WHEN A PARTY RELIES ON “NON PART 35 COMPLIANT” EXPERT REPORTS: THIS IS HARDLY LIKELY TO CARRY MUCH WEIGHT…
The first question the lawyer must ask when being presented with a report for use in proceeding is – is this report CPR 35 compliant? If it is not then it may have little, if any value. There is a…
ORDERS EXTENDING TIME FOR SERVICE OF THE CLAIM FORM SET ASIDE: THE DUTIES OF THE APPLICANT WERE NOT COMPLIED WITH: THE CLAIMANT COMES TO GRIEF
If there is any application that should make a claimant’s lawyer extremely uncomfortable it is making a without notice application to extend time for service of the claim form. If you add to this an application (made late) for permission…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
One of the most aggravating things to read about in the legal press are those cases where people get into serious disciplinary trouble after having made a procedural or other mistake. It is not the mistake that has caused their…
WHEN A SOLICITOR FORGETS TO SIGN AN IMPORTANT PART OF AN APPEAL DOCUMENT: CAN CPR 3.10 SAVE THE DAY? A TRICKY POINT TO WATCH IN FORM N161
CPR 3.10 is a rule often asked to so some “heavy lifting” by applicants who have not complied with the rules or court orders. Sometimes it is not capable of handling the load, particularly in relation to issues surrounding service…
THE COURT WOULD NOT STRIKE OUT A CLAIM BECAUSE OF ERRORS IN THE RESPONSE PACK: “THE OVERRIDING OBJECTIVE IS NOT FURTHERED BY PARTIES SEEKING TO TAKE ADVANTAGE OF TECHNICAL BREACHES”
Here we look at a case where a claimant made amendments to the response pack because service was going to take place abroad. The response pack then contained errors in relation to the times by which the defendant should take…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
INTRODUCING THE NEW CIVIL LITIGATION BRIEF “TOOLBOX” SERIES : WHERE’S THE BEST PLACE TO FIND WHAT YOU WANT
One of the purposes of this site is as a working “toolbox” for practitioners. To provide a useful and readily accessible source of information when particular issues arise. For that reason something new is starting on this site in the…
COURT REFUSES TO GRANT A DEFENDANT RELIEF FROM SANCTIONS WHEN AN ACKNOWLEDGMENT OF SERVICE WAS FILED (VERY) LATE: ALSO REJECTS “BRAVE” SUBMISSION THAT THIS WAS A “TECHNICAL” BREACH
There are dozens, possibly hundreds, of posts on this site about the application of the Denton criteria and relief from sanctions. We have another case here. A defendant applied for relief from sanctions when the acknowledgment of service was filed…
EXPERT’S REPORT DID NOT COMPLY WITH THE RULES: ALL PARTIES AGREED IT WAS “FUNDAMENTALLY FLAWED” AND COULD NOT BE RELIED UPON: JUDGE STATES THAT EXPERT SHOULD CONSIDER REPAYING THE FEE
Here we are looking a judgment given last week where all the parties involved in a case agreed that an expert’s report was “fundamentally flawed”. Part of the report was based on a rejection of findings of fact that had…
CHANGES TO RULES OF ACCEPTING SERVICE BY EMAIL: SOME VERY MODEST PROPOSALS: (AND BYE BYE TO THE FAX MACHINE)
The current consultation by the Civil Procedure Rule Committee relates to important issues of service that have featured many times in the courts, and on this site. Here we look at the issues being considered relation to the automatic agreement…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
COST BITES 257: SOLICITOR AND OWN CLIENT ASSESSMENTS AND “UNUSUAL COSTS”: WHY THE ATTENDANCE NOTE IS OFTEN THE SOLICITOR’S BEST FRIEND
A solicitor is under a specific duty to warn the client when “unusual costs “are being incurred, particularly those costs that may be irrecoverable on an inter party basis. Here we have an example of a (former) client asserting that…
MEMBER NEWS:YOU CAN CHANGE THE FREQUENCY OF WHEN YOU RECEIVE EMAILS FROM THE SITE: LOOKING AT THE “BACK CATALOGUE” 1: THE “BACK TO BASICS” SERIES
There has been an increase in the frequency of posts since this site became a membership site. Obviously this increases the number of emails members receive. It is possible to change your subscription so that you receive the updates daily…
THE CURRENT IMPORTANCE OF PLEADINGS 23: THE DEFENDANTS SHOULD NOT HAVE TO GUESS THE CASE THEY ARE SUPPOSED TO MEET: CLAIM AGAINST SOLICITOR STRUCK OUT
We are looking at another case where it was held that the claimant’s Particulars of Claim were pleaded in an unsatisfactory manner. Even at the third attempt of amendment the case did not make sense and the action struck out….
