WHEN A CASE – WEEKS AWAY FROM TRIAL WAS “UNTENABLE”: HOW DID WE GET HERE?
We don’t normally look at the same case twice in the same day. However this particular judgment needs looking at from different angles. The previous post looked at the case from the point of view of the pleadings. However the…
THE CURRENT IMPORTANCE OF PLEADINGS 71: COURT REFUSES CLAIMANT PERMISSION TO AMEND EVEN THOUGH THE CURRENT CASE WAS “UNTENABLE”: LESSONS HERE FOR EVERYONE
Here we have a case where the judge refused the claimant permission to amend the Particulars of Claim in circumstances where it was conceded that the current pleading was “untenable”. There are important lessons here for everyone involved in preparing…
THROWBACK FRIDAY: THE GOOD STUFF ABOUT BEING A LITIGATOR – FROM NICE LAWYERS (MAY 2020)
In May 2020 we were in the grip of the COVID crisis. Many of the posts from that period deal with issues arising from COVID, including a series (“The (Not So) Lonely Litigator’s Club – which looked at how people…
BACK TO BASICS MONDAY: WHAT AFFECT DOES A BANK HOLIDAY HAVE ON THE COMPUTATION OF TIME UNDER THE CPR?
Normally there are no posts on bank holidays. But this subject is apposite. If you are having a day off today, what impact does a bank holiday have on the computation of time. COMPUTATION OF TIME AND BANK HOLIDAYS…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
THROWBACK FRIDAY: “I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME” (MAY 2016)
We are going back to 2016 to look at a post about a case where the judge had noted that “both sides engaged in an aggressive and uncooperative correspondence that served only to heighten their mutual suspicion to newly raised…
ARTIFICIAL INTELLIGENCE IN THE PREPARATION OF WITNESS STATEMENTS: THERE IS NO SATISFACTORY EXPLANATION FOR THIS: HOW DOES THE JUDGE KNOW IT IS THE WITNESS’S OWN WORDS?
We have another case where the judge considers the use of Artificial Intelligence in the preparation of witness statements. It was held that there was no good reason for this. He was concerned that ChatGPT had contributed to the witness…
THE CURRENT IMPORTANCE OF PLEADINGS 68: COURT OF APPEAL HOLDS THAT THE JUDGE SHOULD NOT HAVE ALLOWED AMENDMENTS: THE PLEADINGS WERE “INCOHERENT, SELF-CONTRADICTORY AND INSUFFICIENTLY PARTICULARISED”
Here we have a rare case where the Court of Appeal overturns a decision of the first instance judge to allow a party to amend their pleadings. There is a detailed analysis of why the proposed amendments were deficient. “I…
SERVICE POINTS 38: THE CLAIMANT SERVES AT THE WRONG ADDRESS BUT THE DEFENDANT FAILS TO APPLY IN TIME (A CLASSIC STORY)
This is a case where lessons can be learnt by both claimants and defendants. The claimant served at the wrong address, however the defendant did not respond promptly or timeously. KEY PRACTICE POINT There are lessons here for both parties….
