PROVING THINGS 305 : DEFENDANT FAILS TO ESTABLISH ANY BREACHES AND (IN ANY EVENT) HAD MADE A PROFIT HERE NOT A LOSS: IF YOU PLEAD DAMAGES YOU HAVE TO BE ABLE TO PROVE THEM
This is far from the first case where a litigant has taken a claim for damages to trial and failed, demonstrably, to show that it has suffered any loss. The principles in relation to proving damages on a counterclaim are…
THERE HAS NOT BEEN FULL AND FRANK DISCLOSURE: THE DIFFICULTIES WHEN LITIGATION SPANS SEVERAL JURISDICTIONS: “THE SUPPOSED EXPLANATIONS BELATEDLY OFFERED … AMOUNT TO LITTLE MORE THAN AN ACKNOWLEDGEMENT OF THE FAILING WITH A RATHER LAME CONFESSION OF INABILITY TO EXPLAIN HOW OR WHY IT OCCURRED”
We have seen many examples of litigants coming to grief because of a failure to comply with the duty of full and frank disclosure, particularly when making an application for an injunction. The judge in this case was clear that…
MI5: CONTEMPT OF COURT AND THE ADMISSIBILITY OF EXTERNAL REPORTS: THEY ARE ADMISSIBLE BUT CANNOT BE USED TO PROVE ANYTHING: A POINT OF GENERAL RELEVANCE NOT JUST SECRET AGENTS…
Here we enter the murky world of MI5, spies and intrigue. However (and typically for civil litigators) we are looking at a more mundane topic of the admissibility of evidence. In this case the admissibility of external reports and the…
WITNESS EVIDENCE WEDNESDAY: WHY A SOLICITOR TAKES TO TAKE GREAT WHEN MAKING STATEMENTS: “AN UNIMPRESSIVE WITNESS ON WHOSE EVIDENCE I CAN PLACE LITTLE RELIANCE” (IS WHAT WE DON’T WANT TO SEE…)
We have looked at many cases where lawyers have made witness statements which have led to difficulties. We have an example here in a professional negligence action against a firm of solicitors where the judge found that he could “place…
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…
BOOK REVIEW: CRIMINAL INJURIES COMPENSATION: A PRACTITIONER’S GUIDE BY NEIL SUGARMAN
This book is an essential and much needed guide to those who have to navigate the Criminal Injuries Compensation Scheme. It is both lucid and comprehensive. From our point of view it is practical. My own view (if this does…
PROVING THINGS 304 : FUNDAMENTAL DISHONESTY ESTABLISHED IN A £7 MILLION CLAIM: “THE WASTE OF PUBLIC RESOURCES CAUSED BY THE CLAIMANT’S DISHONESTY IS SCANDALOUS”
There are some cases that are on the “extreme” end of fundamental dishonesty litigation. This may well be one of them. The claimant brought a claim for £7 million in damages. However there was evidence that he had largely recovered…
EXPERT WATCH 84: THE TRIAL JUDGE’S APPROACH TO THE EXPERT EVIDENCE WAS WRONG: THE APPROACH IN TUI HAD TO BE CONSIDERED: AN IMPORTANT DECISION FOR HOUSING LAWYERS…
We are looking at a successful appeal by two claimants which succeeded largely on the grounds that the trial judge’s approach to the expert evidence was wrong. The trial judge failed to take into account the totality of the evidence…
WRITING LETTERS TO THE JUDGE AFTER A DRAFT JUDGMENT IS CIRCULATED: “THIS IS ABOUT AS FAR AWAY FROM THE CONDUCT OF SOLICITORS CONDUCTING LITIGATION AS IT IS POSSIBLE TO GET”
We have had many examples of parties writing to the court after receiving a draft judgment. On occasions such correspondence has been ill-advised. However I cannot recall any case where the letter from a losing party’s solicitor was as vitriolic…
WHAT YOU SAY (OR DON’T SAY) IN A MEDIATION, AND AFTERWARDS, CAN BE OF CRITICAL IMPORTANCE: COURT SETS ASIDE A SETTLEMENT AGREEMENT AND ORDERS REPAYMENT
This is an unusual case in which the claimant successfully set aside an agreed settlement. It argued that there had been fraudulent misrepresentation. Even more unusually it obtained an order for repayment and recission on a summary judgment application. “In…
