SEEKING PERMISSION TO APPEAL AND TO EXTEND TIME: THE OPPORTUNITY TO SEEK PERMISSION CAN EASILY BE MISSED: SOMETHING FOR WOULD BE APPELLANTS TO WATCH OUT FOR
The circumstances in which a judge at first instance can grant permission to appeal from their own decision are circumscribed by the rules. Permission can only be given at the hearing itself, or any adjournment thereof. The same applies to…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
WHEN A RESPONDENT’S NOTICE IS REALLY A CROSS-APPEAL: SHOULD THE COURT GRANT AN EXTENSION OF TIME TO ALLOW THE “APPEAL” TO BE ARGUED?
Sometimes a respondent’s notice is really a cross-appeal attempting to disguise itself. We are looking at such a case here. The “respondent’s notice” was served late, and permission was given to serve it. However on closer examination at the appeal…
SERVICE POINTS 15: THE CLAIM FORM CASE IN THE COURT OF APPEAL (2): LEAVING A CLAIM FORM OUT FOR THE DX TO COLLECT WAS NOT EFFECTIVE SERVICE
The Court of Appeal has been busy recently with issues relating to service of the claim form. On the whole claimants (or rather their representatives) have not fared well. Here we look at the claimant’s argument that leaving a claim…
COST BITES 297: THE NATURE OF COSTS CONSIDERED IN THE SUPREME COURT – WHICH GOES BACK TO FIRST PRINCIPLES: “THE EXPRESSION”LEGAL COSTS” HAS A RESTRICTED MEANING”: COSTS HAD TO BE PAID IN STERLING
It is very unusual for issues relating to costs to reach the Supreme Court. There was such a case yesterday. The Court considered whether a paying party was liable to pay costs in sterling or the domestic currency of the…
SHOULD COSTS BE DISAPPLIED IN A “MIXED” CASE WHERE PART OF A CLAIM HAS BEEN STRUCK OUT? A DECISION ON APPEAL
What order for costs should the court make in a “mixed” claim when part of the claim is struck out but a personal injury claim continues. That was the question considered in the appeal we are looking at here. In…
GIVING ACCURATE TIME ESTIMATES: ANOTHER REMINDER OF THEIR IMPORTANCE: “PARTIES MUST BE REALISTIC AND GIVE EARLY AND ACCURATE ASSESSMENTS”
This is not the first time this blog has looked at judicial criticisms of inadequate time estimates. On this occasion it was in relation to unrealistic reading time. This provides an opportunity to revisit the guidance given in relation to…
COST BITES 296: COURT OF APPEAL CONSIDERS APPELLANTS’ APPLICATION FOR A COSTS CAP: CAN THE LITIGATING TENANTS PUSH THE COSTS RISKS ONTO THE NON-LITIGANTS?
