THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: EX-SOLDIER FAILS IN HER CASE AND NOW NO LONGER HAS THE PROTECTION OF QOCS
Here we look at a case where the claimant was found to be fundamentally dishonest. The judge commented on the irony of the fact that she had a substantial claim for damages, even without that dishonesty. Nevertheless the evidence of…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
WILL AN INSURER PAY FOR THIS? THE THIRD PARTY RIGHTS AGAINST INSURERS ACT 2010, THE ROAD TRAFFIC ACT, THE MIB AND OTHER ROUTES TO OBTAINING PAYMENT: WEBINAR 16th SEPTEMBER 2025
The new series on enforcement on this site shows the major problems a successful litigant can have even after they have obtained a judgment. This webinar looks at the routes by which a claimant can attempt to investigate or ensure…
WHICH TRACK IS BEST? THE RULES, CASES AND GUIDANCE: ALLOCATION – SMALL CLAIMS OR FAST TRACK IN HOUSING DISREPAIR CASES: WEBINAR 10th SEPTEMBER 2025
Over the past month or so we have looked at three cases where the question of allocation of housing disrepair cases has been considered. The issue lies between Fast Track and the Small Claims Track. This webinar looks at the…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
EXPERT WATCH 12: “THE EXPERT EVIDENCE FOR BOTH SIDES HAD PROBLEMS”: THE JUDGE PREFERS THE DEFENDANT’S EXPERT
We look here at an unusual set of facts relating to the judge’s assessment of expert evidence. Firstly the judge found that the claimant’s expert had no real experience of the specific issue in question in the action; she also…
ATTENDANCE NOTES IN CIVIL LITIGATION 2025: WEBINAR 15th SEPTEMBER 2025
There have been at least three cases over the previous few months where attendance notes taken by solicitors have played a significant part in the outcome of a case, appeal or application. These notes protected a solicitor against complaints of…
SERVICE POINTS 5: CLAIMANTS IN £22 MILLION CLAIM FAIL ON SERVICE ISSUES – FOR THE THIRD TIME: ORDERS GRANTING EXTENSIONS OF TIME SET ASIDE
Here we look at a case where the claimants came to grief on issues relating to service – extensions of time for service of the claim form were set aside. One remarkable feature of this litigation is that this was…
THE JUDGE DID NOT GET WRITTEN SUBMISSIONS – FILED IN TIME – BEFORE THEY WROTE THEIR FINAL JUDGMENT: IS THIS UNFAIR?
Here we are looking at a case where the appellants argued that a decision was unfair because, although they had lodged submissions on key issues in time, these did not reach the judge until after they had written their judgment….
LIABILITY FOR ACCIDENTS INVOLVING OUTDOOR ACTIVITIES: WEBINAR 3rd SEPTEMBER 2025
As recent events have shown the consequences of inadequate training, supervision and knowledge of those responsible for running outdoor activities can lead to major injuries and fatalities. The webinar looks at the case law, statutes and general guidance in relation…
APPLYING TO SET ASIDE A DEFAULT JUDGMENT: WHAT IS MEANT BY “PROMPT”? THE ISSUES CONSIDERED IN DETAIL BY THE HIGH COURT
When a court considers setting aside a regular default judgment it must have regard to whether the application was made “promptly”. There is a consideration of that issue in the case we consider here. There had been some delay in…
ANONYMITY AND REPORTING RESTRICTIONS IN CIVIL CASES (2): THE PROCESS THAT JUDGE’S SHOULD FOLLOW WHEN CONSIDERING THESE ISSUES
