EXPERT WATCH 41: THE COURT OF APPEAL REFUSES TO OVERTURN A DECISION WHERE THE “WRONG” TYPE OF JOINT EXPERT WAS INSTRUCTED
This is an unusual case where, after the event, a party to the litigation argued that the court had relied on the “wrong” type of expert evidence. An educational psychologist had been instructed as a joint expert whereas what was…
COSTS INFORMATION AND THE OMBUDSMAN 7: HEADING OFF PROBLEMS AT THE OUTSET: (WEBINAR THIS THURSDAY 19th MARCH 2026 – WITH LOTS OF CHECKLISTS)
This short series has aimed to highlight the ongoing difficulties that litigators, in particular, can have with giving compliant costs information to their clients. In looking at this topic it is clear that there are numerous cases where clients have…
CLINICAL NEGLIGENCE CORNER 6: CLAIMANT FAILS TO ESTABLISH CAUSATION: STATISTICAL RISK REDUCTION DOES NOT SATISFY THE BURDEN OF PROOF
Establishing causation is a key element of many clinical negligence cases. Here we have a case where the issue of causation was put in two ways: the “but for” test and alternatively the “indivisible injury” test. The claimant did not…
COSTS INFORMATION AND THE OMBUDSMAN 6: YOU SAID IT WOULD COST £2,500 – £3,000 – I’VE PAID YOU £16,000: THE IMPORTANCE OF GIVING ESTIMATES AS TO DISBURSEMENTS
This decision emphasises the fact that when giving costs estimates the solicitor should also do their best to estimate the costs of disbursements in addition to their own costs. Here the solicitor mentioned that there would be additional costs if…
BACK TO BASICS MONDAY: THE IMPORTANCE OF SERVING THE PARTICULARS OF CLAIM WITHIN THE TIME FOR SERVICE OF THE CLAIM FORM: THE “BEAR TRAP” IN WAITING
The back to basics point today is based on a recent case which shows the importance of serving the particulars of claim within the four month period allowed for service of the claim form. The claimant served the particulars three…
EXPERT WATCH 40: THE TRIAL JUDGE DID NOT ACCEPT THE EVIDENCE OF THE JOINTLY INSTRUCTED WITNESS: “THE DUTY OF THE COURT IS TO APPLY THE BURDEN OF PROOF AND TO FIND THE FACTS HAVING REGARD TO ALL THE EVIDENCE IN THE CASE…”
This is a case where the judge did not accept the views of a jointly instructed expert as to the authenticity of a document that was central to the case. The expert did not have access to all the relevant…
RELIEF FROM SANCTIONS REFUSED AFTER CLAIMANT FAILS TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: “THE CONSEQUENCE IS THAT THE PROCEEDINGS ARE STRUCK OUT”
Here we look at the “second half” of the decision considered in the previous post. Having rejected the claimant’s submissions that breaches of a peremptory order should be considered under CPR 3.10 the judge then went on to consider the…
THE BREACH OF A PEREMPTORY ORDER IS A SERIOUS MATTER: IT CANNOT SIMPLY BE DEALT WITH UNDER CPR 3.10
Here we look at an interesting, but eventually futile, about the approach the court should take when a party was in breach of a peremptory order. The claimant in breach argued that the court should consider the matter under CPR…
WITNESS EVIDENCE AND RELIABILITY: THE WITNESS WHO USED “SMART GLASSES” TO ASSIST IN GIVING ANSWERS TO CROSS-EXAMINATION
Here we have a case where the judge made clear findings that a witness had been using “smart glasses” when giving answers to cross-examination in court. It is another example of how technology can be mis-used during the trial process…
THROWBACK FRIDAY: PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC: (MARCH 2015)
The issues raised in the Current Importance of Pleadings series are not new. We see points as to pleading raised in March 2015. Here the judge considered a pleading that “leaves much to be desired.” “The overall result of these…
COST BITES 362: WHETHER A BREAKDOWN SHOULD BE PROVIDED ON A DISBURSEMENT: READ THE JUDGMENT
An earlier post related to this case which deals with the question of whether a party should provide a breakdown of an invoice from a translator. Ben Williams KC has kindly provided me with a copy of the judgment. “In my judgment,…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
COSTS INFORMATION AND THE OMBUDSMAN 5: DISCOURAGING THE USE OF A BTE POLICY (THIS IS NOT GOOD NEWS FOR THE SOLICITOR…)
We continue with our examination of the Legal Ombudsman’s decisions about costs. The issue here was whether the solicitors were correct to discourage the use of an BTE policy and act privately taking out ATE insurance. “It is expected by…
CAN A DEFENDANT MAKE A PART 36 OFFER THAT ATTEMPTS TO BIND THE CLAIMANT IN RELATION TO MATTERS NOT PLEADED?