Here we are looking at a Court of Appeal decision in relation to the costs capping on an appeal. It was common ground that the Court had the power to order a costs cap if so minded. However the practical…
SERVICE POINTS 13: IS A CLAIMANT SAVED BY THE FACT THAT THE DEFENDANT DID NOT FILE AN ACKNOWLEDGMENT OF SERVICE OR MAKE AN APPLICATION UNDER CPR 11? THE COURT OF APPEAL HAVE A VIEW…
Over the years many claimants have been “rescued” by a defendant’s failure to make a timely, or correct, application to dispute the jurisdiction when the claim form has been improperly served. The limits of the defendant’s obligations were considered by…
SERVICE POINTS 12: ANOTHER CLAIMANT COMES TO GRIEF IN THE COURT OF APPEAL: CPR 7.6 APPLIED AND NOT 3.9 (THE CLAIMANT COULD HAVE GOOGLED THIS)
Here we look at another case where a claimant has come to grief because of a failure to serve the claim form. The ingenious arguments that he should have relief from sanctions were successful at first instance, but were rejected…
THE JUDGE WAS RIGHT TO ALLOW A WASTED COSTS APPLICATION AGAINST THE CLAIMANT’S SOLICITORS TO PROCEED TO STAGE 2: MUCH TO THINK ABOUT HERE FOR CLINICAL NEGLIGENCE LAWYERS (AND INDEED ANYONE WHO DRAFTS PLEADINGS)
Here we are considering a case that covers issues relating to clinical negligence, the drafting of pleadings and wasted costs. It gives much to think about, particularly for those bringing professional negligence actions. (Choose the right type of doctor before…
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…
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…
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…
A REMINDER: WEBINAR ON THE PRACTICAL IMPLICATIONS OF MAZUR (AND HOW TO AVOID SOLICITORS BREAKING THE CRIMINAL LAW WHEN USING NON-QUALIFIED STAFF): 3rd OCTOBER 2025
The fallout, concern and – dare I say it – recriminations in relation to the decision in Mazur v Charles Russell Speechlys continues. There has been a lot of commentary already. This webinar aims to look through the “chatter” by concentrating…
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…
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…
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…
WHICH TRACK IS BEST? THE RULES, CASES AND GUIDANCE: ALLOCATION – SMALL CLAIMS OR FAST TRACK IN HOUSING DISREPAIR CASES: WEBINAR 10th SEPTEMBER 2025
Over the past month or so we have looked at three cases where the question of allocation of housing disrepair cases has been considered. The issue lies between Fast Track and the Small Claims Track. This webinar looks at the…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
COST BITES 279: COSTS AWARDED IN WHAT IS NORMALLY A “NO COSTS” JURISDICTION: THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)
It is worthwhile taking a look at cases where costs are awarded in cases where there normally would be no inter party order for costs. We look at such a case here, in the First Tier Tribunal. On appeal to…
COST BITES 276 : A SUMMARY ASSESMENT IN ACTION: COSTS AFTER AN ARGUMENT ABOUT COSTS… THE COURT WOULD NOT IMPOSE A COSTS CAP – LOWER THAN THE FIGURE ARGUED FOR ON APPEAL
Here we are looking a a summary assessment of costs following an appeal that was all about costs. The are a number of issues of interest here: the hourly rates, time spent and use of Leading Counsel are considered. Further…
ANONYMITY AND REPORTING RESTRICTIONS IN CIVIL CASES (2): THE PROCESS THAT JUDGE’S SHOULD FOLLOW WHEN CONSIDERING THESE ISSUES
The previous post looked at the Court of Appeal decision yesterday in relation to applications for anonymity in civil cases. Here we take a close look at the factors that the courts have to consider when an application for anonymity…
COST BITES 275: APPELLANT SUCCESSFUL IN PUTTING LOCAL AUTHORITY RECEIVING PARTIES TO THEIR ELECTION IN RELATION TO CCFAS
It may be a matter of comment when the suspicion arises that the costs of arguing about costs exceeds the initial costs in dispute. I suspect that may be the case in many cases in this series (indeed people have…
