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…
COST BITES 308: SHOULD BUDGETING TAKE PLACE IN A £340 MILLION CASE? TAXIS DRIVERS WANT TO KNOW THE FARE IN ADVANCE
The usual “cut off” point for costs budgeting is £10 million. Here we are looking at a case where the court considering budgeting in a case with a value of £340 million. The judgment contains interesting, and important, observations on…
CONTEMPT OF COURT (3): DOES THE ABSENCE OF A PENAL NOTICE PREVENT COMMITTAL PROCEEDINGS? ARE THERE TWO TIERS OF COURT ORDER? THE COURT OF APPEAL HAS STRONG VIEWS…
Does the absence of a penal notice on a court order mean that a party in default cannot be subject to committal proceedings? This was the question addressed by the Court of Appeal in this case. The possibility that litigants…
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…
MAZUR MATTERS 37: USEFUL LINKS: NEW GUIDANCE FROM THE LAW SOCIETY
The Law Society has earlier issued two new documents which are guides to Mazur. One is outside a paywall, the other is not. “Mazur – answering your questions” deals with many key issues. (Links are important on this topic -…
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…
WITNESS EVIDENCE WEDNESDAY: “MISLEADING AND UNTRUE STATEMENTS… HAVE BEEN MADE TO THE COURT ON BEHALF OF THE CHIEF CONSTABLE” (COURT OF APPEAL ARE NOT HAPPY…)
This week we are looking at a remarkable case. Shortly before a matter was due to be heard in the Court of Appeal the respondent (the Chief Constable of a police force) filed documents which showed that numerous witness statements…
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…
APPEAL STRUCK OUT BECAUSE OF APPELLANTS’ FAILURE TO FILE A COMPLIANT BUNDLE: RELIEF FROM SANCTIONS REFUSED
All those involved in the appeal process, indeed litigation generally, are best advised to read this judgment. It is about the standard the court’s expect when an appeal is being brought. It is also about procedural failures and failures to…
COURT CONSIDERS APPLICATION FOR FURTHER DISCLOSURE MADE ON THE THIRD DAY OF THE TRIAL: “THIS SHOULD HAVE BEEN MADE MANY MONTHS BEFORE…”
It is unusual for an application for further disclosure, particularly extensive disclosure, to be made part way through a trial. The judge considered such an application in this case. This led to the obvious question – why wasn’t this application…
MAZUR MATTERS 36: UPDATED GUIDANCE FROM AN INSURER: THE NEW DUTIES ON THOSE WHO “SUPERVISE” – THEY NOW HAVE TO “CONDUCT”
Some of the most useful guidance on compliance and Mazur has come from insurers (perhaps unsurprisingly). It is significant that one of the major insurers has already updated and revised its guidance. This guidance is essential reading for anyone involved…
TALES FROM THE COST LAW CONFERENCE SOME BRIEF POINTS (3): COSTS JUDGE SIMON BROWN ON THE NUTS AND BOLTS OF COSTS BUDGETING
Costs Judge Brown makes the point here that costs budgeting is here to stay. There are a few basic issues, the “nuts and bolts” of budgeting which help ensure that the whole process runs smoothly. (You can never underestimate the…
ANOTHER “BUNDLES” ISSUE: THE NEED FOR COMPLIANCE WITH THE PRACTICE DIRECTION ON THE CITATION OF AUTHORITIES; “I’M PICKING UP BAD CITATIONS” – THE REMIX…
It is often worthwhile looking at short judgments or comments at the end of a case, particularly in the Court of Appeal. They sometimes contain little gems of very useful information. We see that here in the short judgment of…
SERVICE POINTS 18: DECISION TODAY: THE CLAIMANT DID NOT ACTUALLY RECEIVE THE CLAIM FORM UNTIL AFTER IT EXPIRED, YET THE COURT OF APPEAL WAS UNYIELDING
We are continuing our examination of the Court of Appeal judgment today in relation to service of the claim form. The claimant’s solicitors received the claim form after the date it had expired. Nevertheless the Court of Appeal upheld the…
SERVICE POINTS 17: BREAKING NEWS… IMPORTANT DECISION ON THE DATE OF ISSUE OF THE CLAIM FORM FROM THE COURT OF APPEAL TODAY
The procedural problems caused by service of the claim form continue unabated. Here we look at a decision of the Court of Appeal today which highlights the very real dangers for claimants. Mistakes or delays by the court service may…
MAZUR MATTERS 35: DOES AN UNAUTHORISED PERSON SIGNING AN APPLICATION MEAN IT CAN BE STRUCK OUT “WITHOUT MORE”?
