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). …
THE TCC GUIDANCE ON THE USE OF ARTIFICIAL INTELLIGENCE: A DETAILED EXAMINATION
The section on the use of AI in the latest edition of The Technology and Construction Court Guide is relatively short. However it is significant. It shows that the courts recognise that AI is going to be used. “All legal…
EXPERT WATCH 57: JUDGE DECIDES THAT AN EXPERT, THAT HAS NOT COMPLIED WITH THEIR DUTIES TO THE COURT, SHOULD BE NAMED; “HE HAD A CHOICE TO INVOLVE HIMSELF IN THESE PROCEEDINGS AND TO BE PAID FOR DOING SO…”
Here we are looking at a decision related to the case we looked at yesterday relating to a medical expert in a family case. The judge gave a decision on whether an expert, who she found had failed in their…
WITNESS EVIDENCE WEDNESDAY: WHEN A LITIGATOR MAKES A STATEMENT ON BEHALF OF THEIR CLIENT: A USEFUL CHECKLIST ON THE SOURCE OF INFORMATION AND BELIEF
We have looked several times recently at the problems caused when a litigator serves their own witness evidence on behalf of a client, particularly a “corporate” client. It often turns out that large parts of this statement are inadmissible, consisting…
EXPERT WATCH 56: A SECTION OF A JUDGMENT THAT SPECIFICALLY CRITICISES A MEDICAL EXPERT: “I WAS STRUCK BY THE ABSENCE OF A RIGOROUS AND CAREFUL MULTIDISCPLINARY APPROACH TO THIS ISSUES IN THIS CASE”
One of the fascinating things about procedure is how the same principles apply across a whole range of cases. This is particularly the case with issues relating to evidence, particularly expert evidence. Earlier we looked at expert evidence in relation…
WHERE THINGS GO WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 4: NOT-SERVING PROPERLY; OBTAINING DEFAULT JUDGEMENT INCORRECTLY AND SUING A PARTY WRONGLY: A LOT OF LESSONS HERE
This post assumes that you have read post on this case earlier today. A claimant’s solicitor made a whole series of errors which led to the case being struck out against two defendants. We continue our series on what went…
SERVICE POINTS 48 : A DEFAULT JUDGMENT IN THE FIRST ACTION (AGAINST A DEFENDANT WHO WAS NEVER SERVED) LEADS TO A SECOND ACTION BEING STRUCK OUT
This is a sorry tale. Someone who may have had a perfectly good claim for damages for personal injury has their case struck out because of procedural mishaps by their own solicitors. It all stems from a failure to serve…
BACK TO BASICS MONDAY (2): A SERIES OF CHECKLISTS TO HELP YOU WITH DRAFTING STATEMENTS FOR “CORPORATE” CLIENTS: THE SOURCE OF INFORMATION AND BELIEF
The normal post on back to basics came out a day early (due to an “administrative” error). However it does give us a chance to revisit the practical implications when a litigator has to draft a witness statement on behalf…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION IN A WITNESS STATEMENT WHEN THERE IS A CORPORATE CLIENT: PROBLEMS KEEP OCCURRING
Today we are looking at what is a common issue, and common mistake, when someone makes a witness statement for, or on behalf of a corporate client. The CPR expressly provides that a witness must state the source of “information…
COST BITES 409: A PART 36 CASE TO FINISH OFF THE WEEK: CLAIM £8.4 MILLION GET £102,000 (HAVING TURNED DOWN AN OFFER OF £3.175 MILLION): IT IS NOT “UNJUST” FOR THE CLAIMANT TO FACE TO NORMAL PART 36 CONSEQUENCES, NOR WOULD THE COURT “PICK AND CHOOSE” IN RELATION TO THE COSTS PAYABLE
If ever a case served as a warning to the risks of litigation it is this one. The claimant sought damages of up to £8.4 million but obtained judgment of £102,000. This turned out to be expensive litigation, with the…
