WHEN A CASE – WEEKS AWAY FROM TRIAL WAS “UNTENABLE”: HOW DID WE GET HERE?
We don’t normally look at the same case twice in the same day. However this particular judgment needs looking at from different angles. The previous post looked at the case from the point of view of the pleadings. However the…
THROWBACK FRIDAY: THE GOOD STUFF ABOUT BEING A LITIGATOR – FROM NICE LAWYERS (MAY 2020)
In May 2020 we were in the grip of the COVID crisis. Many of the posts from that period deal with issues arising from COVID, including a series (“The (Not So) Lonely Litigator’s Club – which looked at how people…
OPENING LINES OF JUDGMENTS: “THE MOST LITIGATED “FAMILY” DISPUTE IN LEGAL HISTORY (MAYBE…)
The opening lines of judgments sometimes disclose an epic saga of litigation. This is certainly the case here. A case that may well replace Jarndyce -v- Jarndyce as the classic example of lengthy (and presumably expensive) litigation – with quite a…
ATTENDING A CIVIL COURT AS A WITNESS: USEFUL LINKS FROM HOME AND ABROAD: A GOOD START BUT WITH MORE WORK TO DO
Yesterday I wrote how little support there seemed to be for those attending civil courts to give evidence. I have since found some useful guidance and here are the links. I will be more than pleased if people write in…
WITNESS EVIDENCE WEDNESDAY: SUPPORT FOR WITNESSES ATTENDING COURT: THERE ARE SOME REAL GAPS HERE…
Legal professionals attend court as a matter of routine. It is all too easy to forget how alien courts can be to most of the population. Witnesses are asked to attend court and often attend with no idea of what…
PROVING THINGS 289: CLAIMANT FAILS TO ESTABLISH BASIC FACT OF ASBESTOS EXPOSURE
This is another case that highlights the evidential difficulties of establishing exposure in asbestos cases. The principal victim is often dead, the claimant (usually a widow) cannot give direct evidence of the facts of exposure and the case is reliant…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
EXPERT WATCH 46: GUIDANCE AS TO THE INSTRUCTION OF EXPERTS IN THE COURT OF PROTECTION: (BUT SOMETHING FOR ALL OF US TO TAKE AWAY…)
The guidance given in this case is obviously of interest to those who practice in the Court of Protection (as practitioner or expert). However some of the points made here are of general interest. In particular in relation to the…
ARTIFICIAL INTELLIGENCE IN THE PREPARATION OF WITNESS STATEMENTS: THERE IS NO SATISFACTORY EXPLANATION FOR THIS: HOW DOES THE JUDGE KNOW IT IS THE WITNESS’S OWN WORDS?
We have another case where the judge considers the use of Artificial Intelligence in the preparation of witness statements. It was held that there was no good reason for this. He was concerned that ChatGPT had contributed to the witness…
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 29th APRIL 2026
The Court of Appeal’s recent decision in Attersley v UK Insurance Ltd [2026] EWCA Civ 217 has sharpened the costs risks faced by claimants who accept a Part 36 offer outside the relevant period. While a claimant who accepts late…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 4: WHY IS PD57AC BREACHED SO OFTEN? “SOLICITORS MIGHT FEEL UNDER PRESSURE TO SIGN CERTIFICATES OF COMPLIANCE … EVEN WHEN THEY KNOW THAT STATEMENTS WERE NOT COMPLIANT…”
There has a been a regular flow of cases where the courts have commented that PD57AC has not been complied with, it is “more honoured in the breach than the observance”, was noted in one judgment. Given that these are…
OPENING LINES TO START THE WEEK: “FOR CENTURIES, IT HAS BEEN RECOGNISED THAT HUMAN HEARING CAN BE DAMAGED BY EXPOSURE TO LOUD NOISE”
We usually review the opening lines of judgments at the end of the year. However I thought this would be a good way to start the week, ranging as it does from ancient Greece to Rome and then to important…
BACK TO BASICS MONDAY: WHEN YOU ARE SEEKING PERMISSION TO RELY ON EXPERT EVIDENCE THE COURT HAS TO KNOW HOW MUCH IT WILL ALL COST…
Here we are looking at a basic requirement that is often overlooked. When a party is applying for permission to rely on expert evidence there is a mandatory obligation to provide the court with an estimate of costs. THE…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
PROVING THINGS 288: HOW SHOULD A COURT CONSIDER A CLAIM FOR LOSS OF EARNINGS WHEN THE CLAIMANT IS STILL IN EMPLOYMENT? SMITH -v- MANCHESTER APPROACH PREVAILS
No sooner was the (metaphorical) ink dry on the previous post about loss of earnings when I received a useful case from David Platt KC. It is a judgment that contains much of interest to litigators (that we will return…
CLAIMS FOR LOSS OF EARNINGS: AVOIDING THE PITFALLS: WEBINAR 19th JUNE 2026 (TOGETHER WITH A USEFUL QUESTIONNAIRE AND SERIES OF CHECKLISTS)
It is surprising how many allegations of negligence are made against lawyers because of a failure to consider and obtain damages for loss of earnings. In addition there are a growing number of cases where claimants have come to grief…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
COST BITES 377: THE COURT WOULD NOT STAY A PAYMENT ON ACCOUNT PENDING THE DEFENDANT’S APPEAL AND/OR APPLICATION FOR A RIGHT TO SET OFF THEIR OWN COSTS (WHY WHAT IS TAKEN OUT OF DRAFT ORDER CAN BE AS IMPORTANT AS WHAT IS LEFT IN…)
Here we have an unusual issue, caused by the defendant agreeing to an unusual order (more accurately the removal of a proposed term of an order). The defendant was liable to pay the claimant’s costs of a hearing which were…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
EXPERT WATCH 44: THE JUDGE PREFERS THE EVIDENCE OF ONE EXPERT OVER ANOTHER: IT IS AS SIMPLE AS THAT…
Here we have a case where success for the claimant rested almost wholly on their expert evidence being accepted. This is not altogether unusual for a clinical negligence case. What is notable about this case is that the treating doctor…
SERVICE POINTS 34: IS SERVICE BY EMAIL IS STILL VALID – IF IT SITS IN THE RECIPIENT’S SPAM BOX?
