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…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PROVING DAMAGES: 10 KEY POINTS AND LOTS OF RELEVANT LINKS
The post earlier this morning identifying a case, from 2015, where a claimant failed to prove any damages, highlighted the need for a recap on this topic. There are a large number of posts on this very topic. In the…
THROWBACK FRIDAY: “PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT” (OCTOBER 2015)
Here we look at an issue that has given rise to numerous posts on this site over the years – a party fails to prove an essential element of their case. Here the failed to adduce evidence that they had…
AI AND CIVIL JUSTICE: PREPARING FOR THE TSUNAMI – LORD BRIGGS ON ACCESS TO JUSTICE, PROCEDURAL RULES AND THE HUMAN JUDGE
Issues relating to the use of AI continue to “interest” the legal profession. They also interest judges. Here I summarise Lord Briggs’ Keynote Address to the Oxford Civil Justice Systems in the 21st Century Conference. “… if human judges want…
MILLIONS OF DOCUMENTS, 27 FACTUAL WITNESSES AND THE ASSESSMENT OF CREDIBILITY: WITNESS EVIDENCE IN THE MANCHESTER CITY PROCEEDINGS
Yesterday we looked at an issue in the news to review questions of witness credibility. We do the same today in a wholly different context: football and the decision in the proceedings brought against Manchester City Football Club. However we…
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…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … HOUSING LAW, COSTS AND PROCEDURE: 10 KEY POINTS AND USEFUL LINKS
There are much more specialist blogs available for housing lawyers and I’m glad to say that “Nearly Legal” is recommencing next month. The posts on this site concentrate on procedure and costs and the Ten Key Points here reflect that. …
INTERIM PAYMENTS: THE EXISTENCE OF DISPUTED DEFENCES AND COUNTERCLAIMS DID NOT PREVENT AN AWARD OF £1.4 MILLION
Lord Denning once observed of Cashflow that “It is the very lifeblood of the enterprise”. This remains the case for most modern businesses. In this respect an application for an interim payment can be a powerful tool. Sometimes essential to…
EXPERT WATCH 73: AN “AD HOMINEM ATTACK” ON A PARTY’S EXPERT FAILS TO IMPRESS THE JUDGE
The Intellectual Property Enterprise Court is usually the most genteel of courts particularly when it comes to the treatment of expert evidence. That is one of the reasons this judgment comes as somewhat of a surprise. The strategy adopted in…
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…
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…
COST BITES 457: COURT REFUSES APPLICATION TO MAKE LEGAL INSURERS SOLELY RESPONSIBLE FOR THE COSTS OF ASSESSMENT: (WHY COSTS LAWYERS HAVE TO KNOW THE LAW OF EVIDENCE – PARTICULARLY IF THEY ARE GOING TO MAKE ALLEGATIONS RELATING TO CONDUCT)
Here we look at a highly unusual allegation. Two of the claimants (the paying parties) and the defendants sought an order making their ATE insurer solely responsible for the costs of the assessment process. This application was supported by “evidence”…
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…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
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…
THE SRA CANNOT COMPEL A SOLICITOR TO DISCLOSE A CLIENT’S PRIVILEGED DOCUMENTS: THE FUNDAMENTAL IMPORTANCE OF LEGAL PROFESSIONAL PRIVILEGE
This is an important case about legal professional privilege. The headline result is that the SRA have no power to override such privilege when carrying out an investigation. It also highlights the hurdles any party can face when seeking to…
A FITTING END TO THE BAYEUX THEMED WEEK: SHOULD FRANCE HAVE JURISDICTION IN THIS CASE? MORE ABOUT LAWYERS USING WITNESS STATEMENTS TO PUT FORWARD LEGAL ARGUMENTS (DO IT IF YOU WILL – BUT IT NEVER HELPS…)