A SOLICITOR SHOULD JUST NOT BE SAYING THIS IN A WITNESS STATEMENT: IT “STRAYED WELL BEYOND WHAT SHE COULD LEGALLY GIVE EVIDENCE ABOUT FROM HER OWN KNOWLEDGE INCLUDED HEARSAY FROM AN UNNAMED SOURCE AND INCLUDED STATEMENTS OF OPINION WHICH SHE DID NOT HAVE THE EXPERTISE TO GIVE…”
There are numerous cases reported on this blog where judges have been critical of the “evidence” given by solicitors in witness statements. In many cases, even on cursory examination, it transpires that the lawyer is not in a position to…
COST BITES 407: COURT OF APPEAL OVERTURNS DECISION STRIKING OUT POINTS OF DISPUTE BECAUSE OF NON-AINSWORTH COMPLIANCE: JUDGMENT GIVEN TODAY
In this case the Court of Appeal overturned a decision, itself made on appeal, which had struck out a crucial paragraph of Points of Dispute to a bill of costs. The crucial point here, however, is that this is not…
THE COURT WAS WRONG NOT TO STRIKE THE DEFENCE OUT: A FAILURE TO DISPUTE A POINT IN THE JERSEY COURTS MEANT IT WAS NOT OPEN TO A DEFENDANT TO ARGUE IT IN A SECOND ACTION
This is a case where, on appeal, it was held that it was not open to a defendant to bring an action because they had already had the ability to raise issues with a court in Jersey. The judge held…
ADVOCACY – THE JUDGE’S VIEW: LOOKING AT SERIES 2: AND WHY THIS APPLIES TO ALL LITIGATORS… (INCLUDING THAT REGULAR MISSIVE THAT YOU SHOULD NOT THREATEN YOUR OPPONENT WITH A PROCTOLOGY EXAMINATION..)
I will soon be starting a new series on “Advocacy – the Judge’s view”. This draws on the principle that whilst judges are the advocate’s clients they are their “consumers” so to speak. Before that it is useful to remind…
ARTIFICIAL INTELLIGENCE AND LITIGATION: AN UPDATE ON CONSULTATION FINDINGS FROM THE CIVIL JUSTICE COUNCIL
The Civil Justice Council is carrying out a Consultation on the Use of AI for the preparation of court documents. It published an update on its consultation findings yesterday. The preliminary view appears to be that the use of AI…
WITNESS EVIDENCE WEDNESDAY 2: A CHECKLIST FOR THOSE CALLED UP TO PREPARE WITNESS STATEMENTS IN A “FAREPAK” TYPE SCENARIO
The previous post contained a review of the judge’s comments in the Farepak case. The judicial observations that witness statements are often misused and misunderstood is one of an extremely large number of such observations. (The “Related Posts” section below…
WITNESS EVIDENCE WEDNESDAY: THE CASE WHERE THE GOVERNMENT’S WITNESS EVIDENCE WAS SO BAD THAT IT WITHDREW THE CASE BEFORE THE RESPONDENTS GAVE EVIDENCE: WHY THE PRINCIPLES RELATING TO WITNESS EVIDENCE NEED TO BE UNDERSTOOD
Recent posts have revisited the age-old problem of witness statements being misused. They often contain argument and comment. For that reason we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson…
WHERE THINGS GO WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU 3): ADVISING A CLIENT THAT IF THEY DISCONTINUE THEN THEY CAN’T COME BACK
We are again looking at the lessons that practitioners can learn from a Legal Ombudsman decision. This time it relates to the need to explain the consequences of taking a procedural step. The point here is that many matters that…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 2: ADVISING A CLIENT THAT THEY ARE NOT LIABLE FOR COSTS BECAUSE PROCEEDINGS HAVE NOT BEEN SERVED
This post arises out of the previous post in the series. However here I want to concentrate on one issue arising out of this. The claimant’s solicitors appear to have advised the claimant that they would not be liable to…
You must be logged in to post a comment.