THE CURRENT IMPORTANCE OF PLEADINGS 93 : CAN YOU CLAIM £2.569 MILLION IN DAMAGES WHEN YOU HAVEN’T PLEADED IT? NOW THAT’S AN IMPORTANT QUESTION…
If ever there was a case that would persuade you of the importance of pleadings it is this one. The claimant had succeeded on many issues at a trial. It now wanted to claim £2,569 million in damages. However an…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
WITNESS EVIDENCE WEDNESDAY: WAIVING LEGAL PROFESSIONAL PRIVILEGE BY MENTIONING IT IN A WITNESS STATEMENT
Issues of legal professional privilege have been in the news this week. This makes it an opportune time to revisit those cases where litigants have inadvertently waived privilege by mentioning legal advice in witness statements. “… there is a distinction…
PROPORTIONALITY AND LITIGATION (2): WHERE DOES IT ALL START TO GO WRONG? (AND HOW DO YOU AVOID IT?)
This short series on proportionality is aimed, primarily, at protecting the client and the lawyer. A client may be exposed to excessive costs and the lawyers get blamed for this. There are (it is to be hoped) few cases where…
WHAT HAS CIVIL LITIGATION BRIEF EVER DONE FOR US? PERSONAL INJURY INJURY LAWYERS AND ISSUES OF LIABILITY
This series enables us to pick up key topics from this blog over the past 13 years and relate them to specific areas of practice. The aim is to highlight the fact that the site is a useful resource as…
THE SRA CANNOT COMPEL A SOLICITOR TO DISCLOSE A CLIENT’S PRIVILEGED DOCUMENTS: THE FUNDAMENTAL IMPORTANCE OF LEGAL PROFESSIONAL PRIVILEGE
This is an important case about legal professional privilege. The headline result is that the SRA have no power to override such privilege when carrying out an investigation. It also highlights the hurdles any party can face when seeking to…
PROPORTIONALITY IN LITIGATION (1): A TEN POINT GUIDE FOR CIVIL LITIGATORS: A REVIEW OF CASE LAW AND POSTS OVER THE PAST 13 YEARS
Yesterday we looked at a judgment in the Court of Appeal where the sum at stake was £25. The court was, shall we say, “sceptical” about whether this litigation was for the benefit of the actual client. For a while…
COST BITES 456: LET US ALL REMEMBER THAT THE DISPUTE THAT REACHED THE COURT OF APPEAL TODAY WAS OVER THE PRINCELY SUM OF £25: “THE CLIENT HAS NEVER HAD ANY REAL ECONOMIC INTEREST IN THE PURSUIT OF THIS COSTLY LITIGATION”
The judgment given today in the Court of Appeal was the second appeal on the issue. It involved two junior counsel on each side. The sums involved were not large, the Court estimated it to be £25.00. In every other…
COST BITES 455: COURT OF APPEAL DECISION TODAY ON WHETHER A CLIENT IS ENTITLED TO RAISE PART 18 QUESTIONS AS TO WHETHER THE SOLICITOR OBTAINED COMMISSION ON AN ATE PREMIUM
In this judgment today the Court of Appeal held that it is not appropriate for a former client to raise Part 18 questions as to whether their former solicitors had received a commission on an ATE policy. This is important…
BACK TO BASICS MONDAY: THE NEED TO SERVE A SEALED CLAIM FORM: LITIGATORS HAVE BEEN COMING TO GRIEF ON THIS ISSUE FOR WELL OVER A DECADE (AT LEAST…)
Last week we looked at (another) case where a claimant had come to grief when it failed to serve a sealed claim form in time. This is an opportune time to remind readers of the basic point that to be…
COST BITES 454 : INTEREST ON COSTS: A SERIES OF CHECKLISTS AND USEFUL LINKS FOR THE PAYING PARTY
Last week we looked at a recent judgment which concerned interest on costs. That post also contained a series of checklists relating to interest on costs for the receiving party. I promised corresponding checklists for the paying party. There are…
COST BITES 453: YOU ARE NOT GETTING A SUMMARY ASSESSMENT JUST BECAUSE YOU ALL WANT ONE: THE BROADBRUSH IS TOO BLUNT A TOOL FOR THIS PROCESS
We are returning to the previous case to look at the judgment in relation to the judge’s comments on the method of assessment. All the parties favoured a summary assessment, the Senior Costs Judge found that this was not appropriate….