Observant readers (and possibly the less observant ones) will have noticed that this week we have been paying homage to the arrival of the Bayeux Tapestry in the UK. It is fitting then that we end the week with a…
THROWBACK FRIDAY: “OFFICE GOSSIP PROVES NOTHING”: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF” (SEPTEMBER 2016)
This post written a decade ago deals with a recurring point in litigation as we have already seen this week. The tendency of witnesses, and lawyers to allow witnesses, to give “evidence” in witness statements of matters on which they…
ADVISING THE CLIENT OF THE RISKS OF LITIGATION: TEN USEFUL CHECKLISTS COUPLED WITH THE RELEVANT LINKS
The previous post considered the nature of a solicitor’s duty in a conveyancing transaction. The judgment considered the nature of the solicitor’s duty to warn of risks. Here we pull together many posts and cases on advising on the risks…
PROFESSIONAL NEGLIGENCE NEWS 5 : WHY A SOLICITOR CAN BE NEGLIGENT, A CLAIMANT HONEST AND YET BE WHOLLY UNSUCCESSFUL IN A PROFESSIONAL NEGLIGENCE ACTION
We are looking at a case which explores the limits of a solicitor’s duty of care. It relates to conveyancing, however there are many points of interest to litigators. Firstly in relation to the reason the case failed (the “duty…
WITNESS EVIDENCE WEDNESDAY: THOSE WHO DRAFTED THE WITNESS STATEMENTS “HAVE FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: A USEFUL CHECKLIST AND LINKS TO KEEP YOU ON THE STRAIGHT AND NARROW
Here we look at a case where the judge was extremely blunt in his critique of the way in which both parties had drafted the witness statements. The judgment was from a few years back. However we are looking at…
THE CURRENT IMPORTANCE OF PLEADINGS 91 : THE COURT FINDS FOR THE CLAIMANT ON A POINT NOT PLEADED: THE IMPORTANCE OF THE STATEMENT OF THE AGREED ISSUES FOR TRIAL
The previous post looked at the costs consequences of a claimant pleading a case on a wide basis and then succeeding on the basis of a case that was not specifically pleaded. It is worthwhile looking at the judgment on…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (5): “THE HEARING WAS A SALUTARY LESSON IN HOW AI MAY PROMPT LAY PERSONS TO SAY THE RIGHT THINGS IN PLEADINGS, BUT CANNOT FURNISH THE EVIDENCE NEEDED TO ESTABLISH THOSE STATEMENTS”
This morning we are travelling to Scotland to look at a case where the judge indicated that the use of AI had led the pursuers (claimants) to bring forward a claim that was largely unsupported by evidence. This led to…
THE DUTY OF FULL AND FRANK DISCLOSURE: USEFUL GUIDANCE AND AN ESSENTIAL CHECKLIST WHEN MAKING AN APPLICATION TO SERVE OUT…
The case we looked at in the previous post highlighted the dangers of failing to comply with the duties owed on a without notice application, an application to serve out in particular. The same judgment had some important guidance for…
A COURT SETS ASIDE AN ORDER MADE WITHOUT NOTICE: ANOTHER CASE THAT EMPHASISES THE IMPORTANCE OF FAIR PRESENTATION AT THESE APPLICATIONS: A LAWYER CANNOT SIMPLY PROMOTE A “CONSPIRACY THEORY” BUT MOST ACT OBJECTIVELY AND CAREFULLY
We have looked many times at cases where “without notice” applications have come under fire. In particular in relation to arguments that the applicants have failed in their duty of full and frank disclosure to the court. We see that…
EXPERT WATCH 71: “I DO NOT ATTACH WEIGHT TO THIS REPORT AS EXPERT EVIDENCE”: THE EXPERT WAS “ADVOCATING” AND “HE TRESPASSES INTO THE ROLE RESERVED TO THE TRIBUNAL”
We have seen that judge jealously (and rightly) guard against experts trespassing into the judicial role of fact finding. They are also suspicious of experts that take the role of advocates rather than independent experts. We see both of these…
