THE CURRENT IMPORTANCE OF PLEADINGS 103: “THE RESPONSIBILITY OF PLEADING THE CLAIM RESTS ON THE CLAIMANT” (OH, AND MATTERS CANNOT BE ADDED IN A SKELETON ARGUMENT SERVED THE DAY BEFORE TRIAL…)
Here we have a case where the claimant complained about the judge finding for the defendant on unpleaded matters. It was held on appeal that the claimant had not particularised the case fully and properly. The difficulty was added to…
THE CRITICAL IMPORTANCE OF COMPLYING WITH TIME LIMITS: “THERE WAS A WHOLESALE FAILURE TO ACKNOWLEDGE THE DEFAULTS”; “IT WAS ALL AS IF COMPLIANCE WERE OPTIONAL”
Over the years we have seen some strongly worded judgments on failure to comply with the rules. Few are as strongly worded as this. The judge felt that the defendant felt it was entitled to provide documents late; there was…
BACK TO BASICS MONDAY: THE PROBLEMS THAT CAN OCCUR WITH THE CONTENTS OF THE CLAIM FORM: TEN KEY POINTS
Earlier this morning we looked at the revised form N1 and the problems that could be caused now there is an option to put the defendant’s email address on the form. This gives rise to an opportunity to look at…
FORM N1 HAS BEEN SLIGHTLY AMENDED: THIS COULD BE A TRAP FOR THE UNWARY: PUTTING THE DEFENDANT’S EMAIL ADDRESS ON THE CLAIM FORM DOES NOT CHANGE THE RULES FOR SERVICE…
Form N1 had a slight amendment made on the 23rd October. It is a very minor amendment, but one that practitioners need to be aware of. The one major problem that it could give rise to is if practitioners (or…
THROWBACK FRIDAY “AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED” (WITH THE ADDED BONUS OF AN OBJECT LESSON IN HOW NOT TO DRAW UP A COURT ORDER): NOVEMBER 2013
This case provides two object lessons. Firstly in how not to conduct litigation; secondly in how not to draw up a court order. Both points are important. The second issue is a remarkable attempt by a part to “re-write” a…
LITIGATOR’S LIFELINE 2: WHEN A SOLICITOR MOVES FIRMS: TEN POINTS ON FORMER CLIENTS, CONFIDENTIAL INFORMATION AND INFORMATION BARRIERS
Earlier this week we looked at a case where a defendant made an application to prevent the claimant’s solicitors continue acting. This was on the basis that a solicitor who he had dealings with at a previous firm had now…
REMEMBER THAT GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION CAN BE EXPENSIVE (VERY EXPENSIVE) IN THIS CASE IT MAY RUN INTO TENS OF MILIONS (OF DOLLARS…)
An applicant for an injunction normally has to give an undertaking as to damages. We have seen several cases where the applicant has had to pay damages and where this has been an expensive process. We have another example here. …
THE COURT REFUSES DEFENDANT’S APPLICATION FOR AN ORDER THAT THE CLAIMANT’S SOLICITORS CEASE TO ACT FOR HER: THERE IS NO AUTOMATIC CONFLICT AND EVIDENCE IS REQUIRED
It is not at all unusual for solicitors to move firms. It is often the case that the new firm will be engaged in cases which involve the solicitor’s previous firm. Is the “new” firm conflicted thereafter and must it…
ANOTHER CASE ABOUT SETTLEMENT: “FULL AND FINAL SETTLEMENT” OF WHAT? THE IMPORTANCE OF KNOWING PRECISELY WHAT HAS BEEN SETTLED
Issues relating to the settlement of cases have been a theme this week. Here we look at a case where the defendant argued that the action against it should be struck out because it had been resolved in an earlier…
HERE WE HAVE A CLAIMANT TAKING A LOT OF CHANCES IN RELATION TO COMPLIANCE AND PROCEDURE: BUT THEY LIVE TO FIGHT ANOTHER DAY
This case is an example of a claimant taking a number of chances in relation to procedure. Firstly in not complying with the pre-action protocol; secondly in not serving the particulars of claim timeously; then applying for a stay after…
MORE HALLUCINATION POINTS TO WATCH: AI CAN SIMPLY MAKE THINGS UP (ANOTHER WARNING FROM THE COURTS): THE MATERIAL PRODUCED CAN BE “PLAUSIBLE BUT INACCURATE”
We are looking at another case where the use of Artificial Intelligence has led to a litigant having problems. We have many examples of AI hallucinating cases. Here AI simply added words to legislation. Those words did not exist… …
PROFESSIONAL NEGLIGENCE NEWS 6 : CLAIMANT FAILS TO PROVE SOLICITORS WERE NEGLIGENT IN ADVISING UPON SETTLEMENT (IN FACT IT FAILS TO PROVE A LOT OF OTHER MATTERS AS WELL…)
Most disputed claims eventually settle. Some clients may be dissatisfied with the terms of settlement. Here we look at a case where the claimants allege that their former solicitors had been negligent in settling two sets of proceedings. The case…
“THIS IS NOT THE MANNER IN WHICH AN APPLICATION SHOULD BE MADE”: EMAILS TO THE COURT CANNOT TAKE THE PLACE OF APPLICATIONS
We have seen a large number of cases where a party, or a proposed party, writes directly to the court to seek an order in their favour. Here we have a case where this course of action was adopted. The…
