COST BITES 448: PART 36 AND FIXED COSTS: “VERY LATE” ACCEPTANCE OF A DEFENDANT’S OFFER LEADS TO THE CLAIMANT RECOVERING NO COSTS AT ALL
It was probably inevitable that there would be difficulties in the construction of fixed costs and the interplay with Part 36. We have such a case here. The Court had to consider the implications of the precise wording of fixed…
COST BITES 447: “THESE SUMS ARE ASTONISHING”: COURT OF APPEAL CONSIDERS £2 MILLION BRIEF FEE AND COSTS OF A FOUR-DAY APPEAL (AND IS NOT TOO IMPRESSED)
It is rare for the Court of Appeal to get involved in the minutiae of costs. We have an example here and the Court is, to say the least, forthright in its views. Leading Counsel’s brief fee of £2 million…
DID YOU KNOW THAT YOU COULD BE MADE BANKRUPT (OSTENSIBLY ON YOUR OWN APPLICATION), NOT KNOW ANYTHING ABOUT IT – AND THEN HAVE TO PAY THE TRUSTEE’S COSTS? THE IMPORTANCE OF GETTING KEY EVIDENCE BEFORE THE COURT
This is an unusual case. The appellant here had been made bankrupt, ostensibly on her own petition. She knew nothing about it. Despite this the court would not annul the bankruptcy until provision was made for payment of the Trustee’s…
THROWBACK FRIDAY: A CASE WHERE THE SOLICITORS’ EVIDENCE (OF THEIR OWN) LOSS WAS “WHOLLY INADEQUATE” (OCTOBER 2017)
The “Proving Things” series has recently passed number 300. A large number of the posts in that series are about a failure to prove things. We have here a claim brought by a firm of solicitors where the judge observed…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
“LITIGATION SHOULD BE CONDUCTED BY APPLICATIONS AND ORDERS”: “THESE EPISTOLARY COMMUNICATIONS WERE LESS THAN SATISFACTORY…”
There is one brief observation in this judgment which is of some importance in relation to the way that litigators communicate with the court. Attempting to manage a case by correspondence is usually not satisfactory. “Court systems are not well…
ENFORCEMENT BULLETIN 6: BEING SIGNED OFF WORK DOES NOT MEAN UNABLE TO ATTEND COURT: SUSPENDED COMMITTAL ORDER MADE AGAINST JUDGMENT DEBTOR (CLINICAL NEGLIGENCE AND PERSONAL INJURY LITIGATORS YOU MAY WANT TO READ THIS AS WELL…)
It is rare for a clinical negligence claimant to be involved in issues relating to the enforcement of judgments. We have an example here. Ironically enough it is also an example of inadequate medical evidence being presented in an an…
PROVING THINGS 301 : CAN AN APPLICANT IN COMMITTAL PROCEEDINGS RELY UPON A JUDGMENT GIVEN AT TRIAL? WHAT WEIGHT SHOULD BE GIVEN TO IT?
