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…
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…
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…
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…
COST BITES 341: THIS ASSESSMENT SHOULD NOT LAST 50 DAYS: COURT OF APPEAL ADVOCATES “SAMPLING” APPROACH TO ASSESSMENT OF £44 MILLION BILL OF COSTS
It is rare for a court, particularly the Court of Appeal, to take one step aside from the issue being determined and make some general observations on the process of the assessment of costs. This is one of those rare…
MAZUR MATTERS 49: NEWS FROM CILEX ON LITIGATION PRACTICE RIGHTS: THERE MAY BE A SLIGHT CHANGE OF STANCE BY CILEX
One matter I continue to celebrate is when CILEx members announce that they have been granted Litigation Rights. I know that there are major questions as to whether they are necessary. However in the interim it is most probably prudent…
BACK TO BASICS MONDAY: APPLYING TO VARY A COSTS BUDGET: WHAT YOU NEED TO SHOW
What does an applicant need to show if it wants to persuade the court to vary an existing costs budget? There was a helpful summary of the principles set out in a case we looked at last week. An application…
YOU HAVE TO PAY THE FULL COURT FEE: THE FACT THAT A COURT HAS ACCEPTED A FEE DOES NOT RENDER IT “FUNCTUS OFFICIO”
Here we have an ingenious argument that a court could not claim a higher court fee. It was an ingenious argument that failed. This shows the importance of claimants knowing the value of a case when they issued, and the…
THE STATEMENT OF TRUTH WAS NOT SIGNED BY AN AUTHORISED PERSON: IT REQUIRES “FACTS” NOT INFORMATION: A SOLICITOR EMPLOYEE SHOULD NOT HAVE SIGNED IN THE NAME OF THE FIRM
Here we have an example of a Statement of Truth that was non-compliant it contained the wrong wording and was signed by the wrong person in the wrong way. It shows the need to ensure that the rules in relation…
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…
PART 36 IN THE PAST 12 MONTHS: WHAT PRACTITIONERS NEED TO KNOW: WEBINAR 26th FEBRUARY 2.00 pm (THREE TRACTORS, TWO FIELDS AND FAILING TO BEAT AN OFFER BY A “WHISKER”)
The past 12 months have seen some important cases about Part 36. Every civil litigator needs to keep up to date with these developments. This webinar looks at the cases and considers the practical implications for litigators. DATE AND TIME…
COST BITES 339: SOLICITOR’S ATTEMPT TO OVERTURN A DECISION OF THE LEGAL OMBUDSMAN WAS UNSUCCESSFUL: IT WAS ENTITLED TO ORDER REPAYMENT OF ALL THE FEES IN ADDITION TO £50,000 COMPENSATION
There are many lessons to learn from this case: (i) the nature, extent and power of the Legal Ombudsman; (ii) the importance of transparency and accuracy when giving an estimate as to fees, particularly in litigation (iii) the very limited…
IT IS NOT THE JUDGE’S JOB TO ADD A PENAL NOTICE TO THE ORDER: THE APPLICANT SHOULD ASK: PENAL NOTICES CONSIDERED
There are a remarkable number of cases about penal notices. Questions such as “are they part of the court order?”; “are the essential for committal proceedings to be brought?” “when should they be added and who should add them” arise…
COST BITES 337: CLAIMANT FAILS IN ATTEMPTS TO ARGUE “SPECIAL CIRCUMSTANCES” UNDER THE SOLICITORS ACT
A client has a limited amount of time to challenge a solicitor’s bill. If the bill is challenged 12 months after delivery or payment then the power to order assessment can only be exercised if the court accepts that there…
MAZUR MATTERS 47: MAZUR CITED IN SUBMISSIONS FOR APPLICATION TO ADJOURN: “THIS IS NOT RELEVANT”
Mazur has not featured in many reported cases. However it is mentioned in passing here. For the sake of completeness of the series I have included it. It is (I suspect not the first) where it appears to have been…
COST BITES 336: MOST OF THESE THINGS ARE NOT “SIGNIFICANT DEVELOPMENTS” AND DO NOT JUSTIFY A VARIATION IN THE BUDGET: THE JUDGE NOT PERSUADED ON THE USE OF LEADING COUNSEL, NEW SOLICITORS WITH HIGHER HOURLY RATES AND THINGS MISSED FROM THE FIRST BUDGET
Here we have a detailed analysis of a defendant’s application to vary (that is more than double) its original costs budget. At the PTR stage the defendant applied to double its costs budget, some of this was allowed, most was…
PART 36: DOES A JUDICIAL READING DAY COUNT IN THE CALCULATION OF “21 DAYS” ? WHAT A DIFFERENCE A (READING) DAY MAKES…
We have seen numerous cases on this blog where matters have been left the “last minute” and the rules as to the calculation of time become important. Here we have an interesting example in relation to Part 36. An offer…
COST BITES 335: DID FIXED COSTS APPLY? THE EXCEPTIONS, THE TRANSITIONAL PROVISIONS AND THE EFFECT OF PART 36 CONSIDERED
I am grateful to Aofie Murphy from Brabners for sending me a copy of this judgment this morning. It relates to fixed costs (i) the exceptions; (ii) the transitional provisions; (iii) whether a Part 36 offer displaced them. It has…
THE COURT REFUSES TO SET ASIDE A PEREMPTORY ORDER IN A SOLICITOR – CLIENT ACTION: LOTS TO LEARN HERE IN TERMS OF BOTH COSTS AND PROCEDURE
Here we are looking at a case that bristles with issues both in relation to solicitor and own client costs, but also in relation to civil procedure and compliance with court orders. It serves as a reminder that a client…
COURT REFUSES DEFENDANT’S APPLICATION FOR THE ADJOURNMENT OF A SUMMARY JUDGMENT APPLICATION: YOU HAVE NO RIGHT TO TAKE PART IN THE HEARING SO WHY SHOULD THE APPLICATION BE GRANTED?
