COST BITES 252: WHEN CAN A SOLICITOR PROPERLY TERMINATE A RETAINER? WAS THE CLIENT “THROWN TO THE LIONS”?
Here we are looking at a very small part of a judgment in relation to costs on a solicitor/own client assessment. On of the arguments put forward by the (former) client was that the retainer was wrongfully terminated shortly before…
WHEN CAN A JUDGE HEAR AN ISSUE THAT IS NOT “LISTED”? THE ISSUES CONSIDERED IN THE HIGH COURT
If an action is listed for hearing on a specific issue when can the judge hear, and make an order in relation to a different issue? This is an issue considered in the case we are looking at here. The…
AVOIDING PROBLEMS IN CIVIL LITIGATION 1: HOW DOES ANYBODY MISS A LIMITATION PERIOD?
This is the first in the promised series about avoiding problems in civil litigation. The most obvious place to start is with limitation issues. These sometimes prove particularly problematic for personal injury and clinical negligence lawyers. However there is no…
CLAIMANT COMES TO GRIEF BECAUSE OF A WHOLLY SELF-IMPOSED PROBLEM: SUBSTITUTING A DEFENDANT WHEN THE ACTION HAS BEEN DISCONTINUED – LEADS TO MAJOR PROBLEMS
There have been some interesting cases on this site recently relating to the substitution of parties. However none of them are as peculiar as the case we are looking at here – where the claimant’s problems were primarily self-inflicted. The…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
COST BITES 249 : SHOULD A COSTS ORDER BE STAYED? SHOULD THE DEFENDANT BE ORDERED TO PAY COSTS? LOOKING AT A SUMMARY ASSESSMENT IN ACTION: ARE THE COSTS DISPROPORTIONAL
Continuing with the aim of looking at what is going on “on the ground” in relation we look at a short but interesting judgment that encompasses many aspects of costs. Should the court order a stay pending a possible appeal?…
SECOND (AND THIRD) APPLICATIONS FOR RELIEF THAT ARE, ESSENTIALLY, FOR THE SAME THING NOT ALLOWED TO PROCEED: THE APPLICATIONS WERE ABUSIVE
Here we are looking at a case where defendants, debarred from defending an action, made consecutive (and ultimately fruitless) applications to vary the orders that caused them to be debarred and several applications for relief from sanction. The court was…
THE CURRENT IMPORTANCE OF PLEADINGS 21: SHOULD A PARTY BE GIVEN PERMISION TO AMEND AT A LATE STAGE? THE ISSUES CONSIDERED AND APPLIED
There are so many judgments concerning late applications to amend pleadings that, often, I decide not to write about them. There are applications to amend that are late, very late, very, very late or “door of the court” late. The…
WHEN SHOULD THE COURT GRANT A PARTY AN OPEN-ENDED STAY TO AWAIT EXTERNAL DEVELOPMENTS? THE ISSUE AND LEGAL PRINCIPLES CONSIDERED
When should the court grant a party a stay because that party asserts there may be external developments which are relevant to the issues the court has to consider? That was a question considered in this case. There is a…
FURTHER UPDATES TO HMCTS GUIDANCE ON USING THE DAMAGES CLAIM PORTAL: RAISING QUERIES WITHIN SYSTEM; INFORMING THE PORTAL OF SETTLEMENT AND PARTIAL DISCONTINUANCE (NOT EXCITING, BUT IMPORTANT…)
A few days (sometimes even a day) can be a long time in civil procedure. I wrote about the updated Guidance to the Damages Claim Portal at the end of last week. Today I am writing to tell you it…
PROFESSIONAL NEGLIGENCE NEWS (1): I’VE SUED THE WRONG DEFENDANT: CAN THE COURT DO ANYTHING TO HELP? FIRST OF (WHAT MAY WELL BE) A LONG RUNNING SERIES
There is much to be said for starting a new (and what may well be a long running) series looking at professional negligence cases, in particular the procedural and practical issues that arise. Firstly, if (as here) it is a…
HOW SHOULD THE COURT EXERCISE ITS DISCRETION TO CASE MANAGE ACTIONS ONCE PART 8 PROCEEDINGS ARE ISSUED UNDER THE PAP? COURT OF APPEAL GIVES CLEAR GUIDANCE