Here we have an interesting, and important, point about CPR Part 36. Firstly could a defendant establish that a claimant had not beaten a Part 36 offer when that offer dealt with matters that were not part of the pleaded…
COSTS INFORMATION AND THE OMBUDSMAN 4: GOING OUTSIDE THE LEVEL OF LEGAL INSURANCE COVER
Here we are looking at a decision in relation to legal expenses insurance. The solicitor had gone outside the cover of the insurance but not informed the client. The Ombudsman’s conclusions on this issue are not a great surprise… “The…
WHEN CAN A JUDGE CHANGE THEIR MIND? THE PRINCIPLES CONSIDERED: AN “AMBUSH” LEADS TO A POINT BEING RECONSIDERED
Here we look at a case where the judge had given a decision on an issue but, on consideration, decided that their initial view may be wrong. The judgment sets out the relevant case law and principles in some detail….
COSTS INFORMATION AND THE OMBUDSMAN 3: FAILURE TO CONSIDER ALTERNATIVE METHODS OF FUNDING
We are continuing with our examination of Legal Ombudsman decisions on issues relating to costs. Here there was an finding of inadequate service because of a failure to consider whether the client had legal insurance that cover the costs involved….
SERVICE POINTS 30 : A PROCEDURAL DEBACLE: THE DEFENDANT HAD LEFT IT FAR TOO LATE TO TAKE A POINT AS TO SERVICE OF THE CLAIM FORM
Many cases relating to service of the claim form involve a procedural debacle. It is rare that they present a “dogs breakfast” such as this. The defendant took a point that the claim had been issued out of time, that…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 29th APRIL 2026
The Court of Appeal’s decision in Attersley v UK Insurance Ltd has sharpened the costs risks faced by claimants who accept a Part 36 offer outside the relevant period. While a claimant who accepts late remains subject to fixed recoverable costs…
THE QUESTION OF THE CLAIMANT’S CAPACITY SHOULD NOT HAVE BEEN DEALT WITH AS A PRELIMINARY ISSUE: THE COURT SHOULD APPOINT A LITIGATION FRIEND – THIS DOES NOT PREJUDICE THE DEFENDANT’S POSITION
Here we have a case where a defendant appealed against a decision it agreed with. The judge found that the claimant had capacity and did not require a Litigation Friend. However the defendant’s issue was with the very decision to…
BACK TO BASICS MONDAY: EXHIBITS: A REMINDER OF THE RULES, WHERE THINGS GO WRONG AND HOW TO AVOID PROBLEMS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
AVOIDING THE PITFALLS WITH EXPERT EVIDENCE: WEBINAR 20th MARCH 2026: THE EXPERTS REPORT WAS “ALMOST WORSE THAN USELESS…”
We have seen some graphic examples in the past few weeks of a court robustly rejecting expert evidence adduced on behalf of a claimant. This webinar examines why expert evidence is not accepted, limited, or even wholly rejected at trial….
COSTS INFORMATION AND THE OMBUDSMAN 2: POOR COSTS INFORMATION: NOT INFORMING THE CLIENT ABOUT COSTS UNTIL TWO YEARS INTO THE RETAINER…
We are taking a close look at several Legal Ombudsman decisions in relation to costs, more particularly information about costs in litigation. Here the firm of solicitors did not provide any information about potential costs for a year after being…
COST BITES 361: THE STEPS A CLAIMANT SHOULD TAKE IF THEY WISH TO RECOVER PRE-ALLOCATION COSTS ON THE BASIS THAT THE CASE WOULD HAVE PROCEEDED IN THE FAST TRACK
I am grateful to Andrew Hogan for sending me a copy of this decision which relates to pre-allocation costs in housing cases. It deals with the question of how the court should address pre-allocation costs where a housing disrepair claim…
THROWBACK FRIDAY: LITIGATION: WHAT IS AN APPROPRIATE CASE LOAD – AND IS IT IMPORTANT? (MARCH 2016)
Here is a post from a decade ago with an issue that remains just as relevant today. What is an appropriate case load for litigators? How do we find the balance between economic survival and overloading, stress and the major…
COSTS INFORMATION AND THE OMBUDSMAN 1 : WHILST COSTS CAN BE DIFFICULT TO PREDICT THE FIRM SHOULD HAVE PROVIDED AN ESTIMATE BASED ON THEIR PROFESSIONAL KNOWLEDGE AND EXPERIENCE…
We continue with our examination of recent Legal Ombudsman decisions in relation to providing estimates of costs in particular. Here we have a finding that the information given as to the costs of litigation was inadequate. “Whilst I appreciate…
