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…
THE APIL DAMAGES SERIES 2026: A PRACTICAL GUIDE TO ASSESSING PERSONAL INJURY DAMAGES: WEBINARS STARTING ON THE 23rd JULY 2026
The APIL Damages Series 2026 is a nine-part webinar programme looking at key elements of personal injury litigation. The series is intended to provide practical guidance for practitioners dealing with claims of every size, from straightforward road traffic accidents to…
BACK TO BASICS MONDAY: EXPERT WITNESSES HAVE TO HAVE ACCESS TO THE SAME MATERIAL: THE IMPORTANCE OF THE LEVEL PLAYING FIELD
The post earlier this morning set out the judge’s reservations about the nature of the information given to the claimant’s experts. In particular the failure to give the sources of their information. In fact the requirements go further than that. …
EXPERT WATCH 59: THE JUDGE IS CONCERNED THAT THE EXPERTS’ SOURCES OF ADDITIONAL INFORMATION WERE NOT FULLY DISCLOSED: THIS HAS CONSEQUENCES…
There are a large number of cases where the courts have stressed that experts must state clearly what the source of their information is. In this case the judge expressed concerns that the claimant’s experts had obtained information from the…
MEMBER NEWS: USING THE INTERNAL SEARCH FACILITY ON CIVIL LITIGATION BRIEF: WHERE TO FIND IT
Yesterday I received a message from someone who could not find the internal search facility for this site. With more than 10,000 posts obviously the quickest way to find a case, topic or rule is usually to use that function. Here…
EXPERT WATCH 58: SHOULD A DEFENDANT HAVE PERMISSION TO RELY UPON A NEW EXPERT WHICH WOULD LEAD TO THE TRIAL DATE BEING VACATED?
Here we have a case where a defendant applied, late in the day, for an expert in a different discipline to those that had reported to date. Further that application was heard a month before the trial date. The judge…
COST BITES 414 : A WITHDRAWN PART 36 OFFER STILL HAD AN IMPACT ON THE AWARD OF COSTS: CLAIMANTS COULD NOT RECOVER COSTS AFTER DATE OF OFFER
In this case the judge considered the question of whether a Part 36 offer that was withdrawn after trial should have any impact on the award of costs. The judge held that it should. If the claimants had accepted they…
CIVIL PROCEDURE, OPAQUE EVIDENCE AND “YOU SHOULD HAVE KNOWN”: ARGUMENTS THAT HAVE BEEN REJECTED BY THE COURTS – TWO EXAMPLES AND THE UNHAPPY CONSEQUENCES FOR THE LITIGANTS…
We are looking at an argument deployed in a case we considered earlier today. It was an argument that the defendants should have been able to “divine” from the oblique nature of the claimant’s evidence that funding was not in…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES A WITNESS BECOMES A “HOSTILE WITNESS”? WHAT ARE THE CONSEQUENCES?
Earlier this week we looked at a case where a judge allowed the claimants’ application for an order that one of the witnesses they had called be declared a “hostile witness”. This meant that the claimants could then cross-examine their…
CAN THE WORDING OF A COVERING LETTER ENCLOSING TERMS OF BUSINESS FROM A SOLICITOR TO A CLIENT GIVE RISE TO AN ESTOPPEL SO AS TO PREVENT RELIANCE ON THOSE TERMS?
Here we look at a case where a solicitor’s (former) client argued that the wording of a covering letter enclosing the firm’s terms and conditions meant that they were estopped from relying on those terms. It is an interesting example…
WAS A SOLICITOR’S CAP ON LIABILITY FOR NEGLIGENCE TO £3 MILLION “REASONABLE”: COULD IT SURVIVE THE UNFAIR CONTRACT TERMS ACT REQUIREMENTS?
