MAZUR MATTERS 20: TWO MORE USEFUL LINKS: WHAT IS NOT THE CONDUCT OF LITIGATION? PLUS A SNIPPET OF THE LAW SOCIETY GUIDANCE
I am continuing with the Mazur series by looking at two more useful links from reputable sources. One, from the Bar Standards Board, on what is not the conduct of litigation the other the Law Society Practice Note on these…
THE CURRENT IMPORTANCE OF PLEADINGS 32: CLOSING SUBMISSIONS ARE NO PLACE TO TAKE A POINT THAT HAS NEVER BEEN PLEADED AT ALL
Here we are looking at a case where there were manifold issues (“100s of allegations) and where evidence was given over several weeks. However the claimant attempted to raise a new, unpleaded, issue during closing submissions. As we shall see…
SHOULD A COURT STRIKE AN ACTION OUT AFTER A TRIAL WHEN THE CLAIMANTS’ CONDUCT HAS BEEN REALLY BAD? THE HIGH COURT CONSIDERS THE QUESTION…
Here we are considering an unusual issue about an unusual case. At the end of the evidence the defendants made a submission that the action should be struck out because the claimants conduct had made a fair trial impossible. The…
PART 36 CASE OF DAY (4): THE AMOUNT OF INTERIM PAYMENT AS TO COSTS WHAT IS THE APPROPRIATE PERCENTAGE?
It is now normal for a successful party to be awarded interim costs at the conclusion of a trial. Here there is consideration of some of the issues in relation to the making of such orders. In particular the court…
FACT FINDING FOR CIVIL LAWYERS: WEBINAR 22nd OCTOBER 2025: SOME IMPORTANT ISSUES OF INTEREST TO ALL LITIGATORS
There is surprisingly little guidance for lawyers on the process by which judges approach the issue of fact finding and witness credibility. However a detailed working knowledge of this is essential for every working litigator. Most cases are won or…
PART 36 CASE OF THE DAY (2): SHOULD THE NORMAL CONSEQUENCES OF A FAILURE TO BEAT A PART 36 OFFER APPLY? INTERESTING ISSUES OR ISSUES ON INTEREST?
We continue looking at a High Court decision with some interesting issues in relation to the making of Part 36 offers and the consequences for a party if the offer is not beaten. Here we look at the court’s considerations…
PART 36 CASE OF THE DAY (1): WAS THE OFFER A VALID OFFER? TWO FIELDS, THREE TRACTORS AND £20,000 CAUSED A FURROW IN THE DEFENDANT’S BROWS
Here we are looking at an argument as to whether a Part 36 offer, slightly unusual in form, was a valid Part 36 offer. Later posts will examine many of the other issues relating to costs that were considered in…
MAZUR MATTERS 17: WHAT ABOUT COST LAWYERS? RE-VISITING OLD GROUND: A CASE THAT MAKES USEFUL READING
There are a number of issues that have come up in relation to the impact of the Mazur decision. One of those relates to the activities of cost lawyers. The case law and principles relating to this were considered in…
SOME MORE INFORMATION ON SURVEILLANCE EVIDENCE AND PERRIN -v- WALSH: FURTHER STATEMENTS; WARNINGS TO THE EXPERTS AND COSTS
This case was covered in a previous post. There is a useful article on the case by the claimant’s counsel. This covers the orders made in relation to further evidence from the surveillance operatives, the warnings given to the medical…
SHOULD THE DEFENDANT BE ORDERED TO PAY THE CLAIMANT’S COSTS WHEN IT RAN AN UNSUCCESSFUL ARGUMENT AS TO FUNDAMENTAL DISHONESTY? A HIGH COURT DECISION
There has been much debate recently about whether assertions of fundamental dishonesty have been made too readily. This case makes it clear that there may be costs consequences for those who run such arguments but who do not succeed. This…
EXPERT WATCH 19: THE EXPERT WHO WAS “FIGHTING HIS CORNER RATHER THAN TAKING A DISPASSIONATE APPROACH TO THE ISSUES RAISED”
Here we look at the judge’s views as to the approach taken by experts in a clinical negligence case. The judge clearly preferred the approach of one expert to that of another. One expert was “fighting his corner” rather than…
