MAZUR MATTERS 46: A “CLAIMANT’S REPRESENTATIVE” HAD NO RIGHT OF AUDIENCE IN THIS SMALL CLAIMS TRIAL: “IT IS TO DISTORT THE PURPOSE OF SCH 3, PARA 7 BEYOND RECOGNITION THAT THE TRADITIONAL ROLE OF AN INHOUSE MANAGING CLERK UNDERTAKING THE ROUTINE WORK OF THE DISTRICT JUDGE BE EXTENDED INTO A WHOLESALE UNQUALIFIED ADVOCACY SCHEME”
This is the first time I have seen Mazur mentioned and considered in an issue as to rights of audience. In this case the judge held that the representative sent by the claimant to attend a small claims trial did…
THE CURRENT IMPORTANCE OF PLEADINGS 46: THE DEFENDANT HAD AGREED THAT THE DEFENCE AS DRAFTED BROKE THE RULES
We are looking at a case where we get a hint of a defence that was so defective that, ultimately, the defendant agreed it should be struck out and entirely repleaded. It provides an object lesson on how a defence…
THROWBACK FRIDAY: APPLICATIONS FOR RELIEF FROM SANCTIONS: 10 POINTS TO IMPROVE THE ODDS: LOOKING BACK TO JANUARY 2016
This blog celebrates its 13th birthday later this year. Civil Litigation Brief started as a series in the Solicitors Journal 35 years ago. Needless to say it has a large “back catalogue”. I wanted a regular opportunity to bring important…
WHEN CAN A JUDGE ADD ADDITIONAL MATERIAL TO A JUDGMENT AFTER HANDING DOWN? COURT OF APPEAL CONSIDERED THE ISSUE
Here we are looking at an old case. However it has only recently arrived on BAILII and deals with an issue that remains relevant today. The Court of Appeal considered the issue of when is it appropriate for a judge…
ANOTHER EXAMPLE OF AN APPLICATION FOR AN EXPEDITED TRIAL BEING REFUSED: A GOOD REASON FOR EXPEDITION HAS TO BE SHOWN
As promised we are looking at a second case where an expedited hearing was refused. The judge here went through the principles relating to expedition and found that good reasons had not been made out. The judge also rejected an…
COST BITES 324: THE TIME FOR ASSESSING COSTS IS NOW – WHO KNOWS WHAT WILL HAPPEN LATER
Here we are looking at an argument by a paying party that costs payable at an application should be reduced because the work would be required to be done at a later stage in any event. (The judge has no…
WHEN THE COURT REFUSES AN APPLICATION FOR AN EXPEDITED TRIAL: THERE IS NO POINT IN LABOURING THE ISSUE…
This is the first of two cases today where we look at examples where the courts have refused to grant an order for an expedited trial. This case was an unusual one, the judge reviewed the established principles and found…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
COST BITES 324: COURT REFUSES TO REDUCE SUCCESSFUL DEFENDANT’S COSTS BECAUSE OF REFUSAL TO ENGAGE IN MEDIATION
A party liable to pay the costs of a successful opponent is always keen to reduce that liability, not least by arguing that they should have a reduction in costs because of their opponent’s conduct. We see such an argument…
COST BITES 323: HOURLY RATES: THIS CASE DOES NOT FALL INTO LONDON BAND 1: IT CERTAINLY DOES NOT JUSTIFY FEES ABOVE THAT RATE…
We are returning to the issue of hourly rates. In this case the receiving party sought hourly rates that were above the London 1 band. The judge held that the case did not fall within that band and certainly did…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
COST BITES 322: WHAT IS THE POSITION OF AN INSURER IN RELATION TO VAT WHEN THE INSURED IS INSOLVENT: DOES A PAYING PARTY NOW HAVE TO PAY VAT?
