WAS THIS AN ABUSE OF PROCESS/ABUSE OF PROCESS OR WERE PREVIOUS JUDICIAL OBSERVATIONS “OBITER DICTA”? AN IMPORTANT ISSUE CONSIDERED
Most (hopefully all) law students learn about the difference between the ratio decidendi of a case and “obiter dictum”. These important distinctions can have real world consequences. We look at a judgment here where that was the major issue between the…
THE CURRENT IMPORTANCE OF PLEADINGS 44: COUNTERCLAIM WAS “INADEQUATELY PLEADED AND ABUSIVE”: DEFENDANT FAILED TO PROPERLY PARTICULARISE ITS CASE
This is a case where the judge agreed with a submission that the counterclaim was “inadequately pleaded and abusive”. The judge held that there was no need to formally strike it out, it failed in any event. There are lessons…
EXPERT WATCH 28: I CAN’T GIVE PERMISSION FOR AN EXPERT BECAUSE THIS IS SIMPLY NOT EXPERT EVIDENCE: FORENSIC ACCOUNTANT’S REPORT DOESN’T GET THE CREDIT IT DESERVES…
The judge here held that the report prepared by a forensic accountant was not, in fact, an expert’s report. The report well be helpful, but its contents did not come within the meaning of “expert evidence”. Further insofar as the…
REVIEW OF THE YEAR (2) – THE WORST PART: “HALLUCINATED” CASES IN THE COURTS: HOW IS ARTIFICIAL INTELLIGENCE BEING HANDLED & WHAT DOES THE FUTURE HOLD FOR AI AND LAWYERS?
If I had to pick the most frightening development of the year it is the revelation that parts of the legal profession have been relying on “hallucinated” (that is false) cases they have “found” by using Artificial Intelligence. Here we…
THE CURRENT IMPORTANCE OF PLEADINGS 43: SHOULD THE COURT STRIKE OUT A DEFENCE THAT RELIES ON “FOREIGN ILLEGALITY”? WHAT DETAIL IS NEEDED?
This case considers the matters that a defendant must plead if it wants to rely on a defence of “foreign illegality”. That is the claim should not succeed because some of the matters were (allegedly) unlawful in a foreign jurisdiction. …
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
A BREACH OF “PURDAH” OBLIGATIONS WHEN A WITNESS IS GIVING EVIDENCE: MISGUIDED BUT NOT DISHONEST
This is a brief reminder of the importance of the obligations of a witness not to communicate with others (including their own legal team) whilst in the course of giving evidence. “This was obviously ill-advised but I accept that, by…
COST BITES 316: THE CLAIMANT HAS JUDGMENT FOR £175,380 BUT WHO (IF ANYONE) SHOULD PAY THE COSTS? A SURPRISING RESULT (JUST THINK “OUCH”..)
It is not uncommon to see discussions in relation to who should pay the costs after a judgment is given. This is a judgment with a twist, in that the court considered, at the end of protracted litigation, whether anyone…
COST BITES 315: A LACK OF AUTHORITATIVE CASE LAW DOES NOT JUSTIFY A DEPARTURE FROM THE GENERAL RULE THAT THE LOSING PARTY PAYS THE COSTS
Should the fact that there is no authoritative case law on a topic lead to a “different” order as to costs. This was one of the issues considered by the judge in this case. Similarly the court considered the relevance…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
MAZUR MATTERS 44: THE SRA STATES IT WILL TREAT “SYMPATHETICALLY” SELF-REPORTED INCIDENCES BASED ON MISTAKEN INTERPRETATION OF THE LAW
The SRA updated its guidance on “Mazur and conducting litigation” today. This includes its likely approach to reports of past errors. The SRA states that it will look on such issues “sympathetically”. After all practising lawyers were not the only…
REVISITING THE ISSUES: THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The post earlier today about the significant difference between a non-admission and denial has led me to revisit previous posts on the case. This post from 2020 which reviewed the case law on the distinction. There are plenty of clear…
COST BITES 314: PERSONAL INJURY CLAIM SHOULD HAVE BEEN BROUGHT IN THE RTA PROTOCOL: CLAIMANT LIMITED TO FIXED COSTS
This is the second case today that was sent in by a helpful reader. I am grateful to Ben Millns from Kennedys who has sent me a copy of this judgment. It relates to the question of whether a personal…
THE CURRENT IMPORTANCE OF PLEADINGS 42: THE SIGNIFICANT DIFFERENCE BETWEEN A “NON-ADMISSION” AND A “DENIAL”: DEFENDANT REFUSED PERMISSION TO RELY ON EXPERT EVIDENCE BECAUSE OF THE WAY IN WHICH THE CASE WAS PLEADED
This is the first of two interesting cases today that have been sent in by readers. I am grateful to Rebecca McVety of the Dental Law Partnership for sending me this judgment which deals with pleadings, in particular the very…
CONSTRUING A COURT ORDER: WHAT DOES THE WORD “IMPECUNIOSITY” MEAN? “IT DEPENDS” – THE ISSUE CONSIDERED ON APPEAL IN THE HIGH COURT
In this case the court made a court order which meant that the claimant was debarred from relying on issues relating to “impecuniosity” at trial. The appeal was, in part, about what “impecuniosity” meant in that context. (It was reasonable…
THE CURRENT IMPORTANCE OF PLEADINGS 41: HAD THE DEFENDANT PROPERLY PARTICULARISED ALLEGATIONS OF FUNDAMENTAL DISHONESTY?
