THE DEFENDANT SHOULD NOT PICK AND CHOOSE THE EVIDENCE IT PUTS BEFORE THE COURT: A WITNESS STATEMENT BREACHED THE DUTY OF CANDOUR OWED: WHAT YOU LEAVE OUT CAN SOMETIMES BE MORE IMPORTANT THAT WHAT YOU PUT IN…
In this case the judge was critical of the defendant’s phrasing of a witness statement. A party to judicial review proceedings owes a duty of candour to the court. A statement by a council employee that “no substantive response” had…
NO FINDING OF FUNDAMENTAL DISHONESTY WHERE A CLAIMANT GAVE AN ACCOUNT DIFFERENT TO HER LETTER OF CLAIM: (CLINICAL NEGLIGENCE CASE)
We have monitored cases relating to fundamental dishonesty for many years. It is as important to note cases where this is not found as those where it is established. We have an example here. “… when it comes to whether…
![WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT...]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/10/Shamelessplug.png?resize=150%2C150&ssl=1)
WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT…]
This blog, inevitably, tends to cover cases where things have gone wrong (for someone). The primary aim is to stop the same thing happening to you. This webinar aims to encapsulate the lessons from procedural problems and issues in 2026. …
THE CURRENT IMPORTANCE OF PLEADINGS 102: THE CLAIMANTS FAILURE TO PLEAD A COUNTERFACTUAL PROPERLY MEANS THE PARTICULARS NEED SUBSTANTIAL AMENDMENT
This is not the first time we have looked at a claimant that has difficulty in pleading a “counterfactual”. That is what they would have done and what would have happened if the defendant had not (allegedly) breached the duties…
WITNESS EVIDENCE WEDNESDAY: INTERMEDIARIES IN CIVIL PROCEEDINGS: DEFENDANT WITH ADHD ENTITLED TO ASSISTANCE WHEN GIVING EVIDENCE, BUT NOT THROUGHOUT THE TRIAL
There are relatively few cases where the courts have considered the use of intermediaries in civil cases. Here we have a detailed consideration of whether a defendant required an intermediary. The judge did not accept that an intermediary was…
PROVING THINGS 302 : THE COURT DREW ADVERSE INFERENCES WHEN THE CLAIMANT FAILED TO TEST THE METER IT WAS RELYING ON
Much of the discussion relating to a court drawing adverse inferences relates to a failure to call relevant witnesses. Here, the judge applied them to the absence of a physical object and the test evidence it could have provided. “……
SERVICE POINTS 57: PRESENCE IN THE JURISDICTION, A LAST KNOWN ADDRESS AND THE COST OF GETTING IT WRONG: UNSUCCESFUL CLAIMANT FACES A COSTS BILL OF £500,000…
Once again we are looking at a case where a claimant fails to effect service properly. The claimant failed for two reasons. Firstly the defendant was not “present” in the jurisdiction when the claim form was served. Secondly it appeared…
BACK TO BASICS MONDAY: SOME KEY POINTS ABOUT WITNESS SUMMARIES
The post this morning on witness summaries provides an opportunity to revisit the rules about witness summaries. It is notable that many of the cases relating to this topic also deal with applications for relief from sanctions when the summaries…
EXPERT WATCH 80: WHEN EXPERTS ARE ON THE METER: ONE EXPERT WAS NOT ALWAYS INDEPENDENT, THE OTHER DID NOT APPRECIATE HIS DUTY TO THE COURT
Here we have what are almost “classical” issues about the role of experts (in the sense we have seen this many times before). Both parties in this litigation called experts. The judge found one expert not to be fully independent …