THE CURRENT IMPORTANCE OF PLEADINGS 102: THE CLAIMANTS FAILURE TO PLEAD A COUNTERFACTUAL PROPERLY MEANS THE PARTICULARS NEED SUBSTANTIAL AMENDMENT
This is not the first time we have looked at a claimant that has difficulty in pleading a “counterfactual”. That is what they would have done and what would have happened if the defendant had not (allegedly) breached the duties…
WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (2): EMBARGOED JUDGMENTS: TEN KEY POINTS AND SUGGESTIONS FOR HOW A LETTER TO THE CLIENT SHOULD BE DRAFTED
The previous post looked at the latest case in relation to breaches of an embargo on a draft judgment. The judge observed that the solicitor had given good advice and stated “I do not know what the answer to that…
ANOTHER CASE ON BREACH OF A JUDGMENT EMBARGO: WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (1)?
There are numerous cases on breach of a draft judgment embargo on this blog. In this case the solicitor had given clear advice about the embargo but the client, inadvertently, breached it. The case highlights the need for litigants (on…
SERVICE POINTS 57: PRESENCE IN THE JURISDICTION, A LAST KNOWN ADDRESS AND THE COST OF GETTING IT WRONG: UNSUCCESFUL CLAIMANT FACES A COSTS BILL OF £500,000…
Once again we are looking at a case where a claimant fails to effect service properly. The claimant failed for two reasons. Firstly the defendant was not “present” in the jurisdiction when the claim form was served. Secondly it appeared…
THROWBACK FRIDAY: A CASE WHERE THE SOLICITORS’ EVIDENCE (OF THEIR OWN) LOSS WAS “WHOLLY INADEQUATE” (OCTOBER 2017)
The “Proving Things” series has recently passed number 300. A large number of the posts in that series are about a failure to prove things. We have here a claim brought by a firm of solicitors where the judge observed…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
WITNESS EVIDENCE WEDNESDAY: WHERE ARE WE NOW ON “MISSING” WITNESSES AND EVIDENCE ? TEN KEY POINTS WITH USEFUL LINKS
Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise. However there is an important element in relation to missing evidence and “missing” witnesses. What inferences should the court draw if a…
THE CURRENT IMPORTANCE OF PLEADINGS 101: PUTTING A FIGURE IN THE PARTICULARS OF CLAIM DOES NOT NECESSARILY ENTITLE A CLAIMANT TO DEFAULT JUDGMENT FOR THAT SUM
Does the fact that a specific sum is claimed in the Particulars entitle a claimant to enter default judgment in that sum? Sometimes the answer to that question is no. That was the issue being considered in in this case. …
SERVICE POINTS 55: THE SOLICITORS DISCIPLINARY TRIBUNAL FINDS THAT A SOLICITOR WAS TELLING LIES ABOUT SERVICE: SOLICITOR STRUCK OFF (DON’T LET THIS HAPPEN TO YOU…)
We have looked many times at issues relating to non or mis-service of the claim form. Here we have a case where a solicitor’s evidence as to service was disbelieved by a Circuit Judge. The case shows many familiar mistakes…
LIMITATION: WHEN DID BLACK CAB DRIVERS HAVE “THE KNOWLEDGE”? CLAIM AGAINST UBER WAS STATUTE BARRED
This is a judgment about s.32 of the Limitation Act. In particular about the date of knowledge. The claimants were not successful. The judge held that they had the relevant knowledge more than six years prior to issue. It was…
CONDITIONAL FEE AGREEMENTS, CHANGE OF SOLICITORS AND RATIFICATION AND INFORMED ADVICE: IT IS NOT SO EASY TO SIMPLY RECOMMEND A CHANGE OF SOLICITORS…
It is not unknown for a client to wish to change solicitors part way through a case. Where the matter is being conducted on a conditional fee agreement this can lead to complex problems. We see this here. The key…
THE CURRENT IMPORTANCE OF PLEADINGS 100: PRIVY COUNCIL CONFIRM THAT THE DEFENDANT WAS NOT ENTITLED TO RELY ON A DEFENCE NEVER PLEADED
For post one hundred in this series it is perhaps fitting that we look at a Privy Council decision that shows, in categorical and clear terms, that a failure to plead essential points cannot be dismissed as a technicality. Here…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
THE DANGERS OF DELAY: A CASE WHERE THE COURT CRITICISES LATE SERVICE: IT IS IMPLICIT THAT COURT ORDERS SHOULD BE SERVED IN A “TIMELY MANNER”
This is the third case of the day about delay. Here there was a delay of eleven months in serving an order on named defendants. The judge found it unsatisfactory that the claimant council had not served the order in…
LEAVING FILING UNTIL THE LAST MINUTE IS “COURTING DISASTER”: ONE DAY OUT AND NO EXTENSION OF TIME GRANTED
The previous post mentioned that a theme of today is the importance of complying with rules and directions. This case demonstrates that point clearly. The appellant was one day out in compliance and still no extension of time was given….
