MAZUR MATTERS 52: AND NOW WE WAIT… STATUTORY CONSTRUCTION AND “DANCING ON A PINHEAD” : SOME USEFUL LINKS
The arguments in the Mazur appeal have been completed. The profession now awaits. I was able to watch the first 1 1/2 days. I have to say that phrase “dancing on a pinhead” came to mind when I was…
COURT OF APPEAL DECISION ON PART 36 FIXED COSTS AND LATE ACCEPTANCE HEARD – DECISION PENDING (PLUS A FINAL PLUG FOR THE WEBINAR ON PART 36 ON THE 26th FEBRUARY 2026)
The Court of Appeal has heard an appeal against the decision in Laura Attersley v UK Insurance Limited [2025] EWHC 884 (KB). This is an interesting decision on Part 36. I understand that judgment is pending. This was one of many…
COST BITES 359: A SOLICITOR’S FAILURE TO SIGN THE COSTS CERTIFICATE PROPERLY DID NOT RENDER THE BILL INVALID (THIS MAY EXPLAIN WHY BIRMINGHAM COUNCIL DOES NOT HAVE ANY MONEY…)
Here we have an appeal by a paying party on a highly technical point. The appeal failed. It highlights the dangers of (i) permitting a default certificate to be entered; (ii) taking technical points which (as the Court observed) led…
MAZUR MATTERS 51: WHY THE HEARING IS NOT BEING “LIVESTREAMED”: A QUICK WORD FOR THE CONSPIRACY THEORISTS
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP continues today. There were (I am told) some 400 people watching remotely. This has not stopped a large number of people online putting forward (sometimes bizarre) theories as to…
MAZUR MATTERS 50: THE CALM BEFORE THE STORM: GETTING READY FOR THE APPEAL THIS AFTERNOON: BUT IF YOU WANT TO WATCH – YOU HAVE TO ASK…
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP begins at 2.00 today, it continues on Wednesday and Thursday. It is not being live streamed (To be fair I have been sent a link – the Court…
COST BITES 357: DISBURSEMENTS: WHAT IS A REASONABLE AND PROPORTIONAL INTERPRETER’S FEE? NOTE OF THE JUDGMENT ON APPEAL (AND THAT PERENNIAL ISSUE OF WHETHER A BREAKDOWN SHOULD BE PROVIDED…)
I am grateful to Ben Williams KC for sending me a note of the judgment yesterday which was the appeal against the decision in Santiago v Motor Insurers’ Bureau (The County Court at Central London, 22nd February 2025). The second time…
COST BITES 356: DO FIXED COSTS APPLY WHEN THE CASE IS TRANSFERRED AWAY FROM A FIXED COSTS REGIME TO ONE WHERE COSTS ARE “AT LARGE”
Here we are considering a Court of Appeal decision about what costs order should be made when an action is transferred from a fixed costs regime to one where costs are at large. On the face of it the decision…
SERVICE POINTS 28 : EFFECTIVE SERVICE ON A RESIDENCE IN ENGLAND COULD NOT TAKE PLACE WHEN THE DEFENDANT WAS IN FACT ABROAD – AND LEGALLY PREVENTED FROM RETURNING
We are looking at a Court of Appeal judgment today which overturned a finding that a defendant had been properly served at an address in England. The defendant was not living in England when proceedings were served and, indeed, there…
COURT OF APPEAL ALLOWS APPEAL AGAINST STRIKING OUT: THE APPELLANTS HAD NEVER BREACHED A PEREMPTORY ORDER: HOW “UNLESS ORDERS” SHOULD BE CONSTRUED
For the second time this month we are looking at a successful appeal against the construction of an “unless” order. In both cases the judges below had found that the appellants had breached the order. In both cases that finding…
LOST YEARS DAMAGES AND THE CHILD CLAIMANT: JUDGMENT IN THE SUPREME COURT TODAY
The judgment of the Supreme Court today considered whether “lost years” damages should be awarded to a young child. The Court, by a majority, allowed the claimant’s appeal and held that damages should be awarded in these circumstances. This post…
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 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…
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…
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…
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…
PART 36 OFFERS ON COSTS: JUDGE ALLOWS DEFENDANT’S APPEAL: THE OFFER HAD NOT BEEN BEATEN, THE COSTS OF PREPARING THE BILL WERE NOT RECOVERABLE
I am grateful to barrister James Miller for sending me a copy of this decision which highlights an important issue in relation to Part 36 and the assessment of costs. At first instance a Deputy District Judge found that the…
MAZUR MATTERS 48: THE INTERIM REPORT: REGULATOR’S GUIDANCE ON THE CONDUCT OF LITIGATION WAS “NOT ALWAYS ARTICULATED WITH SUFFICIENT PRECISION”
The snappily titled “Interim Report: Regulatory review of advice and guidance provided to the profession on the conduct of litigation by approved regulators and regulatory bodies” from the Legal Services Board is five pages long (including one page spent on…
PROVING THINGS 276: APPEAL JUDGE OVERTURNS TRIAL JUDGE’S “INFERENCES” OF LOSS: DAMAGES AWARD OF £347,285 REPLACED WITH £NIL
This is a classic “Proving Things” case, the only surprise being that it reached the appeal stage. On appeal the the judge overturned the trial judge’s findings in favour of the defendant’s counterclaim and reduced a damages award of £347,285…
SUMMARY JUDGMENT ON SPECIFIC ISSUES: WHEN SHOULD A “COMPELLING REASON” PREVENT JUDGMENT BEING GIVEN? (NOT HERE…)
One ground for resisting an application for summary judgment is that there is a “compelling reason why the case or issue should be disposed of at trial”. It is unusual for the issue of a “compelling reason” to be considered,…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
COST BITES: 330 THE ABSENCE OF A COSTS SCHEDULE DOES NOT MEAN THAT A SUCCESSFUL RESPONDENT IS GOING TO BE DEPRIVED OF THEIR COSTS
Here we have an interesting issue about whether the successful respondent to an appeal should be deprived of their costs because a costs schedule had not been filed. The appellant’s alternative argument was that the respondent should be ordered to…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 3: SO WHY DID THE CLAIMANT LOSE? PLUS – THE STING IN THE TAIL FOR DEFENDANTS…
Earlier posts have shown that the claimant was successful on two of the key issues in relation to the appeal. However litigation can be cruel. A litigant can win on many issues but still lose the case. So it is…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER 2: WAS AN OFFER ON LIABILITY EFFECTIVE IN THIS CONTEXT?
