WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
COST BITES 355: VARYING A BUDGET (3): PROPOSED VARIATIONS DISALLOWED BECAUSE THEY WERE NOT MADE “PROMPTLY”
This is the final part of today’s trilogy considering applications to vary costs budget. We have already seen that the judge determined that many issues in the case were “significant developments” which could, in theory, lead to a variation of…
COST BITES 354: VARYING A BUDGET (2) HOW WAS THE ISSUE OF “SIGNIFICANT DEVELOPMENTS” CONSIDERED IN PRACTICE?
The previous post looked at the judge’s consideration of the principles relating to variations in a costs budget. Here we look at how this worked out in practice with the judge considering whether various issues amounted to “significant developments”. Some…
COST BITES 353: VARYING A COSTS BUDGETS (1): THE PRINCIPLES CONSIDERED: WHAT IS MEANT BY “SIGNIFICANT DEVELOPMENTS”?
We are taking a detailed look at a judgment that deals with proposals to vary costs budgets. This post will look at the judge’s considerations of the rules, principles and guidance that relates to variation of budgets. Later posts will…
EXPERT WATCH 36: THE JUDGE FINDS THAT EXPERT EVIDENCE IS “LITERALLY UNBELIEVABLE” (AND IT GETS WORSE…) “I MEAN, IT IS DISHONEST, FULL STOP”
We are used to seeing judicial criticism of experts on this site. We have an example here of a claimant’s case coming to grief because the judge did not accept her evidence or the evidence of the two experts called…
SERVICE POINTS 27 : EXTENSION OF TIME TO SERVE CLAIM FORM SET ASIDE: FAILURES IN THE DUTY TO GIVE FULL DISCLOSURE PLAY A MAJOR PART
We have got to the middle of February and this is (I think) the first case about failures of service of the claim form this year. This case has a history we have seen a lot on this site. The…
COST BITES 352: S.106 OF THE PATENTS ACT HAS NO IMPACT UPON THE COURT’S DECISIONS IN RELATION TO COSTS BUDGETING
There are several interesting issues raised in this judgment. The fundamental point is whether the costs budgeting exercise is an “award of costs or expenses”. The judge decided that it is not. This, in turn, had an impact upon whether…
PROVING THINGS 280: DEFENDANT FAILS TO PROVE THAT AN ACTION HAD BEEN COMPROMISED: THE TERMS “SUBJECT TO CONTRACT” MEAN THAT ACCEPTANCE DID NOT GIVE RISE TO A BINDING COMPROMISE
Documents are often marked “subject to contract”. This case considers the practical implications of such markings. In particular whether an apparent acceptance of an agreement gave rise to a binding agreement. As we shall see the wording was found to…
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…
PRACTICE DIRECTION AMENDMENTS: 193rd UPDATE: CHANGES TO RULES ABOUT DISCLOSURE IN THE BUSINESS AND PROPERTY COURTS: THE COURT CAN ORDER A PARTY TO SEEK INSPECTION FROM “ANY PERSON”
There are several amendments in Practice Directions made in the the most recent update. Here we look at one that is directly related to the rule change we looked at last week. The amendment introduces into the Business and Property…
COST BITES 351: WHAT HAPPENED TO THOSE COSTS BUDGETS IN PRACTICE? “COMPARE AND MATCH” IS NOT ALWAYS AN ACCURATE GUIDE:THE KEY QUESTION IS – WHO WILL BE DOING THE MOST WORK?
The previous post looked at the judge’s general observations in this case. Here we look how those principles were applied in practice. It is clear that the arguments that the costs were excessive by way of comparison did not always…
COST BITES 350: KNOWING HOW JUDGES APPROACH BUDGETING WHEN ONE SIDE SEEKS MUCH MORE THAN ANOTHER: IS THE COURT A “SLAVE TO COMPARISON”?
