ISSUES THAT HAD BEEN DETERMINED BY A TRIBUNAL
Here we have a case where parts of a defence were struck out, in relation to two of the claimants, because of issue estoppel. The defence was trying to re-argue factual issues which had already been determined by a tribunal. …
THE COURT PREVENTED THE DEFENDANTS FROM MAKING ANY FURTHER APPLICATIONS IN THE CASE UNTIL THEY HAD COMPLIED WITH PREVIOUS COURT ORDERS: A PROPORTIONATE USE OF THE COURT’S CASE MANAGEMENT POWERS
Here we have a case where the court considered, in detail, the appropriate response of the court when a party had failed to comply with previous court orders as to payment of costs. The result was that the defendants in…
“ADVOCACY – THE JUDGE’S VIEW”: SOME RECAPS BEFORE THE START OF A NEW SERIES: SERIES 1 REVIEWED: (AND WHY THIS IS RELEVANT TO EVERY LITIGATOR…)
We have had three series on advocacy on this site. They have all been from the viewpoint of judges. Looking at guidance given by judges throughout the world. The point being that judges are not your clients, but they are…
THE COURT CAN ORDER SPECIFIC PERFORMANCE AGAINST A RELUCTANT LANDLORD: IF THE DEFENDANT WANTED TO ARGUE THAT THIS WAS NOT FEASIBLE THEN IT SHOULD HAVE ADDUCED EVIDENCE AT THE TRIAL
There is little (if any) point litigating if a claimant is not going to obtain an effective remedy if successful. Here we have a case where the claimant sought (and obtained) an order for specific performance. There are lessons here…
CIVIL LITIGATION 2026: A TWELVE POINT SURVIVAL GUIDE UPDATED: 12 YEARS ON AND ALL OF THIS IS STILL RELEVANT
In July 2014 I wrote a 12 point “Survival Guide” for litigators. This was a guide to procedural safety following the Court of Appeal on from the decision in Denton. Re-reading this today all the points remain relevant. Today is…
REMOTE PARTICIPATION IN COURT HEARINGS: THE JUDICIAL PRINCIPLES EXPLAINED
The Courts and Tribunals Judiciary have issued a document “Remote Participation – Judicial Principles”. It ” sets out the overarching judicial principles for remote participation and provides a common set of principles for determining whether remote participation is appropriate.” These…
UPDATED GUIDANCE ON COMPLETING CASE ADMINISTRATION TASKS IN MyHMCTS
On the 29th May HMCTS published updated guidance on how to complete case administration tasks in MyHMCTS. The changes the updates made are not wholly clear, here are what appears to be the main changes. What HMCTS says changed…
SHOULD PROCEEDINGS BE STRUCK OUT WHEN THE CLAIMANTS HAD ISSUED IN THE WRONG COURT, USING THE WRONG METHOD? THE DENTON PRINCIPLES CONSIDERED
This is a judgment that bristles with procedural issues. The claimants had issued in the wrong court, using the wrong procedure. The defendant made applications which (initially) were in the wrong form. The judge had to consider whether the actions…
EXPERT WATCH 49: EXPERT EVIDENCE IS “UNUSUAL” AT AN INTERLOCUTORY HEARING: “THIS MIXTURE OF OF SUBMISSIONS AND OPINION WAS NOT CPR 35 COMPLIANT EXPERT EVIDENCE”
Here we look at part of a judgment that dealt with expert evidence. The Master was clear that a party could not rely on expert evidence without permission. The use of such evidence is “unusual” in an interlocutory application. Further…
COST BITES 399: WHEN THE COSTS OF THE LITIGATION ALMOST ENTIRELY CONSUME THE VALUE OF THE ESTATE BEING SUED:
This is another case that litigators and litigants need to read. An action against an estate led to the net value of the estate being “almost entirely” consumed by costs. During the course of the litigation the (unsuccessful) claimant already…
