NON-COMPLIANCE WITH A STATUTORY OBLIGATION TO OBTAIN PERMISSION PRIOR TO ISSUE LEADS TO AN ACTION BEING A NULLITY
We are looking here at at case where an action was struck out because of a failure to obtain permission of the court to issue proceedings. The judge rejected the claimant’s contention that the statute in question should be read…
MAZUR(ISH) MATTERS 28: IT WAS “SLIGHTLY SURPRISING” THAT A PARALEGAL “DID NOT KNOW MORE ABOUT THE REGULATORY ENVIRONMENT APPLICABLE TO NON-SOLICITORS”
Here we look at a judge’s comments outside the ambit of litigation. Nevertheless it shows that the issue of professional regulation and the use of “non-authorised” employees within solicitor’s firms may well become a more important issue in the future….
MAZUR MATTERS 27: TWO MORE USEFUL LINKS: A USEFUL GUIDE FROM INSURERS: PLUS THE FIRST “REAL WORLD” CASE WHERE MAZUR HAS LED TO A SUBSTANTIAL REDUCTION IN COSTS
The commentary on Mazur continues. Here I want to look at two useful links. The first relates to guidance given by an insurer. The second relates to the first report (I have seen) on Mazur having an impact on costs….
SHOULD A DEFENDANT BE ALLOWED TO WITHDRAW ADMISSION MADE BY MISTAKE? A TEN YEAR OLD CASE THAT IS STILL OF INTEREST: CANDOUR HELPS A LOT
This is a case about mistakes in litigation and the rules relating to allowing the withdrawal of a pre-action admission. The judgment was given 10 years ago, but arrived on BAILII today. The issues raised here remain highly relevant. In…
THE CURRENT IMPORTANCE OF PLEADINGS 33: COURT OF APPEAL UPHOLDS STRIKING OUT OF SCHEDULE OF DAMAGES: “OVER-COMPLICATED”, “UNCLEAR”. “LACKING IN THE MOST BASIC INFORMATION NECESSARY” (OH AND MANY OF THE CLAIMS WERE UNPLEADED…)
It is rare for a schedule of damages to come under close scrutiny prior to the trial itself. Here the Court of Appeal upheld a decision to strike out large parts of the appellants’ claim for damages. Many of the…
TAKING A CASE TO THE WIRE: TIME LIMITS IN DOMESTIC VIOLENCE CASES: WHEN DOES TIME START TO RUN? WHY IS THIS RELEVANT TO YOU?
Here we are looking at a case where the issue of proceedings was left until the last day. There is nothing unusual in that on this blog. We are, however, looking at a criminal case, albeit a decision of the…
EXPERT WATCH 23: NOW THINGS GET EVEN MORE REMARKABLE: EXPERT WRITES TO THE COURT TO SAY “MY EVIDENCE WAS WRONG”: REGULATORY BODY THINKS THE REPORT WAS VERY WRONG…
The previous post recorded how it is still possible to be surprised by what goes on in litigation. We see that again here, but to a greater extent. After a trial and a judgment was given an expert wrote to…
EXPERT WATCH 22: JUST WHEN YOU THINK YOU MAY HAVE SEEN IT ALL: THE CLIENT (BASICALLY) DRAFTS THE JOINT STATEMENT: THE JUDGE THINKS THEY MAY HAVE PLAYED A LARGE PART IN THE DRAFTING OF THE REPORT ITSELF…
No matter how long, and how much, you write about civil procedure cases can still come along which surprise – if not astonish. We have such a case here. The judge found that, essentially, it was the client who played…
MEMBER NEWS: UPDATE ON THE CIVIL LITIGATION BRIEF WEBINAR SERIES: THIS SITE WILL BE OFFLINE FOR AN HOUR ON THE 29th OCTOBER
There are two pieces of news. Firstly the site is having a short “rest” on the 29th October, this is only for an hour – but it will be back newly invigorated. Secondly a reminder of some of the webinars…
COST BITES 301: THE AARHUS COST CAP FIGURES ARE NOT SETT IN STONE: BUT IT VERY DIFFICULT TO PERSUADE A COURT TO CHANGE THEM
This may be the first time we have looked at the issue of costs and badgers. We are looking at a case where the defendant sought to change the amounts of the “Aarhus cap” on the recoverability of costs in…
SEEKING PERMISSION TO APPEAL AND TO EXTEND TIME: THE OPPORTUNITY TO SEEK PERMISSION CAN EASILY BE MISSED: SOMETHING FOR WOULD BE APPELLANTS TO WATCH OUT FOR