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…
EXPERT WATCH 82: THE PROFOUND DANGERS OF AN EXPERT USING AI: “A SIGNIFICANT GAP BETWEEN THE VOICE AND OPINION OF THE EXPERT AND THE REPORT WHICH SHE HAS FILED”
We have here another case where the use of AI by an expert has led to the judge having major doubts about the overall validity of that expert’s report. There is a “sliding scale” as to what is acceptable and…
SERVICE POINTS 58: ACCIDENT IN ENGLAND, CLAIMANTS LIVING IN AUSTRALIA: DEFENDANT’S APPLICATION TO CHALLENGE JURISDICTION REFUSED
This post comes within the “Service Points” series because the defendant here made an application to set aside the claim form and its service coupled with seeking a declaration that the court had no jurisdiction to try the claim. It…
EXPERT WATCH 81: EXPERT EVIDENCE ON APPEAL: COMPANY PERMITTED TO RELY ON IT EXPERT TO EXPLAIN WHY ITS DIRECTORS THOUGHT A REGULATOR’S EMAIL WAS A PHISHING ATTEMPT
Here we have a consideration of whether an appellant should be allowed to adduce expert evidence for the first time at the appeal stage. This appeal was subject to specific rules and should not be taken as an indication that…
THROWBACK FRIDAY: IN THE RUN UP TO HALLOWEEN: MISSIVES FROM THE BENCH (OCTOBER 2021): “THAT ONE’S HALF BLIND AND HALF DEAF. I CALL HIM THE COURT OF APPEAL…”
Here we go back a few years to look at a post written in the run up to Halloween. There was a series of “horror” stories relating to the law. This one was about interventions from the bench, provided by…
THE DEFENDANT SHOULD NOT PICK AND CHOOSE THE EVIDENCE IT PUTS BEFORE THE COURT: A WITNESS STATEMENT BREACHED THE DUTY OF CANDOUR OWED: WHAT YOU LEAVE OUT CAN SOMETIMES BE MORE IMPORTANT THAT WHAT YOU PUT IN…
In this case the judge was critical of the defendant’s phrasing of a witness statement. A party to judicial review proceedings owes a duty of candour to the court. A statement by a council employee that “no substantive response” had…
NO FINDING OF FUNDAMENTAL DISHONESTY WHERE A CLAIMANT GAVE AN ACCOUNT DIFFERENT TO HER LETTER OF CLAIM: (CLINICAL NEGLIGENCE CASE)
We have monitored cases relating to fundamental dishonesty for many years. It is as important to note cases where this is not found as those where it is established. We have an example here. “… when it comes to whether…
![WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT...]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/10/Shamelessplug.png?resize=150%2C150&ssl=1)
WHAT WENT WRONG FOR LITIGATORS IN 2026 AND HOW DO YOU AVOID PROBLEMS IN 2027 ? WEBINAR ON THE 9th DECEMBER ADDRESSES THESE ISSUES [BUY YOURSELF (OR SOMEONE ELSE) AN EARLY CHRISTMAS PRESENT…]
This blog, inevitably, tends to cover cases where things have gone wrong (for someone). The primary aim is to stop the same thing happening to you. This webinar aims to encapsulate the lessons from procedural problems and issues in 2026. …
PROVING THINGS 302 : THE COURT DREW ADVERSE INFERENCES WHEN THE CLAIMANT FAILED TO TEST THE METER IT WAS RELYING ON
Much of the discussion relating to a court drawing adverse inferences relates to a failure to call relevant witnesses. Here, the judge applied them to the absence of a physical object and the test evidence it could have provided. “……
BACK TO BASICS MONDAY: SOME KEY POINTS ABOUT WITNESS SUMMARIES
The post this morning on witness summaries provides an opportunity to revisit the rules about witness summaries. It is notable that many of the cases relating to this topic also deal with applications for relief from sanctions when the summaries…
EXPERT WATCH 80: WHEN EXPERTS ARE ON THE METER: ONE EXPERT WAS NOT ALWAYS INDEPENDENT, THE OTHER DID NOT APPRECIATE HIS DUTY TO THE COURT