COST BITES 452: WHAT COSTS ORDER SHOULD THE COURT MAKE FOLLOWING THE DECISION IN THE MEDICAL REPORTING CASE? “WE ALL WON – SAY THE PARTIES” AND “WE’RE ALL APPEALING ANYWAY…”
We have the latest chapter in the ongoing saga of whether a receiving party needs to provide a breakdown of the costs of a medical report. Fittingly (and unsurprisingly) this judgment is about costs. It is an unusual case in…
A FITTING END TO THE BAYEUX THEMED WEEK: SHOULD FRANCE HAVE JURISDICTION IN THIS CASE? MORE ABOUT LAWYERS USING WITNESS STATEMENTS TO PUT FORWARD LEGAL ARGUMENTS (DO IT IF YOU WILL – BUT IT NEVER HELPS…)
Observant readers (and possibly the less observant ones) will have noticed that this week we have been paying homage to the arrival of the Bayeux Tapestry in the UK. It is fitting then that we end the week with a…
COST BITES 451 : INTEREST ON COSTS A RECENT JUDGMENT, A REVIEW OF POSTS AND USEFUL CHECKLISTS FOR THE RECEIVING PARTY
Here we look at a recent decision on interest on costs. It also provides an opportunity to review previous posts on the topic and use them to look at a checklist on these issues for the receiving party. “I was…
THE CURRENT IMPORTANCE OF PLEADINGS 92: THE NEED TO PROVIDE PARTICULARS OF SIGNIFICANT ALLEGATIONS: DEFENDANTS’ (LARGELY) SUCCESSFUL REQUEST FOR FURTHER INFORMATION NEEDED BEFORE THEY FILED A DEFENCE
Reports relating to requests for further information are relatively rare. In this case the judge considers the defendants’ request in detail. The claimant was not ordered to answer all of the questions raised. However the judgment does illustrate important issues…
THROWBACK FRIDAY: “OFFICE GOSSIP PROVES NOTHING”: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF” (SEPTEMBER 2016)
This post written a decade ago deals with a recurring point in litigation as we have already seen this week. The tendency of witnesses, and lawyers to allow witnesses, to give “evidence” in witness statements of matters on which they…
WHEN CHAT GPT DRAFTED A “SKELETON” ARGUMENT – 300 PAGES AND 132,000 WORDS LONG: THE LITIGANT RETAINS RESPONSIBILITY AND MUST COMPLY WITH THE RULES
We have here another example, in a judgment today, of the difficulties caused by the use of AI. ChatGPT “helpfully” drafted a “skeleton” argument that was 300 pages long (the maximum page length allowed was 20 pages). This was coupled…
COURT REFUSES DEFENDANTS’ APPLICATIONS TO AMEND AND TO RESILE FROM ADMISSIONS: A SUBMISSION THAT “WELL WE WERE LYING WHEN WE SIGNED THOSE STATEMENTS OF TRUTH” IS NOT A GOOD STARTING PLACE
Here we have a case where an application to resile from admissions and to amend defences were rejected in clear and categorical terms. To a large extent the change of position of the applicants were based on an argument that…
ADVISING THE CLIENT OF THE RISKS OF LITIGATION: TEN USEFUL CHECKLISTS COUPLED WITH THE RELEVANT LINKS
The previous post considered the nature of a solicitor’s duty in a conveyancing transaction. The judgment considered the nature of the solicitor’s duty to warn of risks. Here we pull together many posts and cases on advising on the risks…
PROFESSIONAL NEGLIGENCE NEWS 5 : WHY A SOLICITOR CAN BE NEGLIGENT, A CLAIMANT HONEST AND YET BE WHOLLY UNSUCCESSFUL IN A PROFESSIONAL NEGLIGENCE ACTION
We are looking at a case which explores the limits of a solicitor’s duty of care. It relates to conveyancing, however there are many points of interest to litigators. Firstly in relation to the reason the case failed (the “duty…