A party alleging fraud or dishonesty cannot “ambush” their opponent at trial. Fraud must be fully particularised and pleaded. Do identical principles apply to allegations of fundamental dishonesty? In this case the judge considered an argument that points in relation…
WHEN CAN ADVERSE FINDINGS ABOUT A WITNESS IN A CASE BE APPEALED? THE COURT OF APPEAL CONSIDERS THE ISSUES
It is not unusual for trial judges to be critical of the conduct or evidence of a witness in a case. What should a witness do if the judgment is critical of them? Do they have a right of anonymity? …
ANOTHER “HALLUCINATED” AUTHORITIES CASE: A FALSE CITATION AUTHORED OR REVIEWED BY A LAWYER WITHOUT ATTRIBUTION CAN STILL BE SUBJECT TO REFERENCE FOR MISCONDUCT OR CONTEMPT
The citation of “false” authorities shocked me (and many others) when the cases first started. Now it feels as if they are becoming a commonplace occurrence. They are, however, just as shocking. Here we have a case where the judge…
THE HILLSBOROUGH REPORT AND THE AMENDMENT OF WITNESS STATEMENTS: NEW INFORMATION IN THE IPOC REPORT PUBLISHED YESTERDAY
This blog has looked at the issues relating to evidence gathering and the Hillsborough tragedy several times, in particular the way that witness statements were gathered, and the reports amended. The issues were considered again in the Independent Office for…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
MAZUR MATTERS 43: AN EXAMPLE WHERE SUPERVISION WAS FOUND TO BE INADEQUATE: ACTION BY THE SRA & A FINE OF £30,000
It would be interesting to know what (if any) percentage of the profession read the SRA document “Effective supervision – Guidance” published in November 2022. The Mazur issue was there in plain sight. There is only one practical example given in…
MAZUR MATTERS 42: CAN ANY GOOD COME OF ALL THIS? POSITIVE THINKING ABOUT DELEGATION AND THE CONDUCT OF LITIGATION: SOME USEFUL LINKS
The current situation is that large parts of the profession are waiting, with bated breath, for a Court of Appeal judgment as to whether the Mazur decision was right, in particular in relation to non-authorised employees having the “conduct” of litigation. …
SERVICE POINTS 25: DOES AN EARLIER ORDER FOR SUBSTITUTED SERVICE BY EMAIL INCLUDE SERVICE OF AN APPLICATION TO COMMIT: SHOULD THE COURT RETROSPECTIVELY AUTHORISED SERVICE?.
Here we consider an argument as to whether an application to commit for contempt was validly served. The respondent argued that the application needed to be served in person. The applicant’s argument was that there was in place an order…
WHEN AN APPLICATION IS OVER – CAN A PARTY MAKE FURTHER WRITTEN SUBMISSIONS? THE ISSUES CONSIDERED
We have seen many cases on this blog where litigants have attempted to use draft judgments to “reopen” the judge’s conclusions. Here we have a warning about attempts to make further written submissions after the hearing has been concluded. (Once…
LOOKING FOR A LITIGATION TEAM? THERE IS A WHOLE TEAM AVAILABLE HERE AND NOW…
It is always sad to read of firm’s closing. Not least because this has profound consequences for those working there. I saw this post yesterday on LinkedIn. I have Daniel’s permission and blessing to post it here. If you are…
MAZUR COMPLIANT SUPERVISION AND COST EFFECTIVE DELEGATION IN 2025: WEBINAR 5th DECEMBER 2025: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
With an appeal pending (at some indefinite time) and the profession still rife with uncertainty we need to consider, head on, issues relating to delegation and supervision. Get this right and you will be part of a well run and…
INDEMNITY COSTS ORDERED IN CASE WHERE CLAIMANTS OBTAINED INFORMATION FROM DEFENDANTS’ SOLICITOR IN A “STING” OPERATION: “THE CLAIMANTS SOUGHT TO JUSTIFY THE UNJUSTIFIABLE”
This is a case worth reading if you want to see strong judicial commentary on litigation conduct. The judge was clear in his view of the conduct that the claimants had engaged in and surprised by its lack of self…
WHEN ONE CLAIMANT FILES A NOTICE OF DISCONTINUANCE: YOU CAN TRY TO CHECK OUT BUT YOU CAN’T NECESSARILY LEAVE
A claimant can normally file a notice of discontinuance at any time. However, as this case shows, the position is more complex when there is more than one claimant. Here we look at a case where someone was surprised to…
CLAIMANT SUCCESSFUL IN APPLICATION TO JUDICIALLY REVIEW A REFUSAL OF PERMISSION TO APPEAL: “WHILST A DECISION MAY BE FINAL, THAT FINAL DECISION MUST BE FAIR”
A post earlier this week highlighted the fact that that it is not possible to appeal a decision of a Circuit Judge refusing permission to appeal. The only option for a litigant in these circumstances is to apply for judicial…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
WHAT IS THE COURT TO DO WHEN A PARTY ALLEGES THAT A DOCUMENT IS A FORGERY BUT HAS NOT SERVED NOTICE UNDER CPR 32.19?