Here we have what are almost “classical” issues about the role of experts (in the sense we have seen this many times before). Both parties in this litigation called experts. The judge found one expert not to be fully independent …
PERMISSION TO RELY ON A WITNESS SUMMARY: DOES THE APPLICANT NEED TO SHOW THE WITNESS HAS REFUSED TO GIVE A STATEMENT? RELIEF FROM SANCTIONS (OH, AND THAT WITNESS FORMERLY KNOWN AS “PRINCE”)
Cases on witness summaries are fairly rare. Here we have issues relating to witness summaries considered in the context of a high profile witness. The judgment explains when a witness summary can be used. More specifically whether a party can…
DID YOU KNOW THAT YOU COULD BE MADE BANKRUPT (OSTENSIBLY ON YOUR OWN APPLICATION), NOT KNOW ANYTHING ABOUT IT – AND THEN HAVE TO PAY THE TRUSTEE’S COSTS? THE IMPORTANCE OF GETTING KEY EVIDENCE BEFORE THE COURT
This is an unusual case. The appellant here had been made bankrupt, ostensibly on her own petition. She knew nothing about it. Despite this the court would not annul the bankruptcy until provision was made for payment of the Trustee’s…
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…
ENFORCEMENT BULLETIN 6: BEING SIGNED OFF WORK DOES NOT MEAN UNABLE TO ATTEND COURT: SUSPENDED COMMITTAL ORDER MADE AGAINST JUDGMENT DEBTOR (CLINICAL NEGLIGENCE AND PERSONAL INJURY LITIGATORS YOU MAY WANT TO READ THIS AS WELL…)
It is rare for a clinical negligence claimant to be involved in issues relating to the enforcement of judgments. We have an example here. Ironically enough it is also an example of inadequate medical evidence being presented in an an…
PROVING THINGS 301 : CAN AN APPLICANT IN COMMITTAL PROCEEDINGS RELY UPON A JUDGMENT GIVEN AT TRIAL? WHAT WEIGHT SHOULD BE GIVEN TO IT?
It is always interesting to see the sequel of cases we have looked at earlier. We have an example here. We looked at this case in the context of a finding of fundamental d dishonesty. Different issues arise in relation…
EXPERT WATCH 79: WHEN A LITIGANT INSTRUCTS AN EXPERT AND THEN SEEKS PERMISSION TO RELY ON THEM: MIXED RESULTS
A party instructing an expert without obtaining permission from the court in advance runs a risk. Considerable expenditure can be incurred and yet the court may refuse permission. However, on occasions, it is necessary to actually have the report to…
EXPERT WATCH 78 : “ROWING BACK”?: WHEN AN EXPERT CHANGES THEIR VIEW AFTER THE JOINT REPORT: “THAT IS NOT THE FAIR OR PROPER WAY FOR PUTTING NEW EXPERT EVIDENCE BEFORE THE COURT”
Here we look at a case where an expert essentially changed their mind after a joint report. Although the expert stated that he had not “rowed back” the judge was clear that there had been a change of view and…
THIRD PARTY DISCLOSURE SHORTLY BEFORE TRIAL: “WHAT ONE PERSON REGARDS AS OPPORTUNISM MIGHT EQUALLY WELL BE ANOTHER PERSON’S CREATIVE LAWYERING”
This is a case about a late application for third party disclosure. The order was granted despite the trial date being imminent. The respondents complained of “opportunism” the judge observed that this may well be described as “creative lawyering”. “…litigation…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
PROVING THINGS 300: COMPANY FAILS TO PROVE ITS OWN FINANCIAL SITUATION: APPLICATION FOR A STAY REFUSED
A major theme of this series has been a failure by litigants to put evidence before the court to establish their case. That is a feature of this case. The defendant company was arguing that its own financial position was…
THROWBACK FRIDAY: “STAYING SANE AS A LITIGATOR: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…” (OCTOBER 2019)
Today we go back to a post in October 2019. It was part of a series of posts about “staying sane as a litigator”. This was the fifth in the series and makes the point that things go wrong in…
