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 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….
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…
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…
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…
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…
COST BITES 359: FAILING TO SIGN CONSENT ORDER LEADS TO £44,000 IN COSTS: “GOING SILENT” IS NOT A CHEAP OPTION…
Just a quick warning here about the costs of not signing a consent order having agreed to so something. It can be expensive. We have a case here where it cost £44,000 when the claimant made an application because the…
BACK TO BASICS MONDAY: WHAT HAS TO HAPPEN WHEN A LEGAL REPRESENTATIVE SIGNS THE STATEMENT OF TRUTH: A STARK REMINDER
There are major dangers when a lawyer signs a statement of truth on behalf of their client. I had actually planned a post on this issue before seeing the judgment last week which features below.. For many years this site…
MORE DECISIONS ABOUT ARTIFICIAL INTELLIGENCE AND “HALLUCINATED” CASES: THE UPPER TRIBUNAL IS FAR FROM HAPPY: LEGAL PROFESSIONALS WHO DELEGATE THEIR WORK REMAIN RESPONSIBLE FOR ENSURING ITS ACCURACY
As I’ve said before the hallucinated cases just keep on coming. The issues were considered by the Upper Tribunal (Immigration and Asylum Chamber) here. There are important points about the need to supervise staff who undertake legal research. It is…
THE CURRENT IMPORTANCE OF PLEADINGS 55: THE PARTICULARS OF CLAIM CONTAINED A (SIGNIFICANTLY) FALSE FACT: JUDGE FINDS THAT THIS WAS PRINCIPALLY DUE TO THE FAULT OF “BARRISTER M”
It is rare for a judgment about pleadings to be “gripping” reading. We have such a case here. From the opening lines, to the detailed consideration of how the pleadings went wrong, the narrative is compelling. We even have an…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION (2): CONTRIBUTIONS FROM THE NICE PEOPLE OF TWITTER:
I am here summarising the Advice given by lawyers on the social media site formerly known as Twitter. In April 2019 I asked lawyers what their advice would be for their colleagues in the profession when things go wrong. Specifically…
COST BITES 347: CLAIMANTS FAILURE TO “CUT THEIR CLOTH” MEANT COSTS OF BUDGETING PROCESS WERE REDUCED BY 20%
We have seen several cases where an “overambitious” costs budget has led to a reduction or disallowance in the costs of budgeting. We have another example here. The claimants were effectively given a second chance to produce budgets having had…
WITNESS EVIDENCE WEDNESDAY: THE USE OF ARTIFICIAL INTELLIGENCE IN THE DRAFTING OF WITNESS STATEMENTS: “IT IS DIFFICULT TO DISTINGUISH BETWEEN WHAT F SAYS AND WHAT AN ALGORITHM TELLS F TO SAY”
There is much material about witness evidence and witness statements on this site. In recent years we have also been discussing the use (and misuse) of artificial intelligence. We can be fairly sure that there will be much more about…
ANOTHER ISSUE ABOUT UNLESS ORDERS: CAN A COURT MAKE AN ORDER SPECIFYING A SUM FOR DAMAGES IF THE DEFENDANT DOES NOT COMPLY?
There have been a number of cases about unless orders recently. This one looks at the issue of whether the court can make an order and state that, if there is default, the claimant can enter judgment for a specific…
COST BITES 342: THE CLAIMANTS’ HYPERBOLIC APPROACH TO ASSESSMENT COST THEM DEARLY: PERSONAL LIABILITY FOR £132,400 FOLLOWING THEIR CHALLENGE OF A BILL OF £147,436.33
If a case were needed to warn about the dangers of litigation this is one of them. The claimants challenged a solicitor’s bill of £147,436.33, the bill was reduced by some £18,000 (less than the solicitor had offered to settle…
THE PARTIES SHOULD DRAFT ORDERS IN THE TERMS STATED BY THE JUDGE: THE DRAFTING SHOULD NOT BE LITIGIOUS BUT TRANSACTIONAL
We are looking at two interesting aspects of a decision here. Firstly the judge’s observations on attempts by the claimants to “re-draw” the order made by the judge at the hearing. Secondly the finding that there were no good reasons…
A FURTHER EXAMPLE OF ARTIFICIAL INTELLIGENCE GENERATING PHANTOM REFERENCES AND FALSE QUOTATIONS
We see the another example of the dangers of the use of Artificial Intelligence in this case. Two authorities relied upon by a respondent did not contain the words attributed to them, none of them supported the propositions that had…
MAZUR MATTERS 48: THE INTERIM REPORT: REGULATOR’S GUIDANCE ON THE CONDUCT OF LITIGATION WAS “NOT ALWAYS ARTICULATED WITH SUFFICIENT PRECISION”
The snappily titled “Interim Report: Regulatory review of advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies” from the Legal Services Board is five pages long (including one page spent on…
COST BITES 340: CLAIMANTS’ CONDUCT, FAILURE TO COMPLY WITH PRE-ACTION PROTOCOL AND EFFECTIVE REFUSAL TO MEDIATE LEADS TO NO ORDER FOR COSTS
Here we have a case where the claimants were (largely) successful but the court made no order for costs between the parties. There were three major factors (i) the way in which the claimants conducted the action; (ii) the failure…
BEWARE OF FALSE (OR AT LEAST MISLEADING) DOCUMENTS WITH “COURT SEALS”: “CLUMSY ATTEMPTS WHICH COULD MISLEAD MEMBERS OF THE PUBLIC…”
We have seen a few occasions where someone has produced an “official” court document which turned out to be no such thing. We see another example here, a “warrant” that, on the face of it had a red circular seal…