The circumstances in which a judge at first instance can grant permission to appeal from their own decision are circumscribed by the rules. Permission can only be given at the hearing itself, or any adjournment thereof. The same applies to…
LITIGATORS: SLEEP LIKE A BABY NEXT YEAR BY NOT REPEATING ALL THE CLAIM FORM MISTAKES PEOPLE HAVE MADE THIS YEAR: WEBINAR 5th NOVEMBER 2025
Needless to say there have been plenty of cases this year relating to service (or mis-service) of the claim form. This webinar looks at cases over the past 12 months with the primary aim of ensuring that you are not…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
HIGH COURT REFUSES RELIEF FROM SANCTIONS WHEN SKELETON ARGUMENT WAS SERVED LATE: BREACHES OF EVEN A DAY OR TWO SHOULD NOT BE REGARDED WITH EQUANIMITY
If a skeleton argument is served late then relief from sanctions is required. The case we are looking at here makes it clear that it is prudent to make a formal application rather than assume relief will be granted “on…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? (3): ARE THE CPR PROVISIONS RELATING TO VULNERABILITY RELEVANT? WHOSE JOB IS IT TO CONSIDER THEM IN THIS CONTEXT?
We are looking again at the case in which the claimant applied for permission to withdraw their Part 36 offer. The claimant had capacity, however at the hearing it was argued that he came within the definition of “vulnerable” litigant…
LIGHT IN ALL THE HEAT: ENSURING THAT AN AUTHORISED PERSON HAS “CONDUCT OF LITIGATION”: A PRACTICAL GUIDE: WEBINAR 31st OCTOBER 2025
There are many heated responses to the Mazur decision. There are articles suggesting that the judge got the law wrong. (Apparently the judge should not have listened to the submissions of both the Law Society and SRA which supported his…
WHEN A RESPONDENT’S NOTICE IS REALLY A CROSS-APPEAL: SHOULD THE COURT GRANT AN EXTENSION OF TIME TO ALLOW THE “APPEAL” TO BE ARGUED?
Sometimes a respondent’s notice is really a cross-appeal attempting to disguise itself. We are looking at such a case here. The “respondent’s notice” was served late, and permission was given to serve it. However on closer examination at the appeal…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? (2): THE PRINCIPLES CONSIDERED
We continue with the consideration of the recent case in which a claimant applied for permission to withdraw a Part 36 offer. The judge also considered the relevant rules and case law in detail. (You need the court’s permission to…
SHOULD A CLAIMANT BE GIVEN PERMISSION TO WITHDRAW THEIR OWN PART 36 OFFER? IS A “CHANGE OF MIND” A “CHANGE OF CIRCUMSTANCES”: THE ISSUE CONSIDERED IN THE HIGH COURT
There are few cases which involve a claimant seeking to withdraw their own Part 36 offer we have a decision today here. The claimant made an offer and attempted to withdraw is shortly afterwards. The defendant accepted the offer within…
OCCUPIER’S LIABILITY CASES IN THE COURTS: A PRACTICAL APPROACH: WEBINAR 29th OCTOBER 2025
This webinar looks at how the courts are dealing with occupiers liability cases and the duty of care. It takes a practical look at they way in which cases are decided and the factors which determine whether liability is established…
SERVICE POINTS 15: THE CLAIM FORM CASE IN THE COURT OF APPEAL (2): LEAVING A CLAIM FORM OUT FOR THE DX TO COLLECT WAS NOT EFFECTIVE SERVICE
The Court of Appeal has been busy recently with issues relating to service of the claim form. On the whole claimants (or rather their representatives) have not fared well. Here we look at the claimant’s argument that leaving a claim…
SERVICE POINTS 14: ANOTHER DAY, ANOTHER CLAIM FORM CASE IN THE COURT OF APPEAL – AND ANOTHER CLAIMANT COMING TO GRIEF (1): NO “GET OUT OF JAIL FREE” CARD HERE…
Here we look at a Court of Appeal decision that overturned a claim form decision that favoured the claimant. It highlights (if highlighting were ever needed) the dangers relating to service of the claim form). The one argument that can…
COST BITES 299: PUTTING FORWARD A OVER-LARGE BILL IN NEGOTATIONS ON COSTS: SHOULD THIS LEAD TO THE BILL BEING REDUCED BY 75%?
