COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 4: WHY IS PD57AC BREACHED SO OFTEN? “SOLICITORS MIGHT FEEL UNDER PRESSURE TO SIGN CERTIFICATES OF COMPLIANCE … EVEN WHEN THEY KNOW THAT STATEMENTS WERE NOT COMPLIANT…”
There has a been a regular flow of cases where the courts have commented that PD57AC has not been complied with, it is “more honoured in the breach than the observance”, was noted in one judgment. Given that these are…
COST BITES 379: HIGH COURT JUDGE UPHOLDS DECISION THAT INTERIM BILLS WERE STATUTE BILLS AND THAT THE CLAIMANT COULD NOT SEEK ASSESSMENT OUT OF TIME
This decision is important for two reasons. Firstly it upholds the original judgment that the interim bills in this case were statute bills and that there were no special circumstances to allow assessment out of time. Secondly it highlights the…
OPENING LINES TO START THE WEEK: “FOR CENTURIES, IT HAS BEEN RECOGNISED THAT HUMAN HEARING CAN BE DAMAGED BY EXPOSURE TO LOUD NOISE”
We usually review the opening lines of judgments at the end of the year. However I thought this would be a good way to start the week, ranging as it does from ancient Greece to Rome and then to important…
BACK TO BASICS MONDAY: WHEN YOU ARE SEEKING PERMISSION TO RELY ON EXPERT EVIDENCE THE COURT HAS TO KNOW HOW MUCH IT WILL ALL COST…
Here we are looking at a basic requirement that is often overlooked. When a party is applying for permission to rely on expert evidence there is a mandatory obligation to provide the court with an estimate of costs. THE…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
PROVING THINGS 288: HOW SHOULD A COURT CONSIDER A CLAIM FOR LOSS OF EARNINGS WHEN THE CLAIMANT IS STILL IN EMPLOYMENT? SMITH -v- MANCHESTER APPROACH PREVAILS
No sooner was the (metaphorical) ink dry on the previous post about loss of earnings when I received a useful case from David Platt KC. It is a judgment that contains much of interest to litigators (that we will return…
CLAIMS FOR LOSS OF EARNINGS: AVOIDING THE PITFALLS: WEBINAR 19th JUNE 2026 (TOGETHER WITH A USEFUL QUESTIONNAIRE AND SERIES OF CHECKLISTS)
It is surprising how many allegations of negligence are made against lawyers because of a failure to consider and obtain damages for loss of earnings. In addition there are a growing number of cases where claimants have come to grief…
THE “WEAPONISATION” OF APPLICATIONS TO COMMIT IN CIVIL PROCEEDINGS: IT’S NOT CLEVER, IT’S NOT “TOUGH” AND IT CERTAINLY IS NOT A MARKETING TOOL
There are some interesting, and important, observations in this judgment about the use (or misuse) of applications to commit in civil proceedings. The judge felt that this case was part of a larger trend to “weaponise” contempt proceedings as part…
COST BITES 378 : REFORM OF THE SOLICITORS ACT 1974, PART III: READ THE CONSULATION PAPER: A CHANCE TO COMMENT ON THE PROVISIONS THAT ARE “A GREAT MYSTERY” TO MANY SOLICITORS (NOT MY WORDS…)
There is no shortage of posts about solicitor-client costs on this site (see the links section below). The Civil Justice Council have issued a Consultation Paper on reform of Part III of the Solicitors Act. “Whilst it might be expected…
THROWBACK FRIDAY: SCHEDULES AND COUNTER-SCHEDULES ARE NOT A “NUMBER CRUNCHING EXERCISE” (APRIL 2018)
If there is a judgment that still resonates in practical terms today it is the one we are considering here. It asks the answer how should schedules be drafted? It then gives the answers. This was in a case where…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COST (MEGA) BITES 378: WHO WOULD SPEND £15,751,483 PLUS VAT TO RECOVER DAMAGES OF £16.91? (WELCOME TO THE SURREAL WORLD OF “COLLECTIVE PROCEEDINGS”: THE CAT ARE CONCERNED THAT LITIGATION IS BEING BROUGHT FOR THE LAWYERS & FUNDERS RATHER THAN CONSUMERS
There are many who have doubts, often profound doubts, about the utility of class actions where each of the recipients will recover minute sums. Those doubters will have their views compounded by the judgment in this case. The likely damages…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
SERVICE POINTS 36 : “THIS IS AN AREA OF UNDOUBTED STRICTNESS”: ERRORS IN SERVICE OF THE CLAIM FORM WERE FATAL TO THE CLAIM
Regular readers of this site will not need reminding of the strictness of the rules relating to service of the claim form. Here we have another example. The claimant failed to serve the sealed claim form within the period allowed…
COST BITES 377: THE COURT WOULD NOT STAY A PAYMENT ON ACCOUNT PENDING THE DEFENDANT’S APPEAL AND/OR APPLICATION FOR A RIGHT TO SET OFF THEIR OWN COSTS (WHY WHAT IS TAKEN OUT OF DRAFT ORDER CAN BE AS IMPORTANT AS WHAT IS LEFT IN…)
Here we have an unusual issue, caused by the defendant agreeing to an unusual order (more accurately the removal of a proposed term of an order). The defendant was liable to pay the claimant’s costs of a hearing which were…
PERSONAL INJURY POINTS 12: WHAT IS A CLAIMANT TO DO ABOUT CRU IF THE DEFENDANT IS NOT INSURED AND NOT RESPONDING?