It is always interesting to see the sequel of cases we have looked at earlier. We have an example here. We looked at this case in the context of a finding of fundamental d dishonesty. Different issues arise in relation…
EXPERT WATCH 79: WHEN A LITIGANT INSTRUCTS AN EXPERT AND THEN SEEKS PERMISSION TO RELY ON THEM: MIXED RESULTS
A party instructing an expert without obtaining permission from the court in advance runs a risk. Considerable expenditure can be incurred and yet the court may refuse permission. However, on occasions, it is necessary to actually have the report to…
WITNESS EVIDENCE WEDNESDAY: WHERE ARE WE NOW ON “MISSING” WITNESSES AND EVIDENCE ? TEN KEY POINTS WITH USEFUL LINKS
Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise. However there is an important element in relation to missing evidence and “missing” witnesses. What inferences should the court draw if a…
THE CURRENT IMPORTANCE OF PLEADINGS 101: PUTTING A FIGURE IN THE PARTICULARS OF CLAIM DOES NOT NECESSARILY ENTITLE A CLAIMANT TO DEFAULT JUDGMENT FOR THAT SUM
Does the fact that a specific sum is claimed in the Particulars entitle a claimant to enter default judgment in that sum? Sometimes the answer to that question is no. That was the issue being considered in in this case. …
EXPERT WATCH 78 : “ROWING BACK”?: WHEN AN EXPERT CHANGES THEIR VIEW AFTER THE JOINT REPORT: “THAT IS NOT THE FAIR OR PROPER WAY FOR PUTTING NEW EXPERT EVIDENCE BEFORE THE COURT”
Here we look at a case where an expert essentially changed their mind after a joint report. Although the expert stated that he had not “rowed back” the judge was clear that there had been a change of view and…
SERVICE POINTS 55: THE SOLICITORS DISCIPLINARY TRIBUNAL FINDS THAT A SOLICITOR WAS TELLING LIES ABOUT SERVICE: SOLICITOR STRUCK OFF (DON’T LET THIS HAPPEN TO YOU…)
We have looked many times at issues relating to non or mis-service of the claim form. Here we have a case where a solicitor’s evidence as to service was disbelieved by a Circuit Judge. The case shows many familiar mistakes…
LIMITATION: WHEN DID BLACK CAB DRIVERS HAVE “THE KNOWLEDGE”? CLAIM AGAINST UBER WAS STATUTE BARRED
This is a judgment about s.32 of the Limitation Act. In particular about the date of knowledge. The claimants were not successful. The judge held that they had the relevant knowledge more than six years prior to issue. It was…
CONDITIONAL FEE AGREEMENTS, CHANGE OF SOLICITORS AND RATIFICATION AND INFORMED ADVICE: IT IS NOT SO EASY TO SIMPLY RECOMMEND A CHANGE OF SOLICITORS…
It is not unknown for a client to wish to change solicitors part way through a case. Where the matter is being conducted on a conditional fee agreement this can lead to complex problems. We see this here. The key…
THE CURRENT IMPORTANCE OF PLEADINGS: SPECIAL REVIEW EDITION: WHAT CAN WE LEARN FROM THE FIRST HUNDRED POSTS?
When this series started in March 2025 I suspected that there would be enough material for a few posts. There have now been 100. The cases have involved claims and defences, replies and counterclaims, personal injury, commercial disputes, professional negligence…
THE CURRENT IMPORTANCE OF PLEADINGS 100: PRIVY COUNCIL CONFIRM THAT THE DEFENDANT WAS NOT ENTITLED TO RELY ON A DEFENCE NEVER PLEADED
For post one hundred in this series it is perhaps fitting that we look at a Privy Council decision that shows, in categorical and clear terms, that a failure to plead essential points cannot be dismissed as a technicality. Here…
COST BITES 466: COURT OF APPEAL UPHOLDS ABILITY TO AWARD INTEREST ON COSTS TO LITIGANTS CONDUCTING LITIGATION ON A CFA
Here we have a case where the Court of Appeal upheld a decision to award pre-judgment interest on costs. Interest can be awarded even though the action is being conducted on a Conditional Fee Agreement. This is an important point…
THIRD PARTY DISCLOSURE SHORTLY BEFORE TRIAL: “WHAT ONE PERSON REGARDS AS OPPORTUNISM MIGHT EQUALLY WELL BE ANOTHER PERSON’S CREATIVE LAWYERING”
This is a case about a late application for third party disclosure. The order was granted despite the trial date being imminent. The respondents complained of “opportunism” the judge observed that this may well be described as “creative lawyering”. “…litigation…
