WHEN A COURT MAY MAKE NO ORDER FOR COSTS: THE FACTORS CONSIDERED: 12 KEY POINTS AND A USEFUL CHECKLIST FOR PRACTITIONERS
Some posts earlier this week concentrated on a case where the judge made no order for costs. This is an unusual outcome, but still one that has to be considered and the client warned about. Here we take a…
WITNESS EVIDENCE WEDNESDAY: RED FLAGS AND WITNESS STATEMENTS (1): THE WITNESS THAT GIVES THE COURT THEIR OPINION
We have below a series of posts about the dangers of putting “opinion” evidence into witness statements. It has been a constant theme on this site for, at least, 12 years. There is no sign of this abating. Attempts have…
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION: REMEMBER IT CAN COME BACK TO BITE (AND SOMETIMES BITE HARD…)
When a party obtains an injunction they, usually, have to give an undertaking as to damages. There are now a number of cases where litigants have been found liable to pay damages as a result of that undertaking. We have…
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
COST BITES 431: A CASE WHERE BOTH SIDES NEEDED RELIEF FROM SANCTIONS SO THAT THEY COULD ARGUE ISSUES OF COSTS: THE PROBLEMS FLOCK TOGETHER…
Here we look at a case where both parties required an extension of time in order to raise very significant arguments in relation to costs. The claimant had been late in filing essential documents for his own costs protection, the…
SERVICE POINTS 53: HOW DOES THE COURT PROTECT THE POSITION OF A PARTY WHO WANTS TO APPEAL DECISION IN RELATION TO JURISDICTION BUT RISKS “ACCEPTING” JURISDICTION IN THE MEANTIME? A PUZZLE SOLVED BY THE COURT OF APPEAL
This judgment highlights the risk that a party who wishes to dispute jurisdiction can accidentally accept it. What, if any, steps should the courts take to protect an appellant in these circumstances. The litigant may wish to appeal to a…
FAILING TO GIVE THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: THE JUDGE MAY THINK THAT THERE IS SOMETHING FISHY GOING ON HERE…
There is, it appears, no end to the number of cases in which non-compliant witness statements are served. We have another example here. One major issue relates to the failure to give the source of information and belief for the…
BACK TO BASICS MONDAY: THE 70 KEY POINTS OF THE DENTON JUDGMENT: REVISITING THE BASICS AFTER TWELVE YEARS…
It is now twelve years since the judgment in Denton -v- White [2014] EWCA Civ 906. However it is still a judgment that appears regularly in the reports (we will be looking at such a case this week). Over the years…
COST BITES 429: A REMINDER THAT A CLAIMANT IS STILL LIABLE TO PAY COSTS EVEN IF PROCEEDINGS ARE NEVER SERVED: SOMETHING ABOUT PRE-ACTION CONDUCT TOO…
This judgment illustrates two important things. Firstly that a claimant’s liability to pay costs starts upon issue and remains even if proceedings are never served. Secondly that pre-action conduct can have an impact on the decision that a judge makes…
A MYRIAD OF PROCEDURAL ISSUES A BANKRUPT CLAIMANT; AN APPLICATION TO RESILE FROM AN ADMISSION AND AN ATTEMPT TO STRIKE OUT A COUNTERCLAIM FOR “WAREHOUSING”
This is a case that bristles with procedural issues. Firstly as to what happens when a claimant, involved in a partnership with others, goes bankrupt. Secondly whether that litigant could withdraw an admission that he had not status. Thirdly whether…
THE CURRENT IMPORTANCE OF PLEADINGS 88: ANOTHER CASE STRUCK OUT BECAUSE OF INADEQUATE PLEADINGS: “THE DEFENDANTS ARE ENTITLED TO KNOW THE CASE AGAINST THEM…”
I am always wary of being repetitive yet here we have our second case today of a claimant being struck out because of inadequate pleadings. This repetition is simply a reflection of the cases that are going through the courts….
COST BITES 428 : IF THERE IS NO CHARGING CLAUSE IN THE WILL CAN THE SOLICITOR GET PAID?
