THE CURRENT IMPORTANCE OF PLEADINGS 64: THE DEFENDANT TRIES – AGAIN – TO RELY ON EXTERNAL REPORTS AS FACTUAL PARTS OF ITS DEFENCE…
We continue our examination of this judgment where the judge considered the factors relating to amending pleadings in detail. In this case the defendant attempted (for the second time) to rely on the contents of an external report. The judge…
THE CURRENT IMPORTANCE OF PLEADINGS 63: WHEN ARE AMENDMENTS TO PLEADINGS “CONSEQUENTIAL” – DOES A PARTY HAVE “GENERAL RIGHT” TO INTRODUCE NEW MATTERS?
Here we continue with our examination of attempts to amend pleadings. We are looking at the same case as the previous post but a different judgment from a different judge. Here the claimant amended its Particulars of Claim and the…
THE CURRENT IMPORTANCE OF PLEADINGS 62: REFERRING TO AN EXTERNAL REPORT IN A DEFENCE MAY NOT BE HELPFUL: “A PLEADING NEEDS TO BE UNAMBIGUOUS AND COHERENT”
Today we are going to look in detail at attempts to amend a defence. There is much to learn about pleadings, pleading defences and applications to amend. We start off with an application made last year. However as we shall…
COURT OF APPEAL OVERTURNS REFUSAL TO GRANT ADJOURNMENT OF COMMITTAL APPLICATION: THE COURT HAD AN OBLIGATION TO ENSURE THAT A PARTY COULD AVAIL THEMSELVES OF LEGAL REPRESENTATION
In this case the Court of Appeal overturned a decision not to grant an adjournment of committal proceedings. The Court held that the judge below did not appear to be aware of the fact that a respondent to committal proceedings…
HOW A FIRM OF SOLICITORS SHOULD NOT CONDUCT THEMSELVES IN LITIGATION: A WORKING EXAMPLE: EVIDENCE THAT WAS “GENERALLY UNRRELIABLE” AND “LACKING IN CREDIBILITY”
Here we are looking at a judgment that contains some remarkable observations and findings about the conduct of a solicitor. The judge was concerned not only about the failure to comply with directions, the inadequate nature of the statement of…
PROVING THINGS 284: APPLICANT FOR INJUNCTION FAILS ON JUST ABOUT EVERY POINT: THE CASE WAS DIFFICULT TO UNDERSTAND; NO EVIDENCE OF A RISK OF DISSIPATION; MATTERS THAT LEAVE THE JUDGE “BAFFLED” AND UNCOMFORTABLE
The applicant in this case sought an injunction. The application was (unusually) made on notice. The respondent did not have the opportunity to put in evidence. The applicant failed on just about every point. It was unclear what the applicant’s…
GETTING YOUR CASE INTO THE RIGHT COURT: A BIZARRE DECISION TO PUT A CASE IN THE CHANCERY DIVISION: MAKING THE CORRECT SELECTION IS IMPORTANT AND MIGHT MATTER
It is important that cases are managed, and heard, in the appropriate specialist court. Here we have a case that went on a frolic of its own into the Chancery Division for a while before being put back into the…
THROWBACK FRIDAY: MAKING A MISTAKE AND THEN BIGGING A DEEPER HOLE FOR YOURSELF: MARCH 2018
Here we are looking at a set of circumstances that we have seen many time, both before and after this post from March 2018. A lawyer makes a mistake, panics and then makes horrendous decisions in an attempt to cover…
KEEPING TIME ESTIMATES UNDER REVIEW: JUDGE GIVES REASONS FOR ADJOURNING APPLICATION: AND (BY THE WAY) “JUDGES ARE NOT SUPERHUMAN”
It is rare that we see a detailed judgment on the reasons why an application has to be adjourned. Here the judge comments on the reasons for the adjournment but also observes that the initial time estimate for the application…
SOLICITORS REFERRALS, TOMLIN ORDERS, UNLAWFUL TERMS, ADMISSIONS AND ATTEMPTS TO WITHDRAW FROM THOSE ADMISSIONS: A LOT OF LEGAL LIFE IS HERE…
There have been many interesting cases relating to “admissions” on this site. Here we have a intriguing case relating to a solicitor’s dispute with a former member of staff. It involves Tomlin orders which were partially unlawful, admissions and attempts…
THE COURT REFUSES AN APPLICATION THAT A TRANSCRIPT BE OBTAINED AT PUBLIC EXPENSE: IF YOU ARE BROKE THEN WHY HAVEN’T YOU ATTENDED COURT TO PROVE THIS?