This is an interesting “cost bite” issue. What is the position on VAT when an insurer is being sued under the Third Parties (Rights Against Insurers) Act 2010 but the insured has gone into voluntary liquidation? Is a paying party…
EXPERT WATCH 30 : WHEN THE EXPERTS REPORT ON THE BASIS OF DIFFERENT INFORMATION AND DOCUMENTS: IT WAS APPARENT THAT SOMETHING HADE WRONG WITH THE PROCESS OF OBTAINING EXPERT OPINION EVIDENCE
Here we have problems with the way in which handwriting experts were instructed. The difficulty being that different experts were given different documents. This led to difficulties at trial. However, ultimately, it did not favour the defendants. The judge was…
EXPERT WATCH 29: THE JUDGE IS WARY OF A CLINICAL EXPERT WHO IS “HEAVILY INVOLVED IN THE BUSINESS OF LITIGATION”
There have been a number of cases in recent years where judges have been wary (sometimes highly sceptical) of expert witnesses who make their living solely from being involved in litigation. We have another example here. There is no indication…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
COURT OF APPEAL REFUSES PERMISSION FOR APPELLANT TO AMEND PLEADINGS OR RELY ON NEW EVIDENCE: GET YOUR CASE TOGETHER BEFORE AN APPLICATION NOT AFTER IT…
In this judgment today the Court of Appeal refused an application by an appellant to rely on amended Particulars of Claim or adduce new evidence in a case where the claim was struck out. The Court made the point that…
THE CURRENT IMPORTANCE OF PLEADINGS 45: THE PARTICULARS OF CLAIM SHOWED NO ARGUABLE CAUSE OF ACTION AND WERE STRUCK OUT
Here we have an example of a case where the allegations against the proposed (Part 20) defendant were inadequately pleaded. So inadequate that the judge struck out the particulars and refused the applicant’s permission to rely on amended particulars (which…
CLINICAL NEGLIGENCE CORNER 6 : CAUSATION WHEN THE INJURIES OCCURRED BEFORE THE NEGLIGENCE: THE BREACHES MADE NO DIFFERENCE TO THE OUTCOME
Practitioners in every field of litigation need to be aware of the need to prove causation in addition to breach. This requirement can sound particularly harshly in clinical negligence. We see an example here. There were some breaches of the…
BACK TO BASICS MONDAY: MAKING APPLICATIONS: WORDING AND TIMING
Last week we looked a case where the parties to a day long application had incurred costs over of £1.3 million. That case emphasises that applications can be expensive. Further they can sometimes be expensive, leaving the applicant in a…
COST BITES 321: THE GUIDELINE HOURLY RATES ARE NOT “SOMEWHAT OUT OF DATE”
The previous post on the updating of the Guideline Hourly rates leads us to this next case. It poses the question – are the rates “somewhat out of date”. As we shall see the judge gives a clear answer. (There…
NEW YEAR: NEW GUIDELINE HOURLY RATES: SEE THE DETAILS HERE: EFFECTIVE FROM YESTERDAY
The new Guideline hourly rates were published yesterday. They take effect from 1st January 2026 (for anyone working on that day…). They have been updated using service producer price inflation (SPPI). THE INCREASES The increases are 2.28%, using the…
NEW SERIES FOR 2026: CIVIL PROCEDURE “BACK TO BASICS MONDAY”: STARTING ON …. MONDAY…
We look at many cases on this blog where litigants (often more accurately – litigators) experience major procedural difficulties. It is surprising how often these difficulties arise from a very basic failure. That is a failure to follow a rule,…
WHEN A DAY LONG APPLICATION FOR PERMISSION TO AMEND INCURS COSTS OF OVER £1.3 MILLION (AND STILL THE BUNDLES AREN’T QUITE RIGHT…)
There are some interesting observations here about the strategy a party should adopt when facing an application to amend. Such an application is not a “mini trial”. It is clear from this case that substantial costs can be incurred in…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
THE AUTOMATIC STAY UNDER CPR 15.11: WAS IT IMPOSED IN THIS CASE? WHAT CRITERIA SHOULD THE COURT CONSIDER WHEN AN APPLICATION IS MADE TO LIFT IT? WAS THE DELAY AN ABUSE OF PROCESS
If a claimant serves proceedings and then does nothing the rules impose an automatic stay on proceedings. CPR 15.11 states that a stay takes effect from 6 months after the date on which a defence should have been filed. Here…
