COST BITES 290: BARRISTERS TAKE CARE: ANOTHER REASON THE DBAS WERE INVALID – FAILURE TO INCLUDE COUNSEL’S FEES IN THE EQUATION…
We are continuing with our consideration of Damages-Based Agreements that were found to be unlawful. This time the judge considered the position in relation to counsel’s fees and the Regulations. The judge held that the attempt to charge counsel’s fees…
COST BITES 289: INVALID DAMAGES BASED AGREEMENTS MEANT THAT THE APPELLANTS COULD NOT RECOVER £1.3 MILLION IN COSTS (A BAD DAY OUT FOR THE LAWYERS INVOLVED…)
Today we are looking at a case where the appellants claim to £1.3 million in costs was lost because the Damages-Based Agreements were found to be unlawful and unenforceable. It provides a salutary lesson to all those who are involved…
THREE WEBINARS ON EXPERTS: THE JOINT EXPERT AND MEETING OF EXPERTS; PART 35 QUESTIONS AND EXPERTS IN THE COURTS IN 2025
The way in which the “Expert Watch” series has quickly developed shows that issues relating to expert evidence continue to give rise to problems. These three webinars explore many of the major issues in relation to experts. Dealing with the…
BARRISTER REFERRED TO THE BSB BECAUSE OF THE USE OF AI “HALLUCINATED” CASES: IGNORANCE THAT THIS WAS HAPPENING IS NO DEFENCE
We have another example of a lawyer getting into trouble (potentially very serious trouble) through the use of Artificial Intelligence and its ability to “hallucinate” cases. It was accepted that the error was not deliberate. However the Upper Tribunal pointed…
SERVICE POINTS 10: COURT REFUSES CLAIMANT’S APPLICATION WHEN PROCEEDINGS WERE SERVED ONE DAY LATE: A CASE THAT ROUNDS UP TWO WARNINGS GIVEN TODAY
Earlier today I warned that a recent decision by the Divisional Court in relation to CPR 6.15 was unusual and should not give great comfort to litigators generally, later we looked at the new Administrative Court Judicial Review Guide which…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
NEW EDITION OF THE ADMINISTRATIVE COURT JUDICIAL REVIEW GUIDE 2025: FOLLOW THE RULES OR YOU COULD BE SUBJECT TO SANCTIONS
There is a new edition of The Administrative Court Judicial Review Guide 2025 available on the Judiciary website. It contains clear guidance on procedure and, as the Preface makes clear, is keen to help practitioners avoid common procedural pitfalls. It…
SERVICE POINTS 8: APPLICANT FAILS TO SERVE THE SECRETARY OF STATE PROPERLY: A BAD NIGHT AT THE MUSEUM…
I don’t know how many planning lawyers subscribe to this site – it may be none do. However I am fairly confident that they could get full value out of their subscription if it persuaded them to pay attention to…
THE CURRENT IMPORTANT OF PLEADINGS 32: “BOTH THE PARTICULARS OF CLAIM AND DEFENCE ARE LENGTHY DOCUMENTS, UNJUSTIFIABLY SO”
We are here honing on in one aspect of a decision that was about allocation. The judge commented on how poor the pleadings of both side were. The Particulars of Claim and Defence were too long, a Reply was unnecessary. …
NEW RULES COMING INTO FORCE ON THE 12TH SEPTEMBER 2025 AND THE 1ST OCTOBER 2025 (2): DISPUTING EVIDENCE AND FILING EVIDENCE IN PART 8 PROCEEDINGS
Here we look at the latest statutory instrument which makes changes to the rules. This time a highly specific rule making amendments to Part 8 to deal with the filing of evidence where the defendant states it intends to dispute…
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
WILL AN INSURER PAY FOR THIS? THE THIRD PARTY RIGHTS AGAINST INSURERS ACT 2010, THE ROAD TRAFFIC ACT, THE MIB AND OTHER ROUTES TO OBTAINING PAYMENT: WEBINAR 16th SEPTEMBER 2025
The new series on enforcement on this site shows the major problems a successful litigant can have even after they have obtained a judgment. This webinar looks at the routes by which a claimant can attempt to investigate or ensure…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
ATTENDANCE NOTES IN CIVIL LITIGATION 2025: WEBINAR 15th SEPTEMBER 2025
There have been at least three cases over the previous few months where attendance notes taken by solicitors have played a significant part in the outcome of a case, appeal or application. These notes protected a solicitor against complaints of…
SERVICE POINTS 6: THERE ARE NO EASILY ACCESSIBLE “BACKDOOR” METHODS FOR CIRUMVENTING THE RULES RELATING TO APPLICATIONS FOR RETROSPECTIVE SERVICE
