WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
This webinar looks at what to do when things go wrong in civil litigation. There is a continual flow of reports that deal with errors made in relation to limitation, service or someone falling foul of the rules or court…
COST BITES 262: THE CLAIMANTS SHOULD NOT HAVE BEEN ORDERED TO PAY COSTS IN A “MIXED” CLAIM AGAINST THE POLICE
Here we are looking at issues relating to costs in an action that included a claim for personal injury but also included other elements. The question the appellate judge had to decide was whether the trial judge had applied the…
NEW RULES COMING INTO FORCE ON THE 12TH SEPTEMBER 2025 AND THE 1ST OCTOBER 2025 (1): COSTS
Here we look at the latest statutory instrument which makes changes to the rules. We are starting by looking at the changes in relation to the rules relating to costs. These provisions come into force on the 1st October 2025….
EXPERT WATCH 2: THE EXPERT WHO REPORTED WITHOUT ALL THE RELEVANT EVIDENCE TO HAND AND THEN WOULD NOT RECOGNISE HE HAD MADE A MISTAKE
Here we look at a case where an expert reported without having all the relevant evidence to hand. In fact he only saw the claimant’s witness statements a few days before the trial. This, added to other issues, led to…
EXPERT WATCH 1: THE DUTY TO STATE THE SOURCES OF THE EXPERT’S INFORMATION
This is the start of a series examining cases where expert evidence is considered by the courts. As matters stand there are already dozens of posts on this site where the conduct of experts has been considered (and often criticised)…
“INADEQUATE REASONS” IN CIVIL JUDGMENTS: THE COURT OF APPEAL PROVIDES A PRIMER FOR JUDGES (AND SOME IMPORTANT POINTS FOR THE REST OF US)
Here we look at a Court of Appeal decision last week on inadequate reasons given in judgments. This has major practical implications for judges and practitioners. Appeals because of “inadequate” reasoning are those that are the most unfair to all…
PROFESSIONAL NEGLIGENCE NEWS 4: WHO SHOULD PAY THE COSTS WHEN THE CLAIMANT INITIALLY SUED THE WRONG DEFENDANT BUT THE ACTION WAS NOT STRUCK OUT?
Litigators and litigants are always particularly interested in knowing what the costs consequences of a hearing was. We get an opportunity to consider this here, looking at the costs order of a judgment we have already considered. What should the…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
COST BITES 260: THE “CLIENT” WAS NOT LIABLE TO PAY THE SOLICITORS BILLS : EACH ENTITY PUT IN ITS TIME AND EFFORT AT ITS OWN RISK
Today we are looking at a highly unusual solicitor and own client costs assessment. After hearing evidence over five days the judge decided that there was no retainer between the “client”and the solicitor. The client was not liable to pay…
MATTERS “NOT MENTIONED IN THE WITNESS STATEMENT”: ANOTHER EXAMPLE OF OMISSIONS GIIVING RISE TO ADVERSE CONCLUSIONS
We are looking again at the significance of matters not mentioned in a witness statement. This is another case where the judge found that there had been significant omissions in the claimant’s evidence. Again it is a case where these omissions…
KEY OMISSIONS AND WITNESS EVIDENCE: A FAILURE TO MENTION KEY POINTS IN THE STATEMENT DOES NOT HELP THE WITNESS: A WORKING EXAMPLE
The theme for several of the posts today is how important it is to put information, that could be viewed as adverse to the witness, into a witness statement. If such information is left out, but revealed in cross-examination this…
WHY IS THIS SOLICITOR GIVING EVIDENCE? NOT REALLY A QUESTION YOU WANT A JUDGE TO ASK: PARTICULARLY WHEN THE ANSWER IS “I DON’T KNOW” BUT “I WAS PAID TO DO SO”
An earlier post looked at a case where the court struck out large parts of a witness statement of a solicitor who was proposing to give evidence at trial. Here we look at what happened to the remaining parts of…
A DEFENDANTS’ FIRM OF SOLICITORS COULD LAWFULLY GIVE DETAILS OF CLAIMANTS IN SIMILAR CASES WHEN DEFENDING FUNDAMENTAL DISHONESTY CLAIMS
Here we are looking at a case where claimants brought an action claiming that their data protection rights had been breached by a defendant firm of solicitors. The defendant had collated a list of claimants who had relied on a…
WHEN A PARTY RELIES ON “NON PART 35 COMPLIANT” EXPERT REPORTS: THIS IS HARDLY LIKELY TO CARRY MUCH WEIGHT…
The first question the lawyer must ask when being presented with a report for use in proceeding is – is this report CPR 35 compliant? If it is not then it may have little, if any value. There is a…
THE HOUSE OF COMMONS JUSTICE COMMITTEE: THE CURRENT STATE OF THE COUNTY COURT: RAT INFESTED BUILDINGS: A “DYSFUNCTIONAL SYSTEM” THAT “HAS FAILED ADEQUATELY” TO DELIVER CIVIL JUSTICE: (NO PAYWALL)
In the Civil Justice system we do not have a figure such as the Secret Barrister who can publicise the major problems that exist in the county court. The House of Commons Justice Committee have gone a long way to…
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
USING THE CONTENTS OF A WITNESS STATEMENT FOR A COLLATERAL PURPOSE: CONTEMPT OF COURT AND COSTS: A HEADY MIXTURE HERE.