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
JURISDICTION CHALLENGE UNDER CPR 11 WAS “TOTALLY WITHOUT MERIT”: THE APPLICANT HAD ACCEPTED JURISDICTION IN ANY EVENT: INDEMNITY COSTS ORDERED
Here we look at an unusual application to challenge jurisdiction under CPR Part 11. It was unusual because it invited the court to consider the case on the merits. The court was not impressed with this approach, declaring it to…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
REVIEW OF THE YEAR 11: OPENING LINES OF JUDGMENTS 2025: “FOR MILLIONS OF YEARS MEN LIVED JUST LIKE ANIMALS”: ST PAUL’S CATHEDRAL, SHERLOCK HOLMES AND FINDING INGENIOUS WAYS NOT TO PAY TAX: ALL LITIGATION LIFE IS HERE…
Consideration of the opening lines of judgments has been a feature of this blog for some years now. It has sometimes been a way of providing a little light relief towards the end of what is often a 12 month…
REVIEW OF THE YEAR 10: BUNDLES: CHAOTIC, “HUGGER MUGGER”, DIFFERENT PAGINATION AND AN APPEAL ALLOWED BECAUSE OF THE UNFAIRNESS CAUSED BY THE BUNDLES
Issues relating to bundles have always been a part of this blog. These are issues that litigators ignore at their peril. Judges coming to the case afresh will not know your legal qualifications, the eminence of your practice and initially…
REVIEW OF THE YEAR 9: CASES ON SANCTIONS (AND RELIEF FROM…)(POSSIBLY A POOR CHOICE OF SUBJECT JUST BEFORE CHRISTMAS…)
There have been times in the past when it has felt that the issue of sanctions for non-compliance was the only issue in civil procedure. The number of (reported) cases has reduced, possibly because the relevant principles are now clear….
FRAUDSTERS OPERATING IN THE GUISE OF OFFICIAL COURT ENFORCEMENT STAFF: £45,549 LOST: A WARNING TO ALL DEFENDANTS AND JUDGMENT DEBTORS HERE
A judgment debtor is in a vulnerable position. There are companies out there taking advantage of that vulnerability by pretending to be official enforcement agencies and taking money off the debtors. We have such a case reported here. The judge…
REVIEW OF THE YEAR 8: PROVING THINGS – OR NOT PROVING THINGS, AS THE CASE MAY BE…
The “Proving things” series is the longest running feature of this blog. Initially I thought it would be a series of then posts. I was planning to end it at a hundred when a chance conversation on the Leeds Legal…
MAZUR MATTERS 45: COURT OF APPEAL TO HEAR THE APPEAL ON 24th FEBRUARY 2026
The Court of Appeal is to hear the appear in the Mazur decision on the 24th February. Here we re-visit the arguments that the Law Society and the SRA put forward at first instance. It will be interesting to see…
WHEN THE WITNESS STATEMENT OF THE DEFENDANT CONTAINS PASSAGES THAT ARE CUT AND PASTED FROM AN EXPERT’S REPORT: SOMEONE MAY NOTICE THIS…
It is clear that many judge’s approach witness statements with a degree of scepticism, regarding them more as a lawyer’s construct than the actual recollection of the witness. In this case the defendant’s own witness statement included passages that were…
REVIEW OF THE YEAR 7: STATEMENTS OF CASE ON THIS BLOG: MATTERS OF THE PLEADING OBVIOUS
The “Current importance of Pleadings” series started in March of this year. It is another one of those issues that has featured heavily throughout. Being able to focus on “pleading” issues in a particular series has been useful. The problems…
COST BITES 320: CLAIMANT WAS ENTITLED TO SEEK A FURTHER INTERIM PAYMENT AS TO COSTS: “I THINK IT CONSIDERABLY UNFORTUNATE THAT THIS POINT HAS BEEN TAKEN”
Later this month we are taking our traditional end of year look at “opening lines of judgments”. Sometimes opening lines provide a clue as to the judge’s thinking. When the first sentence contains the words “I think it is considerably…
REVIEW OF THE YEAR 6: EXPERTS IN THE COURTS IN 2025: CASES ON THIS BLOG
I am surprised (but perhaps shouldn’t be) at the sheer number of cases involving experts that the blog has covered this year. In July I started the “Expert Watch” series to focus on cases about the conduct of experts and…
WITNESS EVIDENCE WEDNESDAY: JUDGE CONSIDERS ADMISSIBILITY OF WITNESS EVIDENCE ON THE FIRST DAY OF TRIAL: “ARE YOU EXPERIENCED”?
