THROWBACK FRIDAY: “PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT” (OCTOBER 2015)
Here we look at an issue that has given rise to numerous posts on this site over the years – a party fails to prove an essential element of their case. Here the failed to adduce evidence that they had…
EXPERT WATCH 74: “HE EFFECTIVELY ASSUMED AN IMPERMISSIBLE ROLE PROMOTING A PROSECUTION CASE”: EXPERT AND PROSECUTORIAL MISCONDUCT LEAD TO CONVICTIONS BEING QUASHED
We are in unusual territory here in looking at a Criminal Appeal Case from Northern Ireland. However, the importance of the role of the expert knows no real geographical or jurisdictional limit, and the issues raised here are of major…
MILLIONS OF DOCUMENTS, 27 FACTUAL WITNESSES AND THE ASSESSMENT OF CREDIBILITY: WITNESS EVIDENCE IN THE MANCHESTER CITY PROCEEDINGS
Yesterday we looked at an issue in the news to review questions of witness credibility. We do the same today in a wholly different context: football and the decision in the proceedings brought against Manchester City Football Club. However we…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES THE ABSENCE OF DOCUMENTS JUSTIFY AN ADVERSE INFERENCE ON SUMMARY JUDGMENT? IS THE WITNESS EVIDENCE DEFINITIVE?
The issue of how far a court can take witness statements at face value at an interlocutory hearing is always an interesting one. Similar issues arise in considering the question of the extent to which a court can take into…
WHAT HAS CIVIL LITIGATION BRIEF DONE… ABOUT WITNESSES GIVING EVIDENCE ABOUT THINGS SAID MANY YEARS AGO ? 10 KEY POINTS ON WITNESS EVIDENCE WITH USEFUL LINKS
There is a lot of controversy at present in relation to recollections about telephone conversations that took place three decades ago. We are staying away from that particular dispute. However it highlights a common issue in litigation. People can have…
GUIDE TO FATAL ACCIDENTS 5th EDITION: PUBLISHED LATER THIS YEAR: AVAILABLE TO PRE-ORDER
The latest (the 5th) edition of the Guide to Fatal Accidents is now available to pre-order. Details are available here. Fatal accident litigation presents lawyers with legal, evidential and practical problems that are distinct from those encountered in non-fatal…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … HOUSING LAW, COSTS AND PROCEDURE: 10 KEY POINTS AND USEFUL LINKS
There are much more specialist blogs available for housing lawyers and I’m glad to say that “Nearly Legal” is recommencing next month. The posts on this site concentrate on procedure and costs and the Ten Key Points here reflect that. …
INTERIM PAYMENTS: THE EXISTENCE OF DISPUTED DEFENCES AND COUNTERCLAIMS DID NOT PREVENT AN AWARD OF £1.4 MILLION
Lord Denning once observed of Cashflow that “It is the very lifeblood of the enterprise”. This remains the case for most modern businesses. In this respect an application for an interim payment can be a powerful tool. Sometimes essential to…
EXPERT WATCH 73: AN “AD HOMINEM ATTACK” ON A PARTY’S EXPERT FAILS TO IMPRESS THE JUDGE
The Intellectual Property Enterprise Court is usually the most genteel of courts particularly when it comes to the treatment of expert evidence. That is one of the reasons this judgment comes as somewhat of a surprise. The strategy adopted in…
BACK TO BASICS MONDAY: DOCUMENTS ARE ADMISSIBLE WHEN THEY ARE IN AN AGREED TRIAL OR APPLICATION BUNDLE BUT…
Agreeing a trial or application bundle can have consequences that are easy to overlook. Documents in an agreed bundle are usually admissible as evidence of their contents. That does not mean that the parties agree that everything written in them…
PROPORTIONALITY AND LITIGATION (4): 10 POINTS TO WATCH OUT FOR ON THE ASSESSMENT OF COSTS TOGETHER WITH USEFUL LINKS
The very word “proportionality” still plays a major part in many cost assessments. The Points of Dispute state, often vehemently, that the costs are wholly disproportional. The Points of Reply respond, usually twice as vehemently, that proportionality is not just…
THE CURRENT IMPORTANCE OF PLEADINGS 95: THE DEFENDANT’S ARGUMENT THAT THE JUDGE HAD AWARDED THE CLAIMANTS MORE THAN THEIR PLEADED CASE