We are revisiting a case we looked at previously in relation to costs orders being made against a Litigant in Person. One specific aspect of that judgment considered the costs of an application for contempt of court that the claimant…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
One of the most aggravating things to read about in the legal press are those cases where people get into serious disciplinary trouble after having made a procedural or other mistake. It is not the mistake that has caused their…
CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
INTRODUCING THE NEW CIVIL LITIGATION BRIEF “TOOLBOX” SERIES : WHERE’S THE BEST PLACE TO FIND WHAT YOU WANT
One of the purposes of this site is as a working “toolbox” for practitioners. To provide a useful and readily accessible source of information when particular issues arise. For that reason something new is starting on this site in the…
AN INTRODUCTION TO LAW AND PRACTICE IN THE CORONER’S COURT: WEBINAR 17th JULY 2025
Representing people at a Coroner’s hearing gives rise to major challenges and responsibilities. Ensuring that the concerns of the participants are fully considered whilst recognising the limited role that the coroner has. This webinar is an introduction to the role…
EXPERT’S REPORT DID NOT COMPLY WITH THE RULES: ALL PARTIES AGREED IT WAS “FUNDAMENTALLY FLAWED” AND COULD NOT BE RELIED UPON: JUDGE STATES THAT EXPERT SHOULD CONSIDER REPAYING THE FEE
Here we are looking a judgment given last week where all the parties involved in a case agreed that an expert’s report was “fundamentally flawed”. Part of the report was based on a rejection of findings of fact that had…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
DAMAGES IN ANTICIPATION OF DEATH AND DAMAGES FOR LOSSES PRIOR TO DEATH: WEBINAR 15th JULY 2025
This webinar deals with some of the most sensitive and difficult issues that a litigator may have to deal with. It looks a law and practice relating to losses incurred prior to death. Booking details are available here. ISSUES COVERED…
THE CURRENT IMPORTANCE OF PLEADINGS 24: COURT OF APPEAL CONSIDERS WHEN A TRIAL JUDGE CAN GO OUTSIDE THE PLEADED CASE: THERE IS A SPECTRUM
In this judgment today the Court of Appeal consider, in detail, whether it is appropriate for a judge to go outside the pleaded case. The judgment provides guidance for the practice to be adopted if the judge feels that they…
COST BITES 257: SOLICITOR AND OWN CLIENT ASSESSMENTS AND “UNUSUAL COSTS”: WHY THE ATTENDANCE NOTE IS OFTEN THE SOLICITOR’S BEST FRIEND
A solicitor is under a specific duty to warn the client when “unusual costs “are being incurred, particularly those costs that may be irrecoverable on an inter party basis. Here we have an example of a (former) client asserting that…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
MEMBER NEWS:YOU CAN CHANGE THE FREQUENCY OF WHEN YOU RECEIVE EMAILS FROM THE SITE: LOOKING AT THE “BACK CATALOGUE” 1: THE “BACK TO BASICS” SERIES
There has been an increase in the frequency of posts since this site became a membership site. Obviously this increases the number of emails members receive. It is possible to change your subscription so that you receive the updates daily…
PROFESSIONAL NEGLIGENCE NEWS 3: INADEQUATE ATTENDANCE NOTE LEADS TO WOEFUL RESULTS: THE APPEAL THAT SHOULD NOT HAVE HAPPENED
Here we are looking at a decision where manifold service failures on the part of solicitors were identified. However we will look at one issue – the consequences of an attendance note not being full and complete. Counsel advised on…
IF A CLAIMANT ISSUES AND LITIGATES WHEN THEY DO NOT HAVE CAPACITY – ARE THEY LIABLE FOR THE COSTS INCURRED? COURT OF APPEAL SCRUTINISES EXPERT EVIDENCE AND FINDS IT WANTING
Yesterday we looked at issues relating to the capacity of a solicitor’s client and their consequent liability to pay costs. Today we look at a case about inter partes costs. If a claimant brings proceedings but does not, in fact,…
GENERAL DAMAGES FOR PSYCHIATRIC INJURY: THE KEY ISSUES CONSIDERED: WEBINAR 9th JULY 2025
How do awards for pain and suffering for psychiatric injuries differ, if at all, to damages for physical injuries. What does the court do when there are physical and psychiatric injuries? What happens if there are multiple injuries? These are…
THE CURRENT IMPORTANCE OF PLEADINGS 22: WHOLE BATCHES OF CASES STRUCK OUT BECAUSE THE PARTICULARS WERE DEFICIENT: RELIEF FROM SANCTIONS REFUSED
Here we are looking at a case where numerous actions brought by the claimant were struck out because the Particulars of Claim were wholly deficient. They remained wholly deficient even after the court had made a peremptory order compelling the…
CHILDREN AND FATAL ACCIDENT LITIGATION 2025: WEBINAR 8th JULY 2025
There are particulars challenges and difficulties facing a practitioner in cases where children are the only or primary dependants in a fatal claim. This webinar addressed the key issues, in relation to the law, practice and procedure and helping with…
COST BITES 252: WHEN CAN A SOLICITOR PROPERLY TERMINATE A RETAINER? WAS THE CLIENT “THROWN TO THE LIONS”?