MAZUR MATTERS 15: COULD BREACHES OF THE LEGAL SERVICES ACT LEAD TO AN ACTION BEING STRUCK OUT? WHY YOU SHOULDN’T BELIEVE EVERYTHING YOU READ
I have gently, perhaps too gently, suggested that a great deal of what is being written and said about the impact of Mazur is “unhelpful”. Put more bluntly some of it is inaccurate and misleading. There is much “wishful thinking”…
CLINICAL NEGLIGENCE CORNER 4: THE DANGERS OF PLEADING ALLEGATIONS OF NEGLIGENCE WITHOUT APPROPRIATE EXPERT EVIDENCE IN SUPPORT (LESSONS HERE FOR ALL LITIGATORS)
There have been several cases dealing with inadequate pleading in clinical negligence cases this year. Here we look at one of them. It is a case we have looked at already but I wanted to emphasise the point. Further this…
EXPERT WATCH 18: CLAIMANT NOT ENTITLED TO SIGHT OF DEFENDANT’S DRAFT REPORT – REFERRED TO IN DEFENCE AND THE REPORT OF ANOTHER EXPERT
Here we look at a claimant’s applications under CPR 31.14(1) and 35.10 to have sight of a draft expert report that the defendant had referred to in a defence and in the report of another expert. The judgment contains a…
MAZUR MATTERS 13: WHAT IS MEAN BY “THE CONDUCT OF LITIGATION” 4: THE COURT SHOULD LOOK AT THE ENTIRETY OF ACTIVITIES UNDERTAKEN “IN THE ROUND”
The decision Mazur continues to attract considerable comment, for good reason. Here we consider the question of how the courts approach the issue. (13 may be lucky for some. Just remember the court considers the position “in the round”). …
SURVEILLANCE EVIDENCE UNDER SCRUTINY, ADMISSIBILITY AND CONDUCT CONSIDERED: “THE PROVIDING OF PATENTLY UNTRUE WITNESS STATEMENTS TO THE COURT, ENDORSED WITH STATEMENTS OF TRUTH, IS A MATTER OF SERIOUS CONCERN TO THE COURT”
This is the most serious criticism of surveillance operatives as I have seen. The judge found that the operatives, filming on behalf of a defendant for the purpose of litigation, had been “fundamental and repeated” errors. The operatives then put…
SERVICE POINTS 13: IS A CLAIMANT SAVED BY THE FACT THAT THE DEFENDANT DID NOT FILE AN ACKNOWLEDGMENT OF SERVICE OR MAKE AN APPLICATION UNDER CPR 11? THE COURT OF APPEAL HAVE A VIEW…
Over the years many claimants have been “rescued” by a defendant’s failure to make a timely, or correct, application to dispute the jurisdiction when the claim form has been improperly served. The limits of the defendant’s obligations were considered by…
EXPERT WATCH 17: A DETAILED CONSIDERATION BY THE HIGH COURT OF WHEN EXPERT EVIDENCE IS PERMITTED OR “REASONABLY REQUIRED”: COMPLIANCE WITH THE RULES IS VERY IMPORTANT HERE
It is rare for there to be a detailed consideration of the principles relating to whether expert evidence is necessary, admissible or desirable. There is a detailed consideration of the principles here, combined with some clear observations on the necessity…
MAZUR MATTERS 10: THE STATUTORY DEFENCE TO THE CRIMINAL OFFENCE: WHY YOU (PROBABLY) WON’T GO TO JAIL: BUT THE POSITION GOING FORWARD MAY BE DIFFERENT…
A person unlawfully “conducting” litigation can be imprisoned for up to two years, be fined and is also in contempt of court. This makes uncomfortable reading for many. However there is a statutory defence. There is useful case law…
THE JUDGE WAS RIGHT TO ALLOW A WASTED COSTS APPLICATION AGAINST THE CLAIMANT’S SOLICITORS TO PROCEED TO STAGE 2: MUCH TO THINK ABOUT HERE FOR CLINICAL NEGLIGENCE LAWYERS (AND INDEED ANYONE WHO DRAFTS PLEADINGS)
Here we are considering a case that covers issues relating to clinical negligence, the drafting of pleadings and wasted costs. It gives much to think about, particularly for those bringing professional negligence actions. (Choose the right type of doctor before…
MAZUR MATTERS 9: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION”? (2): AN EARLY COURT OF APPEAL DECISION WHICH HELPS
We are continuing with a detailed examination of the cases and principles relating to what is meant by the “conduct of litigation”. Here (with some major caveats in mind) we look at the Court of Appeal decision that has been…