Having determined that the court does have jurisdiction to case manage actions issued under Part 8 the Court of Appeal went on to make some trenchant observations in relation to avoiding the possibility of delay. (Applications to extend a stay…
COST BITES 247: SHOULD A SOLICITOR RESPOND TO PART 18 QUESTIONS ABOUT THE PAYMENT OF COMMISSION? THE HIGH COURT CONSIDERS THE POINT TODAY
Here we are looking at another round in the solicitor-own client assessment war of attrition. The question was whether a solicitor, in a solicitor and own client assessment, should reply to Part 18 requests for further information about premiums paid…
A COUNTERCLAIM WAS CORRECTLY STRUCK OUT AFTER A CLAIM WAS STRUCK OUT FOR DELAY: “APPROBATING”, “REPROBATING” AND “TECHNICAL WAREHOUSING” CONSIDERED
Here we have a case where the defendant unsuccessfully appealed against the striking out of its counterclaim. The claimants had consented to the claim being struck out, on the defendant’s application, due to undue delay in the action. The defendant…
BANK’S CLAIM AGAINST SOLICITORS FOR “CAUSING LOSS BY UNLAWFUL MEANS” IS NOT STRUCK OUT, NOR ARE THE SOLICITORS GRANTED SUMMARY JUDGMENT: A LOT TO THINK ABOUT HERE
We are looking at a judgment from today where a bank has brought a claim against a firm of solicitors arguing that they have caused the bank loss because of the number and nature of complaints made by the solicitors’…
URGENT MESSAGE FROM H M COURTS AND TRIBUNAL SERVICE THIS MORNING: HMCTS PLATFORM IS STOPPING USERS FROM UPLOADING DOCUMENTS: WHAT TO DO IF UPLOADING IS URGENT
For those who have missed the email from HMCTS it is important to note that the HMCTS platform is not working at the moment. The email from HMCTS below makes practical suggestions as to what should be done if uploading…
THE CURRENT IMPORTANCE OF PLEADINGS 20: CLAIMANT’S COSTS REDUCED BY 50% BECAUSE OF THE NATURE OF THE PLEADED CASE (OR… HOW TO LOSE £3.3 MILLION IN COSTS…)
Today we are looking at a case where a successful claimant’s cost were halved because of its “vague and expansive” pleadings, coupled with a failure to “specify with clarity and precision” what its case was. (Half a sixpence…
WHEN A PARTY WANTS AN ADJOURNMENT: THE PRINCIPLES CONSIDERED
The law on adjournments sought for health reasons is relatively clear. Knowledge of the principles (or at least where to find them easily) is an essential part of the litigator’s toolkit, not least because applications tend to come “out of…
IF YOU DISCONTINUE AN ACTION THEN YOU’RE (NORMALLY) BE GOING TO PAYING THE COSTS: THE HIGH BURDEN IMPOSED IN AN APPEAL AGAINST A DECISION AS TO COSTS
Anyone attempting to appeal against an order for costs faces an uphill battle. This may be doubly so if the costs order is made presumptively because they have discontinued an action. Here we consider a case where the difficulties of…
DOES THE HEADING MATTER? IS A PART 18 REQUEST VALID IF IT DOES NOT COMPLY WITH THE RULES?
What should the court’s approach be if a party serves a Part 18 request but, for various reasons, it does not comply with the rules? The respondent to the request in this case took the point. The Master had to…
NO RELIEF FOR CLAIMANTS WHO SERVED THE CLAIM FORM LATE: TAKING A POINT AS TO SERVICE IS NOT “PLAYING TECHNICAL GAMES”
It may be possible for a month to go by without a mis-service of the claim form issue arising in the courts, but it is not this month. We have here a case with the familiar litany of waiting to…
SHOULD SKELETON ARGUMENTS BE MADE AVAILABLE TO THE PRESS (AND OTHERS) ?: ADVOCATES MUST BE PREPARED
Is a person attending a public hearing entitled to sight of the skeleton arguments being used? Is disclosure confined to the press? What should happen if the skeleton refers to matters that fall foul of reporting restrictions? These are important…
COSTS AND OTHER CONSEQUENCES CONSIDERED WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: CIRCUIT COMMERCIAL COURT DECISION: HOW IS THE ADDITIONAL LIABILITY CALCULATED WHEN THE JUDGMENT IS NOT IN STERLING?