This case considers the issues that arise when a defendant has failed to comply with its statutory obligation to notify the Compensation Recovery Unit of a claim. What duties does the claimant have in these circumstances. The blunt answer is…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
SERVICE POINTS 35: HOT OFF THE PRESS: THE HIGH COURT UPHOLDS INITIAL FINDING THAT AN ELECTRONICALLY ISSUED AND SUBSQUENTLY AMENDED CLAIM FORM DOES NOT HAVE TO BE RE-SEALED PRIOR TO SERVICE
The cases on service of the claim form continue to flow. Here the defendant appealed a decision that it was not necessary for a claimant to serve a sealed copy of an amended claim form. As we shall see the…
EXPERT WATCH 44: THE JUDGE PREFERS THE EVIDENCE OF ONE EXPERT OVER ANOTHER: IT IS AS SIMPLE AS THAT…
Here we have a case where success for the claimant rested almost wholly on their expert evidence being accepted. This is not altogether unusual for a clinical negligence case. What is notable about this case is that the treating doctor…
SERVICE POINTS 34: IS SERVICE BY EMAIL IS STILL VALID – IF IT SITS IN THE RECIPIENT’S SPAM BOX?
There is an ongoing consultation process about the use of email in civil procedure. It is now commonplace, almost universal. However what is the situation where the email, carrying important notification, lands inside the recipient’s spam box? That is the…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
DEDUCTING COSTS FROM THE CLAIMANT’S DAMAGES: A DEDUCTION OF £2,500 REDUCED TO £330: THE WARNING NOTICE FROM THE SRA REITERATED IN A COURT JUDGMENT
The previous post mentioned a webinar this Friday on deducting costs from the client’s damages. Right on cue this judgment occurred on that very topic. It makes some very important observations. It has created more work in preparing the webinar,…
DEDUCTING COSTS FROM THE CLIENT’S DAMAGES: THE LAW AND PRACTICE: WEBINAR 24th APRIL 2026
Recent cases have shown that the issues relating to to deducting costs from the client’s damages remain controversial and highly contested. This webinar examines the regulatory framework and case law governing the deduction of legal costs from a client’s damages…
EXPERT WATCH 43: WHEN AN EXPERT DOESN’T HAVE “REAL WORLD” EXPERIENCE OF THE MATTERS IN THEIR REPORT – THEY START ON THE BACK FOOT…
The previous post on costs and mediation led to me to look at the initial judgment on liability. This is because the court considered an argument that the situation with the claimant’s expert was so poor as to warrant indemnity…
COSTS BITES 377: SHOULD A SUCCESSFUL DEFENDANT’S REFUSAL TO MEDIATE LEAD TO IT LOSING ITS RIGHT TO RECOVER COSTS?