It is always important, and enlightening, to have a close look at judicial observations on the nature of costs budgeting. We have a useful judgment here. The judge considered the applicable principles and guidance before carrying out budgeting in a…
PROVING THINGS 279: THE TRIAL JUDGE WAS ENTITLED TO FIND IMPECUNIOSITY EVEN THOUGH THERE HAD BEEN OMISSIONS IN DISCLOSURE
Credit hire litigation has given rise to a number of reported cases over the years. It gives rise to particular issues of procedure and evidence. In particular the need for a claimant to establish “impecuniosity” in order to justify the…
BACK TO BASICS MONDAY: THE DIFFERENCE BETWEEN THE DATE OF RECEIPT AT COURT FOR LIMITATION PURPOSES AND DATE OF ISSUE FOR THE PURPOSES OF SERVICE: AVOID TESTING THIS DISTINCTION IF YOU CAN
Here we look at an issue that can cause confusion, it is important from the point of view of determining the date from which the date of service runs. The relevant date for limitation purposes is the date of receipt…
PERSONAL INJURY POINTS 11: THE LOCAL AUTHORITY COULD NOT TAKE INTO ACCOUNT PERSONAL INJURY TRUSTS AND REFUSE TO PROVIDE CARE
Here was have a case where the local authority ceased providing funds for a seriously injured person, indeed they demanded money back. The local authority contended that money in a personal injury trust should properly be taken into account. Further…
COST BITES 349 : THE CLAIMANT SHOULD HAVE BEEN GRANTED 100% OF THEIR COSTS: THE SECRETARY OF STATE’S FAILURE TO COMPLY WITH THE PRE-ACTION PROTOCOL WAS A HIGHLY RELEVANT FACTOR
It is rare for the Court of Appeal to overturn a first instance decision as to costs. We see an example of this happening here. The Upper Tribunal awarded the claimant 75% of his costs of a judicial review application…
COST BITES 348 : A PARTY SEEKING SECURITY FOR COSTS SHOULD HAVE INCLUDED TIME SPENT IN SETTLEMENT AND ADR
There is an interesting comment at the end of the judgment. The judge made an order for security for costs. However he also expressed concern that the defendant’s estimated costs did not include anything in relation to the costs of…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
THROWBACK FRIDAY: “EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”: FEBRUARY 2018
There have been several major issues about the way in which the joint meetings of experts are conducted. This includes the problems that occur when the parties cannot even agree on an agenda for the meeting. This post looked at…
THE CURRENT IMPORTANCE OF PLEADINGS 54: ALTHOUGH THE PARTICULARS WOULD NOT BE STRUCK OUT SOME WORDS NEED TO BE CHANGED: CHOOSE YOUR WORDS WITH CARE…
We are returning to look at the case where the Master refused to strike out pleadings on the grounds that they were an abuse of process. However it was also made clear that the use of certain words in the…
EXPERT WATCH 34: THE COURT REFUSES TO REPLACE A JOINTLY INSTRUCTED EXPERT BUT ALLOWS SOME OF THE PARTIES TO INSTRUCT THEIR OWN EXPERT
When it is appropriate for a court to replace a jointly instructed expert? That issue was considered in this case. The judge rejected the allegations made about the jointly instructed expert, however given that expert evidence was central to the…
WHEN PERMISSION IS (AND IS NOT) REQUIRED TO DISCONTINUE A CLAIM BROUGHT ON BEHALF OF MINORS: IT STILL HAS SERIOUS COSTS CONSEQUENCES THOUGH
Here we are looking at an interesting issue relating to discontinuance. In some circumstances a claim brought by a minor or protected party cannot be discontinued without the court’s permission; in other circumstances no permission is required. The distinction is…
PROVING THINGS 278: CLAIMANT FAILS TO PROVE THEIR CASE WHILST THE DEFENDANT FAILS TO PROVE FRAUD: MULTIPLE INCONSISTENCIES LEAD TO EVIDENCE NOT BEING ACCEPTED
Here we look at a judgment where the claimant failed to establish his case. The defendant also failed to prove that the claimant was involved in a “staged crash”. It shows how cumulative inconsistencies in a party’s evidence can lead…
THE CIVIL PROCEDURE (AMENDMENT) RULES 2026 (2): THE COURT CAN ORDER A PARTY TO REQUEST ANY PERSON TO PRODUCE DISCLOSURE AND INSPECTION
We are continuing with our look at the The Civil Procedure (Amendment) Rules 2026 which come into force on the 6th April 2026. Here we look at a totally new provision which gives the court power to order a party to…