Here we look (not for the first time) at a case where there was no charging clause in a will and a solicitor executor charged for their services. The solicitor attempted to rely on the circumstances in which the will…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
COURT REFUSES PERMISSION TO CHANGE NAME OF THE CLAIMANT AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE DANGERS OF LEAVING THINGS LATE
Many of the “problem” cases we look at on this blog have similar themes. Leaving the issue of proceedings until the last possible moment and then compounding that by leaving service until the last minute. This case has an additional…
SERVICE POINTS 52: $28 MILLION CLAIM LOST BECAUSE OF A FAILURE TO SERVE A CLAIM FORM PROPERLY (THESE CAN BE EXPENSIVE MISTAKES…)
This is a case ostensibly about limitation. However the central point for most litigators is that, in reality, it is about a failure to serve a claim form properly. The first claim was issued within the limitation period (following a…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
ARTIFICIAL INTELLIGENCE IN COURT: AN INTERESTING PRACTICE DIRECTION FROM THE HIGH COURT IN IRELAND : GOOD ADVICE FOR US ALL
In England and Wales we are still considering appropriate guidance for the use of Artificial Intelligence in the courts. The High Court in Ireland has issued a specific Practice Direction on the use of Generative AI in Court Documents. It…
SERVICE POINTS 51: HIGH COURT REFUSES TO SET ASIDE AN ORDER ALLOWING SERVICE BY EMAIL ON THE DEFENDANT’S SOLICITORS
In this case the defendant, a judgment debtor, attempted to set aside an order that a claim form could be served by email on their solicitors. The situation was an unusual one in that the claimant had a judgment against…
TWO PROCEDURAL POINTS TO WATCH: GIVING REMOTE EVIDENCE FROM ABROAD: SEEKING COSTS BEFORE THE FIRST-TIER TRIBUNAL
Here we are looking “preliminary matters” in a judgment that highlight two procedural issues. One of them is of general relevance, the other more specific but still of significance, particularly for those who are unfamiliar with procedure in the General…
ANOTHER BREACH OF JUDGMENT EMBARGO CASE: WHY SOLICITORS MUST BADGER THEIR CLIENTS ABOUT COMPLIANCE: “THE COURT EMBARGO IS FUNDAMENTALLY DIFFERENT FROM JOURNALIST EMBARGO”
Here we have yet another breach of the embargo on the handing down of a court judgment. The breach appears to have occurred because of a misunderstanding as to the important distinction between a court embargo and a journalism embargo. …
WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
MAZUR MATTERS 66: THE LEGAL SERVICES BOARD FINAL REPORT ON MAZUR: “REGULATORY REVIEW OF ADVICE AND GUIDANCE PROVIDED TO THE PROFESSION ON THE CONDUCT OF LITIGAITON BY APPROVED REGULATORS AND REGULATORY BODIES”
The LSB report was published yesterday. It deals with matters that remain of practical significance to working litigators. Remember a breach of the Legal Services Act in relation to the conduct of litigation is both a criminal offence and a…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
SERVICE POINTS 50: IS SERVICE OF A TENANT AND AN ADDRESS STATED IN THE LEASE GOOD SERVICE WHEN THE TENANT IS NOT THERE? DOES THE CONTRACT OVERRIDE THE CPR?
