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…
WHEN CAN A JUDGE ADD ADDITIONAL MATERIAL TO A JUDGMENT AFTER HANDING DOWN? COURT OF APPEAL CONSIDERED THE ISSUE
Here we are looking at an old case. However it has only recently arrived on BAILII and deals with an issue that remains relevant today. The Court of Appeal considered the issue of when is it appropriate for a judge…
ANOTHER EXAMPLE OF AN APPLICATION FOR AN EXPEDITED TRIAL BEING REFUSED: A GOOD REASON FOR EXPEDITION HAS TO BE SHOWN
As promised we are looking at a second case where an expedited hearing was refused. The judge here went through the principles relating to expedition and found that good reasons had not been made out. The judge also rejected an…
COST BITES 324: THE TIME FOR ASSESSING COSTS IS NOW – WHO KNOWS WHAT WILL HAPPEN LATER
Here we are looking at an argument by a paying party that costs payable at an application should be reduced because the work would be required to be done at a later stage in any event. (The judge has no…
WHEN THE COURT REFUSES AN APPLICATION FOR AN EXPEDITED TRIAL: THERE IS NO POINT IN LABOURING THE ISSUE…
This is the first of two cases today where we look at examples where the courts have refused to grant an order for an expedited trial. This case was an unusual one, the judge reviewed the established principles and found…
COST BITES 323: HOURLY RATES: THIS CASE DOES NOT FALL INTO LONDON BAND 1: IT CERTAINLY DOES NOT JUSTIFY FEES ABOVE THAT RATE…
We are returning to the issue of hourly rates. In this case the receiving party sought hourly rates that were above the London 1 band. The judge held that the case did not fall within that band and certainly did…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
COURT OF APPEAL REFUSES PERMISSION FOR APPELLANT TO AMEND PLEADINGS OR RELY ON NEW EVIDENCE: GET YOUR CASE TOGETHER BEFORE AN APPLICATION NOT AFTER IT…
In this judgment today the Court of Appeal refused an application by an appellant to rely on amended Particulars of Claim or adduce new evidence in a case where the claim was struck out. The Court made the point that…
THE CURRENT IMPORTANCE OF PLEADINGS 45: THE PARTICULARS OF CLAIM SHOWED NO ARGUABLE CAUSE OF ACTION AND WERE STRUCK OUT
Here we have an example of a case where the allegations against the proposed (Part 20) defendant were inadequately pleaded. So inadequate that the judge struck out the particulars and refused the applicant’s permission to rely on amended particulars (which…
BACK TO BASICS MONDAY: MAKING APPLICATIONS: WORDING AND TIMING
Last week we looked a case where the parties to a day long application had incurred costs over of £1.3 million. That case emphasises that applications can be expensive. Further they can sometimes be expensive, leaving the applicant in a…
WHEN A DAY LONG APPLICATION FOR PERMISSION TO AMEND INCURS COSTS OF OVER £1.3 MILLION (AND STILL THE BUNDLES AREN’T QUITE RIGHT…)
There are some interesting observations here about the strategy a party should adopt when facing an application to amend. Such an application is not a “mini trial”. It is clear from this case that substantial costs can be incurred in…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
THE AUTOMATIC STAY UNDER CPR 15.11: WAS IT IMPOSED IN THIS CASE? WHAT CRITERIA SHOULD THE COURT CONSIDER WHEN AN APPLICATION IS MADE TO LIFT IT? WAS THE DELAY AN ABUSE OF PROCESS
If a claimant serves proceedings and then does nothing the rules impose an automatic stay on proceedings. CPR 15.11 states that a stay takes effect from 6 months after the date on which a defence should have been filed. Here…
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
REVIEW OF THE YEAR 11: OPENING LINES OF JUDGMENTS 2025: “FOR MILLIONS OF YEARS MEN LIVED JUST LIKE ANIMALS”: ST PAUL’S CATHEDRAL, SHERLOCK HOLMES AND FINDING INGENIOUS WAYS NOT TO PAY TAX: ALL LITIGATION LIFE IS HERE…
Consideration of the opening lines of judgments has been a feature of this blog for some years now. It has sometimes been a way of providing a little light relief towards the end of what is often a 12 month…
REVIEW OF THE YEAR 9: CASES ON SANCTIONS (AND RELIEF FROM…)(POSSIBLY A POOR CHOICE OF SUBJECT JUST BEFORE CHRISTMAS…)
There have been times in the past when it has felt that the issue of sanctions for non-compliance was the only issue in civil procedure. The number of (reported) cases has reduced, possibly because the relevant principles are now clear….