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…
COST BITES 346: CONDUCT, “PART 36 OFFERS” AND THE STATUTORY PRESUMPTION ON A SOLICITORS ACT ASSESSMENT: THE COSTS OF “ASSESSMENT” ARE DISTINCT TO THE COSTS OF “PROCEEDINGS”
In this judgment given yesterday a Costs Judge considered the relevance of conduct in a Solicitors Act assessment. In particular whether an offer expressed as a “Part 36 offer” by the claimant client could amount to “special circumstances” to displace…
THE CURRENT IMPORTANCE OF PLEADINGS 53: THE HIGH COURT REJECTS AN ALLEGATION OF IMPROPER CONDUCT IN THE DRAFTING OF THE PARTICULARS OF CLAIM: A CLAIMANT CAN BE “TORMENTED” AND THIS IS NOT ABUSIVE…
We are looking at a judgment that goes to the very heart of what a lawyer can properly draft in relation to pleadings. It considers what the line is between putting the case in an “effective and high level way”…
THE CIVIL PROCEDURE (AMENDMENT) RULES 2026 (1): THE CIVIL PROCEDURE RULES ARE DISPLACED BY THE ONLINE PROCEDURE RULES (UNLESS STATED OTHERWISE…)
The Civil Procedure (Amendment) Rules 2026 were laid before Parliament on the 5th February 2026 and come into force (generally) on the 6th April 2026. We will look at those rules that have an impact on civil litigators one by…
DEFENDANTS GIVEN PERMISSION TO RELY ON SURVEILLANCE EVIDENCE SERVED LATE: EVEN THOUGH THIS LED TO THE ADJOURNMENT OF THE TRIAL
A defendant that wishes to rely on surveillance evidence must choose its timing with extreme care. If the evidence is disclosed too early then the claimant could be “tipped off”; too late and this could be categorised as an “ambush”. …
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION(1): A PRIMER FOR “WHEN THE SKY IS FALLING”
Very little (if any) of the legal curriculum is devoted to what to do when things go wrong. Not enough (in my view) is devoted to preventing things go wrong. However here we concentrate on what do when something goes…
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…
WE HAVE SEEN HOW ALLEGED FAILURES IN PROVIDING COSTS INFORMATION EXPOSES SOLICITORS’ FIRMS TO RISK : A STRATEGY TO AVOID THE SAME OUTCOMES: ADVANCE NOTICE OF WEBINAR ON THE 19th MARCH 2026
Recent Legal Ombudsman decisions show that solicitors’ firms are being ordered to repay substantial fees and pay significant compensation for failures in costs information — even where the underlying litigation has been competently conducted. This webinar uses Knight and other recent…
BACK TO BASICS MONDAY: WHEN YOU MUST AND WHEN YOU CAN’T SERVE THE CLAIM FORM ON A SOLICITOR: TRY TO AVOID TELLING THE COURT YOU ARE “SURPRISED” BY THE RULES…
The issue of when a claim form can be served on a defendant’s solicitor is one that has been considered many times on this site over the years. There can be two fatal errors for claimants. (1) Serving on a…
COST BITES 345: RECEIVING PARTY’S FAILURE TO FILE ALL RELEVANT DOCUMENTS ON A PROVISIONAL ASSESSMENT RENDERS THE ASSESSMENT A NULLITY: CLEVER AND COMPLEX ARGUMENTS DID NOT PREVAIL
What are the consequences if a party lodging the documents for a provisional assessment of costs fails to file all the relevant documents and the assessment goes ahead without the judge seeing all the points of dispute? . This is…
COST BITES 344: INSOLVENCY COURT HAS POWER TO MAKE A PRO BONO COSTS ORDER FOR THE COSTS OF COUNSEL: POINTS TO WARN ABOUT IF YOUR OPPONENTS ARE ACTING ON A PRO BONO BASIS
We have looked at pro bono costs orders several times. This case has an unusual twist in that the case was an insolvency case. The judge considered the Insolvency Rules and found that the court had power to make an…
THE PROFOUND DIFFICULTIES IN AMENDING PROCEEDINGS TO SUBSTITUTE A PARTY AFTER THE LIMITATION PERIOD HAS EXPIRED: COURT OF APPEAL DECISION TODAY: WHY CLAIMANTS HAVE TO BE CERTAIN OF WHO THEY ARE SUING…
This decision today emphasises the difficulties for a claimant who has waited until near the end of the limitation period, issued and then finds that they have not sued the correct defendant. It is now less likely that a court…
COST BITES 343: AN OPPORTUNITY HAVE A CLOSE LOOK AT A CASE BEING BUDGETED: “I HAVE NO DOUBT THAT THE OVERALL FIGURE PUT FORWARD IS PRIMA FACIE DISPROPORTIONATE”