This Court of Appeal decision considers issues in relation to contractual service. Does a contractual term in a lease saying that service of documents can take place at the property in question override the CPR provisions as to service? In…
AN APPLICATION TO STRIKE OUT FOR ABUSE OR PROCESS ADJOURNED – TO SEE WHETHER THIS NEED HAPPEN ON A “ROLLING BASIS”: ONE THOUSAND CLAIMANTS STARTED BUT ARE UNLIKELY TO FINISH…
Here we have a case where it appears that 1,000 claimants involved in Group Litigation will seek to discontinue. This fact becoming clear less than a month after the Group Litigation Order was made. The judge declined to strike out…
“THE PRACTICES I HAVE IDENTIFIED MUST STOP”: THE COURT LAYS DOWN A CLEAR WARNING IN RELATION TO INADEQUATE TIME ESTIMATES
This is far from being an isolated complaint from the judiciary about inadequate time estimates. The warning given here is clear. Inadequate time estimates “must stop”. In future cases are likely to be adjourned if it is clear that the…
BACK TO BASICS MONDAY: WHEN A DOCTOR PROVIDES A NOTE ABOUT THE CAPACITY OF A WITNESS: WHAT THE COURT REQUIRES
The issue of medical evidence to support a claim that a witness cannot attend trial, or requires some dispensation, have been some recurrent issues in litigation over the years. Many problems come from the medical evidence in support failing to…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
COST BITES 417: THE LIABILITY FOR COSTS OF EACH CLAIMANT WHEN A MULTI-CLAIMANT ACTION WAS DISCONTINUED: BEING PART OF SUCH AN ACTION MAY NOT BE CHEAP…
There has been much publicity recently about liability for costs when “multi-claimant” actions fail, are struck out or discontinued. We have a case that considers those issues here, albeit on a relatively small scale. Each claimant was liable to pay…
THROWBACK FRIDAY: “UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD”: A POST FROM JULY 2016 WHICH STILL HAS ECHOES TODAY
Here we look at a regular judicial complaint: too many documents with many of them being irrelevant. This post was from July 2016. There have been numerous similar complaints since as the “Related Posts” (from both 2016 and 2026) below…
EXPERT WATCH 62: ANOTHER CASE WHERE THE EXPERT DID NOT UNDERSTAND THE “BOLAM” TEST: PLUS THE DANGERS OF INSTRUCTING AN EXPERT BY A “PORTAL”
For the second time today I am writing about a case where the trial judge was concerned that an expert witness for the claimant did not fully understand the “Bolam” test. The concern also extends to the way in which…
A BOOK ABOUT SERVICE (AT LONG LAST): WHAT IS MORE IT IS IMPRESSIVE, COMPREHENSIVE AND FILLS A GAP IN THE MARKET (AND, THIS BLOG’S PART IN ITS CREATION)
Regular readers will know that this blog features a lot of cases about service of the claim form. It is one of the most common problem areas in litigation. It is surprising that there has not been a recent text…
PROVING THINGS 294: THE CLAIMANT ESTABLISHES EVERY ELEMENT OF LIABILITY IN ITS CLAIM FOR BREACH OF CONTRACT: DAMAGES WERE ONE POUND…
This is almost a “classic” example of a failure to prove things. The claimant established that the defendant was in breach of contract and that certain exclusion clauses did not apply. However it ended up with damages of £1.00. The…
“STING OPERATIONS”, SECRET AGENTS, NAIVE SOLICITORS DISCLOSING THEIR CLIENT’S PRIVILEGED INFORMATION, STRIKING OUT AND ABUSE OF PROCESS: COURT OF APPEAL DECISION HIGHLIGHTS THE MAJOR RISKS OF “PRIVILEGE HUNTING”
Here the Court of Appeal looks at one of the most remarkable issues of “litigation conduct” that has occurred in recent years. The claimants hired a “black ops” operative to befriend and obtain privileged and confidential information from the defendants’…
DAMAGES FOR PAIN SUFFERING AND LOSS OF AMENITY: RECENT CASES AND WHAT WE CAN LEARN FROM THEM: WEBINAR 23rd JULY 2026
Every personal injury claim includes a claim for damages for pain, suffering and loss of amenity. Yet it is often the least analysed part of the claim. Awards are frequently based on broad assumptions, whilst opportunities to maximise a proper…
WHAT SHOULD A SOLICITOR DO IF A CLIENT IS PUTTING FORWARD AN ACCOUNT THAT MAY BE UNTRUE AND THEN THERE ARE “RED FLAGS”? WHEN IS THE LINE CROSSED: THE DUTIES CONSIDERED IN DETAIL
A solicitor is, generally, not under a duty to satisfy themselves that their client is telling the truth. However what happens when there are “red flags” which indicate the client is using the solicitor’s services in furtherance of a fraud? …
SERVICE POINTS 49: THE JUDGE WOULD HAVE SET ASIDE AN ORDER EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: IT COULD HAVE BEEN SERVED WITHOUT THE PARTICULARS OF CLAIM
