EXPERT WATCH 16: IS PART 35 PERMISSION NEEDED WHEN A DOCTOR GIVES OPINION EVIDENCE AS TO A PARTY’S ABILITY TO PARTICIPATE IN LITIGATION?
Here we look at a case where a party was seeking a stay of litigation on medical grounds. Medical evidence was provided which supported the litigant’s stance. The claimant took objection to the report as it contained “opinion” and the…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
MAZUR MATTERS 3: CILEX MEMBERS – THE REAL VICTIMS OF ALL THIS: WHAT CILEX MEMBERS CAN DO ABOUT THIS
If any members of the profession are entitled to be disgruntled (to put it mildly) about the decision in Mazur it is CILEX members who conduct litigation. They have hard earned qualifications and extensive experience. However, unless they come within…
COST BITES 294: “A DETAILED ASSESSMENT IS NOT THE FORUM TO RESCUE OR TO ATTEMPT TO CHANGE THE EFFECT OF A POORLY WORDED ORDER”: THE COURT WOULD NOT CONSIDER ASSERTIONS OF POTENTIAL FUNDAMENTAL DISHONESTYOF THE PRIMARY ACTION ON ASSESSMENT
Here we are looking at an attempt by a paying party defendant to raise issues of conduct, including potential fundamental dishonesty, at the assessment of costs stage. The defendant argued (or attempted to argue) that the costs judge should take…
COST BITES 293: AN EXAMPLE OF AN ASSESSMENT OF A SUMMARY ASSESSMENT (AND COSTS BEING REDUCED) WHEN THE OPPOSING PARTY WAS NOT PRESENT
The periodical reminder that this series is aimed at looking at what goes on “on the ground” in the world of costs, in addition to looking at important developments in case law. It is to allow litigators to gain “a…
MAZUR MATTERS 2: THE ROLE OF THE SOLICITORS REGULATORY AUTHORITY : THE REGULATOR THAT GOT THE LAW WRONG AND IS NOW “PONDERING” WHAT TO DO…
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). One interesting aspect of the case is…
EXPERT WATCH 15: A CHANGE OF APPROACH BY EXPERTS (WHICH FAVOURED THE SIDE THAT INSTRUCTED THEM) HAS TO BE LOOKED AT “PARTICULARLY CRITICALLY” BY THE COURT
We are looking at a case where expert evidence was of considerable importance. The claimants had already had permission to rely upon one of their experts disallowed because of issues relating to conduct. Here we have an example of the…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
This is an important and interesting case about findings of dishonesty on the part of a practising solicitor in their failure to make relevant checks on the background of their client. It was not suggested that the solicitor was aware…
MAZUR MATTERS 1: THE PENALTIES FOR NON-QUALIFIED STAFF CONDUCTING LITIGATION (AKA “HOW MUCH TIME COULD I SERVE”)
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). However it is clear that it…
WHEN CPR 3.10 CAN HELP: PROCEEDINGS HAD BEEN “ISSUED” ALBEIT IMPERFECTLY AND THE SITUATION COULD BE REMEDIED (TO THE CLAIMANT’S DETERIMENT IN THIS CASE)
I have written before about the “heavy lifting” that sometimes takes place when practitioners attempt to invoke CPR 3.10. Here we look at a case where CPR 3.10 was used to condemn a claimant who had used the wrong procedure…
EXPERT WATCH 14: THERE WERE “TOO MANY IMPONDERABLES” TO FORM A VIEW THAT THE INJURIES WOULD HAVE BEEN REDUCED IF A CAR HAD BEEN DRIVEN AT A LOWER SPEED
The judge in this case considered whether the medical evidence established that driving at a lower speed would have “significantly reduced” the injuries that the claimant suffered. This is often a difficult matter to prove. (The evidence on whether…
SERVICE POINTS 11: A PARTY CANNOT SIMPLY MAKE UNILATERAL DECISIONS AS TO SERVICE WHICH OVERRIDE SPECIFIC COURT ORDERS
When a court makes an order as to the means of alternative service it expects the party in question to comply with that order. Here we have a case where the claimant decided on a different means of “serving” the…
EXPERT WATCH 13: “IT SUGGESTS THE WITNESS WAS SEEKING TO BUILD A CASE FOR THE CLAIMANTS RATHER THAN INDEPENDENTLY ANALYSE THE EVIDENCE IN REACHING HIS OPINION”: THE JUDGE FINDS THIS TROUBLING