This is another case relating to pleading damages. Here the objection was that the judge had awarded the claimants more than they had pleaded. In some circumstances this may have made a difference. On the facts of this case it…
EXPERT WATCH 72: THE DEFENDANT HAD LEFT IT TOO LATE TO OBJECT TO THE CLAIMANTS’ EXPERT EVIDENCE: THIS SHOULD HAVE BEEN DONE AT TRIAL NOT AT THE APPEAL STAGE
If a party is going to object to their opponents relying on expert evidence this is best done promptly. Leaving it to the appeal stage is dangers – as this case shows. The defendant received a report, commented on the…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PLEADING DAMAGES? A 10 POINT CHECKLIST TO AVOID YOUR CLIENTS (AND YOU…) GETTING INTO DIFFICULTIES…
The two posts earlier today on the judgment in Amaal Ventures Ltd v Eros Ltd looked at problems arising because of a failure to plead damages. This is not an new issue. Here we use the CLB archive to provide…
WITNESS EVIDENCE WEDNESDAY: WAIVING LEGAL PROFESSIONAL PRIVILEGE BY MENTIONING IT IN A WITNESS STATEMENT
Issues of legal professional privilege have been in the news this week. This makes it an opportune time to revisit those cases where litigants have inadvertently waived privilege by mentioning legal advice in witness statements. “… there is a distinction…
WHAT HAS CIVIL LITIGATION BRIEF EVER DONE FOR US? PERSONAL INJURY INJURY LAWYERS AND ISSUES OF LIABILITY
This series enables us to pick up key topics from this blog over the past 13 years and relate them to specific areas of practice. The aim is to highlight the fact that the site is a useful resource as…
THE SRA CANNOT COMPEL A SOLICITOR TO DISCLOSE A CLIENT’S PRIVILEGED DOCUMENTS: THE FUNDAMENTAL IMPORTANCE OF LEGAL PROFESSIONAL PRIVILEGE
This is an important case about legal professional privilege. The headline result is that the SRA have no power to override such privilege when carrying out an investigation. It also highlights the hurdles any party can face when seeking to…
A FITTING END TO THE BAYEUX THEMED WEEK: SHOULD FRANCE HAVE JURISDICTION IN THIS CASE? MORE ABOUT LAWYERS USING WITNESS STATEMENTS TO PUT FORWARD LEGAL ARGUMENTS (DO IT IF YOU WILL – BUT IT NEVER HELPS…)
Observant readers (and possibly the less observant ones) will have noticed that this week we have been paying homage to the arrival of the Bayeux Tapestry in the UK. It is fitting then that we end the week with a…
THROWBACK FRIDAY: “OFFICE GOSSIP PROVES NOTHING”: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF” (SEPTEMBER 2016)
This post written a decade ago deals with a recurring point in litigation as we have already seen this week. The tendency of witnesses, and lawyers to allow witnesses, to give “evidence” in witness statements of matters on which they…
WHEN CHAT GPT DRAFTED A “SKELETON” ARGUMENT – 300 PAGES AND 132,000 WORDS LONG: THE LITIGANT RETAINS RESPONSIBILITY AND MUST COMPLY WITH THE RULES
We have here another example, in a judgment today, of the difficulties caused by the use of AI. ChatGPT “helpfully” drafted a “skeleton” argument that was 300 pages long (the maximum page length allowed was 20 pages). This was coupled…
COURT REFUSES DEFENDANTS’ APPLICATIONS TO AMEND AND TO RESILE FROM ADMISSIONS: A SUBMISSION THAT “WELL WE WERE LYING WHEN WE SIGNED THOSE STATEMENTS OF TRUTH” IS NOT A GOOD STARTING PLACE
Here we have a case where an application to resile from admissions and to amend defences were rejected in clear and categorical terms. To a large extent the change of position of the applicants were based on an argument that…
ADVISING THE CLIENT OF THE RISKS OF LITIGATION: TEN USEFUL CHECKLISTS COUPLED WITH THE RELEVANT LINKS
The previous post considered the nature of a solicitor’s duty in a conveyancing transaction. The judgment considered the nature of the solicitor’s duty to warn of risks. Here we pull together many posts and cases on advising on the risks…
PROFESSIONAL NEGLIGENCE NEWS 5 : WHY A SOLICITOR CAN BE NEGLIGENT, A CLAIMANT HONEST AND YET BE WHOLLY UNSUCCESSFUL IN A PROFESSIONAL NEGLIGENCE ACTION