PERMISSION TO RELY ON A WITNESS SUMMARY: DOES THE APPLICANT NEED TO SHOW THE WITNESS HAS REFUSED TO GIVE A STATEMENT? RELIEF FROM SANCTIONS (OH, AND THAT WITNESS FORMERLY KNOWN AS “PRINCE”)
Cases on witness summaries are fairly rare. Here we have issues relating to witness summaries considered in the context of a high profile witness. The judgment explains when a witness summary can be used. More specifically whether a party can…
COST BITES 447: “THESE SUMS ARE ASTONISHING”: COURT OF APPEAL CONSIDERS £2 MILLION BRIEF FEE AND COSTS OF A FOUR-DAY APPEAL (AND IS NOT TOO IMPRESSED)
It is rare for the Court of Appeal to get involved in the minutiae of costs. We have an example here and the Court is, to say the least, forthright in its views. Leading Counsel’s brief fee of £2 million…
DID YOU KNOW THAT YOU COULD BE MADE BANKRUPT (OSTENSIBLY ON YOUR OWN APPLICATION), NOT KNOW ANYTHING ABOUT IT – AND THEN HAVE TO PAY THE TRUSTEE’S COSTS? THE IMPORTANCE OF GETTING KEY EVIDENCE BEFORE THE COURT
This is an unusual case. The appellant here had been made bankrupt, ostensibly on her own petition. She knew nothing about it. Despite this the court would not annul the bankruptcy until provision was made for payment of the Trustee’s…
THROWBACK FRIDAY: A CASE WHERE THE SOLICITORS’ EVIDENCE (OF THEIR OWN) LOSS WAS “WHOLLY INADEQUATE” (OCTOBER 2017)
The “Proving Things” series has recently passed number 300. A large number of the posts in that series are about a failure to prove things. We have here a claim brought by a firm of solicitors where the judge observed…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
ENFORCEMENT BULLETIN 6: BEING SIGNED OFF WORK DOES NOT MEAN UNABLE TO ATTEND COURT: SUSPENDED COMMITTAL ORDER MADE AGAINST JUDGMENT DEBTOR (CLINICAL NEGLIGENCE AND PERSONAL INJURY LITIGATORS YOU MAY WANT TO READ THIS AS WELL…)
It is rare for a clinical negligence claimant to be involved in issues relating to the enforcement of judgments. We have an example here. Ironically enough it is also an example of inadequate medical evidence being presented in an an…
PROVING THINGS 301 : CAN AN APPLICANT IN COMMITTAL PROCEEDINGS RELY UPON A JUDGMENT GIVEN AT TRIAL? WHAT WEIGHT SHOULD BE GIVEN TO IT?
It is always interesting to see the sequel of cases we have looked at earlier. We have an example here. We looked at this case in the context of a finding of fundamental d dishonesty. Different issues arise in relation…
WITNESS EVIDENCE WEDNESDAY: WHERE ARE WE NOW ON “MISSING” WITNESSES AND EVIDENCE ? TEN KEY POINTS WITH USEFUL LINKS
Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise. However there is an important element in relation to missing evidence and “missing” witnesses. What inferences should the court draw if a…
EXPERT WATCH 78 : “ROWING BACK”?: WHEN AN EXPERT CHANGES THEIR VIEW AFTER THE JOINT REPORT: “THAT IS NOT THE FAIR OR PROPER WAY FOR PUTTING NEW EXPERT EVIDENCE BEFORE THE COURT”
Here we look at a case where an expert essentially changed their mind after a joint report. Although the expert stated that he had not “rowed back” the judge was clear that there had been a change of view and…
LIMITATION: WHEN DID BLACK CAB DRIVERS HAVE “THE KNOWLEDGE”? CLAIM AGAINST UBER WAS STATUTE BARRED
This is a judgment about s.32 of the Limitation Act. In particular about the date of knowledge. The claimants were not successful. The judge held that they had the relevant knowledge more than six years prior to issue. It was…
THE CURRENT IMPORTANCE OF PLEADINGS: SPECIAL REVIEW EDITION: WHAT CAN WE LEARN FROM THE FIRST HUNDRED POSTS?