WILL AN INSURER PAY FOR THIS? ONE OF THE MOST ESSENTIAL QUESTIONS IN LITIGATION CONSIDERED: WEBINAR 30th OCTOBER 2026
The post earlier this week on the claimant’s inability to use TUPE to bring a claim against a defendant highlights the very real difficulties that exist when there is no defendant who can pay the claim. In that case the…
THE IMPORTANT DISTINCTION BETWEEN AN APPLICATION TO STRIKE OUT AND ONE FOR SUMMARY JUDGMENT: DECISION TO STRIKE OUT ALLOWED ON APPEAL BECAUSE THE JUDGE HAD WRONGLY CONSIDERED THE MERITS
There is an important distinction between the striking out of a statement of a case and summary judgment. Striking out considers whether there is an arguable claim pleaded; summary judgment relates to whether that claim has any merits. This distinction…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (4): EXPERTS AND THE USE OF AI: A LOT OF DANGER AREAS HERE: 20 KEY POINTS
Here we consider the risks that occur when experts use AI when they prepare a report or give evidence. We have seen several examples on this blog of evidence going awry. Here we draw upon guidance from previous posts, but…
LOSS OF EARNINGS CLAIMS 2026: WEBINAR 16th SEPTEMBER 2026
This year has seen some important cases in relation to the way in which the courts approach claims for loss of earnings. This webinar provides a practical and comprehensive examination of claims for loss of earnings in personal injury litigation….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (3): AI AND WITNESS EVIDENCE: VERY DANGEROUS BEDFELLOWS: TWENTY KEY POINTS
We have looked several times at the dangers of using Artificial Intelligence to draft witness statements. It would be naive to believe that this issue is not going to arise again. Indeed it may well already be a common feature…
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (2): HOW TO SPOT “FALSE” AUTHORITIES AND WHAT TO DO ABOUT IT (PLUS SOME USEFUL LINKS)
Many practising lawyers will now have seen cases where AI has been used to put forward legal propositions. Sometimes this involves “hallucinated” cases, statutes or rules. More problematically a real case or statute is cited, however the citation is wrong…
BACK TO BASICS MONDAY: LAWYERS AND ARTIFICIAL INTELLIGENCE (1): THREE IMPORTANT PRINCIPLES: YOU OWN THE WORK; AI IS NOT AN AUTHORITATIVE SOURCE OF LAW; IT IS NOT ENOUGH THAT THE CASE EXISTS…
The post earlier today on the misuse of AI when defending an SDT hearing has led me to start a short series about the dangers of lawyers (litigators in particular) using AI. This is not an anti-AI stance. There is…
PROVING THINGS 296 : PROVING THE EARNINGS POTENTIAL OF AN INJURED CHILD: THE LOST YEARS CALCULATION CONSIDERED AND APPLIED
When the Supreme Court gave the judgment in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5 it was clear that there were going to be major evidential issues…
WEBINAR ON PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: 9th SEPTEMBER 2026: USEFUL GUIDANCE, CHECKLISTS AND QUESTIONNAIRES
This webinar provides a practical and up-to-date analysis of the law and practice relating to provisional damages and periodical payments in personal injury litigation. It begins with a review of recent case law, including a professional negligence claim arising from…
SHOULD (OR CAN) THE COURT MAKE AN ORDER FOR PRE-ACTION DISCLOSURE WHEN THE PROPOSED DEFENDANT IS BASED IN ITALY? ANOTHER PAD APPLICATION COMES TO GRIEF…
Earlier today I promised a second post on pre-action disclosure. This case considered a number of issues, including whether the court actually has jurisdiction to make a PAD order when the respondent is based abroad. The judgment goes further than…
SETTING ASIDE A DEFAULT JUDGMENT, DENTON AND DELAY: SHOULD THE COURT REFUSE THE DEFENDANT RELIEF BECAUSE THEY HAD CAUSED UNNECESSARY DELAY AND COSTS?