We are looking at a case which explores the limits of a solicitor’s duty of care. It relates to conveyancing, however there are many points of interest to litigators. Firstly in relation to the reason the case failed (the “duty…
WITNESS EVIDENCE WEDNESDAY: THOSE WHO DRAFTED THE WITNESS STATEMENTS “HAVE FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: A USEFUL CHECKLIST AND LINKS TO KEEP YOU ON THE STRAIGHT AND NARROW
Here we look at a case where the judge was extremely blunt in his critique of the way in which both parties had drafted the witness statements. The judgment was from a few years back. However we are looking at…
THE DIFFICULTIES WHEN MAKING A CLAIM FOR LOSS OF EARNINGS OF THE SELF-EMPLOYED OR SOMEONE INVOLVED IN SPORTS OR ENTERTAINMENT: WEBINAR 29TH SEPTEMBER 2026
Claims for loss of earnings become particularly difficult when the claimant is not an employee. The court may have to reconstruct the likely progress of a business, professional practice, sporting career or career in the arts. Past income may fluctuate…
THE CURRENT IMPORTANCE OF PLEADINGS 91 : THE COURT FINDS FOR THE CLAIMANT ON A POINT NOT PLEADED: THE IMPORTANCE OF THE STATEMENT OF THE AGREED ISSUES FOR TRIAL
The previous post looked at the costs consequences of a claimant pleading a case on a wide basis and then succeeding on the basis of a case that was not specifically pleaded. It is worthwhile looking at the judgment on…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (5): “THE HEARING WAS A SALUTARY LESSON IN HOW AI MAY PROMPT LAY PERSONS TO SAY THE RIGHT THINGS IN PLEADINGS, BUT CANNOT FURNISH THE EVIDENCE NEEDED TO ESTABLISH THOSE STATEMENTS”
This morning we are travelling to Scotland to look at a case where the judge indicated that the use of AI had led the pursuers (claimants) to bring forward a claim that was largely unsupported by evidence. This led to…
A COURT SETS ASIDE AN ORDER MADE WITHOUT NOTICE: ANOTHER CASE THAT EMPHASISES THE IMPORTANCE OF FAIR PRESENTATION AT THESE APPLICATIONS: A LAWYER CANNOT SIMPLY PROMOTE A “CONSPIRACY THEORY” BUT MOST ACT OBJECTIVELY AND CAREFULLY
We have looked many times at cases where “without notice” applications have come under fire. In particular in relation to arguments that the applicants have failed in their duty of full and frank disclosure to the court. We see that…
EXPERT WATCH 71: “I DO NOT ATTACH WEIGHT TO THIS REPORT AS EXPERT EVIDENCE”: THE EXPERT WAS “ADVOCATING” AND “HE TRESPASSES INTO THE ROLE RESERVED TO THE TRIBUNAL”
We have seen that judge jealously (and rightly) guard against experts trespassing into the judicial role of fact finding. They are also suspicious of experts that take the role of advocates rather than independent experts. We see both of these…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (4): EXPERTS AND THE USE OF AI: A LOT OF DANGER AREAS HERE: 20 KEY POINTS
Here we consider the risks that occur when experts use AI when they prepare a report or give evidence. We have seen several examples on this blog of evidence going awry. Here we draw upon guidance from previous posts, but…
LOSS OF EARNINGS CLAIMS 2026: WEBINAR 16th SEPTEMBER 2026
This year has seen some important cases in relation to the way in which the courts approach claims for loss of earnings. This webinar provides a practical and comprehensive examination of claims for loss of earnings in personal injury litigation….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (3): AI AND WITNESS EVIDENCE: VERY DANGEROUS BEDFELLOWS: TWENTY KEY POINTS
We have looked several times at the dangers of using Artificial Intelligence to draft witness statements. It would be naive to believe that this issue is not going to arise again. Indeed it may well already be a common feature…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
BACK TO BASICS MONDAY: LAWYERS AND ARTIFICIAL INTELLIGENCE (1): THREE IMPORTANT PRINCIPLES: YOU OWN THE WORK; AI IS NOT AN AUTHORITATIVE SOURCE OF LAW; IT IS NOT ENOUGH THAT THE CASE EXISTS…
The post earlier today on the misuse of AI when defending an SDT hearing has led me to start a short series about the dangers of lawyers (litigators in particular) using AI. This is not an anti-AI stance. There is…