WITNESS EVIDENCE WEDNESDAY: THOSE WHO DRAFTED THE WITNESS STATEMENTS “HAVE FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: A USEFUL CHECKLIST AND LINKS TO KEEP YOU ON THE STRAIGHT AND NARROW
Here we look at a case where the judge was extremely blunt in his critique of the way in which both parties had drafted the witness statements. The judgment was from a few years back. However we are looking at…
SERVICE POINTS 54: THE CLAIMANT FAILED TO SERVE A SEALED CLAIM FORM IN TIME: THERE WAS NO OBLIGATION ON A DEFENDANT TO MAKE AN APPLICATION UNDER CPR 7.7: THE ACTION BITES THE DUST
Here we have a case where the claimant simply failed to serve a sealed claim form in time. Despite being warned of this by the defendant the claimant insisted that service of an unsealed claim form was sufficient. The claimant…
THE DIFFICULTIES WHEN MAKING A CLAIM FOR LOSS OF EARNINGS OF THE SELF-EMPLOYED OR SOMEONE INVOLVED IN SPORTS OR ENTERTAINMENT: WEBINAR 29TH SEPTEMBER 2026
Claims for loss of earnings become particularly difficult when the claimant is not an employee. The court may have to reconstruct the likely progress of a business, professional practice, sporting career or career in the arts. Past income may fluctuate…
THE CURRENT IMPORTANCE OF PLEADINGS 91 : THE COURT FINDS FOR THE CLAIMANT ON A POINT NOT PLEADED: THE IMPORTANCE OF THE STATEMENT OF THE AGREED ISSUES FOR TRIAL
The previous post looked at the costs consequences of a claimant pleading a case on a wide basis and then succeeding on the basis of a case that was not specifically pleaded. It is worthwhile looking at the judgment on…
COST BITES 450: IF THE CLAIMANT SUCCEEDED ON A CASE THAT WAS NOT PLEADED SHOULD IT THEN PAY THE DEFENDANTS’ COSTS?
Here the “Cost Bites” series interacts with the “Present Importance of Pleadings”. The judge considered issues relating to liability to pay costs when the claimant had succeeded, but on a basis that was not pleaded. In these circumstances should the…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (5): “THE HEARING WAS A SALUTARY LESSON IN HOW AI MAY PROMPT LAY PERSONS TO SAY THE RIGHT THINGS IN PLEADINGS, BUT CANNOT FURNISH THE EVIDENCE NEEDED TO ESTABLISH THOSE STATEMENTS”
This morning we are travelling to Scotland to look at a case where the judge indicated that the use of AI had led the pursuers (claimants) to bring forward a claim that was largely unsupported by evidence. This led to…
THE DUTY OF FULL AND FRANK DISCLOSURE: USEFUL GUIDANCE AND AN ESSENTIAL CHECKLIST WHEN MAKING AN APPLICATION TO SERVE OUT…
The case we looked at in the previous post highlighted the dangers of failing to comply with the duties owed on a without notice application, an application to serve out in particular. The same judgment had some important guidance for…
A COURT SETS ASIDE AN ORDER MADE WITHOUT NOTICE: ANOTHER CASE THAT EMPHASISES THE IMPORTANCE OF FAIR PRESENTATION AT THESE APPLICATIONS: A LAWYER CANNOT SIMPLY PROMOTE A “CONSPIRACY THEORY” BUT MOST ACT OBJECTIVELY AND CAREFULLY
We have looked many times at cases where “without notice” applications have come under fire. In particular in relation to arguments that the applicants have failed in their duty of full and frank disclosure to the court. We see that…
THE REPLY: THE THEME OF THE DAY: SIX USEFUL CHECKLISTS: MAKING SURE YOUR PLEADING DOESN’T FAIL THE BASIC TESTS