We continue with the detailed examination of the Court of Appeal decision on Part 36 this morning. This aspect of the case is particularly important because, again, although the claimant lost the appeal he won on this particular issue. That…
PART 36 IN THE COURT OF APPEAL TODAY: DIGGING DEEPER (1): WHAT IS THE DIFFERENCE BETWEEN A “JUDGMENT” AND AN “ORDER” ?
There are some interesting issues raised in the Court of Appeal decision on Part 36 today that every practitioner should be aware of. The case has been helpfully summarised by my colleague Elliot Kay here. I wanted to break down…
COURT OF APPEAL DECISION ON PART 36 THIS MORNING: AN OFFER OF 90% ON LIABILITY COULD POTENTIALLY HAVE PART 36 CONSEQUENCES WHEN A CLAIM IS APPROVED ON DAMAGES (BUT DID NOT IN THIS CASE).
I am grateful to my colleague Elliot Kay for sending me a note of a Court of Appeal decision on Part 36 given this morning. The issue relates to Part 36 offers on liability where the matter is compromised and…
THE CURRENT IMPORTANCE OF PLEADINGS 47: YOU CAN’T CRITICISE A JUDGE FOR NOT FINDING ON A CASE THAT WAS NOT PLEADED (AND ON ANOTHER ISSUE WHERE THE CLAIMANT EXPRESSLY DISAVOWED THE CLAIM NOW BEING MADE ON APPEAL)
Here we are looking at an unusual appeal. The appellant argued firstly that the judge should have found for them on a point that was not pleaded. A second argument was that the judge should have assessed loss on a…
WAS THIS “SECOND” ACTION AN ATTEMPT TO RE-OPEN MATTERS HAD HAD BEEN DETERMINED IN AN EARLIER HEARING? IF SO WHAT SHOULD THE COURT DO?
When a party is dissatisfied with the result of a hearing and has exhausted the appeal process there is often little they can do. One potential remedy is to bring a second action seeking to set aside the first on…
WHEN CAN A JUDGE ADD ADDITIONAL MATERIAL TO A JUDGMENT AFTER HANDING DOWN? COURT OF APPEAL CONSIDERED THE ISSUE
Here we are looking at an old case. However it has only recently arrived on BAILII and deals with an issue that remains relevant today. The Court of Appeal considered the issue of when is it appropriate for a judge…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
COURT OF APPEAL REFUSES PERMISSION FOR APPELLANT TO AMEND PLEADINGS OR RELY ON NEW EVIDENCE: GET YOUR CASE TOGETHER BEFORE AN APPLICATION NOT AFTER IT…
In this judgment today the Court of Appeal refused an application by an appellant to rely on amended Particulars of Claim or adduce new evidence in a case where the claim was struck out. The Court made the point that…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
MAZUR MATTERS 45: COURT OF APPEAL TO HEAR THE APPEAL ON 24th FEBRUARY 2026
The Court of Appeal is to hear the appear in the Mazur decision on the 24th February. Here we re-visit the arguments that the Law Society and the SRA put forward at first instance. It will be interesting to see…
SUSPECTED HALLUCINATED QUOTATIONS IN A HIGH PROFILE JUDGMENT: IF THIS IS CORRECT THEN A LINE HAS BEEN CROSSED…
Last Friday I wrote that one of the most worrying developments of the year was the growing trend of “hallucinated” cases being cited in court and appearing in judgments. Now newspaper headlines contain details of a judicial judgment which may contain…
COST BITES 317: ANOTHER ROUND IN THE MEDICAL AGENCY FEES/BREAKDOWN BATTLE: THE AGENCY MUST PROVIDE A BREAKDOWN
Here we have another case in the long-running battle over the disclosure of agency fees. I am grateful to Claire Kewin from Keoghs solicitors for sending me a copy of the judgment and for her summary of its practical implications…
WAS THIS AN ABUSE OF PROCESS/ABUSE OF PROCESS OR WERE PREVIOUS JUDICIAL OBSERVATIONS “OBITER DICTA”? AN IMPORTANT ISSUE CONSIDERED
Most (hopefully all) law students learn about the difference between the ratio decidendi of a case and “obiter dictum”. These important distinctions can have real world consequences. We look at a judgment here where that was the major issue between the…
REVISITING THE ISSUES: THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The post earlier today about the significant difference between a non-admission and denial has led me to revisit previous posts on the case. This post from 2020 which reviewed the case law on the distinction. There are plenty of clear…
CONSTRUING A COURT ORDER: WHAT DOES THE WORD “IMPECUNIOSITY” MEAN? “IT DEPENDS” – THE ISSUE CONSIDERED ON APPEAL IN THE HIGH COURT
In this case the court made a court order which meant that the claimant was debarred from relying on issues relating to “impecuniosity” at trial. The appeal was, in part, about what “impecuniosity” meant in that context. (It was reasonable…
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…
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…
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…
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…
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…
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