Here we have a case where a claimant who lost a case at trial (and turned down an offer of £200,000) argued that there should be no order for costs. That argument did not take it very far… “The Defendant’s…
BACK TO BASICS MONDAY: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the…
THERE MAY BE A LOT OF LAWYERS REPRESENTING A PARTY: HOWEVER THE CLAIM WAS STILL PRESENTED IN AN “UNFOCUSED” MANNER: A “MOVEABLE FEAST” IS NOT A WISE WAY TO CONDUCT LITIGATION
It is not that common for a judge to comment that a claim has been brought in an “unfocused manner”. It is even less common in a case where the case is heavily “lawyered”. We have an example here. The…
CHILD CLAIMANTS AND LOSS OF EARNINGS CLAIMS: WEBINAR 20th APRIL 2026: NOW WITH GREATLY EXPANDED QUESTIONNAIRE
A post yesterday highlighted both the significance of a claim for loss of earnings for a child claimant, but also the difficulty. In that case the award for disability in the labour market of £50,000 was higher than the award…
AN APPEAL WAS LODGED IN TIME: SOMETIMES THE COURT DOES NOT HELP – BUT HINDER: “I HAVE CONCLUDED THAT THE COURT THWARTED THE LITIGANT’S PROPER AND REASONABLE ATTEMPT TO BRING THE APPEAL IN TIME”
Here we have a case where an important time limit was, on the face of it missed, because the court itself “thwarted” genuine attempts to lodge an appeal in time. It is an object lesson the care that needs to…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
“OVERHEATED LANGUAGE” A “CAVALIER APPROACH” AND “THIN ALLEGATIONS”: WHY IT PAYS TO BE CAREFUL AND DETAILED WHEN MAKING APPLICATIONS TO DISCHARGE INJUNCTIONS
We have seen many cases where the courts have been critical of a party’s failure to comply with the duties of full and frank disclosure when obtaining an order without notice. However here we have a case where the judge…
THE SUMMARY ASSESSMENT OF COSTS: A GUIDE FOR PRACTITIONERS: WEBINAR 17th APRIL 2026
Last week we saw a case where, on a summary assessment, costs were reduced from £2.6 million to £750,000 on a summary assessment. Clearly not all assessments are going to involve these amounts, however the case highlights that these can…
MAZUR MATTERS 61: A COMPARISON OF THE LAW SOCIETY GUIDANCE BEFORE AND AFTER THE COURT OF APPEAL DECISION
The Revised Law Society Guidance on Mazur was looked at in a previous post. Whilst we wait for the SRA Guidance it may be useful to look at the key differences in the Law Society Guidance before and after the…
ACCEPTANCE OF A PART 36 OFFER WHILST AN APPLICATION TO REALLOCATE THE CASE FROM BAND 2 TO BAND 1 IS PENDING: CAN THE COURT STILL PROCEED TO REALLOCATE?
I am grateful to my colleague Steven Turner for sending me a copy of this interesting decision which relates to Part 36, fixed costs and applications to “re-band” a case. The case may be unusual in that an application for…
PROVING THINGS 286: THE CLAIMANT FAILS TO PROVE ITS CASE: YOU LOST US $715 MILLION IN TWO YEARS BUT THAT WAS BECAUSE YOU DID NOT UNDERSTAND THE BUSINESS YOU WERE BUYING
Here we have a case where the claimant lost a lot of money ($715 million) in a short amount of time (two years) but failed in its attempt to show that this was due to the fault of the defendants….
THE CURRENT IMPORTANCE OF PLEADINGS 66: WHEN THE CLAIMANT TRIES TO ADVANCE ALLEGATIONS NOT STATED IN THE STATEMENT OF CASE THOSE MATTERS ARE NOT CONSIDERED BY THE JUDGE
This case illustrates the need for allegations to be pleaded, particularly in relation to assertions of fraud. It took 38 days of court time and concerned a loss of US $715 million. Still the judge was concerned that allegations were…
PRACTICE NOTE FROM THE CHANCELLOR OF THE HIGH COURT: NEW REQUIREMENTS FOR SUMMARY ASSESSMENT FROM 14th APRIL 2026 (UPDATED)
Last month I wrote about the Practice Note in relation to Summary Assessments that take place in the Rolls Building from the 14th April 2026. That Practice Note was superseded by a further Practice Note issued yesterday. (In other words…
“GUIDE, MENTOR AND FRIEND”: REVIEW OF THE APIL GUIDE TO CATASTROPHIC INJURY CLAIMS 4th EDITION: STUART McKECHNIE KC (AND A FORMIDABLE TEAM): THE “LITTLE GEM” THAT KEEPS ON GIVING
The fundamental question for a reviewer of a legal text is – is this book worthwhile? Here there is only one answer. A book of considerable importance, assistance and utility is a “must buy”. HOW DO I SUMMARISE THIS? Sir…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
A REMINDER – DOCUMENTS IN AN AGREED BUNDLE ARE ADMISSIBLE AT THE HEARING AS EVIDENCE OF THEIR CONTENTS.