BACK TO BASICS MONDAY: THE DUTY TO SERVE A NOTICE OF APPEAL “AS SOON AS IS PRACTICABLE”
This post arises from the observations of the judge in a case we looked at last week. In essence it is not enough to simply issue a notice of appeal or an application notice. The rules require that you serve…
IF YOU ARE ASKING FOR AN EXPEDITED TRIAL – MAKE SURE YOU ARE AVAILABLE…: JUDGE SAYS THE PARTIES SHOULD HAVE CHECKED THIS ISSUE
Here we are looking at a short, but important, point in relation to seeking an expedited trial. The parties agreed the need for a speedy trial and agreed the dates. However it turns out that neither of the leading counsel…
CAN YOU CONVERT PART 7 PROCEEDINGS TO PART 8 PROCEEDINGS: THIS REMAINS AN OPEN QUESTION
There is clear power in the rules to allow the court to transfer actions issued using Part 8 to Part 7. However there is no express rule allowing transfer the other way. The issue was considered in this case. There…
COST BITES 396 : THE CLAIMANT’S CONDUCT WAS SUCH IT WAS APPROPRIATE TO AWARD INDEMNITY COSTS IN THE NATIONAL LOTTERY CASE; IT WAS NOT APPROPRIATE TO REDUCE THE SUCCESSFUL DEFENDANTS’ COSTS
We have seen many cases in which the courts have considered whether indemnity costs should be ordered. Here we have a case where the judge was clear in her view that the claimant’s conduct of the litigation was such that…
COST BITES 395: A RETAINER WAS NOT A CONTENTIOUS BUSINESS AGREEMENT BECAUSE THE TERMS IN RELATION TO HOURLY RATES RENDERED IT TOO UNCERTAIN (COURT OF APPEAL DECISION YESTERDAY)
This appeal has been much discussed in the specialist press. A solicitor’s client argued that the terms of a retainer rendered in a Contentious Business Agreement. This would have given her greater scope to dispute the bills. The Court of…
A CLAIMANT’S SUCCESSFUL APPEAL IN A HOUSING DISREPAIR CLAIM: THE DISTRICT JUDGE WAS WRONG TO ALLOCATE THE MATTER TO THE SMALL CLAIMS TRACK…
I am grateful to Craig Leigh, for sending me a copy of this judgment in relation to an appeal about allocation in a housing disrepair case. It deals with important principles relating to the allocation of housing disrepair cases. The…
THE TIMES (OR THE COURTS) THEY ARE A CHANGING: MODERNISING THE HIGH COURT THROUGH THE ESTABLISHMENT OF THE BUSINESS & PROPERTY DIVISION
Early next year there will be a new division of the High Court – the Business and Property Division. This was announced yesterday, with all Business and Property Courts to become part of the new Business and Property Division. We…
COST BITES 394: COURT OVERTURNS DECISION THAT A CLAIMANT LANDLORD IS ENTITLED TO RECOVER THE COSTS: AWARD OF INTEREST ALSO OVERTURNED
This is a case where a decision as to costs and interests was overturned on appeal. The Circuit Judge found that the claimant landlord had no entitlement to claim costs under the terms of the lease. Further the claim for…
SERVICE POINTS 45: A SOLICITOR FAILS TO CHECK THE CE FILE AND 5,000 CLAIMS GO UP IN SMOKE: SEVERAL IMPORTANT LESSONS HERE, INCLUDING THE NEED TO MAKE AN APPLICATION FOR RELIEF PROMPTLY…
This case, where judgment was given today, is essential reading for anyone litigating using CE-File. It is also essential to anyone involved in group litigation. This is a case where 5,000 claimants were refused relief from sanctions. That initial difficulty…
WHAT HAPPENS WHEN A PARTY DOES NOT RESPOND TO A NOTICE TO ADMIT FACTS (THERE IS NO “DEEMED ADMISSION”) PLUS ANOTHER POSSIBLE “HALLUCINATED” “FICTITIOUS” RULE