Here we are looking at case report which contains a reference to Mazur and appears to suggest that signature of an application by an unauthorised person means that the application is “liable to be struck out”. As it turns out…
COST BITES 306: ALLEGATIONS OF FRAUD TOOK CIRCUMSTANCES OUT OF THE NORM: INSURER ORDERED TO PAY INDEMNITY COSTS TO THE CLAIMANT
Here we look at a case where the judge found that the defendant’s conduct in alleging fraud was such that costs should be ordered on the indemnity basis. Among other things this judgment reminds us of the dangers of alleging…
THE CURRENT IMPORTANCE OF PLEADINGS 36: A “SCATTERGUN” APPROACH DOES NOT HELP THE CLAIMANTS’ CASE (NOR DOES FAILING TO PLEAD KEY ASSERTIONS OF BREACH AND DAMAGES…)
A “scattergun” approach is rarely wise in relation to allegations in pleadings. Here, however we have a case where the judge found that there was both a scattergun approach and a failure to plead in relation to key matters of liability…
TALES FROM THE COSTS LAW CONFERENCE SOME BRIEF POINTS 2: (MIS) CONDUCT IN THE ASSESSMENT PROCESS
Staying with the conference today. Costs Judge Leonard gave an interesting talk on “conduct” in the assessment process which he, said was more accurately about “misconduct in the assessment process. (This was one of Judge Leonard’s slides. It highlights the…
TALES FROM THE COSTS LAW CONFERENCE SOME BRIEF POINTS 1 : MAZUR ISSUES: WAS IT CORRECTLY DECIDED? WHY IT IS IMPORTANT THAT COST LAWYERS ARE REGULATED
Today I am writing directly from the Association of Costs Lawyers conference in London. Unsurprisingly the first two speakers considered Mazur. This is a highly abbreviated version of their talks. ANDREW ROY KC Andrew, kindly referring to this blog as…
MAZUR MATTERS 34: “LEGAL EXECUTIVES” AND THE RIGHT TO CONDUCT LITIGATION AN INTERESTING DISCUSSION PAPER FROM 2010: ANOTHER PIECE OF THE “HOW HAS THIS HAPPENED”? JIGSAW
We have, in the past few months, been addressing issues that arise from a statute passed some 18 years ago. The issues in relation to the obligation of solicitors and authorised persons (and only solicitors and authorised persons) to conduct litigation…
THE CURRENT IMPORTANCE OF PLEADINGS 35: THE DEFENDANTS’ ARGUMENT THAT THEY COULD RUN A PARTICULAR ARGUMENT ON THE BASIS OF THE CURRENT PLEADINGS WAS “NOTHING MORE THAN WISHFUL THINKING” (OR PERHAPS TANGERINE DREAMING)
Here we are looking at a pleadings issue that arose in the Intellectual Property Patents Court. The scientific issues here may be complex, however the rules remain the same. The judge found that that the defendants’ pleaded case did not…
“LITIGANTS IN PERSON SHOULD BE WARY OF UNQUALIFIED INDIVIDUALS WHO ENCOURAGE THEM TO DEFEND OR PURSUE CASES BY REFERENCE TO SPURIOUS LEGAL ARGUMENTS, WHICH HAVE NOTHING TO DO WITH THE SUBSTANCE OF THE CASE”
It is rare for this blog to look at judgments from other jurisdictions. However some words from the High Court of Ireland caught my eye. It offers advice, in particular, to litigants in person. (This is not a warning in…
THE CLAIMANT RELIED ON A FALSE AUTHORITY: THE CONTEXT OF THIS CASE MADE IT DIFFICULT FOR THE LITIGANT TO CHECK THE CITATION
We are looking again at the phenomenon of “false” authorities. However in this case the courts were more forgiving of the litigant who had relied on a non-existent case. The judgment does, however, show the need for care in legal…
PROVING THINGS 273: COURT OF APPEAL OVERTURNS FINDINGS OF FACT: IT “BEGGARS BELIEF” THAT THE DEFENDANT DID NOT KNOW OF THE RELEVANT MATTERS
Here we look at a case where the Court of Appeal overturned the trial judge’s findings of fact at trial. Usually this is difficult, or the court acts with some reticence, here the Court uses the phrase “it beggars belief”…
MAZUR MATTERS 33: MAZUR IN PARLIAMENT (2): THE LETTER FROM THE MINISTER TO THE JUSTICE COMMITTEE
We continue with our rare trip inside the Houses of Parliament by looking at the response that the Minister for Courts and Legal Services to the letter from the Chair of the Justice Committee. (We are seeing how Mazur…
MAZUR MATTERS 32: MAZUR IN PARLIAMENT (1): THE LETTER FROM THE JUSTICE COMMITTEE TO THE MINISTER
It is rare for there to be Parliamentary consideration of the matters discussed in this blog. Quite often we are trying to divine what it is that Parliament actually meant when it drafted a statute. In the Mazur case Parliament…
COST BITES 305: THE JUDGE WAS WRONG TO AWARD COSTS AGAINST A PARTY WHEN TWO ACTIONS WERE “JOINED” AND NOT “CONSOLIDATED”: AN IMPORTANT DISTINCTION IN THE RULES
We are looking at a case where the appellant was successful in overturning an award for costs made against him in relation to one set of proceedings. The judgment highlights the important distinction between “joinder” and “consolidation”. That distinction can…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
MAZUR MATTERS 31: THE LEGAL SERVICES BOARD REVIEW OF “WHY MAZUR WAS A SURPRISE” – AND WHAT CHANGED AFTERWARDS?
The Legal Services Board has set out the scope of its review of “advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies”. Stripped down to its basics the question being asked…
THE CURRENT IMPORTANCE OF PLEADINGS 34: APPEAL ALLOWED (IN PART) WHERE TRIAL JUDGE AWARDED DAMAGES BASED ON UNPLEADED ALLEGATIONS
Here we have a case where the claimants’ case was based (in part) on conduct by one of the defendants that was not pleaded. The defendant appealed on that basis. On appeal the judge was not persuaded by the respondents’…
DEFENCES STRUCK OUT BECAUSE OF A FAILURE TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: SHOULD RELIEF FROM SANCTIONS BE GRANTED?
Here we look at a case where the defendants failed to comply with a peremptory order for disclosure. The defences stood struck out. The issue the judge had to determine was whether relief from sanctions should be granted. This in…
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