A post earlier today promised checklists on the essential elements that need to be considered when drafting a Reply. There are six here (we will deal with drafting a Defence to counterclaim separately). These should be useful in relation to…
DRAFTING A DEFENCE TO COUNTERCLAIM: SOME IMPORTANT POINTS: YOU HAVE TO COMPLY WITH CPR 16 AND DO IT FULLY AND PROPERLY
The posts earlier today dealt with service and the drafting of a Reply. They emphasised that a Defence to Counterclaim is wholly different from a Reply.A Reply is generally optional. A Defence to Counterclaim is not.A party that fails to…
DRAFTING A REPLY: WHAT IT SHOULD CONTAIN AND WHAT IT SHOULD NOT: THE KEY ISSUES CONSIDERED
You may have noted that the theme of today is the Reply. Here we look at how a Reply should be drafted if a decision is made that one should be served. “A Reply should not, however, be used to…
BACK TO BASICS MONDAY: THE RIGHT TO REPLY: WHEN MUST YOU DO IT AND WHEN SHOULD YOU DO IT? THE CRITICAL IMPORTANCE OF A DEFENCE TO COUNTERCLAIM
There are a surprising number of cases that deal with the drafting of a Reply. Today we are having a detailed look of the rules and case law relating to the Reply. Here we take a look at the rules…
COST BITES 449 : YOUR CASE AGAINST ME WAS DISMISSED BECAUSE YOU HAD NO PROPER CAUSE OF ACTION: SHOULD I GET 100% OF MY COSTS ON THE INDEMNITY BASIS? (LIFE IS MORE NUANCED THAN THIS…)
Here we look at a case where a defendant was successful in having an action against him struck out because there was no viable cause of action. The questions addressed here were – should the claimant recover 100% of his…
THE IMPORTANCE OF MAKING AN APPLICATION TO EXTEND TIME BEFORE THE DATE OF COMPLIANCE: THE COURT DOES NOT CONSIDER DENTON PRINCIPLES EVEN IF THE APPLICANT FAILS TO MEET THEIR OWN PROPOSED TIMETABLE
What is the situation if a party seeks a prospective application of time for compliance but, whilst the application is pending, does not act by the date they proposed? Is this still and “in-time” application? Should it be treated any…
EXPERT WATCH 71: “I DO NOT ATTACH WEIGHT TO THIS REPORT AS EXPERT EVIDENCE”: THE EXPERT WAS “ADVOCATING” AND “HE TRESPASSES INTO THE ROLE RESERVED TO THE TRIBUNAL”
We have seen that judge jealously (and rightly) guard against experts trespassing into the judicial role of fact finding. They are also suspicious of experts that take the role of advocates rather than independent experts. We see both of these…
THROWBACK FRIDAY: ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE (SEPTEMBER 2018)
Some things are timeless in litigation. The fact that it carries risks is without doubt one of those things. Here we look at a post that considered the duty to advise on the risks of litigation and how to fulfil…
MORE ABOUT THE CASE AGAINST A SOLICITOR BEING STRUCK OUT: THE ABSENCE OF AN ASSUMPTION OF RESPONSIBILITY MEANT THERE WAS NO CASE: A CLAIMANT CANNOT HOPE THAT “SOMETHING WILL TURN UP” ON DISCLOSURE…
We looked at this case earlier today in relation to the procedural aspects. However the substantive judgment, on which the defendant was successful, is of considerable interest to the legal profession generally. There are also issues as to how the…
THE IMPORTANT DISTINCTION BETWEEN AN APPLICATION TO STRIKE OUT AND ONE FOR SUMMARY JUDGMENT: DECISION TO STRIKE OUT ALLOWED ON APPEAL BECAUSE THE JUDGE HAD WRONGLY CONSIDERED THE MERITS
There is an important distinction between the striking out of a statement of a case and summary judgment. Striking out considers whether there is an arguable claim pleaded; summary judgment relates to whether that claim has any merits. This distinction…