Here we are looking at a very small part of a judgment in relation to costs on a solicitor/own client assessment. On of the arguments put forward by the (former) client was that the retainer was wrongfully terminated shortly before…
WHEN CAN A JUDGE HEAR AN ISSUE THAT IS NOT “LISTED”? THE ISSUES CONSIDERED IN THE HIGH COURT
If an action is listed for hearing on a specific issue when can the judge hear, and make an order in relation to a different issue? This is an issue considered in the case we are looking at here. The…
EXPERT WITNESSES – VITAL PARTICIPANTS IN CIVIL JUSTICE: “SHOW YOUR WORKINGS” – SPEECH BY LORD JUSTICE BIRSS THAT I AM ENCOURAGING YOU TO READ
I am here encouraging lawyers and experts to read the speech of Lord Justice Birss’ speech to the Expert Witness Institute. It was the keynote speech to the Expert Witness Institute’s Annual Conference. I have extracted highlights. (The science teacher’s…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
HOW IS A VERY, VERY LATE APPLICATION TO RELY ON EXPERT EVIDENCE GOING TO FARE? THE CONSEQUENCES FOR THE DEFENDANT AREN’T GOOD…
We are considering here a very, very, late application by a defendant to call expert evidence. Unsurprisingly the application did not find favour with the court. The judge then went on to consider the consequences given that the claimant had…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
YOU ARE NOT GOING TO GET PAID FOR RECTIFYING YOUR OWN DEFECTIVE WITNESS STATEMENTS: WHY NON-COMPLIANCE WITH PD57AC CAN BE EXPENSIVE
Here we have a case where a claimant was seeking to recover the costs of preparing defective witness statements. The court had ordered that compliant witness statements be filed. Should the claimant be entitled to recover the costs of preparing…
IF YOU ARE GOING TO CRITICISE AN EXPERT THIS MUCH YOU SHOULD HAVE RAISED IT AT THE CASE MANAGEMENT HEARING: HIGH COURT REJECTS EACH PARTY’S ATTACKS ON OPPONENT’S EXPERTS
We have seen plenty of cases where the courts have not been slow in their criticism of expert witnesses. Here we have a different situation where the judge was critical of the attacks, by each party, on the credibility of…
PROFESSIONAL NEGLIGENCE NEWS (1): I’VE SUED THE WRONG DEFENDANT: CAN THE COURT DO ANYTHING TO HELP? FIRST OF (WHAT MAY WELL BE) A LONG RUNNING SERIES
There is much to be said for starting a new (and what may well be a long running) series looking at professional negligence cases, in particular the procedural and practical issues that arise. Firstly, if (as here) it is a…
PROVING THINGS 267: COURT OF APPEAL OVERTURNS FINDING THAT COUNCIL HAD ESTABLISHED ITS STATUTORY DEFENCE: SOME VERY IMPORTANT POINTS HERE ABOUT THE USE OF STATEMENTS PUT TO WITNESSES AND JUDICIAL FACT FINDING
Here we are looking at an important decision of the Court of Appeal. On the face of it it is about a defendant’s failure to prove a statutory defence. However, perhaps more significantly, it is about evidence, the impact of…
CLINICAL NEGLIGENCE CORNER 1: ASSESSMENT OF DAMAGES FOR PAIN AND SUFFERING IN A CLINICAL NEGLIGENCE CASE: IT HELPS IF THE PSLA IS IN THE SCHEDULE
It is relatively rare for litigators to get a detailed insight into the court’s approach to an award for pain and suffering. We see any example here. Of course every case is fact specific, but practitioners have to be aware…
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