THE CURRENT IMPORTANCE OF PLEADINGS 47: YOU CAN’T CRITICISE A JUDGE FOR NOT FINDING ON A CASE THAT WAS NOT PLEADED (AND ON ANOTHER ISSUE WHERE THE CLAIMANT EXPRESSLY DISAVOWED THE CLAIM NOW BEING MADE ON APPEAL)
Here we are looking at an unusual appeal. The appellant argued firstly that the judge should have found for them on a point that was not pleaded. A second argument was that the judge should have assessed loss on a…
WAS THIS “SECOND” ACTION AN ATTEMPT TO RE-OPEN MATTERS HAD HAD BEEN DETERMINED IN AN EARLIER HEARING? IF SO WHAT SHOULD THE COURT DO?
When a party is dissatisfied with the result of a hearing and has exhausted the appeal process there is often little they can do. One potential remedy is to bring a second action seeking to set aside the first on…
BACK TO BASICS MONDAY: SERVICE ON AN INDIVIDUAL USING S.1140 OF THE COMPANIES ACT 2006
This post reminds claimants that service can take place under s.1140 of the Companies Act on an individual in their capacity as an individual. It also serves as a reminder to defendants, and anyone who is a company director that…
THROWBACK FRIDAY: APPLICATIONS FOR RELIEF FROM SANCTIONS: 10 POINTS TO IMPROVE THE ODDS: LOOKING BACK TO JANUARY 2016
This blog celebrates its 13th birthday later this year. Civil Litigation Brief started as a series in the Solicitors Journal 35 years ago. Needless to say it has a large “back catalogue”. I wanted a regular opportunity to bring important…
WHEN CAN A JUDGE ADD ADDITIONAL MATERIAL TO A JUDGMENT AFTER HANDING DOWN? COURT OF APPEAL CONSIDERED THE ISSUE
Here we are looking at an old case. However it has only recently arrived on BAILII and deals with an issue that remains relevant today. The Court of Appeal considered the issue of when is it appropriate for a judge…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
EXPERT WATCH 30 : WHEN THE EXPERTS REPORT ON THE BASIS OF DIFFERENT INFORMATION AND DOCUMENTS: IT WAS APPARENT THAT SOMETHING HADE WRONG WITH THE PROCESS OF OBTAINING EXPERT OPINION EVIDENCE
Here we have problems with the way in which handwriting experts were instructed. The difficulty being that different experts were given different documents. This led to difficulties at trial. However, ultimately, it did not favour the defendants. The judge was…
EXPERT WATCH 29: THE JUDGE IS WARY OF A CLINICAL EXPERT WHO IS “HEAVILY INVOLVED IN THE BUSINESS OF LITIGATION”
There have been a number of cases in recent years where judges have been wary (sometimes highly sceptical) of expert witnesses who make their living solely from being involved in litigation. We have another example here. There is no indication…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
COURT OF APPEAL REFUSES PERMISSION FOR APPELLANT TO AMEND PLEADINGS OR RELY ON NEW EVIDENCE: GET YOUR CASE TOGETHER BEFORE AN APPLICATION NOT AFTER IT…
In this judgment today the Court of Appeal refused an application by an appellant to rely on amended Particulars of Claim or adduce new evidence in a case where the claim was struck out. The Court made the point that…
CLINICAL NEGLIGENCE CORNER 6 : CAUSATION WHEN THE INJURIES OCCURRED BEFORE THE NEGLIGENCE: THE BREACHES MADE NO DIFFERENCE TO THE OUTCOME