Here is a judgment that contains a central irony. The applicant had failed to attend court to be examined about his means and as a result his passport was confiscated. His application to have the passport returned was refused. In…
WITNESS EVIDENCE WEDNESDAY: MAKING ASSERTIONS WITH NO CORROBORATIVE EVIDENCE LEADS TO APPLICATION BEING REJECTED: THE EVIDENCE WAS SO “UNSPECIFIC” THAT IT FAILED TO PROVE THE APPLICANT’S CONCERNS
Here we look at the judge’s assessment of the evidence produced in support of an application that details of the applicant should not be disclosed. The judge held that the evidence was “unspecific” and was not corroborated. There was a…
COURT ORDER PREVENTS CLAIMANTS FROM SENDING COURT DOCUMENTS TO CERTAIN PARTIES: THE CLAIMANT’S CONDUCT AMOUNTED TO AN ABUSE OF PROCESS OF THE COURT: THE DEROGATION FROM THE OPEN JUSTICE PRINCIPLE IS JUSTIFIED
Here we have an unusual order under CPR 31.22 (2) made in unusual circumstances. The claimant was precented from sending documents disclosed to in proceedings, and mentioned in open court, to various specified entities. It is a reminder of the…
THE APPELLATE JUDGE SHOULD NOT HAVE ALLOWED THE APPELLANTS TO RUN A NEW ISSUE : THE ABILITY TO PAY COSTS IS AN IMPORTANT FACTOR AND WAS NOT CONSIDERED PROPERLY
Here we have a case where the appellants were, initially, allowed to argue a point that had not been argued in the court below. The Court of Appeal was clear in its view that the judge should not have allowed…
SERVICE POINTS 31: RELIEF FROM SANCTIONS GRANTED WHEN THE CLAIMANT FAILED TO APPLY IN TIME TO LIFT A STAY: A RARE SUCCESS ON A CLAIM FORM ISSUE
Here we are looking at an unusual set of facts in relation to service of the claim form, not least because it led to the issues being considered under the Denton criteria and is a (relatively rare) example of a…
HALLUCINATIONS KEEP APPEARING IN THE REPORTS: TWO MORE EXAMPLES: COUNSEL AT FAULT IN BOTH…
We are looking at two more examples of “hallucinated” cases appearing in reported cases. In both cases it was counsel that was presenting the case. (In one case counsel was acting for himself). “The incident does, however, demonstrate vividly the…
NEW EDITION OF THE KING’S BENCH GUIDE: WHERE TO FIND IT AND THE SIGNIFICANT CHANGES
A new edition of the King’s Bench Guide has been published. There are many useful points for litigators, in particular using CE-FILE, the new email addresses and some corrected links. “The Guide does not have the status of a Practice…
CIVIL LITIGATION BRIEF HAS ITS OWN LINKEDIN PAGE (“ABOUT TIME TOO” – APPARENTLY)
Civil Litigation Brief now has its own LinkedIn page. It is another way of following the posts on this site. Posts will be posted as they are published and it is another way of being able to keep up to…
CLINICAL NEGLIGENCE CORNER 7: CLAIM FOR PSYCHIATRIC INJURY AS A RESULT OF BEING PRESENT AT BIRTH WAS STRUCK OUT: TESTING THE PARAMETERS OF PAUL -v- WOLVERHAMPTON
This case represents an attempt to sidestep the decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1. As we shall see it was not successful. This is one of the first, if not the first, reported case since…
PRACTICE NOTE FROM THE CHANCELLOR OF THE HIGH COURT: NEW REQUIREMENTS FOR SUMMARY ASSESSMENT FROM 14th APRIL 2026: COSTS SCHEDULES SHOULD BE FILED USING EXCEL SPREADSHEETS
NB THIS PRACTICE NOTE WAS REPLACED ON THE 14th APRIL – BEFORE IT WAS BROUGHT INTO FORCE – IT WAS REPLACED WITH A FURTHER NOTE, SEE THE BLOG POST HERE The Chancellor of the High Court has issued a Practice…
DECISION TODAY IN RELATION TO RECOVERABILITY AND ASSESSMENT OF FEES CHARGED BY MEDICAL REPORTING ORGANISATIONS: ANOTHER ROUND IN A VERY LONG WAR…
We are looking at another round in the ongoing “costs of medical reporting organisations” series of battles. As the judge anticipated this may well not be the last round. Here I provide a brief summary of the conclusions. A more…
COST BITES 363: A SUMMARY ASSESSMENT OF A HEAVY COMMERCIAL APPLICATION TO STRIKE OUT IN PRACTICE: £87,698 REDUCED TO £70,158.64 (BUT NOT TO £39,460): “COMPARATIVE SPEND CAN BE A CROSS-CHECK; IT IS NOT DETERMINATIVE”