The previous post looked at the Court of Appeal decision yesterday in relation to applications for anonymity in civil cases. Here we take a close look at the factors that the courts have to consider when an application for anonymity…
ANOTHER COMPLAINT ABOUT COURT BUNDLES: “IT IS SIGNIFICANTLY MORE DIFFICULT TO PROMOTE THE INTERESTS OF JUSTICE…”
It is getting to the stage that I am concerned about receiving complaints from readers if this blog does not have a regular feature on bundles. In fact we have not looked at a case since June, so we are…
SERVICE POINTS 4: DEFAULT JUDGMENT SET ASIDE: THE CONTRACTUAL METHOD OF SERVICE WAS UNFAIR AND THUS INVALID BECAUSE OF THE PROVISIONS OF THE CONSUMER RIGHTS ACT 2015
There are relatively few cases relating to service of proceedings by a contractually agreed method. We have some significant issues considered in this case. Firstly whether the defendants were, in fact, parties to the contract that the claimant relied upon…
THE CURRENT IMPORTANCE OF PLEADINGS 31: THE DEFENDANT DID NOT WANT TO TAKE A “PLEADING POINT”, HOWEVER THE JUDGE REFUSED TO ALLOW THE CLAIMANT TO PURSUE THE ISSUE
We are looking at a case where a claimant, in closing submissions, attempted to take a point that had never been pleaded. The defendants stance was that it did not want to take a “pleading point”, however the judge found…
SERVICE POINTS 3: THE CLAIMANT COMES TO GRIEF OVER FAILURES OF SERVICE OF THE CLAIM FORM: THE COURT MADE MISTAKES BUT THE BUCK STOPS WITH THE SOLICITORS AND NOT THE COURT OFFICE
I remain surprised about how many of the cases relating to service of the claim form are professional negligence actions. Perhaps those who conduct such work come to believe they have a degree of immunity from the normal rules of…
APPEAL COURT UPHOLDS DECISION NOT TO ALLOW DEFENDANT TO RELY ON DOCUMENTS PRODUCED FOR THE FIRST TIME AT TRIAL: DENTON CONSIDERED AND APPLIED
We are looking at a decision newly arrived on BAILII in relation to disclosure and relief from sanctions. A defendant brought (potentially significant) documents to trial which had never been disclosed before. The trial judge did not permit the defendant…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS: THE CODE
As promised in the previous post, here is the discount code for the Civil Litigation Brief series of webinars. The webinars include topics such as cost effective delegation, attendance notes, the liability of insurers to pay judgments, the joint expert…
MEMBER NEWS: DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS
There are a series of webinars coming up which cover many of the key aspects we look at on this site. Members who subscribe to the site can now obtain a discount on each of the webinars, with further discounts…
EXPERT WATCH 11: EXPERT ASSERTS THAT THE CLAIMANT WAS MALINGERING BUT WOULDN’T TELL THE COURT ABOUT THE DETAILS OF THE TESTS THAT LED TO THAT CONCLUSION
We have seen some unusual conduct of experts on this site. However the case we look at today has elements that we have not looked at before. An expert carried out tests on the claimant and, as a result of…
MY WITNESSES HAVE MADE STATEMENTS BUT WILL NOT ATTEND THE TRIAL: WHAT IS THE JUDGE GOING TO INFER? SECTION 2(4) OF THE CIVIL EVIDENCE ACT 1995 CONSIDERED
Here we are looking at a case where the claimant served witness statements that he said he was going to rely on. It only became apparent part way through the trial that the claimant was not, in fact, going to…
WHEN HAS A PARTY CONSENTED TO SERVICE OF DOCUMENTS BY EMAIL? IS A FAILURE TO OBTAIN SPECIFIC CONSENT IN ADVANCE FATAL TO VALID SERVICE?
