BACK TO BASICS MONDAY: THE 70 KEY POINTS OF THE DENTON JUDGMENT: REVISITING THE BASICS AFTER TWELVE YEARS…
It is now twelve years since the judgment in Denton -v- White [2014] EWCA Civ 906. However it is still a judgment that appears regularly in the reports (we will be looking at such a case this week). Over the years…
COST BITES 429: A REMINDER THAT A CLAIMANT IS STILL LIABLE TO PAY COSTS EVEN IF PROCEEDINGS ARE NEVER SERVED: SOMETHING ABOUT PRE-ACTION CONDUCT TOO…
This judgment illustrates two important things. Firstly that a claimant’s liability to pay costs starts upon issue and remains even if proceedings are never served. Secondly that pre-action conduct can have an impact on the decision that a judge makes…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: WHAT IF ONE OF THE PARTIES WAS INNOCENT? COURT OF APPEAL CONSIDERS THE ISSUE: SOMETHING ABOUT LACHES TOO…
Setting aside a judgment obtained by fraud is very different to other applications to set aside. It requires a separate action and there is a high burden of proof. However what should happen if one of the parties to the…
ENFORCEMENT BULLETIN 5: AN APPLICATION FOR RECOVERY OF MONEY PAID TO ENFORCEMENT AGENT DISMISSED: IT WAS TOO LATE AND MISCONCEIVED IN ANY EVENT
There are several issues in the case of general importance, particularly for those seeking to challenge Enforcement Agents. Firstly as to the strict timetable involved; secondly as to what constitutes “controlled goods” and finally as to the appropriate means for…
A MYRIAD OF PROCEDURAL ISSUES A BANKRUPT CLAIMANT; AN APPLICATION TO RESILE FROM AN ADMISSION AND AN ATTEMPT TO STRIKE OUT A COUNTERCLAIM FOR “WAREHOUSING”
This is a case that bristles with procedural issues. Firstly as to what happens when a claimant, involved in a partnership with others, goes bankrupt. Secondly whether that litigant could withdraw an admission that he had not status. Thirdly whether…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
THE CURRENT IMPORTANCE OF PLEADINGS 88: ANOTHER CASE STRUCK OUT BECAUSE OF INADEQUATE PLEADINGS: “THE DEFENDANTS ARE ENTITLED TO KNOW THE CASE AGAINST THEM…”
I am always wary of being repetitive yet here we have our second case today of a claimant being struck out because of inadequate pleadings. This repetition is simply a reflection of the cases that are going through the courts….
THE CURRENT IMPORTANCE OF PLEADINGS 87: A CLAIM CAN BE STRUCK OUT ON AN ANALYSIS OF THE PLEADED CASE
This judgment confirms a decision to strike out a case on the basis of inadequate pleadings. It emphasises the fact that there is no need to wait for a defence to be filed before such an application is heard. It…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
COURT REFUSES PERMISSION TO CHANGE NAME OF THE CLAIMANT AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE DANGERS OF LEAVING THINGS LATE
Many of the “problem” cases we look at on this blog have similar themes. Leaving the issue of proceedings until the last possible moment and then compounding that by leaving service until the last minute. This case has an additional…
THIS CASE SHOULD BE HEARD IN MANCHESTER: ANOTHER ADMINISTRATIVE COURT CASE TRANSFERRED AWAY FROM LONDON
We have looked many times at judgments where the courts have determined that regional centres are the appropriate venue for certain cases. We have another example here. The claimant wanted the matter heard in London. The court directed it be…
SERVICE POINTS 52: $28 MILLION CLAIM LOST BECAUSE OF A FAILURE TO SERVE A CLAIM FORM PROPERLY (THESE CAN BE EXPENSIVE MISTAKES…)
This is a case ostensibly about limitation. However the central point for most litigators is that, in reality, it is about a failure to serve a claim form properly. The first claim was issued within the limitation period (following a…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
SHOULD UNDUE DELAY AND “GROVIT” ABUSE LEAD TO AN ACTION BEING STRUCK OUT UNLESS THERE ARE COMPELLING REASONS NO TO DO SO? THE COURT OF APPEAL CONSIDER THE ISSUES
This is an important decision by the Court of Appeal on how the court should respond to an abuse of process caused by delay. The answer is that this kind of abuse is treated similarly to other types of abuse….