There is an ongoing consultation process about the use of email in civil procedure. It is now commonplace, almost universal. However what is the situation where the email, carrying important notification, lands inside the recipient’s spam box? That is the…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
EXPERT WATCH 43: WHEN AN EXPERT DOESN’T HAVE “REAL WORLD” EXPERIENCE OF THE MATTERS IN THEIR REPORT – THEY START ON THE BACK FOOT…
The previous post on costs and mediation led to me to look at the initial judgment on liability. This is because the court considered an argument that the situation with the claimant’s expert was so poor as to warrant indemnity…
BACK TO BASICS MONDAY: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the…
THERE MAY BE A LOT OF LAWYERS REPRESENTING A PARTY: HOWEVER THE CLAIM WAS STILL PRESENTED IN AN “UNFOCUSED” MANNER: A “MOVEABLE FEAST” IS NOT A WISE WAY TO CONDUCT LITIGATION
It is not that common for a judge to comment that a claim has been brought in an “unfocused manner”. It is even less common in a case where the case is heavily “lawyered”. We have an example here. The…
CHILD CLAIMANTS AND LOSS OF EARNINGS CLAIMS: WEBINAR 20th APRIL 2026: NOW WITH GREATLY EXPANDED QUESTIONNAIRE
A post yesterday highlighted both the significance of a claim for loss of earnings for a child claimant, but also the difficulty. In that case the award for disability in the labour market of £50,000 was higher than the award…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
PROVING THINGS 287: CLAIMS FOR FUTURE LOSS OF EARNINGS OF A CHILD: A JUDGMENT FROM YESTERDAY (AND A WEBINAR NEXT MONDAY…)
Assessing claims for loss of earnings for children is always difficult. The importance of this has become, if anything, more acute given the Supreme Court decision in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals…
“OVERHEATED LANGUAGE” A “CAVALIER APPROACH” AND “THIN ALLEGATIONS”: WHY IT PAYS TO BE CAREFUL AND DETAILED WHEN MAKING APPLICATIONS TO DISCHARGE INJUNCTIONS
We have seen many cases where the courts have been critical of a party’s failure to comply with the duties of full and frank disclosure when obtaining an order without notice. However here we have a case where the judge…
MAZUR MATTERS 61: A COMPARISON OF THE LAW SOCIETY GUIDANCE BEFORE AND AFTER THE COURT OF APPEAL DECISION
The Revised Law Society Guidance on Mazur was looked at in a previous post. Whilst we wait for the SRA Guidance it may be useful to look at the key differences in the Law Society Guidance before and after the…
PROVING THINGS 286: THE CLAIMANT FAILS TO PROVE ITS CASE: YOU LOST US $715 MILLION IN TWO YEARS BUT THAT WAS BECAUSE YOU DID NOT UNDERSTAND THE BUSINESS YOU WERE BUYING
Here we have a case where the claimant lost a lot of money ($715 million) in a short amount of time (two years) but failed in its attempt to show that this was due to the fault of the defendants….
THE CURRENT IMPORTANCE OF PLEADINGS 66: WHEN THE CLAIMANT TRIES TO ADVANCE ALLEGATIONS NOT STATED IN THE STATEMENT OF CASE THOSE MATTERS ARE NOT CONSIDERED BY THE JUDGE
This case illustrates the need for allegations to be pleaded, particularly in relation to assertions of fraud. It took 38 days of court time and concerned a loss of US $715 million. Still the judge was concerned that allegations were…
“GUIDE, MENTOR AND FRIEND”: REVIEW OF THE APIL GUIDE TO CATASTROPHIC INJURY CLAIMS 4th EDITION: STUART McKECHNIE KC (AND A FORMIDABLE TEAM): THE “LITTLE GEM” THAT KEEPS ON GIVING
The fundamental question for a reviewer of a legal text is – is this book worthwhile? Here there is only one answer. A book of considerable importance, assistance and utility is a “must buy”. HOW DO I SUMMARISE THIS? Sir…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
A REMINDER – DOCUMENTS IN AN AGREED BUNDLE ARE ADMISSIBLE AT THE HEARING AS EVIDENCE OF THEIR CONTENTS.