One of the issues in this case related to whether a solicitor’s contractual cap of £3 million was reasonable. The solicitor’s terms of business limited liability to £3 million. Could that cap, on the facts of this case, survive the…
WHY PRINCE HARRY (AND OTHER PROMINENT CLAIMANTS) LOST WHEN THE JUDGE FOUND THAT THEY WERE ALL HONEST WITNESSES – BUT OTHER WITNESSES THEY CALLED PROVED TO BE “HOSTILE”
We are looking at a judgment that has already received major attention from the media. A number of prominent people brought a civil action against Associated Newspapers. The judge found that they were all honest witnesses. However honesty did not…
HALLUCINATED CASE LAW AND THE CROWN PROSECUTION SERVICE (OF ALL BODIES…)
All cases of hallucinated cases are serious, however some may be more serious than others. If we have a situation where the Crown Prosecution Service files documents which rely on cases that simply do not exist, this has to be…
THROWBACK FRIDAY: THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: ANOTHER CASE WHERE (MIS) SERVICE OF THE CLAIM FORM LED TO GRIEF
We are going back to July 2018 where the High Court overturned a first instance decision in favour of a claimant on a service of the claim form issue. The judgment is particularly important because the first-instance judgment appeared to…
THE TCC GUIDANCE ON THE USE OF ARTIFICIAL INTELLIGENCE: A DETAILED EXAMINATION
The section on the use of AI in the latest edition of The Technology and Construction Court Guide is relatively short. However it is significant. It shows that the courts recognise that AI is going to be used. “All legal…
NEW (4th) EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE 2026: A QUICK GUIDE TO THE CHANGES AND THE NEW PARTS
The Fourth Edition of the Technology and Construction Court Guide came into force on 1 July 2026. It is much more than a routine update. Whilst much of the familiar structure remains, there are significant additions reflecting changes in legislation,…
AN INTRODUCTION TO THE CORONER’S COURT FOR PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYERS 2026: WEBINAR 17th JULY 2026
For many personal injury and clinical negligence practitioners, the Coroners’ Court is unfamiliar territory. Yet an inquest can be one of the most important stages in a fatal accident claim. Knowing what the Coroner can (and cannot) do, understanding the…
EXPERT WATCH 57: JUDGE DECIDES THAT AN EXPERT, THAT HAS NOT COMPLIED WITH THEIR DUTIES TO THE COURT, SHOULD BE NAMED; “HE HAD A CHOICE TO INVOLVE HIMSELF IN THESE PROCEEDINGS AND TO BE PAID FOR DOING SO…”
Here we are looking at a decision related to the case we looked at yesterday relating to a medical expert in a family case. The judge gave a decision on whether an expert, who she found had failed in their…
PERSONAL INJURY MATTERS 17(2): LIABILITY CATCHUP (2): A SUCCESSFUL STRESS AT WORK CLAIM CONSIDERED
We are continuing with our brief look at cases relating to liability. This case is a stress at work action where the claimant was successful. There are a considerable number of hurdles for claimants to deal with in this category…
WITNESS EVIDENCE WEDNESDAY: WHEN A LITIGATOR MAKES A STATEMENT ON BEHALF OF THEIR CLIENT: A USEFUL CHECKLIST ON THE SOURCE OF INFORMATION AND BELIEF
We have looked several times recently at the problems caused when a litigator serves their own witness evidence on behalf of a client, particularly a “corporate” client. It often turns out that large parts of this statement are inadmissible, consisting…
EXPERT WATCH 56: A SECTION OF A JUDGMENT THAT SPECIFICALLY CRITICISES A MEDICAL EXPERT: “I WAS STRUCK BY THE ABSENCE OF A RIGOROUS AND CAREFUL MULTIDISCPLINARY APPROACH TO THIS ISSUES IN THIS CASE”
One of the fascinating things about procedure is how the same principles apply across a whole range of cases. This is particularly the case with issues relating to evidence, particularly expert evidence. Earlier we looked at expert evidence in relation…
EXPERT WATCH 55: WAS THIS WAR? (OR CAUSED BY WAR): TRIAL JUDGE CONSIDERS THE EVIDENCE OF TWO EXPERTS ON GEOPOLITICS, BUT FINDS ONE IS PARTISAN
It is never helpful to a party’s case when a judge comes to the conclusion that the expert they have instructed is partisan. We have an example of this in this extremely high value case. There is interesting commentary on…
PERSONAL INJURY MATTERS 17 (1): LIABILITY CATCHUP (1): PUB OPERATOR IS NOT VICARIOUSLY LIABLE FOR DOORMEN’S ACTS: A CONCLUSION REACHED “WITH REGRET”
To ensure that those CLB readers who are personal injury litigators are not neglected there is a short series this work looking at recent decisions in relation to liability (a similar series on damages will feature in a few weeks…
SERVICE POINTS 48 : A DEFAULT JUDGMENT IN THE FIRST ACTION (AGAINST A DEFENDANT WHO WAS NEVER SERVED) LEADS TO A SECOND ACTION BEING STRUCK OUT
This is a sorry tale. Someone who may have had a perfectly good claim for damages for personal injury has their case struck out because of procedural mishaps by their own solicitors. It all stems from a failure to serve…
BACK TO BASICS MONDAY (2): A SERIES OF CHECKLISTS TO HELP YOU WITH DRAFTING STATEMENTS FOR “CORPORATE” CLIENTS: THE SOURCE OF INFORMATION AND BELIEF