It is not unusual for a receiving party to make an offer on costs before detailed assessment proceedings begin, indeed this is a normal practice. Here the court considered the question of whether serving a draft bill in negotiations that…
SHOULD THE COURT GIVE ADEFENDANT PERMISSION TO RELY ON WITNESS STATEMENT THAT WAS SENT “EARLY” BUT NOT SERVED AS A TRIAL WITNESS STATEMENT?
We are looking at an application to rely on a witness statement that was served “late”. The statement had, in fact, been served on the claimants ahead of the deadline but not served as a witness statement for trial. When…
SHOULD COSTS BE DISAPPLIED IN A “MIXED” CASE WHERE PART OF A CLAIM HAS BEEN STRUCK OUT? A DECISION ON APPEAL
What order for costs should the court make in a “mixed” claim when part of the claim is struck out but a personal injury claim continues. That was the question considered in the appeal we are looking at here. In…
“PLEADINGS AND EVIDENCE SERVE QUITE DIFFERENT PURPOSES”: THE NEED FOR CLAIMANTS TO PLEAD THEIR CASE WHEN APPLYING FOR AN INJUNCTION
We are looking at a case that deals with two issues: (i) the practice of seeking an injunction without having first issued proceedings; (ii) the desirability of a party seeking an injunction to put a fully pleaded case before the…
MAZUR MATTERS 24: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION” (5): THE MEANING OF “COURT” AND WHAT ACTIVITIES ARE NOT COVERED BY ACT
Here we continue with the examination of what is meant by the “conduct litigation” by looking at the Statute and Law Society Guidance as to the meaning of “court”. This extends to some, but not all, tribunals. (Some courts are…
GIVING ACCURATE TIME ESTIMATES: ANOTHER REMINDER OF THEIR IMPORTANCE: “PARTIES MUST BE REALISTIC AND GIVE EARLY AND ACCURATE ASSESSMENTS”
This is not the first time this blog has looked at judicial criticisms of inadequate time estimates. On this occasion it was in relation to unrealistic reading time. This provides an opportunity to revisit the guidance given in relation to…
MAZUR MATTERS 22: USEFUL LINKS: GUIDANCE FROM THE SRA (IN 2022) – WHICH SAID EXACTLY WHAT MAZUR SAID: A SITUATION HIDING IN PLAIN SIGHT…
Here we look at guidance given by the SRA in November 2022. The one thing that the SRA can point to is the fact that this guidance said, in clear terms, precisely what was said in Mazur about who can…
MAZUR MATTERS 21: WHEN AN INSURER GIVES OUT DETAILED ADVICE THEN WE SHOULD ALL PAY CLOSE ATTENTION …
There is a growing amount of guidance on practical means for lawyers to deal with the Mazur decision. Links have been provided in earlier posts. However this guidance, in particular, is of some considerable significance. A major insurer has provided…
COST BITES 296: COURT OF APPEAL CONSIDERS APPELLANTS’ APPLICATION FOR A COSTS CAP: CAN THE LITIGATING TENANTS PUSH THE COSTS RISKS ONTO THE NON-LITIGANTS?
Here we are looking at a Court of Appeal decision in relation to the costs capping on an appeal. It was common ground that the Court had the power to order a costs cap if so minded. However the practical…
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…
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