Here we are looking a judicial observations about the role of forensic reconstruction experts. There are telling comments on the reasons the judge preferred one expert over another. Again it comes down to a simple failure to consider and apply…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
WITNESS EVIDENCE WEDNESDAY: WHEN PEOPLE ARE GIVING EVIDENCE OF SOMETHING THAT HAPPENED 12 1/2 YEARS PREVIOUSLY (AND SOME OF THEM WERE CHILDREN)
Here we are looking at judicial fact finding when a judge was considering witness evidence as to an accident that had happened some 12 1/2 years before the date of the trial. Like many such accidents it happened in a…
AI USED IN THE WRITING OF A JUDICIAL DECISION: READ ALL ABOUT IT…
There has been much discussion of the advantages, and disadvantages, in lawyers using AI. This is clearly going to be a major issue for the legal profession going forwarded. Last week I reviewed Andrew Hogan’s book on this topic. There…
ISSUING AN INJUNCTION MEANS “PROCEEDINGS” ARE UNDERWAY AND THE CLAIMANT HAS TO PAY THE COSTS AFTER IT WAS SET ASIDE: ALLOWING THE CLAIMANT’S ARGUMENTS IN THIS APPEAL WOULD BE AN “AFFRONT TO COMMONSENSE”
Here we look at an ingenious argument about the meaning of “proceedings” and the costs consequences if a claimant has an injunction order set aside. The claimant argued that the nature of the action he pursued did not amount to…
UPDATED VERSION OF THE CHANCERY GUIDE: A USEFUL LINK
The Chancery Guide was updated earlier this month. Here we look at the Practice Note and have a link to the updated Guide itself. FINDING THE LINK The Practice Note that accompanies it gives a link to the Guide itself…
EXPERT WATCH 13: WHEN THE CLAIMANT ATTEMPTED TO INTRODUCE A NEW CASE DURING CROSS-EXAMINATION OF THE DEFENDANTS’ EXPERT (HOW DO WE THINK THIS WENT?)
We are looking at a case where the claimant’s expert, belatedly, accepted that the reports he was relying on were unreliable. The claimant then attempted to introduce new matters and evidence to bolster an alternative case. The judge rejected that…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 3: WHERE DO YOU LOOK IF YOU WANT (OR WANT TO OPPOSE) AN APPLICATION THAT A TRIAL BE ADJOURNED BECAUSE A PARTY OR WITNESS IS ILL?
The motivation for this series arises from a personal experience earlier this year. I had travelled to a hotel in readiness for a trial the following day. At midnight I found out that the other side were asking for an…
COST BITES 292: AN EXAMPLE OF THE TRIAL PREPARATION AND TRIAL PHASE BEING BUDGETED (OH – AND COUNSEL DOESN’T GET A REFRESHER FOR A JUDICIAL READING DAY)
We continue to look at the case considered in the previous post. Having made the point that the budget is not so much about hourly rates but about the reasonableness and proportionality of the figures as a whole the judge…
COST BITES 291: WHEN BUDGETING THE HOURLY RATES SOUGHT CAN BE TOO HIGH, BUT THE PHASE TOTAL REASONABLE
At the budgeting phase of a case there are often disputes as to the appropriate hourly rates. The response is, usually, that it is not the court’s task on budgeting to set the hourly rates but to consider the reasonableness…
THE “CONDUCT OF LITIGATION” CASE CONTINUED: WHY THE CIRCUIT JUDGE ERRED AS TO COSTS: FIXED COSTS APPLIED IN ANY EVENT
We are returning to a case we have looked at several times already. This time on the question of costs. Since the appellants were successful the costs order against them was overturned. However it was held that the judge erred…
MORE ABOUT WHO CAN PROPERLY “CONDUCT LITIGATION”: THE SUBMISSIONS OF THE LAW SOCIETY AND SOLICITORS REGULATION AUTHORITY: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
As I said yesterday the matters discussed in the recent judgment about whether a fee earner can conduct litigation may have a widespread impact. It is important that litigators are aware of the views of the Law Society and the…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