MAZUR MATTERS 6: FURTHER GUIDANCE FROM CILEX: “FIRMS WILL NEED TO SATISFY THEMSELVES THAT THEY ARE COMPLIANT WITH THE LAW”
CILEX have provided further guidance in a document produced yesterday “CILEx Regulation – Interim Guidance The conduct of litigation and supervision”. (It may not be too late to register for the webinar on this topic today at 12.00 – details…
SOCIAL MEDIA AND THE PERSONAL INJURY LAWYER (BUT NOT JUST THE PERSONAL INJURY LAWYER: WEBINAR 9th OCTOBER 2025
In recent weeks this blog has looked at a number of cases where evidence from social media sources has played a key role in the outcome of a civil case. These issues are is not confined to personal injury litigation. …
MAZUR MATTERS 4: DOES MAZUR COVER ANYTHING PRIOR TO THE ISSUE OF PROCEEDINGS? THREE CASES THAT CONSIDER THE ISSUE
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). Here we consider the issue relating to…
WHEN CPR 3.10 CAN HELP: PROCEEDINGS HAD BEEN “ISSUED” ALBEIT IMPERFECTLY AND THE SITUATION COULD BE REMEDIED (TO THE CLAIMANT’S DETERIMENT IN THIS CASE)
I have written before about the “heavy lifting” that sometimes takes place when practitioners attempt to invoke CPR 3.10. Here we look at a case where CPR 3.10 was used to condemn a claimant who had used the wrong procedure…
SERVICE POINTS 11: A PARTY CANNOT SIMPLY MAKE UNILATERAL DECISIONS AS TO SERVICE WHICH OVERRIDE SPECIFIC COURT ORDERS
When a court makes an order as to the means of alternative service it expects the party in question to comply with that order. Here we have a case where the claimant decided on a different means of “serving” the…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
AI USED IN THE WRITING OF A JUDICIAL DECISION: READ ALL ABOUT IT…
There has been much discussion of the advantages, and disadvantages, in lawyers using AI. This is clearly going to be a major issue for the legal profession going forwarded. Last week I reviewed Andrew Hogan’s book on this topic. There…
ISSUING AN INJUNCTION MEANS “PROCEEDINGS” ARE UNDERWAY AND THE CLAIMANT HAS TO PAY THE COSTS AFTER IT WAS SET ASIDE: ALLOWING THE CLAIMANT’S ARGUMENTS IN THIS APPEAL WOULD BE AN “AFFRONT TO COMMONSENSE”
Here we look at an ingenious argument about the meaning of “proceedings” and the costs consequences if a claimant has an injunction order set aside. The claimant argued that the nature of the action he pursued did not amount to…
UPDATED VERSION OF THE CHANCERY GUIDE: A USEFUL LINK
The Chancery Guide was updated earlier this month. Here we look at the Practice Note and have a link to the updated Guide itself. FINDING THE LINK The Practice Note that accompanies it gives a link to the Guide itself…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 3: WHERE DO YOU LOOK IF YOU WANT (OR WANT TO OPPOSE) AN APPLICATION THAT A TRIAL BE ADJOURNED BECAUSE A PARTY OR WITNESS IS ILL?
The motivation for this series arises from a personal experience earlier this year. I had travelled to a hotel in readiness for a trial the following day. At midnight I found out that the other side were asking for an…
THE “CONDUCT OF LITIGATION” CASE CONTINUED: WHY THE CIRCUIT JUDGE ERRED AS TO COSTS: FIXED COSTS APPLIED IN ANY EVENT
We are returning to a case we have looked at several times already. This time on the question of costs. Since the appellants were successful the costs order against them was overturned. However it was held that the judge erred…
COST BITES 290: BARRISTERS TAKE CARE: ANOTHER REASON THE DBAS WERE INVALID – FAILURE TO INCLUDE COUNSEL’S FEES IN THE EQUATION…
We are continuing with our consideration of Damages-Based Agreements that were found to be unlawful. This time the judge considered the position in relation to counsel’s fees and the Regulations. The judge held that the attempt to charge counsel’s fees…
ENFORCEMENT BULLETIN 2: TRANSFER OF HOUSE TO CIVIL PARTNER SET ASIDE: ARE ATTEMPTS TO AVOID PAYMENT WORTH THE CANDLE?