When this series started in March 2025 I suspected that there would be enough material for a few posts. There have now been 100. The cases have involved claims and defences, replies and counterclaims, personal injury, commercial disputes, professional negligence…
THE CURRENT IMPORTANCE OF PLEADINGS 100: PRIVY COUNCIL CONFIRM THAT THE DEFENDANT WAS NOT ENTITLED TO RELY ON A DEFENCE NEVER PLEADED
For post one hundred in this series it is perhaps fitting that we look at a Privy Council decision that shows, in categorical and clear terms, that a failure to plead essential points cannot be dismissed as a technicality. Here…
THIRD PARTY DISCLOSURE SHORTLY BEFORE TRIAL: “WHAT ONE PERSON REGARDS AS OPPORTUNISM MIGHT EQUALLY WELL BE ANOTHER PERSON’S CREATIVE LAWYERING”
This is a case about a late application for third party disclosure. The order was granted despite the trial date being imminent. The respondents complained of “opportunism” the judge observed that this may well be described as “creative lawyering”. “…litigation…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
A SUCCESSFUL JUDICIAL REVIEW OF A DECISION TO REFUSE PERMISSION TO APPEAL: GRANTING JUDGMENT AFTER AN EARLY NEUTRAL EVALUATION: A “WHOLLY EXCEPTIONAL COLLAPSE OF FAIR PROCEDURE”
It is rare for a judicial review of a judicial decision to succeed. It succeeded here because the judge found that there was (among other things) a “frustration or corruption of the… judicial process”. Essentially it is a decision about…
PROVING THINGS 300: COMPANY FAILS TO PROVE ITS OWN FINANCIAL SITUATION: APPLICATION FOR A STAY REFUSED
A major theme of this series has been a failure by litigants to put evidence before the court to establish their case. That is a feature of this case. The defendant company was arguing that its own financial position was…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
IF YOU CAN’T PROVE IT THEN YOU DON’T GET IT: LIFE IS REALLY THAT SIMPLE: WEBINAR ON PROVING DAMAGES: 22nd OCTOBER 2026
We have looked many times on this blog at cases where litigants have simply failed to prove things. There have been numerous occasions when this relates to a failure to prove damages. This webinar looks at how litigators can avoid…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
WITNESS EVIDENCE WEDNESDAY (ii): THE DEFENDANT’S WITNESS HAD NO FIRST HAND KNOWLEDGE OF THE ISSUES, KEY DOCUMENTS AND KEY WITNESSES WERE NOT PRESENT
Here we look at another case where witness evidence was found wanting. Again this is because of a failure to identify the source of information or belief. This was coupled with the fact that crucial witnesses who could give first…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
LEAVING FILING UNTIL THE LAST MINUTE IS “COURTING DISASTER”: ONE DAY OUT AND NO EXTENSION OF TIME GRANTED
The previous post mentioned that a theme of today is the importance of complying with rules and directions. This case demonstrates that point clearly. The appellant was one day out in compliance and still no extension of time was given….
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT …. PREVENTING PROBLEMS WITH THE USE OF ARTIFICIAL INTELLIGENCE IN LITIGATION? 10 KEY POINTS
The use of Artificial Intelligence by the legal profession is now a fact of life. The genie will not go back into that particular bottle. However, as we have seen many times on this blog, it can lead to profound…
HOW SHOULD A CLAIMANT RESPOND TO THE COUNTER-SCHEDULE? WEBINAR 14th OCTOBER 2026
A great deal of the claimant lawyer’s time is spent considering and building a case on damages. However it is sensible for the lawyer to stop and think how realistic the claim for damages is. One of the best means…
PROVING THINGS 299 : DISCLOSURE FAILURES, MISSING DOCUMENTS AND THE RELIABILITY OF WITNESS EVIDENCE: THE CONSEQUENCES AT TRIAL
This is a case that demonstrates the importance of disclosure and the dangers of failing to preserve, or positively destroying, documentary evidence in a civil case. The judge found the (first) defendant’s conduct in that regard was extremely telling. Much…
EXPERT WATCH 77 : YOU CANNOT WAIT UNTIL TRIAL TO COMPLAIN ABOUT THE ABSENCE OF EXPERT EVIDENCE (PARTICULARLY WHEN YOU HAVE EARLIER SAID IT WAS UNNECESSARY)
Here we have a case where the defendants, in a skeleton argument for trial, argued that the claimants could not succeed because they had to expert evidence to support their case for breach of duty. That submission was roundly rejected…
THROWBACK FRIDAY: WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE (OCTOBER 2018)