This case has two important practical points. Firstly (contrary to the case put forward by the claimant) a failure to respond to a Notice to Admit facts does not give rise to an “implied admission” by the recipient of the…
RELIEF FROM SANCTIONS REFUSED: SOME DELAYS WERE UNEXPLAINED AND THERE WERE OTHER BREACHES OF THE RULES: SOME LESSONS ON COMPLIANCE HERE…
We are looking at an (unsuccessful) application for relief from sanctions in a family case. A husband sought permission to appeal some 10 1/2 months out of time. What is particularly interesting here are the judge accepted that some delay…
COST BITES 393: A CONDITIONAL FEE AGREEMENT BETWEEN LAW FIRMS WAS VALID: THERE WAS NO BREACH (AND IF THERE WAS IT WAS NOT MATERIAL): FRESH OFF THE PRESS – JUDGMENT THIS AFTERNOON
I am grateful to Jamie Carpenter KC for drawing my attention to this judgment given this afternoon. It relates to an interesting dispute between law firms. The claimant had entered into a CFA with the defendant. The defendant argued that…
AN EASY MISTAKE TO MAKE: HOW A CRUCIAL TIME LIMIT FOR APPEALING WAS MISSED: MISLABELLING OF THE FILES: THIS WAS NOT A “MINOR ERROR…”
Here we look at how a simple mistake in the naming of a file led to a potentially disastrous problem when it led to an appeal being out of time. The wrong documents were sent to the court when an…
AN APPEAL OVER A TIME ESTIMATE FOR TRIAL: THIS SHOULD NOT LAST 15 DAYS, NOR WILL IT BE DONE IN 5: EIGHT DAYS REMAINS THE CORRECT CONCLUSION
This blog has covered issues relating to time estimates many times. I cannot recall, however, a case where there has been an appeal over a judicial determination of a time estimate for a trial. We have such a case here. …
EXPERT WATCH 48: HOW AN EXPERT WITNESS CAN LOSE CREDIBILITY AT TRIAL (IN A CLINICAL NEGLIGENCE CASE – BUT THE PRINCIPLES ARE UNIVERSAL…)
Some areas of litigation rely heavily on expert evidence. Clinical negligence is often one of those areas. It is always interesting to read judicial views when a matter reaches trial. Here was have a judgment where the judge considered aspects…
BACK TO BASICS MONDAY: A LITIGANT CANNOT APPLY TO SET ASIDE A DECISION MADE WITHOUT A HEARING WHEN THEY SPECIFICALLY ASKED FOR THIS AND HAD THE OPPORTUNITY TO MAKE SUBMISSIONS
Here we look at a recent decision that has major practical implications for anyone making an application, or anyone disgruntled with a court decision. The applicant asked, specifically, for an application to be considered on paper. The matter was considered…
THE CURRENT IMPORTANCE OF PLEADINGS 79: COURT REJECTS CLAIMANT’S AMENDMENT APPLICATION BECAUSE THERE WERE “REASONABLY ARGUABLE” ISSUES IN RELATION TO LIMITATION
Here we continue the theme of today in looking at applications to amend. In this case the application was unsuccessful because it sought to raise issues that may be subject to a limitation defence. The judge rejected the argument that…
THE CURRENT IMPORTANCE OF PLEADINGS 78: CLAIMANT REFUSED PERMISSION TO AMEND PARTICULARS IN CLINICAL NEGLIGENCE/FATAL ACCIDENT CLAIM
The theme for today may well be unsuccessful applications to amend pleadings. Here we have what may be regarded as an “extreme” case. The claimant issued proceedings relying on medical evidence that actually contradicted the pleaded case. This was pointed…
THROWBACK FRIDAY: AMENDING PLEADINGS : A REVIEW OF THE PRINCIPLES: WHAT IS MEANT BY “LATE”? (MAY 2015)
If we have a theme for today it relates to applications to amend pleadings. This is, needless to say, a regular topic on this site. The issues and problems that litigants faced 11 years ago still occur in cases we…