We are carrying on with the review of the appeal judgment that considered key issues in relation to service by electronic means. Here the judge considered whether the claimant’s failure to obtain the defendant’s specific consent prior to service rendered…
RELIEF FROM SANCTIONS GRANTED AFTER CLAIMANTS BREACHED PEREMPTORY ORDER: RETIRED FOOTBALLERS ALLOWED TO STAY ON THE FIELD…
We are looking today at a case with an unusual, if not extraordinary, procedural history. The Master observed that the claimants had been very poorly represented in the past: “It is abundantly clear from the succession of retainers and instructions…
PROVING THINGS 268: LAW FIRM DEFENDANT FAILS TO ADDUCE EVIDENCE TO PROVE ITS ASSERTIONS – IT WAS BOUND BY ITS OWN “BAD BARGAIN”
Here we have an interesting dispute between two firms of lawyers. The claimant sued the defendant under a contractual agreement following the transfer of files. What is particularly interesting here is the judge’s observations on the lack of evidence brought…
ALLOCATION TO THE SMALL CLAIMS TRACK OR FAST TRACK IN HOUSING CASES 3: WEBINAR 10th SEPTEMBER 2025
Earlier today we have looked at two appeals in relation to allocation in housing disrepairs. Each appeal was successful for different reasons. My involvement in one of the appeals has led me, along with Steve Cornforth, a webinar on Allocation…
CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
KEY ISSUES TO BE CONSIDERED WHEN A PARTY WANTS AN INJUNCTION: COURT OF APPEAL UPHOLDS JUDGE’S DECISION NOT TO DELIVER…
This is a Court of Appeal decision that anyone applying for, or resisting, an application for an injunction would benefit from reading. It deals with some of the key issues in relation to injunctions. There was a “serious issue to…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
THE CURRENT IMPORTANCE OF PLEADINGS 29: THE DUTIES INVOLVED WHEN PLEADING FRAUD: CLAIMANT’S ALLEGATIONS THAT WERE “MORE CONSISTENT WITH HONESTY” ON THE PART OF THE DEFENDANT
Here we are looking at a case where the claimant applied for permission to amend its Particulars so it could plead fraud. The application was refused. It is a reminder of the onerous duties on a party when proposing to…
MEMBER NEWS: INCREASING NUMBERS FOR CORPORATE MEMBERSHIP: INCREASED FLEXIBILITY: ALSO LOOKING AT THE BACK CATALOGUE: “AVOIDING PROCEDURAL DEATH”: POSTS ABOUT THE CLAIM FORM ON THIS SITE
I have had a number of enquiries recently about increasing member numbers for corporate groups. This is possible, the membership system allows this and you can upgrade with the previous payment being taken into account on a pro rata…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2025 (1): LIMITATION IN PERSONAL INJURY CLAIMS – HOW DOES ANYONE MISS A THREE YEAR LIMITATION PERIOD?
In an ideal world all personal injury limitation periods would be three years, and all other action six. However we do not live in an ideal world. The first, and most obvious, place to look at avoiding negligence claims is…
PERSONAL INJURY POINTS 10: WAS THIS CLAIM STATUTE BARRED?IF SO SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 33 OF THE LIMITATION ACT 1980?
Here we look at a decision in relation to limitation. The trial judge had to determine whether the claimant’s action was statute barred. If it was she then had to consider whether it was appropriate to exercise the court’s discretion…
EXPERT WATCH 10: CLAIMANT UNSUCCESSFUL ON APPEAL IN ATTEMPTING TO OVERTURN THE TRIAL JUDGE’S PREFERENCE FOR THE DEFENDANT’S EXPERTS: “THE IRREDUCIBLE FACT IS IS THAT THE JUDGE ACCEPTED THE EXPERT EVIDENCE OF THE RESPONDENT’S KEY WITNESS AND PREFERRED TO OVER THE EVIDENCE OF THE APPELLANT’S KEY EXPERT WITNESS”
There are relatively few cases where a party appeals on the basis that trial judge was wrong to accept the evidence of one party’s expert witness in preference to the other. There are even fewer cases where such an appeal…
CHANGES TO PRACTICE DIRECTION ON THE DAMAGES CLAIMS PILOT: PUBLISHED LAST TUESDAY – COMING INTO FORCE AT 11.00 TOMORROW: SOME POINTS ON ISSUE AND LIMITATION
There are changes coming into force at 11.00 tomorrow. There are changes to PD 51R and PD51ZB. (Set your alarm clocks early tomorrow – these changes come into force – at 11.00 am…) THE CHANGES TO TO THE PRACTICE DIRECTION:…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