We are just looking at a few lines from a judgment we looked at earlier this morning. They contain a reminder that documents in an agreed bundle are admissible as evidence at the hearing. However this does not mean that…
MAZUR MATTERS 60: THE REVISED LAW SOCIETY GUIDANCE NOTE: SOME KEY POINTS: THIS WILL REQUIRE CLOSER OVERSIGHT OF THE WORK BEING DONE
One remarkable aspect of the Mazur decision is that in a very real sense it is the losers of the case who get to decide what goes on going forward. The Court of Appeal rejected the submissions of the Law Society…
AN “EXTERNAL” REPORT IS RELEVANT TO THE ISSUES IN THE CASE BUT THE JUDGE WILL DETERMINE ALL KEY MATTERS THEMSELVES..
We have, for many years now, been looking at the way in which the courts consider the admissibility of reports prepared for related purposes. We have that issue considered in this case. A report was obtained in relation to allegations…
THERE WAS NO AGREEMENT TO EXTEND TIME FOR SERVICE AS THE DEFENDANT ASSERTED: THE SCCO REFUSES TO SET ASIDE A DEFAULT COSTS CERTIFICATE
This is an interesting judgement on two levels. Firstly the judge did not accept the defendant’s contention that there had been an agreement to extend time for service of Points of Dispute to a bill of costs. Secondly, applying the…
MAZUR MATTERS 59: REMEMBER THAT MOST OF THIS AROSE BECAUSE SOMEONE DIDN’T KNOW (OR APPLY) THE CORRECT RULES AS TO FIXED COSTS
One underlying irony about the Mazur debacle is that most of the problems arise because of a mistake as to costs. The Circuit Judge ordered Ms. Mazur and Mr Stuart £10,653 when, in fact, the costs should only have been £636.00. …
COST BITES 376: THE NEED TO KEEP THE CLIENT INFORMED OF COSTS BEING INCURRED: THE SOLICITOR SHOULD HAVE INFORMED THE CLIENT THAT COSTS OF US $35,343,213.96 WERE BEING INCURRED
This judgment highlights the need for a solicitor to keep the client fully informed of the costs incurred. The judge observed that the SRA Code of Conduct imposed a positive duty on a solicitor to give the client the best…
BACK TO BASICS MONDAY: TIME LIMITS FOR CHALLENGING SOLICITORS’ BILLS
There have been a large number of posts recently relating to solicitor and own costs assessments. Many of these cases have related to the issue of whether bills delivered were “statute” bills “interim statute bills” or simply interim bills. The…
AVOIDING THE PITFALLS: DRAFTING SCHEDULES OF DAMAGES: WEBINAR 16th APRIL 2026: WITH SOME INTERESTING QUOTES TO WHET YOUR APPETITE..
Drafting a Schedule of Damages is not simply a mathematical calculation. It requires legal knowledge, careful analysis, attention to evidence, and practical judgement. Courts frequently criticise poorly prepared schedules, particularly where figures are unsupported, exaggerated, or inconsistent with the evidence….
COST BITES 375 : WHY THESE INTERIM BILLS WERE NOT STATUTORY BILLS: “VERY CLEAR EVIDENCE WOULD BE NEEDED TO ESTABLISH THAT AN INVOICE WHICH, ON ITS FACE, IS EXPRESSLY NOT FINAL HAS NONETHELESS BEEN AGREED TO BE FINAL”
Last month we looked at a case where a series of interim bills were found to be statutory bills. Today we look at a case where the court came to the opposite conclusion. This has important practical consequences in that…
MAZUR IN THE COURT OF APPEAL: WEBINAR WITH CHECKLISTS: NOW AVAILABLE “ON DEMAND”
If you could not attend the webinar on the practical implications of the Court of Appeal decision in Mazur yesterday it is now available “on demand”. The Mazur decision confirms that authorised individuals may delegate tasks within the conduct of…
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