We are just looking at a few lines from a judgment we looked at earlier this morning. They contain a reminder that documents in an agreed bundle are admissible as evidence at the hearing. However this does not mean that…
AN “EXTERNAL” REPORT IS RELEVANT TO THE ISSUES IN THE CASE BUT THE JUDGE WILL DETERMINE ALL KEY MATTERS THEMSELVES..
We have, for many years now, been looking at the way in which the courts consider the admissibility of reports prepared for related purposes. We have that issue considered in this case. A report was obtained in relation to allegations…
THERE WAS NO AGREEMENT TO EXTEND TIME FOR SERVICE AS THE DEFENDANT ASSERTED: THE SCCO REFUSES TO SET ASIDE A DEFAULT COSTS CERTIFICATE
This is an interesting judgement on two levels. Firstly the judge did not accept the defendant’s contention that there had been an agreement to extend time for service of Points of Dispute to a bill of costs. Secondly, applying the…
AVOIDING THE PITFALLS: DRAFTING SCHEDULES OF DAMAGES: WEBINAR 16th APRIL 2026: WITH SOME INTERESTING QUOTES TO WHET YOUR APPETITE..
Drafting a Schedule of Damages is not simply a mathematical calculation. It requires legal knowledge, careful analysis, attention to evidence, and practical judgement. Courts frequently criticise poorly prepared schedules, particularly where figures are unsupported, exaggerated, or inconsistent with the evidence….
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHEN THEY WERE MISTAKEN AS TO WHO THEY WERE INSTRUCTED BY: THE DEFENDANT ESTABLISHES CAUSATION
In this case a wasted costs order was made against a firm of solicitors for breach of warranty of authority. The stated to the defendant and the court, and believed, that they were instructed by the claimant’s insurers when, in…
SETTING ASIDE DEFAULT JUDGMENT: THE RELEVANCE OF DELAY AND THE DENTON PRINCIPLES CONSIDERED IN THE HIGH COURT
For many years now we have been looking at the interaction between an application to set aside a default judgment and the “Denton” criteria. Here we look at another case where the court considered relief from sanctions in this context. …
THE JUDGE FOUND AGAINST ME BECAUSE THEY GAVE TOO MUCH LEEWAY TO A LITIGANT IN PERSON : ALLEGATIONS OF THIS KIND SHOULD BE PARTICULARISED (AND CAREFULLY THOUGHT OUT)
Here we consider some unusual grounds of appeal. An unsuccessful claimant appealed on the grounds, inter alia, that the judge had erred in giving leeway to the defendant who was a litigant in person. What is important here is that…
WITNESS EVIDENCE WEDNESDAY: BOTH WITNESSES ARE HONEST AND BELIEVE THEY ARE TELLING THE TRUTH – BUT ONE IS WRONG…
It is often the case that the most difficult cases are those that depend almost wholly on witness recollection. This is made far more difficult in a case such as a motor accident where the incident happened in a matter…
MAZUR(ISH) MATTERS 59: UNQUALIFIED PERSON NOT ALLOWED TO REPRESENT PARKING COMPANY AT A SMALL CLAIMS HEARING
I am grateful to Ritchie Young for sending me a copy of this judgment in which the District Judge refused to allow an unauthorised person a right of audience in a small claims track case. It is not technically part…
MAZUR MATTERS 58: LEARN HOW TO SUPERVISE STAFF PROPERLY – OR RISK GOING TO JAIL: IT IS WISE TO RECORD SUPERVISION ARRANGEMENTS FULLY
One key element of the Mazur decision, that needs repeating, is that it does not allow unauthorised persons to “conduct” litigation. It allows unauthorised people to assist and conduct the tasks involved in litigation so long as they are properly…
MAZUR IN THE COURT OF APPEAL: THE IMPLICATIONS FOR PRACTITIONERS: (THIS IS NOT “AS YOU WERE”): WEBINAR 9th APRIL 2026
I have already written about the misunderstandings that have occurred in relation to the Mazur judgment. The judgment is far more nuanced than some commentators suggest and a detailed knowledge of what is required is essential for anyone involved in…
WITNESS EVIDENCE WEDNESDAY: COURT STRIKES OUT PARTS OF DEFENDANT’S WITNESS STATEMENT AS NON COMPLIANT WITH PD57AC (AND THE DEFENDANT IS A BARRISTER…)
This case adds to the growing number of cases where the courts have considered whether a witness statement breaches PD 57AC and the consequences for breach. The defendant’s initial statement contained numerous breaches of PD57. A revised statement was more…
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