This is another case that emphasises the importance of serving the claim form promptly. The claimants had obtained an order extending time for service. The defendants applied to set aside that order. The judge stated that, if the issue had…
THE APIL DAMAGES SERIES 2026: A PRACTICAL GUIDE TO ASSESSING PERSONAL INJURY DAMAGES: WEBINARS STARTING ON THE 23rd JULY 2026
The APIL Damages Series 2026 is a nine-part webinar programme looking at key elements of personal injury litigation. The series is intended to provide practical guidance for practitioners dealing with claims of every size, from straightforward road traffic accidents to…
BACK TO BASICS MONDAY: EXPERT WITNESSES HAVE TO HAVE ACCESS TO THE SAME MATERIAL: THE IMPORTANCE OF THE LEVEL PLAYING FIELD
The post earlier this morning set out the judge’s reservations about the nature of the information given to the claimant’s experts. In particular the failure to give the sources of their information. In fact the requirements go further than that. …
EXPERT WATCH 59: THE JUDGE IS CONCERNED THAT THE EXPERTS’ SOURCES OF ADDITIONAL INFORMATION WERE NOT FULLY DISCLOSED: THIS HAS CONSEQUENCES…
There are a large number of cases where the courts have stressed that experts must state clearly what the source of their information is. In this case the judge expressed concerns that the claimant’s experts had obtained information from the…
WE HAD SUCH A HOPELESS CASE WE SHOULDN’T PAY ALL THE COSTS BECAUSE YOU SHOULD HAVE APPLIED TO STRIKE US OUT: ARGUMENTS WITH AN “AIR OF UNREALITY” ABOUT THEM
A post yesterday looked at two cases where attempts were made to attribute some blame to a litigant’s opponents for not spotting certain issues arising from that litigant’s own conduct. Here we look at a case where this type of…
CIVIL PROCEDURE, OPAQUE EVIDENCE AND “YOU SHOULD HAVE KNOWN”: ARGUMENTS THAT HAVE BEEN REJECTED BY THE COURTS – TWO EXAMPLES AND THE UNHAPPY CONSEQUENCES FOR THE LITIGANTS…
We are looking at an argument deployed in a case we considered earlier today. It was an argument that the defendants should have been able to “divine” from the oblique nature of the claimant’s evidence that funding was not in…
WAS A SOLICITOR’S CAP ON LIABILITY FOR NEGLIGENCE TO £3 MILLION “REASONABLE”: COULD IT SURVIVE THE UNFAIR CONTRACT TERMS ACT REQUIREMENTS?
One of the issues in this case related to whether a solicitor’s contractual cap of £3 million was reasonable. The solicitor’s terms of business limited liability to £3 million. Could that cap, on the facts of this case, survive the…
HALLUCINATED CASE LAW AND THE CROWN PROSECUTION SERVICE (OF ALL BODIES…)
All cases of hallucinated cases are serious, however some may be more serious than others. If we have a situation where the Crown Prosecution Service files documents which rely on cases that simply do not exist, this has to be…
BACK TO BASICS MONDAY: THE PERILS OF ISSUING A SECOND TIME: CPR 38.7 EXPLORED: NOTE THE NEED FOR SPEED…
We looked at a case last week which was a “second action” against the same defendants. It was struck out on several grounds, one of which was under CPR 38.7. It is worthwhile looking at the rule in detail …
MAZUR MATTERS 64: THE COURT REJECTS WOULD BE APPELLANT’S ARGUMENT THAT A CLAIMANT’S REPRESENTATIVE HAD NO RIGHT OF AUDIENCE
The Court considered a “Mazur” type argument in this application for permission to appeal. The appellant arguing that the claimant had never been lawfully represented at previous hearings. This argument did not get very far. The judge indicated that, even…
THE CURRENT IMPORTANCE OF PLEADINGS 86: DEFENDANT REFUSED PERMISSION TO AMEND DEFENCE ON THE MORNING OF TRIAL
Here we look at what can only be described as a “very late” application to amend a defence. It was made on the morning of the first day of trial. Surprisingly there was no explanation as to why an application…
THROWBACK FRIDAY: THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: ANOTHER CASE WHERE (MIS) SERVICE OF THE CLAIM FORM LED TO GRIEF
We are going back to July 2018 where the High Court overturned a first instance decision in favour of a claimant on a service of the claim form issue. The judgment is particularly important because the first-instance judgment appeared to…
CALCULATORS FOR LAWYERS: A CALCULATOR “SUITE” BUILT BY A WORKING BARRISTER: 14 DAYS FREE TRIAL
DG Calculators is an online suite of professional legal calculators, built by David Green, a barrister at 12 King’s Bench Walk. There is a 14 day free trial period. (CLB members have a discount – see the link below). …
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