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…
STARTING THE WEEK WITH ANOTHER CLAIM FORM CASE: IT IS NOT QUITE – BUT NIGH ON – IMPOSSIBLE TO OBTAIN A RETROSPECTIVE ORDER ALLOWING A CLAIM FORM TO BE SERVED LATE
Here we look at a case where the claimant spent a lot of time money and effort obtaining a world wide freezing order but failed to notice that the time for service of the claim form had expired. This led…
PART 36: SHOULD THE NORMAL PART 36 CONSEQUENCES APPLY WHEN A CLAIMANT HAD, EFFECTIVELY, OFFERED “NIL” ON A COUNTERCLAIM (THAT FAILED)?
Here we are looking at some interesting arguments on Part 36 put forward by an, obviously disappointed, defendant. The claimant had beaten its own Part 36 offer and defeated the defendant’s counterclaim totally. Nevertheless, the defendant argued, this was not…
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….
COST BITES 263: QOCS AND CLAIMS AGAINST THE POLICE – A SIMILAR ISSUE TO YESTERDAY BUT WITH A TOTALLY DIFFERENT RESULT (NO ONE EVER SAID LITIGATION WAS EASY…)
Yesterday we looked at a case where, on appeal, the judge indicated that he would set aside a costs order made against the claimants who had brought an action against the police. The claimants had QOCS protection. Today we look…
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…
MEMBER NEWS: THE BACK CATALOGUE 4: WHY CIVIL PROCEDURE CAN SOMETIMES NOT BE A BUNDLE OF FUN: AND WHY BUNDLES CAN LEAD TO WASTED COSTS ORDERS…
It may surprise people to know how important bundles are to the conduct of civil litigation. It is even more surprising how problematic they can become. Posts about bundles, and the problems they can present in civil litigation, have always…
COST BITES 261: HOW MUCH DID THAT (UNSUCCESSFUL) APPLICATION TO AMEND COST? SOME £616,000 APPARENTLY…
Here we are looking at the award of costs following the judgment considered in the previous post. The applicants had, they said, incurred £435,000 in costs, the respondents sought £181,374.28. For the most part the judge rejected the applicants’ submissions…
THE CURRENT IMPORTANCE OF PLEADINGS 26: VERY LATE APPLICATION TO AMEND REFUSED: APPLICANTS, TO SOME EXTENT, HOIST ON THEIR OWN PETARD OF COMPLAINTS ABOUT THE TRIAL DATE BEING AT RISK…
Here we look at a case where the court refused thee applicants’ application for permission to amend its particulars of claim. There are many points of interest to litigators. The application was made too late and, in any event, did…
AMENDMENTS TO ONLINE CIVIL MONEY CLAIMS PILOT COME INTO FORCE TODAY: PLUS AN IMPORTANT LETTER FROM HMCTS
The 187th Update Practice Direction Amendments come into force today. These make changes to the Online Civil Claims Pilot. These make important changes and should be read in conjunction with the letter from HMCTS dated 25th July 2025 which is…
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 259: COSTS FOLLOWING AN APPEAL : SHOULD COSTS BE ON THE INDEMNITY BASIS? WAS THIS A “HEAVY” CASE? SUMMARY ASSESSMENT IN ACTION
It is always interesting to look at the awards that are actually made following an assessment of costs. Whilst each case is fact specific it is possible for litigators to pick up important points. Here we have a consideration of…
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…
COST BITES 258: APPLICANT’S FAILURE TO ACCEPT SUGGESTION IN A LETTER LEADS TO INDEMNITY COSTS BEING MADE AGAINST IT
We are looking at a case where the judge found that an applicant should have accepted a suggestion that their application be withdrawn. Because they did not take up that application the applicant was ordered to pay costs on the…
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…
MEMBER NEWS: THE BACK CATALOGUE 3: THE COST BITES SERIES – 258 POSTS SO FAR AND NO SIGN OF STOPPING…
We can wager a bet (for charity of course) that 99.9% of litigators and 100% of litigants who read a judgment think – who paid the costs? The aim of this series, started in July 2022, was to enable practitioners…
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…
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…