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
THE COSTS LIABILITY OF A REPRESENTATIVE OF A DECEASED PERSON UNDER CPR 19.12 CONSIDERED: THE SITUATION IS NOT THE SAME AS AN ADMINISTRATOR OR EXECUTOR
This case considers the costs liability of a person appointed under CPR 19.12 to represent a deceased person. The court made it clear that such an appointment is not directly analogous to that of an administrator or executor. Different costs…
COST BITES 380: “ALWAYS CHOOSE A COSTS LAWYER FOR EXPERT LEGAL COSTS ADVICE”: GUIDANCE FROM THE SRA
The Solicitors Regulation Authority have sent out a short Note on selecting professional help to assess legal costs. It is worth reading. Indeed it may be regarded as essential reading. “Using an unregulated costs adviser can expose you and your…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
THE DEFENDANT WAS OUT OF TIME FOR APPLYING FOR PERMISSION TO APPEAL: THE COURT DID NOT HAVE POWER AT THIS STAGE IN ANY EVENT
This judgment provides a short reminder that if a party wants to seek permission to appeal from the court that made the decision then that application must be made at the hearing being appealed itself, or any adjournment of that…
ACTION STRUCK OUT UNDER CPR 3.4(2)(c) FOR NON COMPLIANCE: DENTON PRINCIPLES APPLIED
Here we have a reminder that failure to comply with rules and orders have consequences. In this case the consequences were that the Part 20 claimants’ action for damages was struck out. There had been a series of failures…
IS AN APPLICATION VALID IF THE INCORRECT COURT FEE IS PAID? THE ISSUES CONSIDERED…
We have had a flurry of cases recently about the consequences of failing to pay the correct fee when issuing proceedings. Here we have a case where the court considers the implications of a failure to pay the correct fee…
SERVICE POINTS 37 : IS SERVICE ON A P.0. BOX GOOD SERVICE? (OH – AND BY THE WAY – AS IT TURNS OUT – THE CLAIM FORM WAS NEVER, IN FACT, SERVED AT ALL): A BIT OF A SURPRISE FOR THE CLAIMANT AT THE APPEAL STAGE
Is service on a P.O. Box address good service? That was the issue being considered in this appeal. However the claimant was in for a bit of a shock. Enquiries by the judge revealed that the claim form had never…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 29th APRIL 2026
The Court of Appeal’s recent decision in Attersley v UK Insurance Ltd [2026] EWCA Civ 217 has sharpened the costs risks faced by claimants who accept a Part 36 offer outside the relevant period. While a claimant who accepts late…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 4: WHY IS PD57AC BREACHED SO OFTEN? “SOLICITORS MIGHT FEEL UNDER PRESSURE TO SIGN CERTIFICATES OF COMPLIANCE … EVEN WHEN THEY KNOW THAT STATEMENTS WERE NOT COMPLIANT…”
There has a been a regular flow of cases where the courts have commented that PD57AC has not been complied with, it is “more honoured in the breach than the observance”, was noted in one judgment. Given that these are…
BACK TO BASICS MONDAY: WHEN YOU ARE SEEKING PERMISSION TO RELY ON EXPERT EVIDENCE THE COURT HAS TO KNOW HOW MUCH IT WILL ALL COST…
Here we are looking at a basic requirement that is often overlooked. When a party is applying for permission to rely on expert evidence there is a mandatory obligation to provide the court with an estimate of costs. THE…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
CLAIMS FOR LOSS OF EARNINGS: AVOIDING THE PITFALLS: WEBINAR 19th JUNE 2026 (TOGETHER WITH A USEFUL QUESTIONNAIRE AND SERIES OF CHECKLISTS)
It is surprising how many allegations of negligence are made against lawyers because of a failure to consider and obtain damages for loss of earnings. In addition there are a growing number of cases where claimants have come to grief…
THROWBACK FRIDAY: SCHEDULES AND COUNTER-SCHEDULES ARE NOT A “NUMBER CRUNCHING EXERCISE” (APRIL 2018)
If there is a judgment that still resonates in practical terms today it is the one we are considering here. It asks the answer how should schedules be drafted? It then gives the answers. This was in a case where…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
SERVICE POINTS 36 : “THIS IS AN AREA OF UNDOUBTED STRICTNESS”: ERRORS IN SERVICE OF THE CLAIM FORM WERE FATAL TO THE CLAIM
Regular readers of this site will not need reminding of the strictness of the rules relating to service of the claim form. Here we have another example. The claimant failed to serve the sealed claim form within the period allowed…
COST BITES 377: THE COURT WOULD NOT STAY A PAYMENT ON ACCOUNT PENDING THE DEFENDANT’S APPEAL AND/OR APPLICATION FOR A RIGHT TO SET OFF THEIR OWN COSTS (WHY WHAT IS TAKEN OUT OF DRAFT ORDER CAN BE AS IMPORTANT AS WHAT IS LEFT IN…)
Here we have an unusual issue, caused by the defendant agreeing to an unusual order (more accurately the removal of a proposed term of an order). The defendant was liable to pay the claimant’s costs of a hearing which were…
PERSONAL INJURY POINTS 12: WHAT IS A CLAIMANT TO DO ABOUT CRU IF THE DEFENDANT IS NOT INSURED AND NOT RESPONDING?