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT …. PREVENTING PROBLEMS WITH THE USE OF ARTIFICIAL INTELLIGENCE IN LITIGATION? 10 KEY POINTS
The use of Artificial Intelligence by the legal profession is now a fact of life. The genie will not go back into that particular bottle. However, as we have seen many times on this blog, it can lead to profound…
HOW SHOULD A CLAIMANT RESPOND TO THE COUNTER-SCHEDULE? WEBINAR 14th OCTOBER 2026
A great deal of the claimant lawyer’s time is spent considering and building a case on damages. However it is sensible for the lawyer to stop and think how realistic the claim for damages is. One of the best means…
BACK TO BASICS MONDAY: WHAT DO YOU ADVISE A CLIENT WHO HAS A COSTS ORDER AGAINST THEM: THE IMMEDIATE AFTERMATH: 10 KEY POINTS AND USEFUL LINKS
This posts looks at the lawyer’s role immediately after the court has made an order that your client must pay the other side’s costs. The client may be disappointed, angry or astonished at the result. There may be a strong…
EXPERT WATCH 77 : YOU CANNOT WAIT UNTIL TRIAL TO COMPLAIN ABOUT THE ABSENCE OF EXPERT EVIDENCE (PARTICULARLY WHEN YOU HAVE EARLIER SAID IT WAS UNNECESSARY)
Here we have a case where the defendants, in a skeleton argument for trial, argued that the claimants could not succeed because they had to expert evidence to support their case for breach of duty. That submission was roundly rejected…
ARTIFICIAL INTELLIGENCE HALLUCINATIONS – CAUSING PROBLEMS FOR THE PROFESSION AGAIN: “… THIS DECISION ILLUSTRATES THE CONSIDERABLE PROCEDURAL DIFFICULTIES WHICH CAN ARISE WHEN INAPPROPRIATE USE IS MADE OF AI”
I have today received a copy of the second edition of Andrew Hogan’s book on AI for Lawyers (a review of which will be appearing soon). Problems with the use of AI continue to blight the profession (at home and…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS FOR APPLICANTS (PLUS A “BONUS POINT” AND USEFUL LINKS…).)