THE COURT FEE WAS NOT PAID UPON ISSUE MEANS PROCEEDINGS WERE NOT ISSUED ON TIME. IT IS AS SIMPLE AS THAT
Here we have an all too familiar story of a claimant’s case coming to grief because proceedings were not issued in time. The unusual aspect is that this happened because his solicitors lodged papers at court asserting that no court…
COST BITES 319: WHATSAPP MESSAGES CAN FORM PART OF A SOLICITOR’S FILE: THE DEFENDANT FIRM WAS, THEREFORE, IN BREACH OF A PEREMPTORY ORDER
This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp form from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication,…
REVIEW OF THE YEAR (4): CLAIM FORM ISSUES – SERVING ON A SOLICITOR WHEN YOU CAN’T AND WHEN YOU MUST: THIS OFTEN CAUSES PROBLEMS…
I am aware of the danger that issues relating to service of the claim form could come to dominate the end of year review. However this arises because of the number of cases considered over the year. What is worrying…
COST BITES 318: PART 36 ISSUES: DOES AN AGREEMENT ON DAMAGES AFTER TRIAL MEAN THAT THE NORMAL PART 36 CONSEQUENCES DO NOT APPLY?
Do the normal Part 36 consequences apply when the parties agree damages and lodge a consent order after a trial on liability? That is the issue considered by the High Court here. (Part 36 consequences apply – the writing is…
CIVIL PROCEDURE BACK TO BASICS 107: THE IMPORTANCE OF PROVIDING A DRAFT ORDER WITH AN APPLICATION
One important aspect of civil procedure that is often overlooked is the importance of an applicant providing a draft order to the court. As the case we are looking at shows this is not a mere formality. A draft order…
EXPERT WATCH 28: I CAN’T GIVE PERMISSION FOR AN EXPERT BECAUSE THIS IS SIMPLY NOT EXPERT EVIDENCE: FORENSIC ACCOUNTANT’S REPORT DOESN’T GET THE CREDIT IT DESERVES…
The judge here held that the report prepared by a forensic accountant was not, in fact, an expert’s report. The report well be helpful, but its contents did not come within the meaning of “expert evidence”. Further insofar as the…
WHAT IS THE APPROPRIATE COURSE WHEN A PARTY ALLEGES THAT A JUDGMENT WAS OBTAINED BY FRAUD? THE HIGH COURT CONSIDERS THE ISSUES
What should a party do if it alleges that a judgment has been obtained by fraud? Can it apply within the proceedings themselves to set the judgment aside or should it issue separate proceedings? In this case the judge carried…
COST BITES 315: A LACK OF AUTHORITATIVE CASE LAW DOES NOT JUSTIFY A DEPARTURE FROM THE GENERAL RULE THAT THE LOSING PARTY PAYS THE COSTS
Should the fact that there is no authoritative case law on a topic lead to a “different” order as to costs. This was one of the issues considered by the judge in this case. Similarly the court considered the relevance…
REVISITING THE ISSUES: THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The post earlier today about the significant difference between a non-admission and denial has led me to revisit previous posts on the case. This post from 2020 which reviewed the case law on the distinction. There are plenty of clear…
WHEN CAN ADVERSE FINDINGS ABOUT A WITNESS IN A CASE BE APPEALED? THE COURT OF APPEAL CONSIDERS THE ISSUES
It is not unusual for trial judges to be critical of the conduct or evidence of a witness in a case. What should a witness do if the judgment is critical of them? Do they have a right of anonymity? …
ANOTHER “HALLUCINATED” AUTHORITIES CASE: A FALSE CITATION AUTHORED OR REVIEWED BY A LAWYER WITHOUT ATTRIBUTION CAN STILL BE SUBJECT TO REFERENCE FOR MISCONDUCT OR CONTEMPT
The citation of “false” authorities shocked me (and many others) when the cases first started. Now it feels as if they are becoming a commonplace occurrence. They are, however, just as shocking. Here we have a case where the judge…
SERVICE POINTS 25: DOES AN EARLIER ORDER FOR SUBSTITUTED SERVICE BY EMAIL INCLUDE SERVICE OF AN APPLICATION TO COMMIT: SHOULD THE COURT RETROSPECTIVELY AUTHORISED SERVICE?.
Here we consider an argument as to whether an application to commit for contempt was validly served. The respondent argued that the application needed to be served in person. The applicant’s argument was that there was in place an order…
WHEN AN APPLICATION IS OVER – CAN A PARTY MAKE FURTHER WRITTEN SUBMISSIONS? THE ISSUES CONSIDERED
We have seen many cases on this blog where litigants have attempted to use draft judgments to “reopen” the judge’s conclusions. Here we have a warning about attempts to make further written submissions after the hearing has been concluded. (Once…
MAZUR COMPLIANT SUPERVISION AND COST EFFECTIVE DELEGATION IN 2025: WEBINAR 5th DECEMBER 2025: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
With an appeal pending (at some indefinite time) and the profession still rife with uncertainty we need to consider, head on, issues relating to delegation and supervision. Get this right and you will be part of a well run and…
You must be logged in to post a comment.