PROFESSIONAL NEGLIGENCE NEWS 3: INADEQUATE ATTENDANCE NOTE LEADS TO WOEFUL RESULTS: THE APPEAL THAT SHOULD NOT HAVE HAPPENED
Here we are looking at a decision where manifold service failures on the part of solicitors were identified. However we will look at one issue – the consequences of an attendance note not being full and complete. Counsel advised on…
COST BITES 254: DOES YOUR CLIENT HAVE CAPACITY? AN IMPORTANT POINT WHEN CONSIDERING THE VALIDITY OF THE RETAINER: AN ISSUE CONSIDERED IN THE SCCO TODAY
It is rare for issues of capacity to considered on an assessment of costs. However that is precisely the issue considered in this case. If the defendant established he did not have capacity when he entered into a retainer with…
COMMITTAL PROCEEDINGS “BROUGHT FOR COLLATERAL PURPOSES” DISMISSED: NOTICE TO SHOW CAUSE ISSUED AGAINST THE CLAIMANT’S SOLICITORS: WHY THIS IS A VERY DANGEROUS STRATEGY
There are many ways in which a litigant, dissatisfied with a judgment of the court can respond. They can apply to set the judgment aside; they can appeal; they can issue fresh proceedings attempting to argue that the action was…
ACTION STRUCK OUT BECAUSE CLAIMANT FAILED TO COMPLY PROPERLY WITH AN UNLESS ORDER FOR DETAILS OF FUNDING: DECISION UPHELD ON APPEAL
Here we look at a case where the Court of Appeal upheld a decision that the claimant had failed to comply with the terms of a peremptory order. The action was, therefore, struck out. It is a salutary and important…
A QUICK POINT ABOUT AMENDING PLEADINGS: MAKE A FORMAL APPLICATION TO AMEND AND HAVE THE PROPOSED AMENDED PLEADINGS TO HAND: THE COURT OF APPEAL DECISION CONSIDERED
The post earlier today on the striking out of pleadings contained observations about the need for a party, seeking relief from sanctions on the grounds that it should be able to amend its pleadings, having those amended pleadings to hand…
BANKRUPTCY PETITION DISMISSED: THE PRECISE SUMS DUE (IF ANY) COULD, AND SHOULD, BE DETERMINED IN THE COUNTY COURT
One way to enforce a debt higher than £5,000 is to issue a bankruptcy petition. However problems for the would be petitioner can occur if the debt is disputed. We see such a case here. The judge held that there…
SOME IMPORTANT ISSUES IN RELATION TO THE FIXED COSTS REGIME: WHAT IS THE APPROPRIATE ORDER WHEN THERE ARE TWO DEFENDANTS? WHAT STAGE HAD THE CASE REACHED WHEN THE ACTION WAS STRUCK OUT? WHAT IS THE APPROPRIATE SUM TO BE PAID TO LITIGANTS IN PERSON?
Here we are dealing with a case that bristles with issues in relation to the fixed costs regime. We have already looked at the same case in relation to the striking out of numerous actions because of defective Particulars of…
THE CURRENT IMPORTANCE OF PLEADINGS 22: WHOLE BATCHES OF CASES STRUCK OUT BECAUSE THE PARTICULARS WERE DEFICIENT: RELIEF FROM SANCTIONS REFUSED
Here we are looking at a case where numerous actions brought by the claimant were struck out because the Particulars of Claim were wholly deficient. They remained wholly deficient even after the court had made a peremptory order compelling the…
CLAIMANT GRANTED RELIEF FROM SANCTIONS (ON APPEAL) FOLLOWING LATE SERVICE OF A COSTS BUDGET (TWO YEARS AND FIVE MONTHS LATE…): BUT AT A COST…
Cases relating to late service of the costs budget are still filtering through. Rarely, however, does the failure extend over 2 years and 4 months as it does here. Despite the delay the claimant’s successfully appealed against the initial refusal…
WHEN CAN A JUDGE HEAR AN ISSUE THAT IS NOT “LISTED”? THE ISSUES CONSIDERED IN THE HIGH COURT
If an action is listed for hearing on a specific issue when can the judge hear, and make an order in relation to a different issue? This is an issue considered in the case we are looking at here. The…
AVOIDING PROBLEMS IN CIVIL LITIGATION 1: HOW DOES ANYBODY MISS A LIMITATION PERIOD?