It is not unknown for debtors to seek to transfer property to another person in an attempt to avoid a charging order being made against it. We see see such a case here. A house, initially in the sole name…
BARRISTER REFERRED TO THE BSB BECAUSE OF THE USE OF AI “HALLUCINATED” CASES: IGNORANCE THAT THIS WAS HAPPENING IS NO DEFENCE
We have another example of a lawyer getting into trouble (potentially very serious trouble) through the use of Artificial Intelligence and its ability to “hallucinate” cases. It was accepted that the error was not deliberate. However the Upper Tribunal pointed…
IT WOULD BE AN “AFFRONT TO JUSTICE” NOT TO SET ASIDE THIS “FINAL” JUDGMENT: THERE IS A LOT HERE THAT EVERYONE INVOLVED IN THE LITIGATION PROCESS SHOULD PROBABLY READ
We are looking at a number of cases that, on the face of it, are highly unusual. One judge has already indicated that there is a strong prima facie cases that some related cases “are all fraudulent”. There are…
SERVICE POINTS 10: COURT REFUSES CLAIMANT’S APPLICATION WHEN PROCEEDINGS WERE SERVED ONE DAY LATE: A CASE THAT ROUNDS UP TWO WARNINGS GIVEN TODAY
Earlier today I warned that a recent decision by the Divisional Court in relation to CPR 6.15 was unusual and should not give great comfort to litigators generally, later we looked at the new Administrative Court Judicial Review Guide which…
NEW EDITION OF THE ADMINISTRATIVE COURT JUDICIAL REVIEW GUIDE 2025: FOLLOW THE RULES OR YOU COULD BE SUBJECT TO SANCTIONS
There is a new edition of The Administrative Court Judicial Review Guide 2025 available on the Judiciary website. It contains clear guidance on procedure and, as the Preface makes clear, is keen to help practitioners avoid common procedural pitfalls. It…
SERVICE POINTS 8: APPLICANT FAILS TO SERVE THE SECRETARY OF STATE PROPERLY: A BAD NIGHT AT THE MUSEUM…
I don’t know how many planning lawyers subscribe to this site – it may be none do. However I am fairly confident that they could get full value out of their subscription if it persuaded them to pay attention to…
THE CURRENT IMPORTANT OF PLEADINGS 32: “BOTH THE PARTICULARS OF CLAIM AND DEFENCE ARE LENGTHY DOCUMENTS, UNJUSTIFIABLY SO”
We are here honing on in one aspect of a decision that was about allocation. The judge commented on how poor the pleadings of both side were. The Particulars of Claim and Defence were too long, a Reply was unnecessary. …
APPLICANTS FOR INJUNCTIONS: WHY ARE YOU ASKING FOR AN INJUNCTION BUT NOT ISSUING PROCEEDINGS BEFOREHAND? THAT PRACTICE SHOULD STOP: HIGH COURT DECISION
Here we are looking at the (to my mind somewhat risky) practice of applying for and obtaining an injunction, without actually issuing proceedings. This judgment is a reminder that this should only happen in exceptional circumstances. (This was an injunction…
SERVICE POINTS 7: WHAT’S IN A NAME? DOES THE DEFENDANT’S CHANGE OF NAME MEAN THAT SERVICE WAS DEFECTIVE?
Here we are looking at an interesting argument in relation to whether service was effective after a party had changed their name. The defendant argued that the name change meant they had not been served properly and were not a…
WILL AN INSURER PAY FOR THIS? THE THIRD PARTY RIGHTS AGAINST INSURERS ACT 2010, THE ROAD TRAFFIC ACT, THE MIB AND OTHER ROUTES TO OBTAINING PAYMENT: WEBINAR 16th SEPTEMBER 2025
The new series on enforcement on this site shows the major problems a successful litigant can have even after they have obtained a judgment. This webinar looks at the routes by which a claimant can attempt to investigate or ensure…
ENFORCEMENT BULLETIN 1: ISSUES WHEN SEEKING TO ENFORCE A JUDGMENT AGAINST A PARTY’S PENSION FUND: IT MAY BE A MATTER OF TIMING
Enforcement is an important part of the civil litigation process. If a litigant won’t pay the sums due under a court order then the whole process was, most probably, for nothing. The aim of this series is to look at…
WHICH TRACK IS BEST? THE RULES, CASES AND GUIDANCE: ALLOCATION – SMALL CLAIMS OR FAST TRACK IN HOUSING DISREPAIR CASES: WEBINAR 10th SEPTEMBER 2025
Over the past month or so we have looked at three cases where the question of allocation of housing disrepair cases has been considered. The issue lies between Fast Track and the Small Claims Track. This webinar looks at the…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
COST BITES 280: THE PERILS OF INCLUDING A VAT IN A BILL BY MISTAKE: THE COURT WOULD NOT DEPART FROM THE GUIDELINE RATES: NEVERTHELESS £202,000 ALLOWED ON ASSESSMENT FOR A ONE DAY APPEAL
We are looking at a case where the judge summarily assessed costs with no input from the paying party. The receiving party had made a mistake by claiming VAT (something only appreciated when the judge raised the question). There was…
EXPERT WATCH 12: “THE EXPERT EVIDENCE FOR BOTH SIDES HAD PROBLEMS”: THE JUDGE PREFERS THE DEFENDANT’S EXPERT
We look here at an unusual set of facts relating to the judge’s assessment of expert evidence. Firstly the judge found that the claimant’s expert had no real experience of the specific issue in question in the action; she also…
COST BITES 279: COSTS AWARDED IN WHAT IS NORMALLY A “NO COSTS” JURISDICTION: THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)
It is worthwhile taking a look at cases where costs are awarded in cases where there normally would be no inter party order for costs. We look at such a case here, in the First Tier Tribunal. On appeal to…
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