We are continuing with the practice of looking at summary assessments. These receive relatively little attention, however they can play a large part in the economics of litigation. Here we see some interesting arguments in relation to hourly rates, the…
EXPERT WATCH 41: THE COURT OF APPEAL REFUSES TO OVERTURN A DECISION WHERE THE “WRONG” TYPE OF JOINT EXPERT WAS INSTRUCTED
This is an unusual case where, after the event, a party to the litigation argued that the court had relied on the “wrong” type of expert evidence. An educational psychologist had been instructed as a joint expert whereas what was…
BACK TO BASICS MONDAY: THE IMPORTANCE OF SERVING THE PARTICULARS OF CLAIM WITHIN THE TIME FOR SERVICE OF THE CLAIM FORM: THE “BEAR TRAP” IN WAITING
The back to basics point today is based on a recent case which shows the importance of serving the particulars of claim within the four month period allowed for service of the claim form. The claimant served the particulars three…
RELIEF FROM SANCTIONS REFUSED AFTER CLAIMANT FAILS TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: “THE CONSEQUENCE IS THAT THE PROCEEDINGS ARE STRUCK OUT”
Here we look at the “second half” of the decision considered in the previous post. Having rejected the claimant’s submissions that breaches of a peremptory order should be considered under CPR 3.10 the judge then went on to consider the…
THE BREACH OF A PEREMPTORY ORDER IS A SERIOUS MATTER: IT CANNOT SIMPLY BE DEALT WITH UNDER CPR 3.10
Here we look at an interesting, but eventually futile, about the approach the court should take when a party was in breach of a peremptory order. The claimant in breach argued that the court should consider the matter under CPR…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
CAN A DEFENDANT MAKE A PART 36 OFFER THAT ATTEMPTS TO BIND THE CLAIMANT IN RELATION TO MATTERS NOT PLEADED?
Here we have an interesting, and important, point about CPR Part 36. Firstly could a defendant establish that a claimant had not beaten a Part 36 offer when that offer dealt with matters that were not part of the pleaded…
WHEN CAN A JUDGE CHANGE THEIR MIND? THE PRINCIPLES CONSIDERED: AN “AMBUSH” LEADS TO A POINT BEING RECONSIDERED
Here we look at a case where the judge had given a decision on an issue but, on consideration, decided that their initial view may be wrong. The judgment sets out the relevant case law and principles in some detail….
SERVICE POINTS 30 : A PROCEDURAL DEBACLE: THE DEFENDANT HAD LEFT IT FAR TOO LATE TO TAKE A POINT AS TO SERVICE OF THE CLAIM FORM
Many cases relating to service of the claim form involve a procedural debacle. It is rare that they present a “dogs breakfast” such as this. The defendant took a point that the claim had been issued out of time, that…
THE DEFENDANTS’ APPLICATION WAS AN ABUSE OF PROCESS: THE DANGERS OF TRYING SIMILAR THINGS A SECOND TIME AROUND: “THE HENDERSON AND HUNTER PRINCIPLES APPLY TO INTERLOCUTORY HEARINGS AS MUCH AS TO FINAL HEARINGS”
This is an interesting case on the relevance of the “Henderson” principles to applications, in this case for reverse summary judgment/to strike out the claim. A similar application had been made much earlier in the litigation. The judge found for…
IMPORTANT COURT OF APPEAL DECISION TODAY: A CLAIM IS BROUGHT WHEN A CLAIM FORM IS SENT TO THE COURT EVEN IF IT DOES NOT HAVE THE CORRECT ISSUE FEE
This Court of Appeal decision today clarifies the position when a claimant files a claim at court but mistakenly does not pay the correct fee. The Court held that the claim was “delivered” when the claim was filed at court….
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
MAZUR MATTERS 53: JUDGE REFUSES TO GRANT A SPECIFIC OR GENERAL EXEMPTION TO AN EXPERIENCED LEGAL EXECUTIVE
One of the issues that has followed the Mazur decision arises from the fact that the statute gives the court a power to grant an exemption. Here the judge considered whether the power to grant an exemption should be granted…
SERVICE POINTS 29: WOULD THE COURT STRIKE OUT THE ACTION WHEN THE CLAIMANT FAILED TO COMPLY WITH A r. 7.7 NOTICE?