BACK TO BASICS MONDAY: THE WISDOM OF MAKING A PROMPT AND REALISTIC PART 36 OFFER IN AN ASSESSMENT ON COSTS: 10 KEY POINTS WITH USEFUL LINKS
A few recent posts have been a (wholly subtle) attempt to promote the forthcoming webinar and book “The Paying Party’s Manual”. This is part of that well-disguised approach. We are looking at the wisdom in making an early and realistic…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
A SUCCESSFUL JUDICIAL REVIEW OF A DECISION TO REFUSE PERMISSION TO APPEAL: GRANTING JUDGMENT AFTER AN EARLY NEUTRAL EVALUATION: A “WHOLLY EXCEPTIONAL COLLAPSE OF FAIR PROCEDURE”
It is rare for a judicial review of a judicial decision to succeed. It succeeded here because the judge found that there was (among other things) a “frustration or corruption of the… judicial process”. Essentially it is a decision about…
PROVING THINGS 300: COMPANY FAILS TO PROVE ITS OWN FINANCIAL SITUATION: APPLICATION FOR A STAY REFUSED
A major theme of this series has been a failure by litigants to put evidence before the court to establish their case. That is a feature of this case. The defendant company was arguing that its own financial position was…
THROWBACK FRIDAY: “STAYING SANE AS A LITIGATOR: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…” (OCTOBER 2019)
Today we go back to a post in October 2019. It was part of a series of posts about “staying sane as a litigator”. This was the fifth in the series and makes the point that things go wrong in…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
COST BITES 463: HOW SHOULD A COSTS ORDER BE PHRASED? MAKING SURE THAT IT DOES NOT JUST OVER “COUNSEL STANDING ON THEIR FEET DURING THE APPLICATION”
Here we have an unusual disagreement about how an order for costs should be phrased. The judge made it clear that the order should make it clear that it was not just covering advocacy. “I prefer the Bourlakovas’ formulation. It…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… INTERIM ORDERS FOR COSTS: 10 KEY POINTS AND USEFUL LINKS
We have looked at the issue of interim costs twice over the past few days. It is an important element of litigation. An order for costs does not put money in the receiving party’s bank account. Detailed assessment may take…
COST BITES 462: A “TOP-HEAVY” LEGAL TEAM AND £929,000 CLAIMED IN COSTS: COURT ORDERS A PAYMENT ON ACCOUNT OF LESS THAN 50%: THE “RULE OF THUMB” OF 60% IS NO ALWAYS APPROPRIATE
We are returning to the case we looked at yesterday. Having determined that it was appropriate for the court to order the applicants to pay the respondents’ costs of the application the judge then considered the question of the amount…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
WITNESS EVIDENCE WEDNESDAY (ii): THE DEFENDANT’S WITNESS HAD NO FIRST HAND KNOWLEDGE OF THE ISSUES, KEY DOCUMENTS AND KEY WITNESSES WERE NOT PRESENT
Here we look at another case where witness evidence was found wanting. Again this is because of a failure to identify the source of information or belief. This was coupled with the fact that crucial witnesses who could give first…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
HOUSING CASES AND ALLOCATION TO THE FAST TRACK: THE FACT THAT THE CLAIM WAS BASED ON AN EARLIER COMPROMISE DID NOT MEAN THAT THIS WAS A SMALL CLAIMS TRACK MATTER
Here we have an interesting decision on whether a dispute about a settlement agreement in a housing disrepair case should be allocated to the Small Claims Track. I am grateful to Steve Cornforth for sending me a copy of this…
THE DANGERS OF DELAY: A CASE WHERE THE COURT CRITICISES LATE SERVICE: IT IS IMPLICIT THAT COURT ORDERS SHOULD BE SERVED IN A “TIMELY MANNER”
This is the third case of the day about delay. Here there was a delay of eleven months in serving an order on named defendants. The judge found it unsatisfactory that the claimant council had not served the order in…
LEAVING FILING UNTIL THE LAST MINUTE IS “COURTING DISASTER”: ONE DAY OUT AND NO EXTENSION OF TIME GRANTED
The previous post mentioned that a theme of today is the importance of complying with rules and directions. This case demonstrates that point clearly. The appellant was one day out in compliance and still no extension of time was given….