This case considers the issues that arise when a defendant has failed to comply with its statutory obligation to notify the Compensation Recovery Unit of a claim. What duties does the claimant have in these circumstances. The blunt answer is…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
SERVICE POINTS 35: HOT OFF THE PRESS: THE HIGH COURT UPHOLDS INITIAL FINDING THAT AN ELECTRONICALLY ISSUED AND SUBSQUENTLY AMENDED CLAIM FORM DOES NOT HAVE TO BE RE-SEALED PRIOR TO SERVICE
The cases on service of the claim form continue to flow. Here the defendant appealed a decision that it was not necessary for a claimant to serve a sealed copy of an amended claim form. As we shall see the…
DEDUCTING COSTS FROM THE CLAIMANT’S DAMAGES: A DEDUCTION OF £2,500 REDUCED TO £330: THE WARNING NOTICE FROM THE SRA REITERATED IN A COURT JUDGMENT
The previous post mentioned a webinar this Friday on deducting costs from the client’s damages. Right on cue this judgment occurred on that very topic. It makes some very important observations. It has created more work in preparing the webinar,…
DEDUCTING COSTS FROM THE CLIENT’S DAMAGES: THE LAW AND PRACTICE: WEBINAR 24th APRIL 2026
Recent cases have shown that the issues relating to to deducting costs from the client’s damages remain controversial and highly contested. This webinar examines the regulatory framework and case law governing the deduction of legal costs from a client’s damages…
EXPERT WATCH 43: WHEN AN EXPERT DOESN’T HAVE “REAL WORLD” EXPERIENCE OF THE MATTERS IN THEIR REPORT – THEY START ON THE BACK FOOT…
The previous post on costs and mediation led to me to look at the initial judgment on liability. This is because the court considered an argument that the situation with the claimant’s expert was so poor as to warrant indemnity…
COSTS BITES 377: SHOULD A SUCCESSFUL DEFENDANT’S REFUSAL TO MEDIATE LEAD TO IT LOSING ITS RIGHT TO RECOVER COSTS?
Here we have a case where a claimant who lost a case at trial (and turned down an offer of £200,000) argued that there should be no order for costs. That argument did not take it very far… “The Defendant’s…
AN APPEAL WAS LODGED IN TIME: SOMETIMES THE COURT DOES NOT HELP – BUT HINDER: “I HAVE CONCLUDED THAT THE COURT THWARTED THE LITIGANT’S PROPER AND REASONABLE ATTEMPT TO BRING THE APPEAL IN TIME”
Here we have a case where an important time limit was, on the face of it missed, because the court itself “thwarted” genuine attempts to lodge an appeal in time. It is an object lesson the care that needs to…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
PROVING THINGS 287: CLAIMS FOR FUTURE LOSS OF EARNINGS OF A CHILD: A JUDGMENT FROM YESTERDAY (AND A WEBINAR NEXT MONDAY…)
Assessing claims for loss of earnings for children is always difficult. The importance of this has become, if anything, more acute given the Supreme Court decision in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals…
“OVERHEATED LANGUAGE” A “CAVALIER APPROACH” AND “THIN ALLEGATIONS”: WHY IT PAYS TO BE CAREFUL AND DETAILED WHEN MAKING APPLICATIONS TO DISCHARGE INJUNCTIONS
We have seen many cases where the courts have been critical of a party’s failure to comply with the duties of full and frank disclosure when obtaining an order without notice. However here we have a case where the judge…
THE SUMMARY ASSESSMENT OF COSTS: A GUIDE FOR PRACTITIONERS: WEBINAR 17th APRIL 2026
Last week we saw a case where, on a summary assessment, costs were reduced from £2.6 million to £750,000 on a summary assessment. Clearly not all assessments are going to involve these amounts, however the case highlights that these can…
MAZUR MATTERS 61: A COMPARISON OF THE LAW SOCIETY GUIDANCE BEFORE AND AFTER THE COURT OF APPEAL DECISION