ANOTHER BREACH OF EMBARGO CASE: THE MISTAKE AS TO WHAT WAS MEANT BY “PARTIES” AND HOW PROMPT STEPS MITIGATED THE BREACH
Cases about breaches of embargos on draft judgments keep appearing with surprising frequency. We have another one here. The judgment emphasises the nature of the advice the lawyer must give to the client. Not only must be draft judgment not…
APPLICANT REFUSED PERMISSION TO RELY UPON A WITNESS STATEMENT THAT WAS SERVED LATE: NON-COMPLIANCE WITH THE RULES IS EFFECTIVELY A FORM OF CHEATING
Here we are looking at a case from the family jurisdiction. Slightly different rules apply, however the overall principles are the same as in the CPR. The judge had to consider whether to grant permission to an applicant to rely…
A FINAL TRIBUTE TO DISTRICT JUDGE GEORGE BRANCHFLOWER: A JUDGMENT WHICH GOT A MENTION AT HIS FUNERAL TODAY
Today I attended the funeral of District Judge George Branchflower. I have written briefly about him before. At his funeral we heard tributes from those who knew him best including a touching tribute from his daughter and a wonderful song…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
MEMBER NEWS: HONING IN ON THE INTERNAL RESEARCH FACILITY ON THIS SITE: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION – SOME GUIDANCE
Yesterday I had an enquiry about the internal search function on this site. In particular whether it used Boolean operators. It doesn’t but there is a “work around” discussed below. On a separate issue I also recorded a webinar on…
HOW NOT TO APPLY TO SET ASIDE A JUDGMENT WHICH IS ALLEGED TO HAVE BEEN OBTAINED BY FRAUD: THE JUDGE MARKED THE “ILL CONSIDERED AND POOR MANNER IN WHICH THE APPLICATION HAS BEEN PREPARED AND PROSECUTED”
It is possible to apply to set aside a previous judgment when the applicant’s case is that that judgment was obtained by fraud. However here we look at an almost textbook example of how not to go about this. The court…
EXPERT WATCH 8: “SCIENCE DOES NOT CHANGE” : EVIDENCE THAT WAS “UNIMPRESSIVE IN PARTS AND OF LITTLE ASSISTANCE TO THE COURT”
To end the week I am looking at another decision about expert witnesses (it has been a theme this week). This time we are looking at accident reconstruction experts. One expert was found wanting, the judge favoured the other. The…
EXPERT WATCH 7: “THIS CASE IS NOT SHORT OF ADVOCATES”: AN EXPERT REPORTING FOR THE CLAIMANT SHOULD NOT HAVE BEEN ONE OF THEM: FURTHER THEY SHOULD HAVE DISCLOSED THAT THEY HAD “COPIED” THEIR REPORT
Yesterday I imposed a 24 hour respite on this series “unless something really interesting comes up”. I have broken that promise, it lasted 22 hours. However the cases on experts keep coming in and, I think, readers need to know…
EXPERT WATCH 6: THE DEFENDANT’S EXPERT IS FAR BETTER QUALIFIED THAN THE CLAIMANT’S EXPERT: AN EXPERT WHO, IN PART, WAS ACTING AS AN ADVOCATE FOR THE CLAIMANT
I feel almost bound to apologise for adding another post to this series today. I am not going looking for cases on experts – they just keep coming up. Here we have a judgment given today in a clinical negligence…
EXPERT WATCH 5: AN EXPERT SHOULD DISCLOSE PREVIOUS CRITICISMS MADE BY JUDGES: PARTICULARLY WHEN THEY HAVE BEEN WARNED ABOUT THIS BEFORE…
We have seen a trend in a number of recent cases of advocates cross examining experts and referring to judicial criticism made in previous cases that experts have been involved in. The judgment here goes one further and indicates that…
EXPERT WATCH 4: THE EXPERT SHOULD INFORM THE COURT IF MEMBERSHIP OF A PROFESSIONAL ORGANISATION HAD CEASED, PARTICULARLY IF THIS IS LINKED TO DISCIPLINARY PROCEEDINGS AGAINST THEM
We are returning (and not for the last time) to a recent decision where the court considered the expert evidence in detail. Here we look at the judgment in relation to an expert who failed, until prompted, to inform the…
EXPERT WATCH 3: EVIDENCE FROM EXPERTS ON FOREIGN LAW: SOME OF THE EXPERTS FOUND WANTING
Here we are looking at a judge’s assessment of witnesses who gave evidence as to foreign law. Some of the witnesses were found to be less then helpful. (This case appears to have taken up several months of court time….
You must be logged in to post a comment.