THE DEFENDANTS’ APPLICATION WAS AN ABUSE OF PROCESS: THE DANGERS OF TRYING SIMILAR THINGS A SECOND TIME AROUND: “THE HENDERSON AND HUNTER PRINCIPLES APPLY TO INTERLOCUTORY HEARINGS AS MUCH AS TO FINAL HEARINGS”
This is an interesting case on the relevance of the “Henderson” principles to applications, in this case for reverse summary judgment/to strike out the claim. A similar application had been made much earlier in the litigation. The judge found for…
EXPERT WATCH 39: WHEN THE HOME SECRETARY DID NOT CHALLENGE EXPERT EVIDENCE SHE CANNOT BE THAT SURPRISED WHEN THE COURT ACCEPTS IT
We are looking at another case where a party failed to challenge expert evidence. The Court of Appeal was clear in its view that if fault lay anywhere it was with the appellant’s failure to challenge the expert evidence that…
WITNESS EVIDENCE WEDNESDAY II: WITNESS CREDIBILITY: THE PRINCIPLES IN TUI -V- GRIFFITHS DID NOT IMPACT ON THE ASSESSMENT OF A LAY WITNESS
Here we have an unusual argument where an appellant attempted to use the decision in Tui -v- Griffiths to argue that a tribunal should not have accepted the evidence of a lay witness. The evidence of the witness in question…
COURT OF APPEAL OVERTURNS DECISION ABOUT LATE ACCEPTANCE OF PART 36 OFFER LEADING TO CLAIMANT BEING ENTITLED TO COSTS TO BE ASSESSD
It is a busy day for Court of Appeal decisions on procedure. Here we have an important judgment on Part 36. What are the costs consequences if a defendant makes a Part 36 offer when the case is subject to…
IMPORTANT COURT OF APPEAL DECISION TODAY: A CLAIM IS BROUGHT WHEN A CLAIM FORM IS SENT TO THE COURT EVEN IF IT DOES NOT HAVE THE CORRECT ISSUE FEE
This Court of Appeal decision today clarifies the position when a claimant files a claim at court but mistakenly does not pay the correct fee. The Court held that the claim was “delivered” when the claim was filed at court….
CCC AND LOST YEARS IN THE SUPREME COURT: THE POTENTIAL STING IN THE TAIL FOR CLAIMANTS: “WAGES IN HEAVEN SHOULD NOT BE AWARDED WHEN THEY ARE NEEDED ON EARTH”
Here we are looking at some of the observations made by Lord Burrows in the recent judgment given by the Supreme Court. In the short term it is good news for seriously injured child claimants. However Lord Burrows has laid…
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
MAZUR MATTERS 53: JUDGE REFUSES TO GRANT A SPECIFIC OR GENERAL EXEMPTION TO AN EXPERIENCED LEGAL EXECUTIVE
One of the issues that has followed the Mazur decision arises from the fact that the statute gives the court a power to grant an exemption. Here the judge considered whether the power to grant an exemption should be granted…
SERVICE POINTS 29: WOULD THE COURT STRIKE OUT THE ACTION WHEN THE CLAIMANT FAILED TO COMPLY WITH A r. 7.7 NOTICE?
It is unusual to see cases about the operation of CPR 7.7. This rule allows a defendant to serve a notice requiring that a claim form be served. In this case the claimant did not comply and the defendant applied…
A PART 36 OFFER CANNOT BE OUTSIDE THE SCOPE OF THE PLEADINGS: NOR CAN THE OFFEROR ARGUE THAT IT WAS NOT, IN FACT, A PART 36 OFFER AT ALL
Here we have a case where the defendant argued that a second action against it by a claimant was an abuse of process because an earlier action had settled by way of the claimant accepting a Part 36 offer. The…
PREPARING BUNDLES: A GUIDE FOR LITIGANTS IN PERSON (FAMILY GUIDANCE – BUT MUCH FOR OTHERS TO LEARN…)
We all know that the preparation of bundles can be a tricky job, even for legal professionals. The rules in relation to Bundles in family proceedings changed today. The Office of the President of the Family Division has published guidance…
ACTION STRUCK OUT BECAUSE OF APPLICANT’S FAILURE TO COMPLY WITH A PEREMPTORY ORDER: (THIS MAY WAKE YOU UP ON A MONDAY MORNING…)
Here we have a case, brought be a professional liquidator, which was struck out because of a failure to comply with a peremptory order as to disclosure. It serves as an object lesson in the need to educate a client…
BACK TO BASICS MONDAY: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF ANY WITNESS STATEMENT OR AFFIDAVIT
Here we are looking at one of the basic rules for witness statements. Curiously it is ignored in about 40 – 50% of the statements I see in practice. Often the oversight is ignored. Some judges take a hard line….