Practitioners in every field of litigation need to be aware of the need to prove causation in addition to breach. This requirement can sound particularly harshly in clinical negligence. We see an example here. There were some breaches of the…
NEW YEAR: NEW GUIDELINE HOURLY RATES: SEE THE DETAILS HERE: EFFECTIVE FROM YESTERDAY
The new Guideline hourly rates were published yesterday. They take effect from 1st January 2026 (for anyone working on that day…). They have been updated using service producer price inflation (SPPI). THE INCREASES The increases are 2.28%, using the…
NEW SERIES FOR 2026: CIVIL PROCEDURE “BACK TO BASICS MONDAY”: STARTING ON …. MONDAY…
We look at many cases on this blog where litigants (often more accurately – litigators) experience major procedural difficulties. It is surprising how often these difficulties arise from a very basic failure. That is a failure to follow a rule,…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
REVIEW OF THE YEAR 11: OPENING LINES OF JUDGMENTS 2025: “FOR MILLIONS OF YEARS MEN LIVED JUST LIKE ANIMALS”: ST PAUL’S CATHEDRAL, SHERLOCK HOLMES AND FINDING INGENIOUS WAYS NOT TO PAY TAX: ALL LITIGATION LIFE IS HERE…
Consideration of the opening lines of judgments has been a feature of this blog for some years now. It has sometimes been a way of providing a little light relief towards the end of what is often a 12 month…
REVIEW OF THE YEAR 10: BUNDLES: CHAOTIC, “HUGGER MUGGER”, DIFFERENT PAGINATION AND AN APPEAL ALLOWED BECAUSE OF THE UNFAIRNESS CAUSED BY THE BUNDLES
Issues relating to bundles have always been a part of this blog. These are issues that litigators ignore at their peril. Judges coming to the case afresh will not know your legal qualifications, the eminence of your practice and initially…
FRAUDSTERS OPERATING IN THE GUISE OF OFFICIAL COURT ENFORCEMENT STAFF: £45,549 LOST: A WARNING TO ALL DEFENDANTS AND JUDGMENT DEBTORS HERE
A judgment debtor is in a vulnerable position. There are companies out there taking advantage of that vulnerability by pretending to be official enforcement agencies and taking money off the debtors. We have such a case reported here. The judge…
REVIEW OF THE YEAR 8: PROVING THINGS – OR NOT PROVING THINGS, AS THE CASE MAY BE…
The “Proving things” series is the longest running feature of this blog. Initially I thought it would be a series of then posts. I was planning to end it at a hundred when a chance conversation on the Leeds Legal…
WHEN THE WITNESS STATEMENT OF THE DEFENDANT CONTAINS PASSAGES THAT ARE CUT AND PASTED FROM AN EXPERT’S REPORT: SOMEONE MAY NOTICE THIS…
It is clear that many judge’s approach witness statements with a degree of scepticism, regarding them more as a lawyer’s construct than the actual recollection of the witness. In this case the defendant’s own witness statement included passages that were…
REVIEW OF THE YEAR 6: EXPERTS IN THE COURTS IN 2025: CASES ON THIS BLOG
I am surprised (but perhaps shouldn’t be) at the sheer number of cases involving experts that the blog has covered this year. In July I started the “Expert Watch” series to focus on cases about the conduct of experts and…
WITNESS EVIDENCE WEDNESDAY: JUDGE CONSIDERS ADMISSIBILITY OF WITNESS EVIDENCE ON THE FIRST DAY OF TRIAL: “ARE YOU EXPERIENCED”?