We are going back eight years and looking at another highly familiar theme – non-compliant witness statements. We have another example earlier today in the blog. . We are looking at a post from October 2018. This post pre-dated PD…
ARTIFICIAL INTELLIGENCE HALLUCINATIONS – CAUSING PROBLEMS FOR THE PROFESSION AGAIN: “… THIS DECISION ILLUSTRATES THE CONSIDERABLE PROCEDURAL DIFFICULTIES WHICH CAN ARISE WHEN INAPPROPRIATE USE IS MADE OF AI”
I have today received a copy of the second edition of Andrew Hogan’s book on AI for Lawyers (a review of which will be appearing soon). Problems with the use of AI continue to blight the profession (at home and…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … OPPOSING APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS AND A BONUS POINT ABOUT LISTS OF ISSUES
A blog about civil procedure has to have balance. The previous post considered applications to amend from the applicant’s perspective. Here we consider the position of those opposing an application. Litigators are as likely to be opposing an application as…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … THE “AUTHENTICITY” OF DOCUMENTS (OR OTHERWISE)? TEN KEY POINTS FOR PRACTITIONERS CONSIDERING THE RISKS POSED BY ARTIFICIAL INTELLIGENCE
The post earlier this morning where the Upper Tribunal considered the problems with very authentic looking documents being produced by Artificial Intelligence is illustrative of a very real problem for civil practitioners. The judgment contains a timely reminder that documents…
FALSE DOCUMENTS, LATE EVIDENCE AND ARTIFICIAL INTELLIGENCE: A WHOLE HOST OF ISSUES THAT MAKE JUDICIAL LIFE MORE DIFFICULT…
Much of the discussion in relation to Artificial Intelligence to date has related to its ability to “hallucinate” false cases. However it can also be used to create extremely realistic false documents. This is an issue considered by the judges…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLYING TO RELY ON EXPERT EVIDENCE (2): A GUIDE FOR RESPONDENTS: 10 KEY POINTS WITH USEFUL LINKS
This post is (obviously) the mirror image to the earlier post on applying to rely on expert evidence. Here we look at guidance for those opposing an application to rely on expert evidence. Again there are links to posts that…
PROVING THINGS 297 : THE COURT OF APPEAL OVERTURNED A FINDING THAT A SOLICITOR WAS DISHONEST: RECKLESSNESS AND CUTTING CORNERS ARE NOT THE SAME AS DISHONESTY
There are cases where a party has to prove dishonesty. This can be a difficult task, as this case shows. The test is very different to negligence or recklessness. The failure to address this test fully led to the overturning…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… APPLYING FOR PERMISSION TO RELY ON EXPERT EVIDENCE ? A GUIDE FOR APPLICANTS: 10 KEY POINTS WITH USEFUL LINKS
A post yesterday dealt with an unsuccessful application to rely on expert evidence. This is an opportune moment to review the steps that a party seeking to rely on expert evidence should take. In the interest of balance a later…
EXPERT WATCH 76 : EXPERT EVIDENCE MAY ASSIST, BUT THAT DOES NOT MEAN IT IS REASONABLY REQUIRED: PERMISSION REFUSED IN AN APPEAL WORTH TENS OF MILLIONS
We are looking at a case where the tribunal considered whether a party should be granted permission to rely on expert evidence. The judge went back to first principles to consider the issue. It was a high value case with…
THE DISCLOSURE OF PART 36 OFFERS: IS THE DATE OF AN OFFER PART OF ITS “TERMS”? A QUESTION THAT HAS SOME PRACTICAL CONSEQUENCES: THE HIGH COURT CONSIDERS THE ISSUE
The rules allow the parties to disclose the existence of a Part 36 offer after a split trial. However the judge cannot be told the “terms” of the offer. Here the court considered the interesting (and important) issue of whether…
EXPERT WATCH 75: A CASE REPLETE WITH EXPERT ISSUES: A FAILURE TO PREPARE A JOINT REPORT PLUS THE CLAIMANT CREATES DIFFICULTIES FOR ITSELF WHEN IT DOES NOT ASK ITS EXPERT TO REPORT ON POSSIBLE ALTERNATIVE OUTCOMES
This is the second post on experts today. Here we are in a very different context – the law of dilapidations. This is an area that often requires expert input. In this case we see manifold problems with the way…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PROVING DAMAGES: 10 KEY POINTS AND LOTS OF RELEVANT LINKS
The post earlier this morning identifying a case, from 2015, where a claimant failed to prove any damages, highlighted the need for a recap on this topic. There are a large number of posts on this very topic. In the…
You must be logged in to post a comment.