AVOIDING THE PITFALLS: WITNESS EVIDENCE AND WITNESS STATEMENTS: WEBINAR 6th MARCH 2026
We have seen a lot of issues over the years in relation to the drafting of witness statements and presentation of witness evidence. There are many cases that illustrate the problems that arise. This webinar aims to head off those…
EXPERT WATCH 39: BOTH EXPERTS “ACTED AS SURROGATE ADVOCATES ON BEHALF OF THEIR INSTRUCTING PARTY”: MORE LESSONS TO BE LEARNT…
We have another High Court decision where the judge was highly critical of the approach of each expert. The judge found that each took on the role of advocate rather than expert. The criticisms are stark “they were similar in…
WEBINAR ON PART 36: NOW AVAILABLE “ON DEMAND”: WATCH IT WHEN AND WHERE YOU WANT…
I have had some enquiries about whether the webinar given today on Recent Developments in Part 36 is available this webinar is available “on demand. It is now available – the details are available here. (The CLB Member discount…
MAZUR MATTERS 52: AND NOW WE WAIT… STATUTORY CONSTRUCTION AND “DANCING ON A PINHEAD” : SOME USEFUL LINKS
The arguments in the Mazur appeal have been completed. The profession now awaits. I was able to watch the first 1 1/2 days. I have to say that phrase “dancing on a pinhead” came to mind when I was…
HOW FAR IS A CIVIL COURT BOUND (IF AT ALL) BY THE CONCLUSIONS IN ANOTHER CIVIL MATTER? THE ISSUE CONSIDERED IN THE HIGH COURT
Can a judge take into account findings of fact in a “related” civil action? That is the matter being considered here. The judge had to consider whether factual findings as to the employment status of the petitioner in Employment Tribunal…
THROWBACK FRIDAY: THE COURT OF APPEAL ON THE CREDIBILITY OF AN EXPERT WHO HAD HIDDEN THE FACT THAT THEY HAD BEEN A COLLEAGUE OF THE DEFENDANT (FEBRUARY 2017)
Here we look at a case where the Court of Appeal addressed the issue of witness credibility head on. An expert giving evidence for the defendant in a clinical negligence case failed to disclose the fact that he and the…
COST BITES 360: THE COURT DOES HAVE POWER TO ORDER SECURITY FOR COSTS IN A SOLICITORS ACT ASSESSMENT: HOWEVER IT MADE AN ORDER FOR AN INTERIM PAYMENT INSTEAD
Here we have a case that it about the complex “fall out” following funding of litigation by litigation funders. The claimant sought an assessment of costs on the basis that it may have an interest in the sums being sought….
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
COURT OF APPEAL DECISION ON PART 36 FIXED COSTS AND LATE ACCEPTANCE HEARD – DECISION PENDING (PLUS A FINAL PLUG FOR THE WEBINAR ON PART 36 ON THE 26th FEBRUARY 2026)
The Court of Appeal has heard an appeal against the decision in Laura Attersley v UK Insurance Limited [2025] EWHC 884 (KB). This is an interesting decision on Part 36. I understand that judgment is pending. This was one of many…
EXPERT WATCH 38: AN EXPERT HAD NOT BREACHED THEIR DUTY BY ACCEPTING LIMITED INSTRUCTIONS: BUT WHEN SHOULD AN EXPERT REFUSE INSTRUCTIONS?
Here we are considering some important observations in relation to the duties of an expert who is given limited instructions. The judge considered whether this involved a breach of the expert’s duty to the court. On the facts of this…
COST BITES 359: A SOLICITOR’S FAILURE TO SIGN THE COSTS CERTIFICATE PROPERLY DID NOT RENDER THE BILL INVALID (THIS MAY EXPLAIN WHY BIRMINGHAM COUNCIL DOES NOT HAVE ANY MONEY…)
Here we have an appeal by a paying party on a highly technical point. The appeal failed. It highlights the dangers of (i) permitting a default certificate to be entered; (ii) taking technical points which (as the Court observed) led…
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