It is unusual for a judge to consider the admissibility of witness evidence on the first day of a trial. However, in some ways, this is an unusual case. The judge found that the statement was relevant to the pleaded…
USING WHATSAPP AND OTHER MEANS OF COMMUNICATION WITH CLIENTS: THE RISKS CONSIDERED
The previous post looked in detail at the issues in a solicitor and own client assessment caused by the solicitor’s use of WhatsApp. That judgment gives rise to much wider issues in relation to how solicitors communicate with clients. In…
COST BITES 319: WHATSAPP MESSAGES CAN FORM PART OF A SOLICITOR’S FILE: THE DEFENDANT FIRM WAS, THEREFORE, IN BREACH OF A PEREMPTORY ORDER
This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp form from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication,…
“HALLUCINATIONS” IS NOT A GOOD WORD FOR FALSE CASES GENERATED BY AI: THIS JEOPARDISES THE RULE OF LAW: LESSONS FROM THE COURTS OF OREGON
The issue of the citation of false cases generated by Artificial Intelligence is, it is clear, an international one. Here we have a decision from the Court of Appeals in the State of Oregon. Among other things it challenges the…
COURT REFUSES CLAIMANTS’ APPLICATION THAT WITNESS BE ANONYMOUS
In this case the judge considered in detail the principles relating to a witness in a civil trial being granted anonymity. The evidence in support of the application was found to be somewhat speculative. There is, it was held, a…
WAS THIS AN ABUSE OF PROCESS/ABUSE OF PROCESS OR WERE PREVIOUS JUDICIAL OBSERVATIONS “OBITER DICTA”? AN IMPORTANT ISSUE CONSIDERED
Most (hopefully all) law students learn about the difference between the ratio decidendi of a case and “obiter dictum”. These important distinctions can have real world consequences. We look at a judgment here where that was the major issue between the…
THE CURRENT IMPORTANCE OF PLEADINGS 44: COUNTERCLAIM WAS “INADEQUATELY PLEADED AND ABUSIVE”: DEFENDANT FAILED TO PROPERLY PARTICULARISE ITS CASE
This is a case where the judge agreed with a submission that the counterclaim was “inadequately pleaded and abusive”. The judge held that there was no need to formally strike it out, it failed in any event. There are lessons…
EXPERT WATCH 28: I CAN’T GIVE PERMISSION FOR AN EXPERT BECAUSE THIS IS SIMPLY NOT EXPERT EVIDENCE: FORENSIC ACCOUNTANT’S REPORT DOESN’T GET THE CREDIT IT DESERVES…
The judge here held that the report prepared by a forensic accountant was not, in fact, an expert’s report. The report well be helpful, but its contents did not come within the meaning of “expert evidence”. Further insofar as the…
REVIEW OF THE YEAR (2) – THE WORST PART: “HALLUCINATED” CASES IN THE COURTS: HOW IS ARTIFICIAL INTELLIGENCE BEING HANDLED & WHAT DOES THE FUTURE HOLD FOR AI AND LAWYERS?
If I had to pick the most frightening development of the year it is the revelation that parts of the legal profession have been relying on “hallucinated” (that is false) cases they have “found” by using Artificial Intelligence. Here we…
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
A BREACH OF “PURDAH” OBLIGATIONS WHEN A WITNESS IS GIVING EVIDENCE: MISGUIDED BUT NOT DISHONEST
This is a brief reminder of the importance of the obligations of a witness not to communicate with others (including their own legal team) whilst in the course of giving evidence. “This was obviously ill-advised but I accept that, by…
WHAT IS THE APPROPRIATE COURSE WHEN A PARTY ALLEGES THAT A JUDGMENT WAS OBTAINED BY FRAUD? THE HIGH COURT CONSIDERS THE ISSUES
What should a party do if it alleges that a judgment has been obtained by fraud? Can it apply within the proceedings themselves to set the judgment aside or should it issue separate proceedings? In this case the judge carried…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
THE CURRENT IMPORTANCE OF PLEADINGS 41: HAD THE DEFENDANT PROPERLY PARTICULARISED ALLEGATIONS OF FUNDAMENTAL DISHONESTY?
