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…
CLINICAL NEGLIGENCE CORNER 5: ANOTHER CASE OF “WHAT WAS SAID?” AND “WHY WASN’T THAT PARTICULAR POINT IN THE MEDICAL NOTES?”
Here we have a clinical negligence case with a familiar issue. The trial depended on whose account the judge accepted of what was said in a particular medical consultation several years earlier. The treating doctor can, in reality, remember little…
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…
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…
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…
“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…
EXPERT WATCH 25: EXPERT IN ELECTION CASE FAILS TO GET THE JUDGES’ VOTE: THE EXPERT SHOULD BE SENT (AND CONSIDER) CONTRADICTING EVIDENCE
There are not many cases where issues relating to expert evidence are considered in an Election Court. We have such a case here. The Court allowed expert evidence to be admitted. However it was unable to give any weight to…
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…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
FUNDAMENTAL DISHONESTY AND CONTEMPT OF COURT: CLAIMANT BROUGHT A FRAUDULENT £3 MILLION CLAIM: SENTENCE OF IMPRISONMENT IMPOSED
This blog has looked at cases of fundamental dishonesty many times. It has to be remembered that, more often than not, bringing dishonest claims is also contempt of court. This case deals with the appropriate sentence that should be passed…
MAZUR MATTERS 39: CILEX APPLIES TO APPEAL MAZUR DECISION
An announcement on the CILEX website today states that it is applying for permission to appeal the decision in Mazur. The argument will be that, the Law Society, The SRA and the High Court construed the Solicitors Act incorrectly. Watch…
SERVICE POINTS 22: AN APPLICATION WAS PROPERLY SERVED WHEN IT WAS SENT BY FIRST CLASS “SIGNED FOR SERVICE”: THE FACT THAT THE RECIPIENT DID NOT COLLECT IT IS NOT RELEVANT
Here we look at a particular point in relation to the service of an application. The application had been sent by first class “signed for” service at an address given for service by the respondents. The respondents did not receive…
COST BITES 309: ISSUES OF SECURITY FOR COSTS CONSIDERED IN A SOLICITOR AND OWN CLIENT ASSESSMENT : WITH IMPORTANT POINTERS HERE FOR ALL SECURITY FOR COSTS APPLICATIONS: “I AM NOT PREPARED TO DECIDE THIS APPLICATION ON THE BASIS OF INFERENCE AND CONJECTURE”)
We are looking at an application relating to security for costs in the context of a solicitor and own client assessment. However, as the heading indicates, there are more general lesson here for all litigators. In particular the need to…
THE CURRENT IMPORTANCE OF PLEADINGS 37: PARTICULARS OF CLAIM STRUCK OUT: THEY “FAIL TO FULFIL ANY OF THE REQUIREMENTS IMPOSED FOR, AND PURPOSES TO BE SERVED BY, PARTICULARS OF CLAIM”
In this case the claimants claimed £292,806,729,326,976,872,097,543,994.24,(or alternatively £377,594,620,661.41.). However the court held that their pleaded case did not comply with the rules, and it was not possible for the defendants to know the case they had to meet. The…
SERVICE POINTS 21: VERY STRICT REQUIREMENTS APPLY IF YOU WANT TO AGREE AN EXTENSION OF TIME: THEY HAVE TO BE IN WRITING AND THEY HAVE TO BE TOTALLY CLEAR AS TO DATES…
We are looking at the same case again here, but from a slightly different angle. This relates to written agreements to vary court orders. Firstly the agreements have to be in writing; secondly they have to be totally clear as…
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…
SERVICE POINTS 20: ANOTHER ACTION FAILS BECAUSE OF NON-SERVICE OF THE CLAIM FORM: A REMINDER THAT CPR 7(6) IS VERY STRICT: THE COURT WOULD NOT IMPLY AN AGREEMENT FOR AN EXTENSION OF THE TIME FOR SERVICE
The sheer number of cases on mis-service of the claim form this year indicate that, in all litigator’s offices, there should be large signs that state “serve the claim form properly and on time”. Today we are looking at another…
PERMISSION TO APPEAL “SOME OTHER COMPELLING REASON” AND A FRIENDLY STATE
CPR 52.6(1)(b) states that a court can give permission to appeal where ” there is some other compelling reason for the appeal to be heard”. That rule is rarely considered. However we a direct consideration of that that rule in…
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…
SERVICE POINTS 19: THE DEFENDANT WAS ALLOWED TO DISPUTE JURISDICTION DESPITE NOT USING PART 11 (AND, PERHAPS, A WORKING EXAMPLE OF WHY LITIGATORS NEED TO READ THIS BLOG…)
We are looking at another claim form case. This time the issue related to whether the defendant had made the correct application and, if it had not, whether it was prevented from arguing the court did not have jurisdiction. What…
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…
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