Here we look at very useful observations as to the approach of the court when at trial it becomes clear that a party is alleging a document is forged, or not authentic, but that party has not served a notice…
EXPERT WATCH 26: JUDGE’S DECISION NOT TO ADMIT EXPERT EVIDENCE UPHELD BY THE COURT OF APPEAL: “IT IS NOT CLEAR TO ME WHAT VALUE IT WOULD ADD TO THE CASE”
It is rare to see an appeal where a decision about whether to admit expert evidence is considered. In this case the Court of Appeal considered the judge’s decision not to admit a report. Both parties agreed that the report…
COST BITES 313: A SUCCESSFUL CLAIMANT IS NOT GOING TO BE DEPRIVED OF THEIR COSTS BECAUSE THEY FAILED TO BEAT THEIR OWN OFFERS…
This is a case with some interesting arguments as to costs. The court considered allegations of a failure to engage in ADR; the fact that the claimants had not beaten their own offers and issues in relation to conduct, proportionality…
COST BITES 312: A CHANCE TO SEE COSTS BUDGETING IN ACTION: A CASE WHERE FUNDAMENTAL DISHONESTY IS ALLEGED AND THE CLAIMANT IS A PROTECTED PARTY
It is always interesting to read detailed decisions about costs budgeting. They are few and far between. We have a full judgment here where the Master deals with issues such as hourly rates, the impact of allegations of dishonesty and…
WITNESS EVIDENCE WEDNESDAY: A JUDGE ASKING A WITNESS TO CLARIFY THEIR EVIDENCE IS NOT “BIASED” : “JUDGES ARE NOT PASSIVE SPECTATORS AT A TRIAL”
This week we are looking at an appeal that considers the trial judge’s consideration of witnesses at trial. The appellant alleged that the judge was biased and the trial therefore unfair. There is a detailed consideration of the “bias” alleged…
MAZUR MATTERS 41: CILEX GRANTED PERMISSION TO APPEAL THE MAZUR JUDGMENT: BUT WHEN WILL IT BE HEARD?
CILEX have been granted permission to appeal the Mazur judgment. The primary question for the profession now is (i) when will the appeal be heard; (ii) what do we do in the meantime? Mazur remaining good law. (I wish CILEX…
MAZUR MATTERS 40: “A DAMNING INDICTMENT OF REGULATORY FAILURE”: CHAIR OF THE LEGAL SERVICES CONSUMER PANEL PULLS NO PUNCHES…
The chair of the Legal Services Panel has given his strong views about the regulatory failures that the Mazur judgment shows. With descriptions of “a study of regulatory incoherence”; “legal fiction”; “false assurance” and ” the fragmented, incoherent framework that…
PART 35 QUESTIONS AND AGENDAS FOR EXPERT MEETINGS – A GUIDE FOR PRACTITIONERS AND EXPERTS: WEBINAR 3rd DECEMBER 2025
The conduct of experts, and those who instruct them, has featured widely on this blog this year. This webinar looks at two specific issues in relation to expert evidence (i) questions to experts; (ii) the drafting of agendas for expert…
“SECOND APPEALS” FROM THE CIRCUIT JUDGE: WHAT IS THE APPROPRIATE VENUE FOR APPEAL AND WHAT ARE THE CRITERIA APPLIED?