BACK TO BASICS MONDAY: WHAT DOCUMENTS NEED TO BE IN AN APPEAL BUNDLE? A JUDGMENT ON THAT VERY POINT:”DOCUMENTS GENUINELY REQUIRED FOR DETERMINATION OF THE APPEAL”
Over the years we have seen many dozens of cases where judges have been critical of the contents of bundles. I cannot recall a case where a judge has determined the contents in advance. We now have an example here. …
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
ARTIFICIAL INTELLIGENCE IN COURT: AN INTERESTING PRACTICE DIRECTION FROM THE HIGH COURT IN IRELAND : GOOD ADVICE FOR US ALL
In England and Wales we are still considering appropriate guidance for the use of Artificial Intelligence in the courts. The High Court in Ireland has issued a specific Practice Direction on the use of Generative AI in Court Documents. It…
ENFORCEMENT BULLETIN 4: THE COURT SETS ASIDE A MENTAL HEALTH CRISIS MORATORIA AND ALLOWS BANKRUPTCY PROCEEDINGS TO CONTINUE
There is sometimes a suspicion that the Breathing Space Moratoria and Mental Health Crisis Moratoria are capable of being misused as an attempt to avoid payment. That issue is considered this judgment. The applicant applied to set aside a Mental…
SERVICE POINTS 51: HIGH COURT REFUSES TO SET ASIDE AN ORDER ALLOWING SERVICE BY EMAIL ON THE DEFENDANT’S SOLICITORS
In this case the defendant, a judgment debtor, attempted to set aside an order that a claim form could be served by email on their solicitors. The situation was an unusual one in that the claimant had a judgment against…
TWO PROCEDURAL POINTS TO WATCH: GIVING REMOTE EVIDENCE FROM ABROAD: SEEKING COSTS BEFORE THE FIRST-TIER TRIBUNAL
Here we are looking “preliminary matters” in a judgment that highlight two procedural issues. One of them is of general relevance, the other more specific but still of significance, particularly for those who are unfamiliar with procedure in the General…
ANOTHER BREACH OF JUDGMENT EMBARGO CASE: WHY SOLICITORS MUST BADGER THEIR CLIENTS ABOUT COMPLIANCE: “THE COURT EMBARGO IS FUNDAMENTALLY DIFFERENT FROM JOURNALIST EMBARGO”
Here we have yet another breach of the embargo on the handing down of a court judgment. The breach appears to have occurred because of a misunderstanding as to the important distinction between a court embargo and a journalism embargo. …
WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
SEEKING A STAY PENDING AN APPEAL: “GENERALISED ASSERTIONS ARE NO SUBSTITUTE FOR EVIDENCE”: COURT REFUSES APPLICATION
This judgment emphasises the point that a party seeking a stay of a judgment cannot obtain this by “generalised assertions”. There are clear and well established criteria for the court to consider. A party making such an application must make …
SERVICE POINTS 50: IS SERVICE OF A TENANT AND AN ADDRESS STATED IN THE LEASE GOOD SERVICE WHEN THE TENANT IS NOT THERE? DOES THE CONTRACT OVERRIDE THE CPR?