IF YOU CAN’T PROVE IT THEN YOU DON’T GET IT: LIFE IS REALLY THAT SIMPLE: WEBINAR ON PROVING DAMAGES: 22nd OCTOBER 2026
We have looked many times on this blog at cases where litigants have simply failed to prove things. There have been numerous occasions when this relates to a failure to prove damages. This webinar looks at how litigators can avoid…
WITNESS EVIDENCE WEDNESDAY (ii): THE DEFENDANT’S WITNESS HAD NO FIRST HAND KNOWLEDGE OF THE ISSUES, KEY DOCUMENTS AND KEY WITNESSES WERE NOT PRESENT
Here we look at another case where witness evidence was found wanting. Again this is because of a failure to identify the source of information or belief. This was coupled with the fact that crucial witnesses who could give first…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
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…
PROVING THINGS 299 : DISCLOSURE FAILURES, MISSING DOCUMENTS AND THE RELIABILITY OF WITNESS EVIDENCE: THE CONSEQUENCES AT TRIAL
This is a case that demonstrates the importance of disclosure and the dangers of failing to preserve, or positively destroying, documentary evidence in a civil case. The judge found the (first) defendant’s conduct in that regard was extremely telling. Much…
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…
THROWBACK FRIDAY: WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE (OCTOBER 2018)
We are going back eight years and looking at another highly familiar theme – non-compliant witness statements. We have another example earlier today in the blog. . We are looking at a post from October 2018. This post pre-dated PD…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
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…
FALSE DOCUMENTS, LATE EVIDENCE AND ARTIFICIAL INTELLIGENCE: A WHOLE HOST OF ISSUES THAT MAKE JUDICIAL LIFE MORE DIFFICULT…
Much of the discussion in relation to Artificial Intelligence to date has related to its ability to “hallucinate” false cases. However it can also be used to create extremely realistic false documents. This is an issue considered by the judges…
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…
PROVING THINGS 297 : THE COURT OF APPEAL OVERTURNED A FINDING THAT A SOLICITOR WAS DISHONEST: RECKLESSNESS AND CUTTING CORNERS ARE NOT THE SAME AS DISHONESTY
There are cases where a party has to prove dishonesty. This can be a difficult task, as this case shows. The test is very different to negligence or recklessness. The failure to address this test fully led to the overturning…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… APPLYING FOR PERMISSION TO RELY ON EXPERT EVIDENCE ? A GUIDE FOR APPLICANTS: 10 KEY POINTS WITH USEFUL LINKS
A post yesterday dealt with an unsuccessful application to rely on expert evidence. This is an opportune moment to review the steps that a party seeking to rely on expert evidence should take. In the interest of balance a later…
EXPERT WATCH 76 : EXPERT EVIDENCE MAY ASSIST, BUT THAT DOES NOT MEAN IT IS REASONABLY REQUIRED: PERMISSION REFUSED IN AN APPEAL WORTH TENS OF MILLIONS
We are looking at a case where the tribunal considered whether a party should be granted permission to rely on expert evidence. The judge went back to first principles to consider the issue. It was a high value case with…
EXPERT WATCH 75: A CASE REPLETE WITH EXPERT ISSUES: A FAILURE TO PREPARE A JOINT REPORT PLUS THE CLAIMANT CREATES DIFFICULTIES FOR ITSELF WHEN IT DOES NOT ASK ITS EXPERT TO REPORT ON POSSIBLE ALTERNATIVE OUTCOMES
This is the second post on experts today. Here we are in a very different context – the law of dilapidations. This is an area that often requires expert input. In this case we see manifold problems with the way…
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