This case illustrates an important point about procedure in Part 8 proceedings. In particular the fact that a defendant who fails to acknowledge service has no right to be heard at any subsequent hearing. Here the defendant’s application for an…
THE CURRENT IMPORTANCE OF PLEADINGS 51: TOO LATE TO AMEND A REPLY WHICH WAS INADEQUATELY PARTICULARISED IN ANY EVENT
There has been a recent flurry in cases about late amendment and also about Replies. Both issues are considered her. The claimant applied to amend its Reply five weeks before trial. The revised Reply attempted to put forward a “counterfactual”…
THE CURRENT IMPORTANCE OF PLEADINGS 50: A CHANGE OF COUNSEL IS NOT A GOOD REASON TO PERMIT AMENDED PLEADINGS(AKA WHY FAMILY LAWYERS NEED TO READ THIS SERIES…)
I cannot recall dealing with a case in this series which involved the Family Courts. However we have a detailed exposition and consideration of the relevant principles relating to late amendment here. One factor is the absence of a good…
COST BITES 333: REMEMBER THE GENERAL RULE IS THAT DETAILED ASSESSMENT TAKES PLACE AT THE END OF PROCEEDINGS, NOT AFTER THE TRIAL OF A PRELIMINARY ISSUE
We are returning to a point that can easily be overlooked by a party that has been successful at a split trial or a trial of a preliminary issue. Although the court may make an order in that party’s favour,…
COST BITES 332 : COURT MAKES AN ORDER FOR INTERIM PAYMENT OF COSTS OF £43 MILLION – AND THIS IS AFTER TAKING A “CAUTIOUS APPROACH” TO THE CLAIMANTS’ EVIDENCE
This judgment given today contains a number of important points in relation to costs. The headline point is obviously an interim award of £43 million was made. This was actually less than 50% of the sum being sought. One of…
COST BITES 331: SOLICITOR FAILS TO SHOW THEY WERE OWED £573,529 IN COSTS: NEITHER A LIEN OR THE LEGAL AID CHARGE NECESSARILY GIVES RISE TO A DEBT FROM THE CLIENT
This is an unusual case where a third party challenged a solicitor’s right to be a creditor in an insolvency arrangement. The third party argued that the sums claimed by the solicitors were not in fact recoverable from the respondent. …
BACK TO BASICS MONDAY: DO NOT MENTION A PART 36 OFFER TO THE TRIAL JUDGE BEFORE THE TRIAL(OR DURING IT FOR THAT MATTER…)
The first time I wrote on this topic many practitioners expressed surprise that I had written something so very “basic”. Some readers were incredulous. However, as we see below, others shared their experiences. This rule is not known, or not…
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…
THROWBACK FRIDAY: EXTENDING TIME FOR SERVICE OF THE CLAIM FORM ALWAYS WAS (AND REMAINS) A RISKY BUSINESS
This week we go back to January 2016. It is a post about the dangers of applying for extensions of time to serve the claim form. The points made a decade ago remain equally valid today. We saw several cases…
COST BITES 329: THE COURT’S APPROACH TO INTERIM PAYMENTS ON COSTS THAT ARISE FROM APPLICATIONS AND CLAIMS FOR “OVERSPENDS” – COSTS OUTSIDE THE BUDGET
Some of the basic principles upon which the courts make orders for interim payments are well established, particularly when the case has been budgeted. This case considers the appropriate approach when there is a claim for costs arising from interlocutory…
COST BITES 328: A CAREFULLY NUANCED DECISION ABOUT LIABILITY FOR COSTS, INTERIM PAYMENTS FOR COSTS, INCLUDING COSTS OUTSIDE THE BUDGET
The question of “who won” is usually the starting point of assessing liability to pay costs. Complications arise when one party “won a bit” but not all it was seeking. We have a detailed consideration of these issues here. (Whether…
COST BITES 327: THE COSTS OF FILING AN ERRANT REPLY CONSIDERED: AN APPLICATION PURSUED “AGGRESSIVELY” – COSTS REDUCED TO 10% OF THOSE CLAIMED
Here we have the defendant making a justified, and successful, application to strike out a Reply. However the judge was unhappy with the manner in which the application (and the litigation generally) was being conduced (by both sides). He found…
THE CURRENT IMPORTANCE OF PLEADINGS 49: THE COURT STRIKES OUT TWO HUNDRED PARAGRAPHS OF A REPLY
We are looking at a case that has many procedural points of interest to litigators. We are starting by looking at the judge’s observations on the claimants’ Reply which was described as “Defective” and large parts struck out. There are…