COST BITES 328: A CAREFULLY NUANCED DECISION ABOUT LIABILITY FOR COSTS, INTERIM PAYMENTS FOR COSTS, INCLUDING COSTS OUTSIDE THE BUDGET
The question of “who won” is usually the starting point of assessing liability to pay costs. Complications arise when one party “won a bit” but not all it was seeking. We have a detailed consideration of these issues here. (Whether…
COST BITES 327: THE COSTS OF FILING AN ERRANT REPLY CONSIDERED: AN APPLICATION PURSUED “AGGRESSIVELY” – COSTS REDUCED TO 10% OF THOSE CLAIMED
Here we have the defendant making a justified, and successful, application to strike out a Reply. However the judge was unhappy with the manner in which the application (and the litigation generally) was being conduced (by both sides). He found…
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…
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…
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…
“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…
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…
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…
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…
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…
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 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…
EXPERT WATCH 27 : WHAT DOES THE COURT DO WHEN AN EXPERT’S EXAMINATION HAS BEEN COVERTLY RECORDED? “I HOPE HE WILL NEVER DO IT AGAIN…”
Covert recordings, of one type or another, are featuring heavily on this blog today. Here we consider a case where a claimant secretly recorded her examination by an expert instructed by the defendant. The claimant then applied to admit the…
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…
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 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…
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…
COST BITES 310: COSTS, CONDUCT AND ADR: THE DEFENDANTS HAD NOT BEEN UNREASONABLE IN THEIR APPROACH TO MEDIATION: IT WOULD HAVE BEEN WHOLLY REASONABLE FOR THEM TO REFUSE TO MEDIATE IN ANY EVENT
The impact that a litigant has to mediation, and in particular a failure to properly respond to or participate in ADR, can have an impact on costs. However this is not automatic. Further there are cases (such as this) where…
THE SOLICITOR AND THE STING OPERATION (3): THE AGENCY THAT CARRIED OUT A STING OPERATION ON A (RETIRED) JUDGE, AMONG OTHERS…
If you think that the account of enquiry agents carrying out a sting operation on the other side’s solicitor is remarkable then sit down for a while. That judgment also reveals that (in wholly unrelated proceedings) the agency in question…
THE SOLICITOR AND THE STING OPERATION (2): WHY THE JUDGE DID NOT ACCEPT THAT THE CLAIMANTS WERE UNAWARE OF THE STRATEGY BEING USED
We are returning again to the case where the claimants arranged the taping of meetings with the defendants’ solicitors. The judge was sceptical of the claimants’ assertions that they were not fully aware of the methods being used. (This case…
THE SOLICITOR AND THE “STING” OPERATION (1): THE METHODS USED TO EXTRACT INFORMATION FROM THE SOLICITOR: “HE WAS DECEIVED AND PLAYED FOR A FOOL…”
A party to an action hires an enquiry agent to deceive their opponent’s solicitor into giving them information. That scenario may seem far fetched but it is what actually happened in this this case. It is worthwhile looking closely at…
THE DEFENDANTS’ SOLICITOR HAS BEEN “SET UP”, SECRETLY RECORDED AND TOLD US THINGS HE SHOULD NOT: NOW WE WANT SUMMARY JUDGMENT BASED ON THOSE RECORDINGS: QUITE A CASE THIS…
Here we have an extraordinary case. The claimants’ employed a private enquiry agent to meet, on a pretence, with the defendants’ solicitor. That meeting was used by the enquiry agent to obtain information about the defendants’ case. It was videoed…
MAZUR MATTERS 38: THE GUIDANCE FROM THE SOLICITORS REGULATION AUTHORITY: “MAZUR AND CONDUCTING LITIGATION”
The SRA have a specific page which, in turn, provides links to SRA guidance and the Legal Services Act, itself. These are useful links. They include a link to the SRA submissions in the Mazur case itself. “The Legal…
CONTEMPT OF COURT (2): THE CHIEF CONSTABLE IS THE PERSON WHO COPS IT
We are continuing with the examination of the recent Court of Appeal decision on contempt of court. In particular who is the entity in “contempt”? This may have far reaching consequences, as well as being specific to the actions of…
CONTEMPT OF COURT (1) CONTEMPT NEED NOT BE “CONTUMELIOUS” (WHATEVER THAT MEANS): WHY CHIEF CONSTABLES, CHIEF EXECUTIVES, MINISTERS OF STATE AND BOSSES EVERYWHERE NEED TO PAY CLOSE ATTENTION TO LITIGATION
I am breaking down this important Court of Appeal decision into a number of parts. We have already looked at the judgment as to the numerous “misleading” witness statements that were filed. The Court of Appeal also makes important observations…
CIVIL EVIDENCE: WHEN SURVEILLANCE EVIDENCE BECOMES OPPRESSIVE: “THIS STRATEGY REFLECTS VERY POORLY ON THOSE INVOLVED IN ITS DEVISING AND EXECUTION”
Surveillance evidence can be a wholly legitimate strategy in litigation. However it can tip over into oppressive conduct, particularly if it serves no real purpose. We have such an example here where the judge was critical of the claimant’s conduct…
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