A DECISION OF PROFOUND PRACTICAL IMPORTANCE TO SOLICITORS: WHEN IS SOMEONE EMPLOYED BY A SOLICITOR ENTITLED TO “CONDUCT” LITIGATION? A HIGH COURT DECISION THAT WILL HAVE WIDESPREAD RAMIFICATIONS
We are looking at a High Court decision that could have major ramifications for the way in which firms of solicitors organise their practices. In particular in relation to the qualifications of staff who conduct litigation, what is meant by…
COST BITES 290: BARRISTERS TAKE CARE: ANOTHER REASON THE DBAS WERE INVALID – FAILURE TO INCLUDE COUNSEL’S FEES IN THE EQUATION…
We are continuing with our consideration of Damages-Based Agreements that were found to be unlawful. This time the judge considered the position in relation to counsel’s fees and the Regulations. The judge held that the attempt to charge counsel’s fees…
COST BITES 289: INVALID DAMAGES BASED AGREEMENTS MEANT THAT THE APPELLANTS COULD NOT RECOVER £1.3 MILLION IN COSTS (A BAD DAY OUT FOR THE LAWYERS INVOLVED…)
Today we are looking at a case where the appellants claim to £1.3 million in costs was lost because the Damages-Based Agreements were found to be unlawful and unenforceable. It provides a salutary lesson to all those who are involved…
ENFORCEMENT BULLETIN 2: TRANSFER OF HOUSE TO CIVIL PARTNER SET ASIDE: ARE ATTEMPTS TO AVOID PAYMENT WORTH THE CANDLE?
It is not unknown for debtors to seek to transfer property to another person in an attempt to avoid a charging order being made against it. We see see such a case here. A house, initially in the sole name…
COST BITES 288: IS IT REALLY GOING TO COST £39,967.50 TO HOLD A MEETING BETWEEN LAWYERS? (AND THERE WILL BE TEN OF THEM…)
Here we are looking at a substantial reduction in a budget. The claimants here sought £39,967.50 for each meeting of the solicitors co-ordinating group litigation. The court was not happy with this… (When you are claiming £39,967.5o a meeting for…
SOCIAL MEDIA AND CIVIL EVIDENCE: ITS USE IN A TRIAL ABOUT… SCAFFOLDING
Many of the cases relating to civil evidence and social media involve “drama” of some sort, particularly in relation to allegations of fundamental dishonesty and fraud. Here we look at the use of social media in a different, but still…
BARRISTER REFERRED TO THE BSB BECAUSE OF THE USE OF AI “HALLUCINATED” CASES: IGNORANCE THAT THIS WAS HAPPENING IS NO DEFENCE
We have another example of a lawyer getting into trouble (potentially very serious trouble) through the use of Artificial Intelligence and its ability to “hallucinate” cases. It was accepted that the error was not deliberate. However the Upper Tribunal pointed…
IT WOULD BE AN “AFFRONT TO JUSTICE” NOT TO SET ASIDE THIS “FINAL” JUDGMENT: THERE IS A LOT HERE THAT EVERYONE INVOLVED IN THE LITIGATION PROCESS SHOULD PROBABLY READ
We are looking at a number of cases that, on the face of it, are highly unusual. One judge has already indicated that there is a strong prima facie cases that some related cases “are all fraudulent”. There are…
SERVICE POINTS 10: COURT REFUSES CLAIMANT’S APPLICATION WHEN PROCEEDINGS WERE SERVED ONE DAY LATE: A CASE THAT ROUNDS UP TWO WARNINGS GIVEN TODAY
Earlier today I warned that a recent decision by the Divisional Court in relation to CPR 6.15 was unusual and should not give great comfort to litigators generally, later we looked at the new Administrative Court Judicial Review Guide which…
COST BITES 287: YOU’VE AGREED FOUR LEADING COUNSEL FOR THE FIRST DAY OF THE TRIAL – ONLY TWO OF THEM ARE GETTING PAID AFTER THAT
When the parties agree a phase of a budget this can, on the face of it, have a knock on effect on the related phases. But, as Cab Calloway famously said – that ain’t necessarily so. In the case we…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
NEW EDITION OF THE ADMINISTRATIVE COURT JUDICIAL REVIEW GUIDE 2025: FOLLOW THE RULES OR YOU COULD BE SUBJECT TO SANCTIONS