This Court of Appeal decision considers issues in relation to contractual service. Does a contractual term in a lease saying that service of documents can take place at the property in question override the CPR provisions as to service? In…
COST BITES 418: THE PARTIES SHOULD SHARE THE COSTS OF AN ELECTRONIC PLATFORM (INITIALLY): THIS MULTI-CLAIMANT CASE IS MOST DEFINITELY SUITABLE FOR COSTS BUDGETING
There are two distinct issues of interest to litigators here. Firstly who should (initially at least) bear the costs of hosting on an electronic platform. Secondly whether a major multi-Claimant action should be subject to costs budgeting. “… costs budgeting…
AN APPLICATION TO STRIKE OUT FOR ABUSE OR PROCESS ADJOURNED – TO SEE WHETHER THIS NEED HAPPEN ON A “ROLLING BASIS”: ONE THOUSAND CLAIMANTS STARTED BUT ARE UNLIKELY TO FINISH…
Here we have a case where it appears that 1,000 claimants involved in Group Litigation will seek to discontinue. This fact becoming clear less than a month after the Group Litigation Order was made. The judge declined to strike out…
BACK TO BASICS MONDAY: WHEN A DOCTOR PROVIDES A NOTE ABOUT THE CAPACITY OF A WITNESS: WHAT THE COURT REQUIRES
The issue of medical evidence to support a claim that a witness cannot attend trial, or requires some dispensation, have been some recurrent issues in litigation over the years. Many problems come from the medical evidence in support failing to…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
“STING OPERATIONS”, SECRET AGENTS, NAIVE SOLICITORS DISCLOSING THEIR CLIENT’S PRIVILEGED INFORMATION, STRIKING OUT AND ABUSE OF PROCESS: COURT OF APPEAL DECISION HIGHLIGHTS THE MAJOR RISKS OF “PRIVILEGE HUNTING”
Here the Court of Appeal looks at one of the most remarkable issues of “litigation conduct” that has occurred in recent years. The claimants hired a “black ops” operative to befriend and obtain privileged and confidential information from the defendants’…
WHAT SHOULD A SOLICITOR DO IF A CLIENT IS PUTTING FORWARD AN ACCOUNT THAT MAY BE UNTRUE AND THEN THERE ARE “RED FLAGS”? WHEN IS THE LINE CROSSED: THE DUTIES CONSIDERED IN DETAIL
A solicitor is, generally, not under a duty to satisfy themselves that their client is telling the truth. However what happens when there are “red flags” which indicate the client is using the solicitor’s services in furtherance of a fraud? …
SERVICE POINTS 49: THE JUDGE WOULD HAVE SET ASIDE AN ORDER EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: IT COULD HAVE BEEN SERVED WITHOUT THE PARTICULARS OF CLAIM
This is another case that emphasises the importance of serving the claim form promptly. The claimants had obtained an order extending time for service. The defendants applied to set aside that order. The judge stated that, if the issue had…
CAN THE WAY IN WHICH A CLAIMANT HAS CONDUCTED A CASE MEAN THAT IT SHOULD NOT HAVE SUMMARY JUDGMENT: “CLEAN HANDS” AND OTHER EQUITABLE MAXIMS CONSIDERED
We are looking at an unusual set of arguments here. The defendant, in resisting an application for summary judgment, submitted that the way in which the claimant had conducted the litigation itself meant the court should not grant judgment. It…
BACK TO BASICS MONDAY: EXPERT WITNESSES HAVE TO HAVE ACCESS TO THE SAME MATERIAL: THE IMPORTANCE OF THE LEVEL PLAYING FIELD
The post earlier this morning set out the judge’s reservations about the nature of the information given to the claimant’s experts. In particular the failure to give the sources of their information. In fact the requirements go further than that. …
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
EXPERT WATCH 58: SHOULD A DEFENDANT HAVE PERMISSION TO RELY UPON A NEW EXPERT WHICH WOULD LEAD TO THE TRIAL DATE BEING VACATED?
Here we have a case where a defendant applied, late in the day, for an expert in a different discipline to those that had reported to date. Further that application was heard a month before the trial date. The judge…
“I HAD NEVER COME ACROSS A CASE IN WHICH SO LITTLE RESPECT HAD BEEN PAID TO THE COURT”: INACCURATE TIME ESTIMATES; OVER-LENGTHY SKELETONS; ENORMOUS BUNDLES (OH AND AN ATTITUDE OF “WE’LL COME INTO COURT WHEN WE WANT TO”…): I CAN’T RECALL JUDICIAL CRITICISM MUCH STRONGER THAN THIS,
Over the years we have looked at some fairly “vigorous” judicial criticisms of litigators and non-compliance with procedural requirements. This case contains some of the the most vigorous I have seen. The judge points to wholesale failures by both sides…
COST BITES 414 : A WITHDRAWN PART 36 OFFER STILL HAD AN IMPACT ON THE AWARD OF COSTS: CLAIMANTS COULD NOT RECOVER COSTS AFTER DATE OF OFFER