ORDERS EXTENDING TIME FOR SERVICE OF THE CLAIM FORM SET ASIDE: THE DUTIES OF THE APPLICANT WERE NOT COMPLIED WITH: THE CLAIMANT COMES TO GRIEF
If there is any application that should make a claimant’s lawyer extremely uncomfortable it is making a without notice application to extend time for service of the claim form. If you add to this an application (made late) for permission…
ALLOCATION TO THE SMALL CLAIMS TRACK OR FAST TRACK IN HOUSING CASES: A JUDGMENT ON THE ISSUE (AND A PLUG FOR A WEBINAR ON THAT VERY POINT…)
We are looking at a judgment about allocation in a housing disrepair case. The story is a common one. The claimant wants the matter allocated to the Fast Track – so costs can be recovered. The defendant wants the matter…
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…
COST BITES 258: DOES THE FACT THAT ONE OF THE UNSUCCESSFUL DEFENDANTS IS A LITIGANT IN PERSON MEAN THAT THEY SHOULD PAY LESS COSTS? AN ISSUE CONSIDERED IN THE HIGH COURT
If there are two unsuccessful defendants to an action and one of them is a litigant in person – should this have any impact on the costs order that costs order the court makes? This was an issue considered by…
WHEN A SOLICITOR FORGETS TO SIGN AN IMPORTANT PART OF AN APPEAL DOCUMENT: CAN CPR 3.10 SAVE THE DAY? A TRICKY POINT TO WATCH IN FORM N161
CPR 3.10 is a rule often asked to so some “heavy lifting” by applicants who have not complied with the rules or court orders. Sometimes it is not capable of handling the load, particularly in relation to issues surrounding service…
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…
WHEN ARE THERE GOOD REASONS NOT TO ORDER A PAYMENT ON ACCOUNT OF COSTS? WHAT IS A “REASONABLE FIGURE” FOR SUCH PAYMENT? THE ISSUES CONSIDERED IN THE HIGH COURT
When a party loses an application or a case and costs are not assessed immediately then the general principle is that the paying party will be ordered to pay “a reasonable sum on account of costs”. Here the court considered…
I’VE DISCONTINUED AGAINST A DEFENDANT BUT I DON’T WANT TO PAY THEIR COSTS: HOW DO WE THINK THIS GOES?
There have been a number of cases recently where discontinuing parties have sought to escape the costs consequences that normally apply. We have such a case here. The judge considers the relevant rules and case law in detail. It is…
THE COURT WOULD NOT STRIKE OUT A CLAIM BECAUSE OF ERRORS IN THE RESPONSE PACK: “THE OVERRIDING OBJECTIVE IS NOT FURTHERED BY PARTIES SEEKING TO TAKE ADVANTAGE OF TECHNICAL BREACHES”
Here we look at a case where a claimant made amendments to the response pack because service was going to take place abroad. The response pack then contained errors in relation to the times by which the defendant should take…
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…
THE CURRENT IMPORTANCE OF PLEADINGS 25: COURT REFUSES PERMISSION TO AMEND PARTICULARS: “THE PLEADED AVERMENT IS NOT PLAUSIBLE”
We have looked recently at the principles relating to amendment when the application to amend is made late. Here we look at a case where refusal to amend was refused because, among other things, the proposed amended case was not…
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…
COURT REFUSES TO GRANT A DEFENDANT RELIEF FROM SANCTIONS WHEN AN ACKNOWLEDGMENT OF SERVICE WAS FILED (VERY) LATE: ALSO REJECTS “BRAVE” SUBMISSION THAT THIS WAS A “TECHNICAL” BREACH
There are dozens, possibly hundreds, of posts on this site about the application of the Denton criteria and relief from sanctions. We have another case here. A defendant applied for relief from sanctions when the acknowledgment of service was filed…
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…
CHANGES TO RULES OF ACCEPTING SERVICE BY EMAIL: SOME VERY MODEST PROPOSALS: (AND BYE BYE TO THE FAX MACHINE)
The current consultation by the Civil Procedure Rule Committee relates to important issues of service that have featured many times in the courts, and on this site. Here we look at the issues being considered relation to the automatic agreement…
“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…
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