We are looking at a case where the claimant beat its own Part 36 offer and the court had to consider the consequences. There were some unusual aspects in that the judgment was not given in sterling. However the judge…
THE RULES OF COURT DO NOT ALLOW A PARTY TO COMPEL ITS OPPONENT TO EXPLAIN HOW ERRORS WERE MADE IN WITNESS STATEMENTS:
Can the court compel a party to file a witness statement explaining, in detail, why mistakes were made in earlier witness statements? That was the issue considered in the case we are looking at today. The judge considered the provisions…
COST BITES 244: WHEN ARE INDEMNITY COSTS APPROPRIATE? SHOULD THE FEES OF JUNIOR COUNSEL BE RECOVERED IN FULL? A SUMMARY ASSESSMENT IN THE COMMERCIAL COURT CONSIDERED
I periodically remind people (and remind myself) that one of the purposes of this series is to look at what is happening “on the ground” in relation to costs, including the summary assessment of costs. Practitioners may only have limited…
A COURT ORDER SO AMBIGUOUS THAT IT WAS IMPOSSIBLE TO ENFORCE : SOME ESSENTIAL POINTS ABOUT DRAFTING HERE
Here we are looking at a Court of Appeal decision about the drafting and construction of court orders. The order made in this case was totally deficient, consequently it could not be enforced. (Absolute precision is demanded here…) “……
PROVING THINGS 264: CLAIMANTS FAIL TO PROVE THAT THEY ARE ENTITLED TO AN INJUNCTION: “THE EVIDENCE PRESENTED BY THE CLAIMANTS DOES NOT COME CLOSE TO DEMONSTRATING A COMPELLING JUSTIFICATION FOR THE ORDER”
We are looking at a case where there was clear example of a failure to prove things. The claimants did not have sufficient evidence to satisfy the court it should make the order they were seeking. In fact the judgment…
THE CORRECT PROCEDURE IF A PARTY WANTS TO ATTEMPT TO RELY ON “WITHOUT PREJUDICE” DOCUMENTS: THE EXCEPTIONS TO THE WP RULE CONSIDERED
We are looking at a judgment from today which considers the “without prejudice” rule in some detail. In particular the steps a party should take if it wishes to argue that it should be able to rely on without prejudice…
COURT OF APPEAL CONSIDER ISSUES OF KNOWLEDGE, SERVICE OF THE CLAIM FORM AND “LAST KNOWN ADDRESS”: THINGS DO NOT GO WELL FOR THE CLAIMANT
Problems occur when a claimant fails to take appropriate steps to ensure that the defendant is in fact living at the address where a claim form has served. This was the issue considered by the Court of Appeal today. The…
HOW FAR IS A SOLICITOR’S ESTIMATE OF COSTS BINDING? THE RELEVANT PRINCIPLES CONSIDERED AND APPLIED: A HIGH COURT APPEAL
Many, if not all, litigators will be familiar with the scenario whereby an estimate of costs is given and events develop so that the estimate is overtaken. This scenario was considered in the case we are considering today. An estimate…
SHOULD A PARTY BE ABLE TO INSTRUCT THEIR OWN EXPERT WHEN THEY DISAGREE WITH THE REPORT OF A JOINTLY INSTRUCTED EXPERT? THE ISSUES CONSIDERED
Here we are looking at a case where a party, dissatisfied with the approach of a jointly instructed expert, applied to the court for permission to instruct their own expert. The judgment contains a useful summary of the relevant principles….
BECOME A MEMBER TO KEEP UP TO DATE: THIS SITE IS BECOMING A MEMBERSHIP SUBSCRIBER SITE – MAKING CLB BIGGER AND BETTER
On the 10th June 2025* this site is becoming a membership site. All the past posts, and the vast majority of future posts will only be available to members who have joined. This post explains what readers need to do…
“THIS PRELIMINARY ISSUE TRIAL IS NOT A REHEARSAL”: THE DIFFICULTIES A CLAIMANT HAS IN A CLAIM UNDER THE THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010
Here we look at a case where the claimant suggested that a preliminary issue trial be adjourned. The court was firm in its rejection of that suggestion. The judge stated that the trial “is not a rehearsal” and that if…
WRITING TO THE JUDGE AFTER THE DRAFT JUDGMENT HAS BEEN SENT OUT: THIS IS NOT AN OPPORTUNITY TO ADVANCE FURTHER ARGUMENT
There have been a large number of cases where the courts have been critical of attempt to “re-open” judgments at the stage where the draft judgment is circulated. We see another example here. The judge reviewed the cases on this…
WHEN SHOULD PARTIES BE ALLOWED TO CALL EXPERT WITNESSES TO GIVE EVIDENCE AT TRIAL? THE ISSUES CONSIDERED (IN THE FAMILY COURT)
When should the courts permit experts to give evidence at trial? There are few cases on this topic and today we are looking at a decision in the family courts. The case is relevant to civil practitioners in that it…
THE CURRENT IMPORTANCE OF PLEADINGS 14: THE DEFENDANT COULD GIVE EVIDENCE OF MATTERS THAT WERE NOT PLEADED
Today we are looking at a case where the judge rejected an argument that evidence could not be given because the particular issue had not been pleaded. The judge held that, on the facts of this case, the evidence was…
CAN THE COURT ORDER A CLAIMANT TO DELIVER UP REPLIES TO PART 18 QUESTIONS BEFORE A DEFENCE IS FILED? THE ISSUE CONSIDERED IN THE HIGH COURT
There are relatively few cases on procedural issues relating to Part 18. In this case the judge considered whether the court had power to compel a claimant to reply to Part 18 questions from the defendant before a defence was filed. …
THE CURRENT IMPORTANCE OF PLEADINGS 13: INAPPROPRIATE PLEADING OF FRAUD LEADS TO COSTS ON AN INDEMNITY BASIS
I am not sure whether there are more cases about pleadings recently, or whether I am noticing them more having started this series. However issues relating to statements of case keep arising. Here we look at a case where the…
PERSONAL INJURY POINTS 6: HOW IS THE COURT GOING TO APPROACH THE COSTS OF ACCOMMODATION WHEN THE CLAIMANT HAS A REDUCED LIFE EXPECTANCY – & HOW DOES THE COURT DEAL WITH THIS ON AN APPLICATION FOR AN INTERIM PAYMENT?