This is the first in the promised series about avoiding problems in civil litigation. The most obvious place to start is with limitation issues. These sometimes prove particularly problematic for personal injury and clinical negligence lawyers. However there is no…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SOME MORE POINTS ABOUT A NOTICE OF DISCONTINUANCE: “CLOUD CUCKOO LAND”, “A TRAP FOR THE UNWARY” AND SOME ISSUES YET TO BE DETERMINED
We are looking again at the implications of serving a notice of discontinuance. The judgment here leaves open the question of whether a claimant who has served a notice of discontinuance in circumstances that are to their detriment can, in…
CLAIMANT COMES TO GRIEF BECAUSE OF A WHOLLY SELF-IMPOSED PROBLEM: SUBSTITUTING A DEFENDANT WHEN THE ACTION HAS BEEN DISCONTINUED – LEADS TO MAJOR PROBLEMS
There have been some interesting cases on this site recently relating to the substitution of parties. However none of them are as peculiar as the case we are looking at here – where the claimant’s problems were primarily self-inflicted. The…
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
STATEMENTS OF CASE, DRAFTING DANGERS AND PITFALLS IN 2025: WEBINAR 4th JULY 2025
The “Current Importance of Pleadings” series has developed far quicker than I had anticipated. There have been manifold cases where problems have occurred because of issues to do with statements of case. This webinar takes a close look at the…
PROFESSIONAL NEGLIGENCE NEWS 2: HOW TO CALCULATE LOSSES TO A SOLICITOR WHEN OTHERS HAVE DONE THE WORK BADLY
Here we look at the assessment of damages in a professional negligence/breach of contract case. The facts are unusual in that damages were assessed in a case where a solicitor had counterclaimed for losses due to inadequate work done by…
FURTHER UPDATES TO HMCTS GUIDANCE ON USING THE DAMAGES CLAIM PORTAL: RAISING QUERIES WITHIN SYSTEM; INFORMING THE PORTAL OF SETTLEMENT AND PARTIAL DISCONTINUANCE (NOT EXCITING, BUT IMPORTANT…)
A few days (sometimes even a day) can be a long time in civil procedure. I wrote about the updated Guidance to the Damages Claim Portal at the end of last week. Today I am writing to tell you it…
PROFESSIONAL NEGLIGENCE NEWS (1): I’VE SUED THE WRONG DEFENDANT: CAN THE COURT DO ANYTHING TO HELP? FIRST OF (WHAT MAY WELL BE) A LONG RUNNING SERIES
There is much to be said for starting a new (and what may well be a long running) series looking at professional negligence cases, in particular the procedural and practical issues that arise. Firstly, if (as here) it is a…
URGENT MESSAGE FROM H M COURTS AND TRIBUNAL SERVICE THIS MORNING: HMCTS PLATFORM IS STOPPING USERS FROM UPLOADING DOCUMENTS: WHAT TO DO IF UPLOADING IS URGENT
For those who have missed the email from HMCTS it is important to note that the HMCTS platform is not working at the moment. The email from HMCTS below makes practical suggestions as to what should be done if uploading…
THE WRONGFUL SHARING OF EMBARGOED JUDGMENTS: “A WARNING TO ALL SOLICITORS”: ANOTHER LAYER OF RESPONSIBILITY AND ISSUES TO CONSIDER
Cases relating to the wrongful sharing or disclosure of embargoed judgment have become a surprisingly common feature of litigation in recent times. Here we look at another High Court decision where this has happened. The judge states that there are…
FATAL CLAIMS: ENSURING EVERYTHING GOES RIGHT: WEBINAR 27th JUNE 2025
We have had an example earlier this month of things going badly wrong in a fatal claim, that led to a wasted costs order against the solicitors. This webinar looks at the potential problem areas of fatal accident litigation and…
NO RELIEF FOR CLAIMANTS WHO SERVED THE CLAIM FORM LATE: TAKING A POINT AS TO SERVICE IS NOT “PLAYING TECHNICAL GAMES”