PRACTICE DIRECTION CHANGES INTRODUCED YESTERDAY: NEW PROVISIONS IN THE DAMAGES CLAIM PORTAL: “OTHER REMEDY” CLAIMS CAN NOW BE MADE
Some new provisions relating to the Damages Claim Portal came into effect yesterday, introduced in Practice Direction 51ZB (the Damages Claims Pilot) . Essentially these allow “other remedy claims” to be issued alongside damages claims. It also extends the portal…
SERVICE POINTS 44: LOCAL AUTHORITY FAILS TO SERVE PROPERLY ON INTERESTED PARTIES TO PROPOSED APPEAL: THE WHOLE APPEAL FAILS
Here we have another case of a failure to serve a claim form properly. This time a local authority failed to serve interested parties to an appeal because, rather than sending the claim forms to them personally, they were sent…
WITNESS EVIDENCE WEDNESDAY: TIPS FOR TESTIFYING IN COURT: FROM THE UNITED STATE’S ATTORNEY’S OFFICE (MIDDLE DISTRICT OF PENNSYLVANIA)
Earlier posts have written on the issue of how little guidance there is for those attending courts (civil courts in particular) to give evidence. An earlier post provided useful links. Here we look at the guidance given in one of…
SERVICE POINTS 43: WHY CPR 6.15 IS NOT THE “CAVALRY” COMING OVER THE HILL TO SAVE YOU IF THE CLAIM FORM HAS NOT BEEN SERVED PROPERLY
There must be many anxious litigators who have read the words of CPR 6.15 and happily assumed that their case is saved. On the face of it this rule gives the court a wide power to authorise service by another…
SERVICE POINTS 42: A £82 MILLION POUND FAILS BECAUSE THE CLAIM FORM WAS SENT BY EMAIL TO SOLICITORS WHO HAD NOT STATED THAT THEY WOULD ACCEPT SERVICE: AN OLD ISSUE (AND A BIG ONE)
This will not be the only case about (mis) service of the claim form this week, however it may be the largest. We have the “traditional” pattern of a claimant leaving service until the very last day and then serving…
COST BITES 391: TOO MUCH CORRESPONDENCE, GRADE C RATES NOT INCREASED AND “SO CALLED” SKELETON ARGUMENTS, WHICH REPEAT THE CONTENTS OF OVER-LENGTHY WITNESS STATEMENTS
There are some interesting observations in the short judgment on costs in this case. There was too much correspondence, “witness statements” were in reality skeleton arguments, with the contents then repeated in skeleton arguments. Furthermore a “good” Grade C is…
AVOIDING THE PITFALLS: BUNDLES, WITNESSES AND PREPARING FOR TRIAL: WEBINAR ON 29th MAY 2026: IT MAY BE A WHOLE BUNDLE OF FUN
In Serra -v- Harvey [2024], wasted costs were ordered on an indemnity basis against the claimant’s solicitors because the lateness and condition of the trial bundles. The bundles were described as “haphazard”. This is just one of numerous posts on…
THE USE OF ARTIFICIAL INTELLIGENCE – LANDING SOLICITORS IN SERIOUS TROUBLE AGAIN (AND DON’T BLAME THE AI FOR EVERYTHING – IT ACTUALLY GAVE OUT WARNINGS TO CHECK…)
One day the incorrect use of AI to cite “hallucinated” authorities is going to ruin someone’s career. It may have done so already, there are a number of SRA investigations pending. The example we look at here is highly educational…
BACK TO BASICS (BANK HOLIDAY) MONDAY: A REMINDER OF WHAT A DIFFERENCE A DAY MAKES: THE PROFOUND DIFFERENCE IN THE WAY THE COURT APPROACHES A PROSPECTIVE APPLICATION FOR AN EXTENSION
It is important to remember the major difference in the court’s approach to a an application for an extension that is made ahead of the date of compliance compared to one that is made afterwards. The governing principles are very different….