MORE ON THE USE OF ARTIFICIAL INTELLIGENCE AND “HALLUCINATING” CASE LAW AND LEGAL PRINCIPLES: THE SOLICITORS DISCIPLINARY TRIBUNAL GIVES A CLEAR VIEW…
We have now looked at numerous court cases where lawyers have come to grief because of the use of Artificial Intelligence to cite law incorrectly, or simply manufacture false cases and equally false legal principles and citations. Here we have…
PROVING THINGS 296 : PROVING THE EARNINGS POTENTIAL OF AN INJURED CHILD: THE LOST YEARS CALCULATION CONSIDERED AND APPLIED
When the Supreme Court gave the judgment in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5 it was clear that there were going to be major evidential issues…
EXPERT WATCH 70: EXPERTS’ FAILURES TO REPORT ON THE RANGE OF OPINIONS LEADS TO THEIR VIEWS BEING REJECTED: ESSENTIAL READING FOR EVERY PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYER, ANYONE WHO INSTRUCTS AN EXPERT (AND ANY EXPERT…)
This blog has considered, many times, the (almost universal) failure of expert reports to comply with CPR PD 35.2 – that is the mandatory duty of an expert to consider whether there is a range of opinions in the matters…
WEBINAR ON PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: 9th SEPTEMBER 2026: USEFUL GUIDANCE, CHECKLISTS AND QUESTIONNAIRES
This webinar provides a practical and up-to-date analysis of the law and practice relating to provisional damages and periodical payments in personal injury litigation. It begins with a review of recent case law, including a professional negligence claim arising from…
SHOULD (OR CAN) THE COURT MAKE AN ORDER FOR PRE-ACTION DISCLOSURE WHEN THE PROPOSED DEFENDANT IS BASED IN ITALY? ANOTHER PAD APPLICATION COMES TO GRIEF…
Earlier today I promised a second post on pre-action disclosure. This case considered a number of issues, including whether the court actually has jurisdiction to make a PAD order when the respondent is based abroad. The judgment goes further than…
THROWBACK FRIDAY:”WITNESS STATEMENTS: WHEN THINGS GO WRONG BLAME THE SOLICITOR” (SEPTEMBER 2016)
Here we are looking at a post from September 2016 on an issue that remains extremely current. When a witness statement is found to be inaccurate that witness will often blame their solicitor, or the person responsible for drafting the…
THE CURRENT IMPORTANCE OF PLEADINGS 90: THE COURT OF APPEAL WAS WRONG TO HOLD ONE DEFENDANT TO HIS PLEADED CASE WHILST EXONERATING A CO-DEFENDANT: THIS LED TO A FINDING THAT WAS AN “ABSURDITY”
In this case the Judicial Committee of the Privy Council considered whether the Court of Appeal in Trinidad and Tobago was correct to hold one defendant in a clinical negligence case to their pleaded case whilst, effectively, exculpating a co-defendant. …
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
ADVOCACY THE JUDGE’S VIEW SERIES 4: A RECAP OF THE PREVIOUS SERIES AND THE DEADLY SINS OF ADVOCATES: DON’T BE CONFUSING OR BORING
The fourth series on the Judge’s views of advocacy only had two posts. The second post in the series consisted of a tweet from an (anonymous) judge “Get to the Point Quickly”. The first in the series contained a…
COST BITES 443: USEFUL CHECKLISTS: A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR CLAIMANTS)
The review on the book on Costs in Housing Disrepair cases last week led me to consider a series of checklists on costs. I am starting with costs for claimant housing lawyers. However this site is even handed, the next…
INSURER’S APPLICATION TO COMMIT STRUCK OUT AS AN ABUSE OF PROCESS: LITIGATION IS NOT CONDUCTED ON THE BASIS THAT, NOTWITHSTANDING THE ABSENCE OF EVIDENCE, A PARTY MAY BE ABLE TO PUT MATTERS RIGHT AT SOMETIME IN THE FUTURE…
In this case an insurer’s application to commit a personal injury claimant to prison was struck out. This was because the insurer applicant failed to satisfy the court that it had any right to bring the action in the name…
“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…
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