The posts earlier this morning highlighted the major obstacles facing a litigant who wants to amend their pleadings at a very late stage. This is a good time to look at previous posts on amendments, together with links to the…
THE CURRENT IMPORTANCE OF PLEADINGS 97 : CLAIMANT GIVEN LEAVE TO APPLY TO AMEND PLEADINGS THAT WERE SERVED LATE, BUT DIDN’T GET VERY FAR (OH, AND LEADING COUNSEL BEING ON HOLIDAY IS NOT A GOOD REASON FOR A BREACH…)
This is a case we are looking at in two parts. Firstly we are looking at the claimant’s application for relief from sanctions when it served amended Particulars of Claim outside the time period ordered by the court. A second…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … THE “AUTHENTICITY” OF DOCUMENTS (OR OTHERWISE)? TEN KEY POINTS FOR PRACTITIONERS CONSIDERING THE RISKS POSED BY ARTIFICIAL INTELLIGENCE
The post earlier this morning where the Upper Tribunal considered the problems with very authentic looking documents being produced by Artificial Intelligence is illustrative of a very real problem for civil practitioners. The judgment contains a timely reminder that documents…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
ARE YOU SURE WHO IS REALLY INSTRUCTING YOU? SOLICITORS DECEIVED BY A FALSE EMAIL ADDRESS IN NAOMI CAMPBELL’S CASE
We have recently been looking at a few cases that have made the headlines. However we examine them from a particular CLB point of view – that is are there any practical lessons for working litigators? There are some interesting…
BACK TO BASICS MONDAY: 10 KEY POINTS ABOUT DRAFTING A DEFENCE AND THE POSTS THAT SHOW WHY THIS MATTERS
The post last Friday about the inadequate drafting of a defence was the 19th this year on the way in which defences are pleaded. This is a useful time to visit some basic principles in relation to how a defence…
THE CURRENT IMPORTANCE OF PLEADINGS 96: WHEN YOU HAVE PLEADED AN INADEQUATE DEFENCE IT IS NOT A GOOD PLAN TO DEMAND THAT THE CLAIMANT PAY FOR ADEQUATE PARTICULARS TO BE PROVIDED…
Here is a classic case of a failure to draft a Defence properly. It contains a number of surprising elements. Firstly the defendant, having filed an inadequately particularised Defence, stated it would provide further particulars only if the claimant paid…
GUIDE TO FATAL ACCIDENTS 5th EDITION: PUBLISHED LATER THIS YEAR: AVAILABLE TO PRE-ORDER
The latest (the 5th) edition of the Guide to Fatal Accidents is now available to pre-order. Details are available here. Fatal accident litigation presents lawyers with legal, evidential and practical problems that are distinct from those encountered in non-fatal…
BACK TO BASICS MONDAY: DOCUMENTS ARE ADMISSIBLE WHEN THEY ARE IN AN AGREED TRIAL OR APPLICATION BUNDLE BUT…
Agreeing a trial or application bundle can have consequences that are easy to overlook. Documents in an agreed bundle are usually admissible as evidence of their contents. That does not mean that the parties agree that everything written in them…
WHEN POSSIBLE FRAUDULENT CONDUCT EMERGES – CAN A SOLICITOR SIMPLY CARRY ON AS BEFORE? THE ISSUES CONSIDERED
Here we look at difficult conduct issue. This is in the context of applications for judicial review. However some of the problems are universal. What does the lawyer do if there are “red flags” that indicate that the solicitor is…
EXPERT WATCH 72: THE DEFENDANT HAD LEFT IT TOO LATE TO OBJECT TO THE CLAIMANTS’ EXPERT EVIDENCE: THIS SHOULD HAVE BEEN DONE AT TRIAL NOT AT THE APPEAL STAGE
If a party is going to object to their opponents relying on expert evidence this is best done promptly. Leaving it to the appeal stage is dangers – as this case shows. The defendant received a report, commented on the…
THROWBACK FRIDAY: FOR WANT OF A PAGE IN A BUNDLE THE DAMAGES WERE LOWER… (SEPTEMBER 2015)
Here we look at a post from 2015 about a missing page in a trial bundle. The claimant argued that the missing page meant that damages had been too low. The judge held that that an application the day after…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PLEADING DAMAGES? A 10 POINT CHECKLIST TO AVOID YOUR CLIENTS (AND YOU…) GETTING INTO DIFFICULTIES…
The two posts earlier today on the judgment in Amaal Ventures Ltd v Eros Ltd looked at problems arising because of a failure to plead damages. This is not an new issue. Here we use the CLB archive to provide…
THE CURRENT IMPORTANCE OF PLEADINGS 93 : CAN YOU CLAIM £2.569 MILLION IN DAMAGES WHEN YOU HAVEN’T PLEADED IT? NOW THAT’S AN IMPORTANT QUESTION…
If ever there was a case that would persuade you of the importance of pleadings it is this one. The claimant had succeeded on many issues at a trial. It now wanted to claim £2,569 million in damages. However an…
WITNESS EVIDENCE WEDNESDAY: WAIVING LEGAL PROFESSIONAL PRIVILEGE BY MENTIONING IT IN A WITNESS STATEMENT
Issues of legal professional privilege have been in the news this week. This makes it an opportune time to revisit those cases where litigants have inadvertently waived privilege by mentioning legal advice in witness statements. “… there is a distinction…
PROPORTIONALITY AND LITIGATION (2): WHERE DOES IT ALL START TO GO WRONG? (AND HOW DO YOU AVOID IT?)
This short series on proportionality is aimed, primarily, at protecting the client and the lawyer. A client may be exposed to excessive costs and the lawyers get blamed for this. There are (it is to be hoped) few cases where…
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