A party alleging fraud or dishonesty cannot “ambush” their opponent at trial. Fraud must be fully particularised and pleaded. Do identical principles apply to allegations of fundamental dishonesty? In this case the judge considered an argument that points in relation…
WHEN CAN ADVERSE FINDINGS ABOUT A WITNESS IN A CASE BE APPEALED? THE COURT OF APPEAL CONSIDERS THE ISSUES
It is not unusual for trial judges to be critical of the conduct or evidence of a witness in a case. What should a witness do if the judgment is critical of them? Do they have a right of anonymity? …
ANOTHER “HALLUCINATED” AUTHORITIES CASE: A FALSE CITATION AUTHORED OR REVIEWED BY A LAWYER WITHOUT ATTRIBUTION CAN STILL BE SUBJECT TO REFERENCE FOR MISCONDUCT OR CONTEMPT
The citation of “false” authorities shocked me (and many others) when the cases first started. Now it feels as if they are becoming a commonplace occurrence. They are, however, just as shocking. Here we have a case where the judge…
THE HILLSBOROUGH REPORT AND THE AMENDMENT OF WITNESS STATEMENTS: NEW INFORMATION IN THE IPOC REPORT PUBLISHED YESTERDAY
This blog has looked at the issues relating to evidence gathering and the Hillsborough tragedy several times, in particular the way that witness statements were gathered, and the reports amended. The issues were considered again in the Independent Office for…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
SERVICE POINTS 25: DOES AN EARLIER ORDER FOR SUBSTITUTED SERVICE BY EMAIL INCLUDE SERVICE OF AN APPLICATION TO COMMIT: SHOULD THE COURT RETROSPECTIVELY AUTHORISED SERVICE?.
Here we consider an argument as to whether an application to commit for contempt was validly served. The respondent argued that the application needed to be served in person. The applicant’s argument was that there was in place an order…
CLINICAL NEGLIGENCE CORNER 5: ANOTHER CASE OF “WHAT WAS SAID?” AND “WHY WASN’T THAT PARTICULAR POINT IN THE MEDICAL NOTES?”
Here we have a clinical negligence case with a familiar issue. The trial depended on whose account the judge accepted of what was said in a particular medical consultation several years earlier. The treating doctor can, in reality, remember little…
MAZUR COMPLIANT SUPERVISION AND COST EFFECTIVE DELEGATION IN 2025: WEBINAR 5th DECEMBER 2025: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
With an appeal pending (at some indefinite time) and the profession still rife with uncertainty we need to consider, head on, issues relating to delegation and supervision. Get this right and you will be part of a well run and…
EXPERT WATCH 27 : WHAT DOES THE COURT DO WHEN AN EXPERT’S EXAMINATION HAS BEEN COVERTLY RECORDED? “I HOPE HE WILL NEVER DO IT AGAIN…”
Covert recordings, of one type or another, are featuring heavily on this blog today. Here we consider a case where a claimant secretly recorded her examination by an expert instructed by the defendant. The claimant then applied to admit the…
INDEMNITY COSTS ORDERED IN CASE WHERE CLAIMANTS OBTAINED INFORMATION FROM DEFENDANTS’ SOLICITOR IN A “STING” OPERATION: “THE CLAIMANTS SOUGHT TO JUSTIFY THE UNJUSTIFIABLE”
This is a case worth reading if you want to see strong judicial commentary on litigation conduct. The judge was clear in his view of the conduct that the claimants had engaged in and surprised by its lack of self…
CLAIMANT SUCCESSFUL IN APPLICATION TO JUDICIALLY REVIEW A REFUSAL OF PERMISSION TO APPEAL: “WHILST A DECISION MAY BE FINAL, THAT FINAL DECISION MUST BE FAIR”
A post earlier this week highlighted the fact that that it is not possible to appeal a decision of a Circuit Judge refusing permission to appeal. The only option for a litigant in these circumstances is to apply for judicial…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
WHAT IS THE COURT TO DO WHEN A PARTY ALLEGES THAT A DOCUMENT IS A FORGERY BUT HAS NOT SERVED NOTICE UNDER CPR 32.19?
Here we look at very useful observations as to the approach of the court when at trial it becomes clear that a party is alleging a document is forged, or not authentic, but that party has not served a notice…
EXPERT WATCH 26: JUDGE’S DECISION NOT TO ADMIT EXPERT EVIDENCE UPHELD BY THE COURT OF APPEAL: “IT IS NOT CLEAR TO ME WHAT VALUE IT WOULD ADD TO THE CASE”
It is rare to see an appeal where a decision about whether to admit expert evidence is considered. In this case the Court of Appeal considered the judge’s decision not to admit a report. Both parties agreed that the report…
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