It may not have escaped reader’s notice that we have already started the month by looking at a case about defects in the service of the claim form. The claimants in that case (which was said to be a £22…
SERVICE POINTS 5: CLAIMANTS IN £22 MILLION CLAIM FAIL ON SERVICE ISSUES – FOR THE THIRD TIME: ORDERS GRANTING EXTENSIONS OF TIME SET ASIDE
Here we look at a case where the claimants came to grief on issues relating to service – extensions of time for service of the claim form were set aside. One remarkable feature of this litigation is that this was…
SERVICE POINTS 3: THE CLAIMANT COMES TO GRIEF OVER FAILURES OF SERVICE OF THE CLAIM FORM: THE COURT MADE MISTAKES BUT THE BUCK STOPS WITH THE SOLICITORS AND NOT THE COURT OFFICE
I remain surprised about how many of the cases relating to service of the claim form are professional negligence actions. Perhaps those who conduct such work come to believe they have a degree of immunity from the normal rules of…
DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS: THE CODE
As promised in the previous post, here is the discount code for the Civil Litigation Brief series of webinars. The webinars include topics such as cost effective delegation, attendance notes, the liability of insurers to pay judgments, the joint expert…
MEMBER NEWS: DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS
There are a series of webinars coming up which cover many of the key aspects we look at on this site. Members who subscribe to the site can now obtain a discount on each of the webinars, with further discounts…
WHEN HAS A PARTY CONSENTED TO SERVICE OF DOCUMENTS BY EMAIL? IS A FAILURE TO OBTAIN SPECIFIC CONSENT IN ADVANCE FATAL TO VALID SERVICE?
We are carrying on with the review of the appeal judgment that considered key issues in relation to service by electronic means. Here the judge considered whether the claimant’s failure to obtain the defendant’s specific consent prior to service rendered…
A FASCINATING AND IMPORTANT JUDGMENT: WHEN CAN A NOTICE BE SERVED BY EMAIL? AT WHAT TIME CAN IT BE SERVED? ALSO – SOMETHING ABOUT NOTICES OF DISCONTINUANCE AND QOCS
I have been sent a case that is important and interesting on many levels. Firstly in relation to when it is permissible to serve documents by email; secondly in relation to the latest time in the working day that documents…
THE CURRENT IMPORTANCE OF PLEADINGS 30: WHEN A LAWYER DEFENDANT TRIES TO ARGUE A POINT DIRECTLY CONTRADICTORY TO ITS PLEADED CASE: THIS “FLIES IN THE FACE OF THE PLEADED ADMISSION”
We are continuing to look at the interesting inter-lawyer dispute considered in the previous post. This time at the defendant’s pleaded case and its attempt to resile from a clear admission and put an alternative case in its place. (You…
CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
APPLICATION TO ENFORCE A TRIBUNAL AWARD WAS MADE TO THE WRONG COURT AND WAS SET ASIDE: CPR 3.10 DID NOT ASSIST WHEN THERE WAS A FUNDAMENTAL ERROR GOING TO JURISDICTION
Here we have a case where the claimant was found to have made a fundamental error of procedure when seeking to enforce an Employment Tribunal award. An application was made to the wrong court. The County Court was the only court…
MEMBER NEWS: INCREASING NUMBERS FOR CORPORATE MEMBERSHIP: INCREASED FLEXIBILITY: ALSO LOOKING AT THE BACK CATALOGUE: “AVOIDING PROCEDURAL DEATH”: POSTS ABOUT THE CLAIM FORM ON THIS SITE
I have had a number of enquiries recently about increasing member numbers for corporate groups. This is possible, the membership system allows this and you can upgrade with the previous payment being taken into account on a pro rata…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2025 (1): LIMITATION IN PERSONAL INJURY CLAIMS – HOW DOES ANYONE MISS A THREE YEAR LIMITATION PERIOD?
In an ideal world all personal injury limitation periods would be three years, and all other action six. However we do not live in an ideal world. The first, and most obvious, place to look at avoiding negligence claims is…
SERVICE POINTS 2: CLAIM FORM WAS VALIDLY SERVED AT AN ADDRESS WHERE THE DEFENDANT NO LONGER LIVED: THERE WAS NO APPLICATION TO DISPUTE THE JURISDICTION IN ANY EVENT
For the second in this series we are looking at a case where the question of whether the claim form had been properly served was raised by the defendant at trial. There were numerous reasons why the defendant’s argument on…
SERVICE POINTS 1: HOW DO YOU SERVE ON “PERSONS UNKNOWN”?