It may be possible for a month to go by without a mis-service of the claim form issue arising in the courts, but it is not this month. We have here a case with the familiar litany of waiting to…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION: A LAWYER’S GUIDE 2O25: WATCH THIS SPACE…
Back in 2013 I wrote a series about avoiding negligence claims in litigation. This is an appropriate time to update and refresh that series (with the benefit of hindsight perhaps I should have done that annually). Some of the…
ANOTHER CASE ON ARTIFICIAL INTELLIGENCE AND “HALLUCINATED CASES”: PLUS THERE MAY BE “MISCHIEF” IN THE BACKGROUND
A few weeks ago I was cagey in reporting a case about AI generated false authorities because I could not believe any lawyer could do this and was wary of the accuracy (indeed authenticity) of the report. Today I am…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO HAD PURSUED A “HOPELESS” CASE: ATTEMPTS TO RELY ON PRIVILEGE WERE A RESORT TO A MERE “FIG LEAF”
It is rare for a wasted costs order to be made against a solicitor for pursuing what is seen as a “hopeless” case. However we have such an order in the case we are considering here. The Master found the…
A COURT ORDER SO AMBIGUOUS THAT IT WAS IMPOSSIBLE TO ENFORCE : SOME ESSENTIAL POINTS ABOUT DRAFTING HERE
Here we are looking at a Court of Appeal decision about the drafting and construction of court orders. The order made in this case was totally deficient, consequently it could not be enforced. (Absolute precision is demanded here…) “……
WHEN QOCS DOES NOT APPLY TO THE WHOLE OF A CLAIM: WHAT PERECENTAGE SHOULD THE CLAIMANTS PAY: THE MATTER CONSIDERED IN THE HIGH COURT
For the second time today we are looking at the rules relating to Qualified one way costs shifting (QOCS) and its exceptions. Here the defendant had spent £2 million successfully defending a claim, only part of that action was a…
COURT OF APPEAL CONSIDER ISSUES OF KNOWLEDGE, SERVICE OF THE CLAIM FORM AND “LAST KNOWN ADDRESS”: THINGS DO NOT GO WELL FOR THE CLAIMANT
Problems occur when a claimant fails to take appropriate steps to ensure that the defendant is in fact living at the address where a claim form has served. This was the issue considered by the Court of Appeal today. The…
PROVING THINGS 263: “IT IS A FUNDAMENTAL PRINCIPLE OF LITIGATION THAT A CLAIMANT MUST PROVE THEIR LOSS… THEY MUST ALSO SATISFY THE COURT AS TO THE AMOUNT OF ANY LOSS WHICH THEY HAVE SUFFERED”
This series has now covered hundreds of examples where litigants have failed to prove their case. We are looking at another example here where a counterclaiming defendant adduced no substantive evidence of a claim said to be worth nearly £500,000. …
MISCONDUCT IN ASSESSMENT AND REDUCTIONS IN COSTS 3: A REVIEW OF THE CASES 3: A CASE WHERE COSTS WERE HALVED AND A WASTED COSTS ORDER MADE AGAINST THE RECEIVING PARTY’S SOLICITOR
This is the third in this series looking at cases where misconduct has been alleged, or found, in the costs assessment process. We have here a bill of costs that was reduced substantially, which failed to beat a Part 36…
WHEN YOU LEAVE IT UNTIL THE LAST MINUTE TO COMPLY WITH COURT ORDER: THE COURT HAS VERY LITTLE SYMPATHY – WHO WOULD HAVE GUESSED?
A common feature of litigation is the leaving of matters until the last minute. Be it service of the claim form, costs budgets or compliance with a court order. Here we have a case of a party delaying in complying…
“ARTIFICIAL INTELLIGENCE” ON TRIAL: WHEN QUESTIONED CHAT GPT WILL TELL YOU ITS MADE THINGS UP: THIS IS “A HALLUCINATION RATHER THAN A REAL LEGAL AUTHORITY”
Artificial Intelligence and legal “research” has been very much in the news of late. I am grateful to my colleague Steven Turner for sending me an example where, upon being questioned, Chat GPT readily conceded that a case it had…