The normal post on back to basics came out a day early (due to an “administrative” error). However it does give us a chance to revisit the practical implications when a litigator has to draft a witness statement on behalf…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION IN A WITNESS STATEMENT WHEN THERE IS A CORPORATE CLIENT: PROBLEMS KEEP OCCURRING
Today we are looking at what is a common issue, and common mistake, when someone makes a witness statement for, or on behalf of a corporate client. The CPR expressly provides that a witness must state the source of “information…
THROWBACK FRIDAY: “WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY? (JULY 2014): ISSUES OF WITNESS CREDIBILITY CONSIDERED
This week we go back 12 years to look at one of the recurring themes of this blog: witness credibility. We looked at a judgment which was all about the judge’s assessment of the witnesses. This was made more difficult…
EXPERT WATCH 54 : THE DEPUTY MASTER SHOULD NOT HAVE IGNORED THE EXPERT EVIDENCE BEFORE THE COURT: IT WAS RELEVANT AND ADDRESSED THE CENTRAL ISSUE
We are looking at a case where, on appeal, the judge found that a Deputy Master fell into error by failing to take into account relevant expert evidence provided by a claimant. The judge held that the Master had misunderstood…
A SOLICITOR SHOULD JUST NOT BE SAYING THIS IN A WITNESS STATEMENT: IT “STRAYED WELL BEYOND WHAT SHE COULD LEGALLY GIVE EVIDENCE ABOUT FROM HER OWN KNOWLEDGE INCLUDED HEARSAY FROM AN UNNAMED SOURCE AND INCLUDED STATEMENTS OF OPINION WHICH SHE DID NOT HAVE THE EXPERTISE TO GIVE…”
There are numerous cases reported on this blog where judges have been critical of the “evidence” given by solicitors in witness statements. In many cases, even on cursory examination, it transpires that the lawyer is not in a position to…
COST BITES 407: COURT OF APPEAL OVERTURNS DECISION STRIKING OUT POINTS OF DISPUTE BECAUSE OF NON-AINSWORTH COMPLIANCE: JUDGMENT GIVEN TODAY
In this case the Court of Appeal overturned a decision, itself made on appeal, which had struck out a crucial paragraph of Points of Dispute to a bill of costs. The crucial point here, however, is that this is not…
FIVE THOUSAND CLAIMANTS AND JUST EIGHT COURT FEES: COURT OF APPEAL UPHOLDS DECISION ON CPR 7.3
In this case the Court of Appeal upheld a decision that some 5,000 individual small value cases could proceed together as, essentially, one action. The provisions of CPR 7.3 were considered and the Court held that the High Court Judge…
THE COURT WAS WRONG NOT TO STRIKE THE DEFENCE OUT: A FAILURE TO DISPUTE A POINT IN THE JERSEY COURTS MEANT IT WAS NOT OPEN TO A DEFENDANT TO ARGUE IT IN A SECOND ACTION
This is a case where, on appeal, it was held that it was not open to a defendant to bring an action because they had already had the ability to raise issues with a court in Jersey. The judge held…
ADVOCACY – THE JUDGE’S VIEW: LOOKING AT SERIES 2: AND WHY THIS APPLIES TO ALL LITIGATORS… (INCLUDING THAT REGULAR MISSIVE THAT YOU SHOULD NOT THREATEN YOUR OPPONENT WITH A PROCTOLOGY EXAMINATION..)
I will soon be starting a new series on “Advocacy – the Judge’s view”. This draws on the principle that whilst judges are the advocate’s clients they are their “consumers” so to speak. Before that it is useful to remind…
ARTIFICIAL INTELLIGENCE AND LITIGATION: AN UPDATE ON CONSULTATION FINDINGS FROM THE CIVIL JUSTICE COUNCIL
The Civil Justice Council is carrying out a Consultation on the Use of AI for the preparation of court documents. It published an update on its consultation findings yesterday. The preliminary view appears to be that the use of AI…
WITNESS EVIDENCE WEDNESDAY 2: A CHECKLIST FOR THOSE CALLED UP TO PREPARE WITNESS STATEMENTS IN A “FAREPAK” TYPE SCENARIO
The previous post contained a review of the judge’s comments in the Farepak case. The judicial observations that witness statements are often misused and misunderstood is one of an extremely large number of such observations. (The “Related Posts” section below…
WITNESS EVIDENCE WEDNESDAY: THE CASE WHERE THE GOVERNMENT’S WITNESS EVIDENCE WAS SO BAD THAT IT WITHDREW THE CASE BEFORE THE RESPONDENTS GAVE EVIDENCE: WHY THE PRINCIPLES RELATING TO WITNESS EVIDENCE NEED TO BE UNDERSTOOD
Recent posts have revisited the age-old problem of witness statements being misused. They often contain argument and comment. For that reason we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson…
DAMAGES IN ANTICIPATION OF DEATH AND LOSSES PRIOR TO DEATH 2026: WEBINAR 2nd JULY 2026
Not all fatal claims fall neatly under the Fatal Accidents Act 1976 framework or the general rules of personal injury damages. This is an area where practitioners have to act with great sensitivity but also where a detailed knowledge of…
EXPERT WATCH 53 (THAT CLINICAL NEGLIGENCE CASE AGAIN): THE DEFENDANT’S EXPERTS MADE MISTAKES AND THEN “GAVE AN IMPRESSION OF LOFTINESS” : THE JUDGE FELT UNABLE TO RELY ON THEIR CONCLUSIONS
Here we have an example of a judge clearly rejecting the expert evidence adduced on behalf of a defendant and giving clear grounds for the criticism of them. This was in the context of a case where the defendant had…
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