AVOIDING UNDERSETTLEMENT: WEBINAR 26th MAY 2026: NOW WITH ADDED CHECKLISTS
Allegations of undersettlement of personal injury actions are not uncommon. There is an entire industry specialising in looking at solicitor’s files. This webinar aims to help practitioners avoid such assertions and be able to provide clear and robust replies if…
THE COURT OF APPEAL ALLOWED DEFENDANT TO RELY ON WITNESS STATEMENTS SERVED “LATE”: THE CRUCIAL DISTINCTION BETWEEN “IN TIME” AND “OUT OF TIME” APPLICATIONS TO EXTEND TIME
I am grateful to Barrister Simon Brindle for sending me a copy of the judgment of this Court of Appeal judgment given yesterday. It relates primarily to the major distinction between an application made “ahead” of time and one made…
YOU CAN’T DELIBERATELY DECIDE TO IGNORE COURT (OR TRIBUNAL) DIRECTIONS: HMRC INVOLVED IN “CONTUMELIOUS” CONDUCT, ITS (LATE) APOLOGY GIVEN LITTLE WEIGHT
Here we have a case of a litigant (the HMRC no less) making a deliberate decision to ignore Tribunal directions. It then attempted to justify that decision by stating “That was a deliberate and proportionate case management decision, taken in…
THROWBACK FRIDAY: “WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT?” (MAY 2017)
Recent cases have considered the question of what a defendant can argue as to damages when a claimant has obtained summary judgment. Here we look at a case that considers the position when the defendant’s defence has been struck out. …
WOULD BE APPELLANT FAILS TO COMPLY WITH SEVEN DAY DEADLINE: ARGUMENTS ABOUT “PUBLIC INTEREST” FAILS TO TAKE OFF: THE IMPORTANCE OF KNOWING TIME LIMITS…
Here we have a case where the “would be” appellant failed to obtain permission to appeal out of time. They failed to notice that the time limits for appealing this specific type of decision had been changed two months prior…
MAZUR MATTERS 62: THE REVISED COURT OF APPEAL JUDGMENT: SOME SMALL BUT SIGNIFICANT REVISIONS
There is a revised version of the Court of Appeal judgment in Mazur. Some paragraphs were amended slightly (but significantly). These amendments do not appeal to have made their way to the version of the judgment that is publicly available….
THE CURRENT IMPORTANCE OF PLEADINGS 76: APPLYING FOR PERMISSION TO AMEND THE DAY BEFORE THE COURT OF APPEAL HEARING, WITH NO NOTICE GIVEN: HAVE A GUESS HOW THIS WENT…
There have been quite a few cases about pleading recently. This case is interesting because it makes the point that after a default judgment is entered a claimant is only entitled to have damages assessed on the basis of their…
THE CURRENT IMPORTANCE OF PLEADINGS 75: A CLAIMANT DOES NOT ALWAYS NEED TO PLEAD A CLAIM FOR INTEREST: AN INTERESTING POINT… BUT BE VERY WARY…
Here we look at an argument that a claimant was not entitled to interest because it was not pleaded. The judge rejected the argument on two grounds. Firstly that CPR 16 does not apply to Part 8 claims; secondly that…
THE CURRENT IMPORTANCE OF PLEADINGS 74: A PARTY CANNOT SIMPLY SEEK TO AMEND THE LIST OF ISSUES TO INCLUDE AN ISSUE THAT IT HAS NEVER PLEADED
Here we have an unusual case in that the defendant, rather than seeking to amend its defence, sought permission to amend the list of issues to enable it to argue a new point which (the judge found) had not been…
WEBINARS AVAILABLE ON DEMAND: WITNESS STATEMENTS; MAZUR; INFORMING THE CLIENT ABOUT THE COSTS OF LITIGATION AND PART 36: A HEADY BREW TO LIGHTEN UP ANY LITIGATOR’S DAY…
Four webinars are now available “on demand” from Civil Litigation Brief: PD57AC; Mazur in the Court of Appeal; Informing the Client about the Costs of Litigation; Part 36 recent developments. THE COSTS (The costs are £75.00 plus VAT if you…
A CLAIMANT’S PART 36 OFFER THAT GAVE A 9% DISCOUNT WAS “SOBER AND REALISTIC”: IT WAS NOT UNJUST FOR THE DEFENDANT TO FACE THE NORMAL CONSEQUENCES OF FAILING TO BEAT IT
Here we have another case where the court considered an argument that it was “unjust” for an unsuccessful defendant to face the normal Part 36 consequences when they had failed to beat a claimant’s Part 36 offer. This judgment shows…
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