CLAIM AGAINST A SOLICITOR WAS STRUCK OUT: THERE HAD BEEN NUMEROUS PROCEDURAL DEFAULTS AND THESE WOULD HAVE BEEN FORGIVEN…
We are looking at a case where a claim against a defendant solicitor was struck out. It was struck out because there was no arguable case against the solicitor. However the claimants had also breached numerous rules before and after…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (4): EXPERTS AND THE USE OF AI: A LOT OF DANGER AREAS HERE: 20 KEY POINTS
Here we consider the risks that occur when experts use AI when they prepare a report or give evidence. We have seen several examples on this blog of evidence going awry. Here we draw upon guidance from previous posts, but…
CAN THE HIGH COURT ISSUE AN INJUNCTION PREVENTING THE ISSUE OF PROCEEDINGS IN THE COUNTY COURT? A QUESTION WITH A ONE WORD ANSWER…
Can the court grant an injunction to prevent the issue of proceedings in this jurisdiction? That was the question considered here. The answer was clear, and the judgment brief… “in my judgment, the court does not have jurisdiction to grant…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (3): AI AND WITNESS EVIDENCE: VERY DANGEROUS BEDFELLOWS: TWENTY KEY POINTS
We have looked several times at the dangers of using Artificial Intelligence to draft witness statements. It would be naive to believe that this issue is not going to arise again. Indeed it may well already be a common feature…
TUPE DOES NOT PASS ON LIABILITIES TO THIRD PARTIES: COURT OF APPEAL DECISION TODAY
The Court of Appeal today found that TUPE does not transfer an employer’s pre-transfer vicarious liability to third-party claimants. This has important practical implications for many practitioners, particularly in the fields of personal injury and clinical negligence. “… just standing…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (2): HOW TO SPOT “FALSE” AUTHORITIES AND WHAT TO DO ABOUT IT (PLUS SOME USEFUL LINKS)
Many practising lawyers will now have seen cases where AI has been used to put forward legal propositions. Sometimes this involves “hallucinated” cases, statutes or rules. More problematically a real case or statute is cited, however the citation is wrong…
BACK TO BASICS MONDAY: LAWYERS AND ARTIFICIAL INTELLIGENCE (1): THREE IMPORTANT PRINCIPLES: YOU OWN THE WORK; AI IS NOT AN AUTHORITATIVE SOURCE OF LAW; IT IS NOT ENOUGH THAT THE CASE EXISTS…
The post earlier today on the misuse of AI when defending an SDT hearing has led me to start a short series about the dangers of lawyers (litigators in particular) using AI. This is not an anti-AI stance. There is…
MORE ON THE USE OF ARTIFICIAL INTELLIGENCE AND “HALLUCINATING” CASE LAW AND LEGAL PRINCIPLES: THE SOLICITORS DISCIPLINARY TRIBUNAL GIVES A CLEAR VIEW…
We have now looked at numerous court cases where lawyers have come to grief because of the use of Artificial Intelligence to cite law incorrectly, or simply manufacture false cases and equally false legal principles and citations. Here we have…
PROVING THINGS 296 : PROVING THE EARNINGS POTENTIAL OF AN INJURED CHILD: THE LOST YEARS CALCULATION CONSIDERED AND APPLIED
When the Supreme Court gave the judgment in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5 it was clear that there were going to be major evidential issues…
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