For many years now there have been issues relating to how far the “Denton” criteria run alongside the rules relating to applications to set aside a default judgment. We have such a case here. There was clearly an arguable defence,…
WITNESS EVIDENCE WEDNESDAY: “BACKDATING LETTERS” TO DELIBERATELY MISLEAD COULD COST YOU: £4.58 MILLION IN THIS CASE: (METADATA COMES INTO PLAY NOW)
We are looking here at a judgment about witness credibility made by an Employment Tribunal several years ago. In particular the Tribunal found that the Defendants’ witnesses had deliberately backdated letters in an attempt to mislead. The reason we are…
THE CURRENT IMPORTANCE OF PLEADINGS 90: THE COURT OF APPEAL WAS WRONG TO HOLD ONE DEFENDANT TO HIS PLEADED CASE WHILST EXONERATING A CO-DEFENDANT: THIS LED TO A FINDING THAT WAS AN “ABSURDITY”
In this case the Judicial Committee of the Privy Council considered whether the Court of Appeal in Trinidad and Tobago was correct to hold one defendant in a clinical negligence case to their pleaded case whilst, effectively, exculpating a co-defendant. …
CAN YOU HAVE AN INTERIM INJUNCTION WHEN YOU HAVE BEEN REFUSED IDENTICAL RELIEF IN THE PAST? CLAIMANTS NOT ALLOWED A SECOND BITE OF THE CHERRY
Can a party who has an application for an injunction dismissed then issue proceedings and seek an injunction in identical terms? The answer in this case is no. The principles that prevent litigants seeking “two bites of the cherry” apply…
EXPERT WATCH 69: “THE APPROACH OF BOTH EXPERTS IS WRONG” : WHEN THERE IS A DIFFERENCE IN VALUATION OF $170 MILLION… THE JUDGE DOES NOT HAVE TO SIMPLY PICK A SIDE..
In this case the judge was categoric in his view that the approach of the experts from both sides was wrong. There was a major difference between the experts – just under $170 million. In these circumstances the judge is…
PROVING THINGS 295: HOW MUCH SHOULD A CARER BE PAID? INTERESTING READING FOR PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYERS (AMONG OTHERS…)
This is a case about the costs of providing care. It is unusual in that it does not arise in the context of a claim for damages for personal injury or clinical negligence. Nevertheless there are issues of general relevance…
LIMITATION AND SEXUAL ABUSE CLAIMS: THE LAW CHANGED AFTER EVIDENCE AND SUBMISSIONS BUT BEFORE JUDGMENT: THE AMENDED ACT APPLIES
We have looked before at how the new sections 11ZA and 11ZB into the Limitation Act 1980 have already been considered by the courts. Here was have another example. The new provisions were held to apply in a case where…
ACCOMMODATION AND APPLIANCE CLAIMS: THE CASES SINCE SWIFT -v- CARPENTER: WEBINAR 3rd SEPTEMBER 2026
This webinar examines the legal and practical issues arising in accommodation and aids and appliances claims in personal injury litigation, with particular focus on the impact of Swift v Carpenter. The decision represents a significant development in how courts assess…
EXPERT WATCH 68: THE MISUSE OF AI: “CREATE ME AN EXCEPTIONAL EXPERT WITNESS REPORT”: SHOW HOW MY CLIENT “IS 0% AT FAULT”: THIS WITNESS HAD A FEW PROBLEMS…
“What happens in America eventually happens over here” is a well known maxim. It is for that reason we are looking at a case about expert evidence and the use of artificial intelligence from the United States. (To be frank…
EXPERT WATCH 67: LITIGANTS NOT ALLOWED TO RECOVER THE COSTS OF AN EXPERT WHOSE EVIDENCE ON SOME ISSUES WAS “LARGELY UNHELPFUL”
It is rare to be able to see a costs decision on the recoverability of the costs of expert evidence. We have such a case here where the Competition Appeal Tribunal considered whether to allow a successful party to recover…
WITNESS EVIDENCE WEDNESDAY: YOU CANNOT NECESSARILY RELY ON INTERLOCUTORY WITNESS STATEMENTS AT TRIAL
Here we have a case where the claimant, wrongfully, believed that she could rely on witness statements that had been served in the course of the proceedings in addition to the statement served for trial. She was given permission to…
CIVIL LITIGATION BRIEF WEBINARS COMING UP LATER THIS YEAR: A NEW DISCOUNT CODE
CLB members have a discount to a series of webinars on damages that start in September. The series is intended to provide practical guidance for practitioners dealing with claims of every size, from straightforward road traffic accidents to catastrophic injury litigation….
You must be logged in to post a comment.