WHAT TIME IS SERVICE BY EMAIL DEEMED TO ARRIVE ON “THE SAME WORKING DAY”? AN ISSUE THAT HAD IMPORTANT CONSEQUENCES IN THIS CASE
We are returning to look again at the case considered in the previous post. This time honing in on the error that was made initially in relation to the time for service of a notice of discontinuance. The District Judge…
A FASCINATING AND IMPORTANT JUDGMENT: WHEN CAN A NOTICE BE SERVED BY EMAIL? AT WHAT TIME CAN IT BE SERVED? ALSO – SOMETHING ABOUT NOTICES OF DISCONTINUANCE AND QOCS
I have been sent a case that is important and interesting on many levels. Firstly in relation to when it is permissible to serve documents by email; secondly in relation to the latest time in the working day that documents…
YOU CANNOT USE A REQUEST FOR EDITORIAL CORRECTIONS OF A DRAFT JUDGMENT TO SEEK TO RE-OPEN THE WHOLE CASE: THERE’S NO VCR HERE…
There is an interesting postscript to the case we looked at earlier this morning. It is another example of a party attempting to use a request for “corrections” of a draft judgment as an opportunity to re-open the whole case. …
ALLOCATION TO THE SMALL CLAIMS TRACK OR FAST TRACK IN HOUSING CASES 3: WEBINAR 10th SEPTEMBER 2025
Earlier today we have looked at two appeals in relation to allocation in housing disrepairs. Each appeal was successful for different reasons. My involvement in one of the appeals has led me, along with Steve Cornforth, a webinar on Allocation…
ALLOCATION IN HOUSING DISREPAIR CASES 2: CLAIMANT’S APPEAL ON ALLOCATION SUCCESSFUL: DISTRICT JUDGE WAS WRONG IN THEIR VIEW OF LIKELY AWARD OF DAMAGES
This is the second case on allocation in housing cases we are looking at today. The result was the same – the judge allowed the claimant’s appeal against allocation to the Small Claims Track. However the route to success was…
ALLOCATION IN HOUSING DISREPAIR CASES: AN APPEAL JUDGMENT OVERTURNING REFERENCE TO THE SMALL CLAIMS TRACK
Here we look at a judgment where a decision to allocate a housing disrepair case to the Small Claims Track was overturned on appeal. (This is the first of two cases we will look at today). The judgment is useful…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
COST (MEGA) BITES 370 : WE WANT AN INTERIM PAYMENT ON COSTS OF £3.75 MILLION – BUT WE DON’T WANT TO GIVE A DETAILED BREAKOWN OF WHY: COURT OF APPEAL CONSIDERS THE ISSUES
It is rare for the Court of Appeal to give a detailed judgment on costs. It is even rarer for it to consider the principles relating to interim payments on account of costs. This is what we are looking at…
PAYING BACK DAMAGES AND COSTS AFTER A SUCCESSFUL APPEAL: WHAT IS THE APPROPRIATE RATE OF INTEREST?
It is extremely painful, when a party has won at trial, to have to pay damages back after a successful appeal. The lawyers find it equally painful to have to repay costs. To rub salt into the wounds the successful…
EXPERT WATCH 10: CLAIMANT UNSUCCESSFUL ON APPEAL IN ATTEMPTING TO OVERTURN THE TRIAL JUDGE’S PREFERENCE FOR THE DEFENDANT’S EXPERTS: “THE IRREDUCIBLE FACT IS IS THAT THE JUDGE ACCEPTED THE EXPERT EVIDENCE OF THE RESPONDENT’S KEY WITNESS AND PREFERRED TO OVER THE EVIDENCE OF THE APPELLANT’S KEY EXPERT WITNESS”
There are relatively few cases where a party appeals on the basis that trial judge was wrong to accept the evidence of one party’s expert witness in preference to the other. There are even fewer cases where such an appeal…
COST BITES 268: NO STAY OF AN ORDER THAT A SOLICITOR RESPOND TO PART 18 QUESTIONS: A COSTS ASSESSMENT IN ACTION
It is always interesting when we get to see “round 2” of a decision in relation to an application and appeal. It is even more interesting when we see the costs orders made and the figures involved. This case has…
COST BITES 266: THE DEFENDANT WHO OBTAINED AN ORDER FOR INDEMNITY COSTS IN HER FAVOUR AND STILL ENDED UP CONSIDERABLY OUT OF POCKET: PART 36 OFFERS IN THE ASSESSMENT PROCESS: PLUS – “COSTS CAPPING” CONSIDERED – AND REFUSED