Cases and issues relating to service of proceedings are a regular feature on this site. For ease of reference going forward posts about service will now be in this series of “Service Points”. Here we look at a case that…
PERSONAL INJURY POINTS 10: WAS THIS CLAIM STATUTE BARRED?IF SO SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 33 OF THE LIMITATION ACT 1980?
Here we look at a decision in relation to limitation. The trial judge had to determine whether the claimant’s action was statute barred. If it was she then had to consider whether it was appropriate to exercise the court’s discretion…
ANOTHER BREACH OF EMBARGO CASE: THE MISTAKE AS TO WHAT WAS MEANT BY “PARTIES” AND HOW PROMPT STEPS MITIGATED THE BREACH
Cases about breaches of embargos on draft judgments keep appearing with surprising frequency. We have another one here. The judgment emphasises the nature of the advice the lawyer must give to the client. Not only must be draft judgment not…
APPLICANT REFUSED PERMISSION TO RELY UPON A WITNESS STATEMENT THAT WAS SERVED LATE: NON-COMPLIANCE WITH THE RULES IS EFFECTIVELY A FORM OF CHEATING
Here we are looking at a case from the family jurisdiction. Slightly different rules apply, however the overall principles are the same as in the CPR. The judge had to consider whether to grant permission to an applicant to rely…
THE CURRENT IMPORTANCE OF PLEADINGS 28: WHY THE PROPOSED AMENDED PARTICULARS DID NOT SAVE THE CLAIMANT: “MERE ASSERTION IS NOT SUFFICIENT”
We are continuing to examine the case looked at in the previous post. The claimant, faced with an application that the amended Particulars of Claim did not comply with the requirements of a court order, or the rules, made an…
THE CURRENT IMPORTANCE OF PLEADINGS 27: CLINICAL NEGLIGENCE CLAIM STRUCK OUT BECAUSE OF INADEQUATE PARTICULARS OF CLAIM: (SOME POINTS OF IMPORTANCE FOR NON CLIN-NEG LAWYERS HERE AS WELL).
Anyone drafting, or contemplating drafting, a pleading in a clinical negligence claim (indeed any type of claim) would be best advised to read, in detail, the judgment we are considering today. The judge went through an amended Particulars of Claim…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
MEMBER NEWS: HONING IN ON THE INTERNAL RESEARCH FACILITY ON THIS SITE: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION – SOME GUIDANCE
Yesterday I had an enquiry about the internal search function on this site. In particular whether it used Boolean operators. It doesn’t but there is a “work around” discussed below. On a separate issue I also recorded a webinar on…
HOW NOT TO APPLY TO SET ASIDE A JUDGMENT WHICH IS ALLEGED TO HAVE BEEN OBTAINED BY FRAUD: THE JUDGE MARKED THE “ILL CONSIDERED AND POOR MANNER IN WHICH THE APPLICATION HAS BEEN PREPARED AND PROSECUTED”
It is possible to apply to set aside a previous judgment when the applicant’s case is that that judgment was obtained by fraud. However here we look at an almost textbook example of how not to go about this. The court…
STARTING THE WEEK WITH ANOTHER CLAIM FORM CASE: IT IS NOT QUITE – BUT NIGH ON – IMPOSSIBLE TO OBTAIN A RETROSPECTIVE ORDER ALLOWING A CLAIM FORM TO BE SERVED LATE
Here we look at a case where the claimant spent a lot of time money and effort obtaining a world wide freezing order but failed to notice that the time for service of the claim form had expired. This led…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
This webinar looks at what to do when things go wrong in civil litigation. There is a continual flow of reports that deal with errors made in relation to limitation, service or someone falling foul of the rules or court…
PROFESSIONAL NEGLIGENCE NEWS 4: WHO SHOULD PAY THE COSTS WHEN THE CLAIMANT INITIALLY SUED THE WRONG DEFENDANT BUT THE ACTION WAS NOT STRUCK OUT?
Litigators and litigants are always particularly interested in knowing what the costs consequences of a hearing was. We get an opportunity to consider this here, looking at the costs order of a judgment we have already considered. What should the…
KEY OMISSIONS AND WITNESS EVIDENCE: A FAILURE TO MENTION KEY POINTS IN THE STATEMENT DOES NOT HELP THE WITNESS: A WORKING EXAMPLE
The theme for several of the posts today is how important it is to put information, that could be viewed as adverse to the witness, into a witness statement. If such information is left out, but revealed in cross-examination this…
MEMBER NEWS: THE BACK CATALOGUE 3: THE COST BITES SERIES – 258 POSTS SO FAR AND NO SIGN OF STOPPING…
We can wager a bet (for charity of course) that 99.9% of litigators and 100% of litigants who read a judgment think – who paid the costs? The aim of this series, started in July 2022, was to enable practitioners…
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…
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