PARTIES SHOULD NOT ASSUME THAT EXTENSIONS OF TIME WILL BE GRANTED: JUDGE HIGHLY CRITICAL OF DEFENDANT’S CONDUCT OF LITIGATION
If there is a theme for today it is the importance of compliance with rules and directions. Here we have very strong criticism of the defendant Secretary of State (more accurately his legal team). The judge observed that the defendant’s…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT …. PREVENTING PROBLEMS WITH THE USE OF ARTIFICIAL INTELLIGENCE IN LITIGATION? 10 KEY POINTS
The use of Artificial Intelligence by the legal profession is now a fact of life. The genie will not go back into that particular bottle. However, as we have seen many times on this blog, it can lead to profound…
HOW SHOULD A CLAIMANT RESPOND TO THE COUNTER-SCHEDULE? WEBINAR 14th OCTOBER 2026
A great deal of the claimant lawyer’s time is spent considering and building a case on damages. However it is sensible for the lawyer to stop and think how realistic the claim for damages is. One of the best means…
BACK TO BASICS MONDAY: WHAT DO YOU ADVISE A CLIENT WHO HAS A COSTS ORDER AGAINST THEM: THE IMMEDIATE AFTERMATH: 10 KEY POINTS AND USEFUL LINKS
This posts looks at the lawyer’s role immediately after the court has made an order that your client must pay the other side’s costs. The client may be disappointed, angry or astonished at the result. There may be a strong…
PROVING THINGS 299 : DISCLOSURE FAILURES, MISSING DOCUMENTS AND THE RELIABILITY OF WITNESS EVIDENCE: THE CONSEQUENCES AT TRIAL
This is a case that demonstrates the importance of disclosure and the dangers of failing to preserve, or positively destroying, documentary evidence in a civil case. The judge found the (first) defendant’s conduct in that regard was extremely telling. Much…
EXPERT WATCH 77 : YOU CANNOT WAIT UNTIL TRIAL TO COMPLAIN ABOUT THE ABSENCE OF EXPERT EVIDENCE (PARTICULARLY WHEN YOU HAVE EARLIER SAID IT WAS UNNECESSARY)
Here we have a case where the defendants, in a skeleton argument for trial, argued that the claimants could not succeed because they had to expert evidence to support their case for breach of duty. That submission was roundly rejected…
THROWBACK FRIDAY: WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE (OCTOBER 2018)
We are going back eight years and looking at another highly familiar theme – non-compliant witness statements. We have another example earlier today in the blog. . We are looking at a post from October 2018. This post pre-dated PD…
ARTIFICIAL INTELLIGENCE HALLUCINATIONS – CAUSING PROBLEMS FOR THE PROFESSION AGAIN: “… THIS DECISION ILLUSTRATES THE CONSIDERABLE PROCEDURAL DIFFICULTIES WHICH CAN ARISE WHEN INAPPROPRIATE USE IS MADE OF AI”
I have today received a copy of the second edition of Andrew Hogan’s book on AI for Lawyers (a review of which will be appearing soon). Problems with the use of AI continue to blight the profession (at home and…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … OPPOSING APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS AND A BONUS POINT ABOUT LISTS OF ISSUES
A blog about civil procedure has to have balance. The previous post considered applications to amend from the applicant’s perspective. Here we consider the position of those opposing an application. Litigators are as likely to be opposing an application as…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS FOR APPLICANTS (PLUS A “BONUS POINT” AND USEFUL LINKS…).)
The posts earlier this morning highlighted the major obstacles facing a litigant who wants to amend their pleadings at a very late stage. This is a good time to look at previous posts on amendments, together with links to the…
THE CURRENT IMPORTANCE OF PLEADINGS 98 : THE COURT REJECTS A LATE APPLICATION TO AMEND: THE CLAIMANT DID NOT HAVE A STRONG CASE
We have already look at this case in relation to the claimant’s application for relief from sanctions. The claimant was granted relief in relation to late service of the proposed amendments. However that did not, in fact, get the claimant…
THE CURRENT IMPORTANCE OF PLEADINGS 97 : CLAIMANT GIVEN LEAVE TO APPLY TO AMEND PLEADINGS THAT WERE SERVED LATE, BUT DIDN’T GET VERY FAR (OH, AND LEADING COUNSEL BEING ON HOLIDAY IS NOT A GOOD REASON FOR A BREACH…)
This is a case we are looking at in two parts. Firstly we are looking at the claimant’s application for relief from sanctions when it served amended Particulars of Claim outside the time period ordered by the court. A second…
FORMS FOR USE IN THE BUSINESS AND PROPERTY COURTS: UPDATED GUIDANCE
HM Courts and Tribunal Service have prepared an updated list of forms to be used in the Business and Property Courts. The forms are now in one useful place. THE UPDATED COLLECTION The updated collection can be found here. THE…
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