The Revised Law Society Guidance on Mazur was looked at in a previous post. Whilst we wait for the SRA Guidance it may be useful to look at the key differences in the Law Society Guidance before and after the…
THE CURRENT IMPORTANCE OF PLEADINGS 66: WHEN THE CLAIMANT TRIES TO ADVANCE ALLEGATIONS NOT STATED IN THE STATEMENT OF CASE THOSE MATTERS ARE NOT CONSIDERED BY THE JUDGE
This case illustrates the need for allegations to be pleaded, particularly in relation to assertions of fraud. It took 38 days of court time and concerned a loss of US $715 million. Still the judge was concerned that allegations were…
“GUIDE, MENTOR AND FRIEND”: REVIEW OF THE APIL GUIDE TO CATASTROPHIC INJURY CLAIMS 4th EDITION: STUART McKECHNIE KC (AND A FORMIDABLE TEAM): THE “LITTLE GEM” THAT KEEPS ON GIVING
The fundamental question for a reviewer of a legal text is – is this book worthwhile? Here there is only one answer. A book of considerable importance, assistance and utility is a “must buy”. HOW DO I SUMMARISE THIS? Sir…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
A REMINDER – DOCUMENTS IN AN AGREED BUNDLE ARE ADMISSIBLE AT THE HEARING AS EVIDENCE OF THEIR CONTENTS.
We are just looking at a few lines from a judgment we looked at earlier this morning. They contain a reminder that documents in an agreed bundle are admissible as evidence at the hearing. However this does not mean that…
MAZUR MATTERS 60: THE REVISED LAW SOCIETY GUIDANCE NOTE: SOME KEY POINTS: THIS WILL REQUIRE CLOSER OVERSIGHT OF THE WORK BEING DONE
One remarkable aspect of the Mazur decision is that in a very real sense it is the losers of the case who get to decide what goes on going forward. The Court of Appeal rejected the submissions of the Law Society…
THERE WAS NO AGREEMENT TO EXTEND TIME FOR SERVICE AS THE DEFENDANT ASSERTED: THE SCCO REFUSES TO SET ASIDE A DEFAULT COSTS CERTIFICATE
This is an interesting judgement on two levels. Firstly the judge did not accept the defendant’s contention that there had been an agreement to extend time for service of Points of Dispute to a bill of costs. Secondly, applying the…
MAZUR MATTERS 59: REMEMBER THAT MOST OF THIS AROSE BECAUSE SOMEONE DIDN’T KNOW (OR APPLY) THE CORRECT RULES AS TO FIXED COSTS
One underlying irony about the Mazur debacle is that most of the problems arise because of a mistake as to costs. The Circuit Judge ordered Ms. Mazur and Mr Stuart £10,653 when, in fact, the costs should only have been £636.00. …
COST BITES 376: THE NEED TO KEEP THE CLIENT INFORMED OF COSTS BEING INCURRED: THE SOLICITOR SHOULD HAVE INFORMED THE CLIENT THAT COSTS OF US $35,343,213.96 WERE BEING INCURRED
This judgment highlights the need for a solicitor to keep the client fully informed of the costs incurred. The judge observed that the SRA Code of Conduct imposed a positive duty on a solicitor to give the client the best…
BACK TO BASICS MONDAY: TIME LIMITS FOR CHALLENGING SOLICITORS’ BILLS
There have been a large number of posts recently relating to solicitor and own costs assessments. Many of these cases have related to the issue of whether bills delivered were “statute” bills “interim statute bills” or simply interim bills. The…
AVOIDING THE PITFALLS: DRAFTING SCHEDULES OF DAMAGES: WEBINAR 16th APRIL 2026: WITH SOME INTERESTING QUOTES TO WHET YOUR APPETITE..
Drafting a Schedule of Damages is not simply a mathematical calculation. It requires legal knowledge, careful analysis, attention to evidence, and practical judgement. Courts frequently criticise poorly prepared schedules, particularly where figures are unsupported, exaggerated, or inconsistent with the evidence….
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