“ALL DOCUMENTS HAD AT LEAST TWO NUMBERS AND TECHNICALLY 3 IN SOME CASES”: A SMALL POINT ABOUT BUNDLES AND NUMBERING
For several years a post on bundles and “Sedley’s Laws” was the most read post on this site. Ever since then the preparation, presentation and numbering of bundles for applications and trials have formed a regular part of the material…
PROVING THINGS 295: HOW MUCH SHOULD A CARER BE PAID? INTERESTING READING FOR PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYERS (AMONG OTHERS…)
This is a case about the costs of providing care. It is unusual in that it does not arise in the context of a claim for damages for personal injury or clinical negligence. Nevertheless there are issues of general relevance…
EXPERT WATCH 68: THE MISUSE OF AI: “CREATE ME AN EXCEPTIONAL EXPERT WITNESS REPORT”: SHOW HOW MY CLIENT “IS 0% AT FAULT”: THIS WITNESS HAD A FEW PROBLEMS…
“What happens in America eventually happens over here” is a well known maxim. It is for that reason we are looking at a case about expert evidence and the use of artificial intelligence from the United States. (To be frank…
EXPERT WATCH 67: LITIGANTS NOT ALLOWED TO RECOVER THE COSTS OF AN EXPERT WHOSE EVIDENCE ON SOME ISSUES WAS “LARGELY UNHELPFUL”
It is rare to be able to see a costs decision on the recoverability of the costs of expert evidence. We have such a case here where the Competition Appeal Tribunal considered whether to allow a successful party to recover…
WITNESS EVIDENCE WEDNESDAY: YOU CANNOT NECESSARILY RELY ON INTERLOCUTORY WITNESS STATEMENTS AT TRIAL
Here we have a case where the claimant, wrongfully, believed that she could rely on witness statements that had been served in the course of the proceedings in addition to the statement served for trial. She was given permission to…
BACK TO BASICS MONDAY: RELIEF FROM SANCTIONS: THE RELEVANCE OF THE CLIENTS BEING SOLELY AT FAULT: SOME DIFFICULT ISSUES TO TACKLE
In many cases relating to breach from sanctions the fault may lie with the solicitor rather than the client. This case considers that question directly. The clients’ innocence was an important factor in the court’s discretion. “I take from the…
EXPERT WATCH 66: RED FLAGS AND EXPERTS (1) :THE DUTY TO CONSIDER THE RANGE OF OPINIONS: OFTEN “HONOURED IN THE BREACH”; OFTEN FATAL TO A PARTY’S CASE
This short series is looking at how you can spot “red flags” when looking at an expert report. There are often aspects of reports that “don’t fare well” when put under scrutiny at trial. “His response was that he usually…
EXPERT WATCH 65 : WHEN THE JUDGES SAY “WE ATTACH VERY LITTLE WEIGHT” TO A REPORT IT IS CLEAR THAT SOMETHING HAS GONE WRONG
This judgment is critical of the way in which an expert report was prepared. The problems were manifold in relation to the way in which the information was obtained, the way it was presented and the failure to consider primary…
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…
COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
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…
CAN DELAY IN APPLYING TO STRIKE OUT AN ACTION FOR ABUSE OF PROCESS BE AN ABUSE OF PROCESS IN ITSELF? THE DANGERS OF LETTING TIME GO BY
Here we have a case where it was argued that the defendant’s delay in bringing an application to strike out for abuse of process was an abuse of process in itself. The case points to authorities that “acquiescing” in an…
THROWBACK FRIDAY: SIMILAR FACT EVIDENCE IN CIVIL CASES: AN OVERVIEW AND THE RELEVANT GUIDANCE CONSIDERED (AUGUST 2020)
Man of the posts in August 2020 concerned the impact of Covid. This post is the exception. It arose out of a Court of Appeal decision that month that reviewed the principles relating to similar fact evidence in civil cases….