In this case the judge considered the question of whether a Part 36 offer that was withdrawn after trial should have any impact on the award of costs. The judge held that it should. If the claimants had accepted they…
CAN THE COURT REFUSE TO ISSUE A CLAIM FORM? CAN THE STAFF LAWFULLY REFER THE ISSUE TO THE JUDGE? AN UNUSUAL APPLICATION FOR JUDICIAL REVIEW
Here we look at an unusual application for judicial review. It is all about the powers of the County Court to refer matters, upon issue, to the judge for consider. It makes clear that court staff have no power to…
COST BITES 412: SHOULD THE CLAIMANT’S FAILURE TO GIVE FULL AND FRANK DISCLOSURE ON AN APPLICATION TO SERVE OUT LEAD TO THE DEFENDANTS RECOVERING INDEMNITY COSTS: CONDUCT CONSIDERED
This judgment considers whether certain, admitted, failures by the claimant to give full and frank disclosure should lead to costs being awarded against it, even though it defeated the defendants’ application to set aside the order that was made. The…
HALLUCINATED CASE LAW AND THE CROWN PROSECUTION SERVICE (OF ALL BODIES…)
All cases of hallucinated cases are serious, however some may be more serious than others. If we have a situation where the Crown Prosecution Service files documents which rely on cases that simply do not exist, this has to be…
BACK TO BASICS MONDAY: THE PERILS OF ISSUING A SECOND TIME: CPR 38.7 EXPLORED: NOTE THE NEED FOR SPEED…
We looked at a case last week which was a “second action” against the same defendants. It was struck out on several grounds, one of which was under CPR 38.7. It is worthwhile looking at the rule in detail …
MAZUR MATTERS 64: THE COURT REJECTS WOULD BE APPELLANT’S ARGUMENT THAT A CLAIMANT’S REPRESENTATIVE HAD NO RIGHT OF AUDIENCE
The Court considered a “Mazur” type argument in this application for permission to appeal. The appellant arguing that the claimant had never been lawfully represented at previous hearings. This argument did not get very far. The judge indicated that, even…
THE CURRENT IMPORTANCE OF PLEADINGS 86: DEFENDANT REFUSED PERMISSION TO AMEND DEFENCE ON THE MORNING OF TRIAL
Here we look at what can only be described as a “very late” application to amend a defence. It was made on the morning of the first day of trial. Surprisingly there was no explanation as to why an application…
THROWBACK FRIDAY: THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: ANOTHER CASE WHERE (MIS) SERVICE OF THE CLAIM FORM LED TO GRIEF
We are going back to July 2018 where the High Court overturned a first instance decision in favour of a claimant on a service of the claim form issue. The judgment is particularly important because the first-instance judgment appeared to…
COST BITES 411: NON-PARTY COSTS ORDER MADE AGAINST CLAIMANT’S DIRECTOR : HE WHO EXPECTS TO BENEFIT RUNS A RISK OF PAYING THE COSTS…
This case considers the issue of whether it was appropriate to make a non-party costs order. The Master reached a clear conclusion that it was. The individual in question was effectively the driving force behind the litigation in addition to…
THE TCC GUIDANCE ON THE USE OF ARTIFICIAL INTELLIGENCE: A DETAILED EXAMINATION
The section on the use of AI in the latest edition of The Technology and Construction Court Guide is relatively short. However it is significant. It shows that the courts recognise that AI is going to be used. “All legal…
NEW (4th) EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE 2026: A QUICK GUIDE TO THE CHANGES AND THE NEW PARTS
The Fourth Edition of the Technology and Construction Court Guide came into force on 1 July 2026. It is much more than a routine update. Whilst much of the familiar structure remains, there are significant additions reflecting changes in legislation,…
EXPERT WATCH 57: JUDGE DECIDES THAT AN EXPERT, THAT HAS NOT COMPLIED WITH THEIR DUTIES TO THE COURT, SHOULD BE NAMED; “HE HAD A CHOICE TO INVOLVE HIMSELF IN THESE PROCEEDINGS AND TO BE PAID FOR DOING SO…”
Here we are looking at a decision related to the case we looked at yesterday relating to a medical expert in a family case. The judge gave a decision on whether an expert, who she found had failed in their…
A JUDGE SHOULD NOT HAVE PREVENTED A DEFENDANT TENANT SPEAKING AT A POSSESSION HEARING JUST BECAUSE THEY HAD NOT FILED A DEFENCE: THE CIVIL PROCEDURE RULES HAVE PRIMACY OVER A PEREMPTORY ORDER
I am grateful to barrister James Stark for sending me a copy of this judgment which is important to all those involved in landlord and tenant litigation, but also raises interesting issues as to how far an order of the…
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