It is not often we get a chance to look at a budgeting decision. These cases are interesting and important because they show some light on the process. They also show the factors the courts consider when undertaking the budgeting…
THROWBACK FRIDAY: MAKING SURE YOU ARE “LEGALLY STREETWISE”: “CLIENT’S MAY SEEK TO TAKE ADVANTAGE OF YOU” (FEBRUARY 2016)
This post started in an unusual way. It was originally an online post from a firm of solicitors (Darlingtons) and I obtained their permission to set out the key points. Unfortunately Darlingtons are no longer trading and the full post…
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…
WHEN THE CLAIMANT IS A SOLICITOR’S FIRM AND THE PROGRESS OF THE CLAIM “HINDERED BY A SERIES OF PROCEDURAL BREACHES”: NOT A GREAT START TO THE CASE
It is a poor start to a solicitor’s application for judicial review of the Legal Ombudsman when the firm itself has failed to comply with rules and directions. We have such a case here. The claimant firm applied for judicial…
RELIEF FROM SANCTIONS DENIED AFTER A PATTERN OF DEFAULT DELAY AND EXCUSES: TO BREACH ONE UNLESS ORDER MAY BE REGARDED AS MISFORTUNE, TO BREACH TWO LOOKS LIKE …
Staying with the theme this week of the making and breaching of peremptory orders alongside applications for relief from sanctions, we are considering what, on any view, as an “ambitious” application for relief from sanctions. The defendant here had breached…
COURT SETS ASIDE A DECISION THAT A CLAIMANT HAD BREACHED A PEREMPTORY ORDER: THE ORDER WAS NOT DRAFTED “IN THE CLEAREST AND MOST PRECISE LANGUAGE” NECESSARY
There have been several cases this week about the drafting of, and compliance with, unless orders. We see this issue again here. The Court of Appeal held that the claimant litigant in person had complied with an order of the…
SERVICE POINTS 26: CAN THE COURT MAKE AN ORDER FOR THE ALTERNATIVE SERVICE OF DOCUMENTS “IN CIRCUMSTANCES THAT MAY NEVER ARISE”: A PRAGMATIC APPROACH
Can the court take a proactive approach to the service of documents when there are grounds for suspecting that a party will engage in “game playing” as to service in the future? That is the question considered here. The court’s…
THE CLAIMANTS FILED A NOTICE OF APPEAL OUT OF TIME: COURT REFUSES AN EXTENSION: SOME IMPORTANT LESSONS HERE: OUT OF TIME MEANS OUT OF COURT…
One thing anyone considering an appeal should know, with absolute certainty, is the date the appeal has to be lodged. This, in turn, involves knowing the date on which the period starts running. Here we see a case where the…
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…
WITNESS EVIDENCE WEDNESDAY ii: WHY A JUDGE DID NOT ACCEPT THE EVIDENCE OF THE DEFENDANTS’ WITNESS: SOME REPLIES WERE “ESSENTIALLY MEANINGLESS VERBIAGE DESIGNED TO FOB OFF QUESTIONS” HE “PREFERRED NOT TO ANSWER”
Knowing the factors that lead to the evidence of a witness not being accepted is an important part of the litigator’s “skill set”. Here we look at a case where the evidence of a witness was roundly rejected. “I…
WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
RELIEF FROM SANCTIONS REFUSED : WHEN NON-COMPLIANCE ALMOST APPEARS TO BE A LITIGATION STRATEGY: HAVING A BONA FIDE CLAIM DOES NOT GIVE YOU A FREE PASS
Here we have a case where the Court of Appeal considered the Denton principles in some detail. The judgment provides a useful reminder of some basic principles. Firstly that a litigant seeking relief from sanctions cannot complain about the original…
HIGH COURT TACKLES SOME DIFFICULT PROCEDURAL ISSUES (1): IS A PREVIOUS BREACH NECESSARY FOR A PEREMPTORY ORDER TO BE MADE
We are looking at judgment that is, essentially, all about procedural compliance and the court’s approach to making “unless orders”. The approach of the appellate court to case management decisions could be added to that list. It is a detailed…
HIGH COURT SETS ASIDE AN ORDER MADE FOLLOWING AN APPLICATION WITHOUT NOTICE : THIS IS A REHEARING IN FULL – THE APPLICANT DOES NOT HAVE TO SHOW AN ERROR SUCH AS TO WARRANT SETTING ASIDE THE ORIGINAL ORDER
Here we look at a case where the court set aside an order made without notice. The Master found that the evidence presented to him at the initial hearing was “neither full nor frank”. It is a reminder of the…
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