DEFENDANT REFUSED RELIEF FROM SANCTIONS WHEN COSTS BUDGET WAS SERVED THE DAY BEFORE THE CCMC: “THIS IS HIGH COURT LITIGATION WHICH IS SUBJECT TO RULES WHICH MUST BE COMPLIED WITH”
Here we see another litigant coming to grief because of a failure to file a costs budget on time. The litigant had been warned of the consequences and the judge found that there was no good reason for the breach. …
AVOIDING THE PITFALLS: SERVICE OF THE CLAIM FORM: WEBINAR 23rd JANUARY 2025: HOW TO AVOID “DICING WITH PROCEDURAL DEATH”
Readers of this blog know that issues relating to service of the claim form are a regular feature of the blog. There were numerous posts last year. There are likely to be issues throughout 2026. This webinar is designed to…
PROVIDING LEGAL SUBMISSIONS WITH INACCURATE CASE SUMMARIES: THE REPRESENTATIVE WHO WOULD “NEITHER CONFIRM OR DENY” THAT AI WAS USED
We are returning to the vexed issue of the (mis) use of Artificial Intelligence when providing written submissions to the court (in the case the First Tier Tribunal). The judge found that summaries provided were inaccurate. The judgment points…
WITNESS EVIDENCE WEDNESDAY: WHEN WITNESS STATEMENTS SHOULD BE AVAILABLE FOR THIRD PARTIES AT COURT: NO NOTICE NECESSARY…
Is a third party, with no relationship to the case, entitled to see the witness statements being used in the hearing? That is the issue considered in this case which, unusually, was an application for judicial review of a County…
CLAIMS AGAINST THE SECRETARY OF STATE FOR DEATHS ARISING FROM COVID WERE STRUCK OUT: CAUSATION COULD NOT BE ESTABLISHED
In this case, decided yesterday, the court struck out the claimants’ case alleging that deaths were caused by, or materially contributed to, by the negligence of the defendant. The court had the important caveats in relation to the striking out…
COST BITES 326: DEFENDANT SUCCESSFUL IN OBTAINING A NON-PARTY COSTS ORDER: FARES FAIR IN THE BUS STATION CASE…
This judgment today is an interesting illustration of the fact that those providing support to a party can find themselves the subject of a non-party costs order. In this case the claimant company was in liquidation. The respondents to the…
AN APPLICATION FOR PRE-ACTION DISCLOSURE: THIS IS NOT A “FISHING EXPEDITION” AND IT IS AN APPROPRIATE CASE TO MAKE AN ORDER
It is rare to see a fully reasoned judgment from the High Court in relation to an application for pre-action disclosure. Here we have a case where the rules and principles were considered an applied. There are some important lessons…
ASKING THE JUDGE TO DETERMINE ISSUES OF OWNERSHIP WAS NOT AN ABUSE OF PROCESS: THE SAME ARGUMENT RAN TWICE (UNSUCCESSFULLY ON BOTH OCCASIONS…)
Here we consider an argument that it was an abuse of process for a litigant to argue issues that were directly related to another action between the parties that had been stayed. The judge held that this was not an…
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…
MAZUR MATTERS 46: A “CLAIMANT’S REPRESENTATIVE” HAD NO RIGHT OF AUDIENCE IN THIS SMALL CLAIMS TRIAL: “IT IS TO DISTORT THE PURPOSE OF SCH 3, PARA 7 BEYOND RECOGNITION THAT THE TRADITIONAL ROLE OF AN INHOUSE MANAGING CLERK UNDERTAKING THE ROUTINE WORK OF THE DISTRICT JUDGE BE EXTENDED INTO A WHOLESALE UNQUALIFIED ADVOCACY SCHEME”
This is the first time I have seen Mazur mentioned and considered in an issue as to rights of audience. In this case the judge held that the representative sent by the claimant to attend a small claims trial did…
THE CURRENT IMPORTANCE OF PLEADINGS 46: THE DEFENDANT HAD AGREED THAT THE DEFENCE AS DRAFTED BROKE THE RULES
We are looking at a case where we get a hint of a defence that was so defective that, ultimately, the defendant agreed it should be struck out and entirely repleaded. It provides an object lesson on how a defence…
THROWBACK FRIDAY: APPLICATIONS FOR RELIEF FROM SANCTIONS: 10 POINTS TO IMPROVE THE ODDS: LOOKING BACK TO JANUARY 2016
This blog celebrates its 13th birthday later this year. Civil Litigation Brief started as a series in the Solicitors Journal 35 years ago. Needless to say it has a large “back catalogue”. I wanted a regular opportunity to bring important…
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