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…
ATTEMPTS TO “REVISIT” THE PRELIMINARY ISSUES REFUSED: ALSO THE JUDGE WOULD HAVE PREFERRED TO SEE WITNESS STATEMENTS NOT JUST DOCUMENTS…
This is another case where a party attempts to “revisit” preliminary issues/a statement of issues that have been agreed and approved by the court. That application did not get very far. Further the judge observed that, although the parties were…
WITNESS EVIDENCE WEDNESDAY: THE PAUCITY OF EVIDENCE PROVIDED BY THE DEFENDANTS: AN APPLICATION FOR SUMMARY JUDGMENT CANNOT BE DEFENDED BY “BARE ASSERTION”
The need to provide evidence and not simply make bare assertions is as important in applications as at trial. Here we see a case where the claimant obtained summary judgment in the face of a “paucity of evidence” from the…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
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…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: WHAT IF ONE OF THE PARTIES WAS INNOCENT? COURT OF APPEAL CONSIDERS THE ISSUE: SOMETHING ABOUT LACHES TOO…
Setting aside a judgment obtained by fraud is very different to other applications to set aside. It requires a separate action and there is a high burden of proof. However what should happen if one of the parties to the…
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…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
A QUICK REMINDER OF THE CLB WEBINARS NOW AVAILABLE “ON DEMAND”: ALSO (AND UNRELATED) SAYING AU REVOIR TO THE LITTLE WHITE DOG
There are a number of CLB webinars that are available “on demand”. There is a reduction for CLB members. This is also an opportune time to say au revoir to the little white dog that has been gracing the pages…
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…
COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
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…
THE NEW LAW ON LIMITATION AND SEXUAL ABUSE CLAIMS CONSIDERED IN THE HIGH COURT: THE NEW SECTION 11ZA ONLY EXTENDS TO THE SEXUAL ABUSE ASPECTS OF A CLAIM
New sections of the Limitation Act 1980 came into force on the 29th June this year. These make a considerable difference where the court is considering issues of limitation in sexual abuse claims. The new provisions are considered in this…
THROWBACK FRIDAY: GESTMIN GUIDANCE IN THE CONTEXT OF CLINICAL NEGLIGENCE CASES (WITH A CHANCE TO REMEMBER HH ALAN GORE K.C.) : JULY 2019
Here we look at a post from July 2019. It gives me a chance to remember the judge in question HH Alan Gore who sadly died in December last year. This is one of his judgments about the Gestmin criteria…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
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…
GENERAL DAMAGES FOR PSYCHIATRIC INJURY – THE KEY ISSUES CONSIDERED: WEBINAR 30th JULY 2026
Psychiatric injury claims raise some of the most challenging issues in personal injury litigation. Questions frequently arise as to whether a claimant has suffered a recognised psychiatric illness, how damages should be assessed, the role of expert evidence, and how…
“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…
EXPERT WATCH 63: WHEN A DOCTOR WRITES TO THE COURT AND THE JUDGE FINDS THE INFORMATION “UNRELIABLE”
There have been a number of cases where the courts have considered letters, or less formal “reports”, provided by doctors to support elements of a litigant’s case, usually in relation to an application for adjournment or procedural issue. There was…
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…
THE RULES ARE CHANGING: ADVANCE NOTICE: GOODBYE TO THE CHANCERY DIVISION
A whole raft of changes come into force on the 1st October. The most noticeable will be that the Chancery Division disappears. There is also an end to the “presumption” that costs management takes place by telephone. Also note the…
EXPERT WATCH 61: THE EXPERT WAS TELLING ME WHAT THEY WOULD HAVE DONE RATHER THAN APPLYING THE BOLAM STANDARD: CLAIMANT’S CASE FAILS AT TRIAL
This case looks at a common issue in relation to experts, particularly in clinical negligence cases. Specialists can report on what they would have done (given their own level of expertise) rather than what the “reasonable” practitioner would have done. …
FATAL ACCIDENT DAMAGES CONSIDERED IN DETAIL: HOW SHOULD CARE DEPENDENCY BE ASSESSED? DOES IT END IF A WIDOW GOES INTO A NURSING HOME
Here we have a detailed consideration of some of the key points in relation to fatal accident damages. In particular how claims for loss of a carer should be assessed. These are central issues in many cases and there is…
WITNESS EVIDENCE WEDNESDAY (2): WHEN A WITNESS GETS COACHING FROM ARTIFICIAL INTELLIGENCE – WHAT ARE THE IMPLICATIONS?
Artificial Intelligence continues to give rise to novel legal issues. In this case the courts had to consider the impact of clear evidence that the complainant in a criminal case had received detailed “coaching” by the use of A.I. …
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…
WITNESS EVIDENCE WEDNESDAY: A JUDGE IS NOT BOUND TO ACCEPT ALL DOCUMENTARY EVIDENCE: THE CLAIMANT “HONESTLY BELIEVED” THE CASE BUT THIS DID NOT PROVE IT…
We are looking at a case where an unsuccessful claimant attempted to argue that the trial judge had got the facts wrong, in particular there was a failure to take account of documentary evidence. This judgment highlights the difficulties of…
“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? …
EXPERT WATCH 60: THE JUDGE’S ASSESSMENT OF THE EXPERTS IN THE DIESEL EMISSIONS CASE: AN EXHAUSTING TRIAL?
We are looking here at a major case where the claimants were heavily reliant on expert evidence. They way in which the judge viewed the experts was crucial. This was not a case where the judge found fault with the…
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