This case reveals a potential trap that would be appellants can fall into when attempting to appeal a decision of a Circuit Judge when that judge heard an appeal from a District Judge. Both the venue for the appeal and…
COMPLIANCE WITH COURT ORDERS, CONTINUING BREACHES AND CONTEMPT OF COURT: AN INDIVIDUAL RESPONDENT WOULD HAVE GONE TO JAIL
This is a judgment which anyone with responsibility for running a legal department, or in a position where “the buck stops here” should read. The Court of Appeal judgment is clear, and damning, in relation to the conduct involved, albeit…
AIRLINE’S ATTEMPT TO “CHALLENGE JURISDICTION” FAILS TO TAKE OFF: “I FAIL TO UNDERSTAND WHY THE DEFENDANT HAS DEFENDED THIS ACTION IN THE MANNER IN WHICH IT HAS”
There are some interesting applications where defendants attempt to challenge the jurisdiction of the Court using CPR 11. This case is one of the most intriguing I have seen. The defendant’s argument here relied on the submission that notification of…
THE CURRENT IMPORTANCE OF PLEADINGS 40: THE CLAIMANT’S CASE ON CAUSATION WAS NOT PLEADED: THE CLAIMANT COULD NOT RELY ON MATTERS SET OUT IN CORRESPONDENCE AS AN ALTERNATIVE TO A PLEADED CASE
This case has plenty of pleading issues, in particular in relation to a failure to plead causation and damages. This is one of many cases we have seen this year where claimants have failed to plead a case on causation….
THE CURRENT IMPORTANCE OF PLEADINGS 39 : CASE ALLEGING NEGLIGENCE IN PLEADING DISMISSED – BECAUSE IT WAS NOT FULLY PLEADED (AND DID NOT ESTABLISH BREACH IN ANY EVENT)
This is the second time this month that we are looking at the slightly ironic situation of a case alleging negligence in the drafting of a pleading itself being dismissed because it was inadequately pleaded. This judgment highlights the fact…
COST BITES 311: YES THIS CASE WAS COST BUDGETED (AND THE PAYING PARTIES AGREED THE BUDGET): “ONLY THE CLAIMANTS CAN CATEGORICALLY ATTEST WHETHER THEY AGREED THE DEFENDANTS’ BUDGET TACTICALLY OR NOT”
There may well be a practice of one party agreeing their opponent’s budget “tactically”. That is by agreeing that budget it is hoped that their own budget will look appropriate in comparison. That is one of the issues being considered…
SERVICE POINTS 24: THE DEFENDANTS’ FAILURE TO DISPUTE JURISDICTION TIMEOUSLY MEANT THAT IT HAD WAIVED ISSUES RELATING TO SERVICE OF THE CLAIM FORM
One of the the issues that has arisen several times this year relates to whether there is an obligation on a defendant, who wishes to dispute the issue of service, to make an application under CPR Part 11. This is…
INTEREST ON PART 36 OFFERS: HOW SHOULD IT BE CALCULATED? GIVING THE CLAIMANT INTEREST ON COSTS BEFORE THEY WERE ACTUALLY INCURRED IS NOT AN ABSURDITY
This is an interesting Part 36 issue in a case where the claimant had beaten its own Part 36 offer. The court made an order for additional interest from the date of expiry of the offer. Does the defendant have…
AND THEY KEEP ON COMING… ANOTHER FALSE CITATIONS CASE: “I RELIED ON THE AI OVERVIEW” FROM GOOGLE
The cases continue to come. Some lawyers are continuing to rely upon artificial intelligence to produce false authorities. Here was a firm of solicitors (defending themselves) who relied on the AI contents of a Google search. Such searches are never…
THE CURRENT IMPORTANCE OF PLEADINGS 38: PARTICULARS OF CLAIM IN A £3,000,000 CLAIM STRUCK OUT: THE COURT USES A “CARROT AND STICK” APPROACH TO DEFECTIVE PLEADINGS
In this case the judge decided that the claimant’s pleaded case was so defective that the entire Particulars of Claim needed to be struck out. It is a working example of how pleadings need to be compliant and cannot be…
ANOTHER FALSE AND “HALLUCINATED” CITATION CASE: A SOLICITOR IS ACCOUNTABLE FOR WORK DONE BY THEIR STAFF: WASTED COSTS ORDER MADE
We have yet another case of “hallucinated” cases caused by artificial “intelligence” being cited in court. These have the capacity to, and indeed do, land lawyers in very hot water. Here false cases were put before the court in an…
SERVICE POINTS 23: THE COURT REFUSES TO RATIFY SERVICE OF THE CLAIM FORM BY EMAIL: “THE RESULTS ARE HARSH BUT THAT IS A NECESSARY CONSEQUENCE OF THE REGIME…”
We could, perhaps, run some kind of charity betting game on whether, and how many, cases there will be on service of the claim form between now and Christmas. The reason for not doing so it because it runs the…
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