The decision in Swift -v- Carpenter set out the approach the courts should normally take when a claimant needs to purchase accommodation because of their injuries. However that judgment, expressly, left open issues relating to the approach the courts should take…
A SERVICE OF THE CLAIM FORM CASE WITH A TWIST IN THE TAIL: AND WHAT A TALE THIS IS…IT LEADS TO A LOT OF WASTED COSTS (AND A POTENTIAL WASTED COSTS ORDER)
Today we are looking at a case about a failure to serve the claim form properly. The claimant did not consider whether they knew, or had served, on the defendant’s “last known residence”. As a result a default judgment, order…
THE CURRENT IMPORTANCE OF PLEADINGS 11: THE COURT WON’T STRIKE OUT PARTS OF THE DEFENCE BECAUSE… ITS ACTUALLY THE PARTICULARS OF CLAIM THAT DON’T MAKE MUCH SENSE
NB – SEE THE APPEAL JUDGMENT ON ONE ISSUE IN THIS CASE IN Prudence v Gloucestershire Hospitals NHS Foundation Trust [2026] EWHC 96 (KB) Here we are looking at a judgment that is all about statements of case (or at…
THE CITATION OF FALSE AUTHORITIES: THE LEGAL REPRESENTATIVES HAVE A DATE IN COURT ON THE 23rd MAY
I have written several times about the remarkable decision in Frederick Ayinde, R (on the application of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) where false authorities were presented to the court. I have also written about …
CLAIM WAS (ARGUABLY) ISSUED IN TIME WHEN IT ARRIVED AT THE COURT: LATE SERVICE OF THE PARTICULARS OF CLAIM DOES NOT DEPRIVE THE COURT OF JURISDICTION
Today we are looking at a case that raises important issues. The judge decided that calling someone gay is not defamatory. However here we are not concerned with the substantive issues but two procedural issues raised in the case. Firstly…
PARTS OF A SOLICITORS’ WITNESS STATEMENT ARE STRUCK OUT: A REMINDER – A WITNESS STATEMENT IS A PLACE FOR FACTS, NOT OPINION, LEGAL ARGUMENTS OR ATTEMPTS TO GIVE EXPERT EVIDENCE: IT IS REALLY THAT SIMPLE
There are countless posts on this blog where judges have criticised the contents of witness statements. Here we are looking at a case where the judge struck out parts of a witness statement signed by a solicitor. Parts of the…
THE JUDGE’S DECISION TO GRANT RELIEF FROM SANCTIONS TO A DEFENDANT WAS APPROPRIATE: SOME WORDS AS TO HOW PEREMPTORY ORDERS SHOULD BE DRAFTED.
Today we are looking at a case where the Court of Appeal upheld a decision granting a defendant relief from sanctions. However this is a case of “two halves” in that the claimant had a more favourable decision in relation…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
THIRD PARTY HAD FUNDED THE LITIGATION AND WAS LIABLE TO PAY THE DEFENDANT’S COSTS : A “CHILDISH AND INEFFECTUAL ATTEMPT” TO DECEIVE THE COURT DID NOT PASS MUSTER
It is a well known principle that a third party funder can be liable to pay the costs of an action. However what happens when the funding agreement is dressed up as something else – a car sale for instance? …
COST BITES 237: “THROUGHOUT HISTORY, LAWYERS HAVE HAD A BAD REPUTATION”: COMMONSENSE AND PROPORTIONALITY CONSIDERED IN THE FAMILY COURTS
Why spend £13,000 to recover a remedy that will only be worth £1,500? That is the issue considered by Deputy District Judge Hodgson [Professor David Hodson OBE KC (Hons)]. An application was made late. The gain to the applicant was…
WHEN CASES RELIED UPON IN WRITTEN ARGUMENTS WERE SIMPLY “FALSE”: WASTED COSTS ORDER MADE AGAINST COUNSEL AND SOLICITORS
This blog celebrates its 12th anniversary next month. Civil Litigation Brief started as a column in the Solicitors Journal 35 years ago. Over that time many people have helpfully sent me and pointed me me to cases of interest. In…
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