It is unusual for a judge to consider the admissibility of witness evidence on the first day of a trial. However, in some ways, this is an unusual case. The judge found that the statement was relevant to the pleaded…
THE COURT FEE WAS NOT PAID UPON ISSUE MEANS PROCEEDINGS WERE NOT ISSUED ON TIME. IT IS AS SIMPLE AS THAT
Here we have an all too familiar story of a claimant’s case coming to grief because proceedings were not issued in time. The unusual aspect is that this happened because his solicitors lodged papers at court asserting that no court…
REVIEW OF THE YEAR 5 : 111 POSTS IN THE “COSTS BITES” SERIES (AND COUNTING): DON’T LOOK AWAY NOW…
There is no doubt at all that the Costs Bites series is one of the most widely read on this blog. The series started in July 2022 and the aim is to look at what is happening in relation to…
USING WHATSAPP AND OTHER MEANS OF COMMUNICATION WITH CLIENTS: THE RISKS CONSIDERED
The previous post looked in detail at the issues in a solicitor and own client assessment caused by the solicitor’s use of WhatsApp. That judgment gives rise to much wider issues in relation to how solicitors communicate with clients. In…
COST BITES 319: WHATSAPP MESSAGES CAN FORM PART OF A SOLICITOR’S FILE: THE DEFENDANT FIRM WAS, THEREFORE, IN BREACH OF A PEREMPTORY ORDER
This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp form from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication,…
REVIEW OF THE YEAR (4): CLAIM FORM ISSUES – SERVING ON A SOLICITOR WHEN YOU CAN’T AND WHEN YOU MUST: THIS OFTEN CAUSES PROBLEMS…
I am aware of the danger that issues relating to service of the claim form could come to dominate the end of year review. However this arises because of the number of cases considered over the year. What is worrying…
“HALLUCINATIONS” IS NOT A GOOD WORD FOR FALSE CASES GENERATED BY AI: THIS JEOPARDISES THE RULE OF LAW: LESSONS FROM THE COURTS OF OREGON
The issue of the citation of false cases generated by Artificial Intelligence is, it is clear, an international one. Here we have a decision from the Court of Appeals in the State of Oregon. Among other things it challenges the…
COST BITES 318: PART 36 ISSUES: DOES AN AGREEMENT ON DAMAGES AFTER TRIAL MEAN THAT THE NORMAL PART 36 CONSEQUENCES DO NOT APPLY?
Do the normal Part 36 consequences apply when the parties agree damages and lodge a consent order after a trial on liability? That is the issue considered by the High Court here. (Part 36 consequences apply – the writing is…
COST BITES 317: ANOTHER ROUND IN THE MEDICAL AGENCY FEES/BREAKDOWN BATTLE: THE AGENCY MUST PROVIDE A BREAKDOWN
Here we have another case in the long-running battle over the disclosure of agency fees. I am grateful to Claire Kewin from Keoghs solicitors for sending me a copy of the judgment and for her summary of its practical implications…
REVIEW OF THE YEAR (3): CLAIM FORM ISSUES: SERVICE AT THE “LAST KNOWN ADDRESS” AND THE CLAIMANT’S DUTIES
It may say something that the “Service Points” series started on August 14 this year and there are already 24 posts under that heading. Claim form problems continue to be a prominent issues in the courts. The series started because…
CIVIL PROCEDURE BACK TO BASICS 107: THE IMPORTANCE OF PROVIDING A DRAFT ORDER WITH AN APPLICATION
One important aspect of civil procedure that is often overlooked is the importance of an applicant providing a draft order to the court. As the case we are looking at shows this is not a mere formality. A draft order…
COURT REFUSES CLAIMANTS’ APPLICATION THAT WITNESS BE ANONYMOUS
In this case the judge considered in detail the principles relating to a witness in a civil trial being granted anonymity. The evidence in support of the application was found to be somewhat speculative. There is, it was held, a…
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