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…
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…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
COST BITES 354: VARYING A BUDGET (2) HOW WAS THE ISSUE OF “SIGNIFICANT DEVELOPMENTS” CONSIDERED IN PRACTICE?
The previous post looked at the judge’s consideration of the principles relating to variations in a costs budget. Here we look at how this worked out in practice with the judge considering whether various issues amounted to “significant developments”. Some…
SERVICE POINTS 27 : EXTENSION OF TIME TO SERVE CLAIM FORM SET ASIDE: FAILURES IN THE DUTY TO GIVE FULL DISCLOSURE PLAY A MAJOR PART
We have got to the middle of February and this is (I think) the first case about failures of service of the claim form this year. This case has a history we have seen a lot on this site. The…
PROVING THINGS 280: DEFENDANT FAILS TO PROVE THAT AN ACTION HAD BEEN COMPROMISED: THE TERMS “SUBJECT TO CONTRACT” MEAN THAT ACCEPTANCE DID NOT GIVE RISE TO A BINDING COMPROMISE
Documents are often marked “subject to contract”. This case considers the practical implications of such markings. In particular whether an apparent acceptance of an agreement gave rise to a binding agreement. As we shall see the wording was found to…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION (2): CONTRIBUTIONS FROM THE NICE PEOPLE OF TWITTER:
I am here summarising the Advice given by lawyers on the social media site formerly known as Twitter. In April 2019 I asked lawyers what their advice would be for their colleagues in the profession when things go wrong. Specifically…
PRACTICE DIRECTION AMENDMENTS: 193rd UPDATE: CHANGES TO RULES ABOUT DISCLOSURE IN THE BUSINESS AND PROPERTY COURTS: THE COURT CAN ORDER A PARTY TO SEEK INSPECTION FROM “ANY PERSON”
There are several amendments in Practice Directions made in the the most recent update. Here we look at one that is directly related to the rule change we looked at last week. The amendment introduces into the Business and Property…
PERSONAL INJURY POINTS 11: THE LOCAL AUTHORITY COULD NOT TAKE INTO ACCOUNT PERSONAL INJURY TRUSTS AND REFUSE TO PROVIDE CARE
Here was have a case where the local authority ceased providing funds for a seriously injured person, indeed they demanded money back. The local authority contended that money in a personal injury trust should properly be taken into account. Further…
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 348 : A PARTY SEEKING SECURITY FOR COSTS SHOULD HAVE INCLUDED TIME SPENT IN SETTLEMENT AND ADR
There is an interesting comment at the end of the judgment. The judge made an order for security for costs. However he also expressed concern that the defendant’s estimated costs did not include anything in relation to the costs of…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
MEMBER NEWS: A REMINDER OF MEMBER BENEFITS AND WHERE TO FIND THE DISCOUNT CODES: ESSENTIAL TOPICS COVERED IN WEBINARS THROUGHOUT THE YEAR
A reminder that member subscribers have access to discounts on webinars being presented throughout the year. The details of the webinars, the discounts and how to find the discount codes are below. The first webinar sets out the practical consequences…
EXPERT WATCH 34: THE COURT REFUSES TO REPLACE A JOINTLY INSTRUCTED EXPERT BUT ALLOWS SOME OF THE PARTIES TO INSTRUCT THEIR OWN EXPERT
When it is appropriate for a court to replace a jointly instructed expert? That issue was considered in this case. The judge rejected the allegations made about the jointly instructed expert, however given that expert evidence was central to the…
WHEN PERMISSION IS (AND IS NOT) REQUIRED TO DISCONTINUE A CLAIM BROUGHT ON BEHALF OF MINORS: IT STILL HAS SERIOUS COSTS CONSEQUENCES THOUGH
Here we are looking at an interesting issue relating to discontinuance. In some circumstances a claim brought by a minor or protected party cannot be discontinued without the court’s permission; in other circumstances no permission is required. The distinction is…
COST BITES 346: CONDUCT, “PART 36 OFFERS” AND THE STATUTORY PRESUMPTION ON A SOLICITORS ACT ASSESSMENT: THE COSTS OF “ASSESSMENT” ARE DISTINCT TO THE COSTS OF “PROCEEDINGS”
In this judgment given yesterday a Costs Judge considered the relevance of conduct in a Solicitors Act assessment. In particular whether an offer expressed as a “Part 36 offer” by the claimant client could amount to “special circumstances” to displace…
THE CURRENT IMPORTANCE OF PLEADINGS 53: THE HIGH COURT REJECTS AN ALLEGATION OF IMPROPER CONDUCT IN THE DRAFTING OF THE PARTICULARS OF CLAIM: A CLAIMANT CAN BE “TORMENTED” AND THIS IS NOT ABUSIVE…
We are looking at a judgment that goes to the very heart of what a lawyer can properly draft in relation to pleadings. It considers what the line is between putting the case in an “effective and high level way”…
DEFENDANTS GIVEN PERMISSION TO RELY ON SURVEILLANCE EVIDENCE SERVED LATE: EVEN THOUGH THIS LED TO THE ADJOURNMENT OF THE TRIAL
A defendant that wishes to rely on surveillance evidence must choose its timing with extreme care. If the evidence is disclosed too early then the claimant could be “tipped off”; too late and this could be categorised as an “ambush”. …
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION(1): A PRIMER FOR “WHEN THE SKY IS FALLING”
Very little (if any) of the legal curriculum is devoted to what to do when things go wrong. Not enough (in my view) is devoted to preventing things go wrong. However here we concentrate on what do when something goes…
ANOTHER ISSUE ABOUT UNLESS ORDERS: CAN A COURT MAKE AN ORDER SPECIFYING A SUM FOR DAMAGES IF THE DEFENDANT DOES NOT COMPLY?
There have been a number of cases about unless orders recently. This one looks at the issue of whether the court can make an order and state that, if there is default, the claimant can enter judgment for a specific…
WE HAVE SEEN HOW ALLEGED FAILURES IN PROVIDING COSTS INFORMATION EXPOSES SOLICITORS’ FIRMS TO RISK : A STRATEGY TO AVOID THE SAME OUTCOMES: ADVANCE NOTICE OF WEBINAR ON THE 19th MARCH 2026
Recent Legal Ombudsman decisions show that solicitors’ firms are being ordered to repay substantial fees and pay significant compensation for failures in costs information — even where the underlying litigation has been competently conducted. This webinar uses Knight and other recent…
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…
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