There is a new edition of The Administrative Court Judicial Review Guide 2025 available on the Judiciary website. It contains clear guidance on procedure and, as the Preface makes clear, is keen to help practitioners avoid common procedural pitfalls. It…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
SERVICE POINTS 9: SERVICE AT THE HOUSE OF COMMONS IS NOT GOOD SERVICE BUT ON THIS OCCASION – IT FITTED THE BILL…
Here we are looking at an unusual case in relation to service. It is a case where the claimant served at the wrong address but (unusually) the court exercised its discretion to retrospectively validate service. There is more to this,…
SERVICE POINTS 8: APPLICANT FAILS TO SERVE THE SECRETARY OF STATE PROPERLY: A BAD NIGHT AT THE MUSEUM…
I don’t know how many planning lawyers subscribe to this site – it may be none do. However I am fairly confident that they could get full value out of their subscription if it persuaded them to pay attention to…
COST (MEGA) BITES 286: AND YOU SAID THAT WITH AN “ADMIRABLY STRAIGHT FACE”: “OVERLAWYERING” CONSIDERED IN AN EXHAUSTING CASE
We are looking at a case that has already been subject to several posts on this site. In the previous decision about budgeting the claimants’ budgets were described as “absurdly high” and the arguments “strains all credulity”. The court is…
THE CURRENT IMPORTANT OF PLEADINGS 32: “BOTH THE PARTICULARS OF CLAIM AND DEFENCE ARE LENGTHY DOCUMENTS, UNJUSTIFIABLY SO”
We are here honing on in one aspect of a decision that was about allocation. The judge commented on how poor the pleadings of both side were. The Particulars of Claim and Defence were too long, a Reply was unnecessary. …
APPLICANTS FOR INJUNCTIONS: WHY ARE YOU ASKING FOR AN INJUNCTION BUT NOT ISSUING PROCEEDINGS BEFOREHAND? THAT PRACTICE SHOULD STOP: HIGH COURT DECISION
Here we are looking at the (to my mind somewhat risky) practice of applying for and obtaining an injunction, without actually issuing proceedings. This judgment is a reminder that this should only happen in exceptional circumstances. (This was an injunction…
NEW RULES COMING INTO FORCE ON THE 12TH SEPTEMBER 2025 AND THE 1ST OCTOBER 2025 (2): DISPUTING EVIDENCE AND FILING EVIDENCE IN PART 8 PROCEEDINGS
Here we look at the latest statutory instrument which makes changes to the rules. This time a highly specific rule making amendments to Part 8 to deal with the filing of evidence where the defendant states it intends to dispute…
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
THERE IS NO END TO THE MATERIAL THAT LITIGANTS CAN PUT ON SOCIAL MEDIA: FIND SOMEONE TO LIE FOR ME… ALL RECORDED ON FACEBOOK
We are taking a closer look at the judgment on fundamental dishonesty. I want to hone in on the issue of the evidence provided by social media, in this case Facebook. This case is an almost textbook example of a…
THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: EX-SOLDIER FAILS IN HER CASE AND NOW NO LONGER HAS THE PROTECTION OF QOCS
Here we look at a case where the claimant was found to be fundamentally dishonest. The judge commented on the irony of the fact that she had a substantial claim for damages, even without that dishonesty. Nevertheless the evidence of…
SERVICE POINTS 7: WHAT’S IN A NAME? DOES THE DEFENDANT’S CHANGE OF NAME MEAN THAT SERVICE WAS DEFECTIVE?
Here we are looking at an interesting argument in relation to whether service was effective after a party had changed their name. The defendant argued that the name change meant they had not been served properly and were not a…
COST BITES 285: DOES THE COURT NEED TO VARY THE RECEIVING PARTY’S BUDGET WHEN IT HAS ORDERED THAT COSTS BE PAID ON AN INDEMNITY BASIS?
We are looking again at the award of indemnity costs. The judge ordered that costs be paid to the claimant on the indemnity basis. He then went on to consider whether, given that decision, it was necessary to retrospectively vary…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
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