It is unusual to see cases about the operation of CPR 7.7. This rule allows a defendant to serve a notice requiring that a claim form be served. In this case the claimant did not comply and the defendant applied…
A PART 36 OFFER CANNOT BE OUTSIDE THE SCOPE OF THE PLEADINGS: NOR CAN THE OFFEROR ARGUE THAT IT WAS NOT, IN FACT, A PART 36 OFFER AT ALL
Here we have a case where the defendant argued that a second action against it by a claimant was an abuse of process because an earlier action had settled by way of the claimant accepting a Part 36 offer. The…
PREPARING BUNDLES: A GUIDE FOR LITIGANTS IN PERSON (FAMILY GUIDANCE – BUT MUCH FOR OTHERS TO LEARN…)
We all know that the preparation of bundles can be a tricky job, even for legal professionals. The rules in relation to Bundles in family proceedings changed today. The Office of the President of the Family Division has published guidance…
THE SECRETARY OF STATE REQUIRED RELIEF FROM SANCTIONS: “AN APPALLING MANIFESTATION OF A LAX CULTURE OF NON-COMPLIANCE”
For (at least) the third time in recent weeks we are considering defaults or mistakes made on behalf of a Secretary of State. The delays and mistakes here were manifold. The Secretary of State was fortunate in obtaining an extension…
ACTION STRUCK OUT BECAUSE OF APPLICANT’S FAILURE TO COMPLY WITH A PEREMPTORY ORDER: (THIS MAY WAKE YOU UP ON A MONDAY MORNING…)
Here we have a case, brought be a professional liquidator, which was struck out because of a failure to comply with a peremptory order as to disclosure. It serves as an object lesson in the need to educate a client…
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
COST BITES 358: WHAT DOES THE COURT DO IF THE PARTIES HAVE COMPROMISED AN APPLICATION BUT CANNOT AGREE ON WHO SHOULD PAY THE COSTS?
There are occasions where the parties agree the terms of an application but cannot agree who should pay the costs – the court is asked to adjudicate. There are difficulties for the judge in this situation. In particular judges are…
THE CURRENT IMPORTANCE OF PLEADINGS 58: THE DEFENDANTS’ PLEADING DID NOT CONTAIN AN “ADMISSION”: APPLICATION TO STRIKE OUT AMENDMENTS DISMISSED
This is a case where the court had to consider whether a defence had originally contained an “admission” such that the defendants required express permission to resile from it. The court found that, on close analysis, there was no such…
COST BITES 359: FAILING TO SIGN CONSENT ORDER LEADS TO £44,000 IN COSTS: “GOING SILENT” IS NOT A CHEAP OPTION…
Just a quick warning here about the costs of not signing a consent order having agreed to so something. It can be expensive. We have a case here where it cost £44,000 when the claimant made an application because the…
THE CURRENT IMPORTANCE OF PLEADINGS 57: A CASE ALLEGING PROFESSIONAL NEGLIGENCE AGAINST A SOLICITOR WAS NOT ADEQUATELY PLEADED
We are looking at the same case as in the earlier post, but from a different angle. The case has some particular pleading points. The claimant pleaded that the solicitor was negligent in not instructing counsel, but did not plead that…
![PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER - YES THEY CAN]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/02/Par36Interest.png?resize=150%2C150&ssl=1)
PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER – YES THEY CAN]
The judgment here considers an interesting point in relation to Part 36. The judge had, in the substantive judgment, considered issues relating to the interest to be paid by the defendant. The defendant had failed to beat a Part 36…
BACK TO BASICS MONDAY: WHAT HAS TO HAPPEN WHEN A LEGAL REPRESENTATIVE SIGNS THE STATEMENT OF TRUTH: A STARK REMINDER
There are major dangers when a lawyer signs a statement of truth on behalf of their client. I had actually planned a post on this issue before seeing the judgment last week which features below.. For many years this site…
THE CURRENT IMPORTANCE OF PLEADINGS 55: THE PARTICULARS OF CLAIM CONTAINED A (SIGNIFICANTLY) FALSE FACT: JUDGE FINDS THAT THIS WAS PRINCIPALLY DUE TO THE FAULT OF “BARRISTER M”
It is rare for a judgment about pleadings to be “gripping” reading. We have such a case here. From the opening lines, to the detailed consideration of how the pleadings went wrong, the narrative is compelling. We even have an…
LIMITATION IN ALLEGED SEXUAL ABUSE CASES: THE COURT DECLINED TO EXERCISE ITS DISCRETION UNDER S.33 “THE DELAY HAS ALREADY SIGNIFICANTLY UNDERMINED THE COGENCY OF THE EVIDENCE ABOUT WHETHER THE ABUSE TOOK PLACE AT ALL”
Here we have a case where the court refused to exercise its discretion under Section 33 of the Limitation Act in relation to allegations of sexual abuse that took place in the 1980s. As the judgment notes this is an…
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…
THE USE OF AI FOR PREPARING COURT DOCUMENTS: READ THE CIVIL JUSTICE COUNCIL INTERIM REPORT AND CONSULTATION
The Civil Justice Council has produced an interim report and consultation document on the use of AI for preparing Court documents. This is worthwhile reading. It summarises many of the current issues “Artificial intelligence (“AI”) has enormous potential to be…
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