We are looking at a case where a defendant successfully defended an application to commit, was awarded indemnity costs and yet ended up considerably out of pocket. It shows the importance of a well judged Part 36 offer by the…
COST BITES 265: THE PERILS OF WORKING UNDER A CFA: THE COSTS JUDGE CORRECTLY ASSESSED COSTS AT NIL: THE DEFENDANT WAS ENTITLED TO TAKE A POINT THAT WAS NOT TAKEN AT AN EARLIER HEARING: THEY WERE SIMPLY FOLLOWING THE COURT’S ORDERS
Here we have a case that could well bring tears to the eyes of any litigator who works on a conditional fee basis. For the second time, on appeal, the claimant solicitor’s costs have been unsuccessful. The defendant former client…
COST BITES 263: QOCS AND CLAIMS AGAINST THE POLICE – A SIMILAR ISSUE TO YESTERDAY BUT WITH A TOTALLY DIFFERENT RESULT (NO ONE EVER SAID LITIGATION WAS EASY…)
Yesterday we looked at a case where, on appeal, the judge indicated that he would set aside a costs order made against the claimants who had brought an action against the police. The claimants had QOCS protection. Today we look…
COST BITES 262: THE CLAIMANTS SHOULD NOT HAVE BEEN ORDERED TO PAY COSTS IN A “MIXED” CLAIM AGAINST THE POLICE
Here we are looking at issues relating to costs in an action that included a claim for personal injury but also included other elements. The question the appellate judge had to decide was whether the trial judge had applied the…
“INADEQUATE REASONS” IN CIVIL JUDGMENTS: THE COURT OF APPEAL PROVIDES A PRIMER FOR JUDGES (AND SOME IMPORTANT POINTS FOR THE REST OF US)
Here we look at a Court of Appeal decision last week on inadequate reasons given in judgments. This has major practical implications for judges and practitioners. Appeals because of “inadequate” reasoning are those that are the most unfair to all…
COST BITES 259: COSTS FOLLOWING AN APPEAL : SHOULD COSTS BE ON THE INDEMNITY BASIS? WAS THIS A “HEAVY” CASE? SUMMARY ASSESSMENT IN ACTION
It is always interesting to look at the awards that are actually made following an assessment of costs. Whilst each case is fact specific it is possible for litigators to pick up important points. Here we have a consideration of…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
One of the most aggravating things to read about in the legal press are those cases where people get into serious disciplinary trouble after having made a procedural or other mistake. It is not the mistake that has caused their…
WHEN A SOLICITOR FORGETS TO SIGN AN IMPORTANT PART OF AN APPEAL DOCUMENT: CAN CPR 3.10 SAVE THE DAY? A TRICKY POINT TO WATCH IN FORM N161
CPR 3.10 is a rule often asked to so some “heavy lifting” by applicants who have not complied with the rules or court orders. Sometimes it is not capable of handling the load, particularly in relation to issues surrounding service…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
WHAT IMPACT DOES A MAJOR DELAY IN HANDING DOWN A JUDGMENT HAVE ON THE APPPEAL COURT’S APPROACH TO A JUDGMENT AND FINDINGS OF FACT? THE ISSUES CONSIDERED
The period when you are waiting for a reserved judgment is always a time of tension and anxiety. If the judgment is subject to a severe delay then the disappointed (losing) litigant in particular may feel particularly aggrieved. How should…
THE CURRENT IMPORTANCE OF PLEADINGS 24: COURT OF APPEAL CONSIDERS WHEN A TRIAL JUDGE CAN GO OUTSIDE THE PLEADED CASE: THERE IS A SPECTRUM
In this judgment today the Court of Appeal consider, in detail, whether it is appropriate for a judge to go outside the pleaded case. The judgment provides guidance for the practice to be adopted if the judge feels that they…
“LESS IS MORE” WHEN DRAFTING NOTICES OF APPEAL: THE “KITCHEN SINK” APPROACH DOES NOT PERSUADE THE COURT OF APPEAL TO GRANT PERMISSION
When a Lord Justice of Appeal looks at a notice of appeal and skeleton and refers to a “kitchen sink” approach, we can probably surmise that a proposed appellant is going to have some difficulty here. When of their colleagues…
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