THE CURRENT IMPORTANCE OF PLEADINGS 32: CLOSING SUBMISSIONS ARE NO PLACE TO TAKE A POINT THAT HAS NEVER BEEN PLEADED AT ALL
Here we are looking at a case where there were manifold issues (“100s of allegations) and where evidence was given over several weeks. However the claimant attempted to raise a new, unpleaded, issue during closing submissions. As we shall see…
MAZUR MATTERS 19: TWO USEFUL LINKS: THIS HAS CHANGED THE PROFESSION’S UNDERSTANDING NOT THE LAW: STEPS TO ENSURE COMPLIANCE
I am attempting to avoid the blog being solely about Mazur. However the fact is that the Mazur issues are the most widely read posts, many of the more mainstream issues having taken a backseat. Whilst there is some commentary…
PART 36 CASE OF THE DAY (3): SHOULD FAILURE TO MEDIATE PROMPTLY MAKE A DIFFERENCE TO THE COSTS ORDER?
We are continuing with our examination of the costs implications of a costs order. Here we look at the defendant’s arguments that the claimant’s failure to respond promptly to an offer to mediate should lead to costs penalties. (The Sounds…
SHOULD THE DEFENDANT BE ORDERED TO PAY THE CLAIMANT’S COSTS WHEN IT RAN AN UNSUCCESSFUL ARGUMENT AS TO FUNDAMENTAL DISHONESTY? A HIGH COURT DECISION
There has been much debate recently about whether assertions of fundamental dishonesty have been made too readily. This case makes it clear that there may be costs consequences for those who run such arguments but who do not succeed. This…
MAZUR MATTERS 15: COULD BREACHES OF THE LEGAL SERVICES ACT LEAD TO AN ACTION BEING STRUCK OUT? WHY YOU SHOULDN’T BELIEVE EVERYTHING YOU READ
I have gently, perhaps too gently, suggested that a great deal of what is being written and said about the impact of Mazur is “unhelpful”. Put more bluntly some of it is inaccurate and misleading. There is much “wishful thinking”…
CLINICAL NEGLIGENCE CORNER 4: THE DANGERS OF PLEADING ALLEGATIONS OF NEGLIGENCE WITHOUT APPROPRIATE EXPERT EVIDENCE IN SUPPORT (LESSONS HERE FOR ALL LITIGATORS)
There have been several cases dealing with inadequate pleading in clinical negligence cases this year. Here we look at one of them. It is a case we have looked at already but I wanted to emphasise the point. Further this…
MAZUR MATTERS 14: ENSURING THAT AN AUTHORISED PERSON HAS “CONDUCT OF LITIGATION”: A PRACTICAL GUIDE: WEBINAR ON 31st OCTOBER 2025
As all readers of this blog will now by now The decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) means that solicitors must ensure that an “authorised person” has conduct of litigation. A failure to…
EXPERT WATCH 18: CLAIMANT NOT ENTITLED TO SIGHT OF DEFENDANT’S DRAFT REPORT – REFERRED TO IN DEFENCE AND THE REPORT OF ANOTHER EXPERT
Here we look at a claimant’s applications under CPR 31.14(1) and 35.10 to have sight of a draft expert report that the defendant had referred to in a defence and in the report of another expert. The judgment contains a…
MAZUR MATTERS 13: WHAT IS MEAN BY “THE CONDUCT OF LITIGATION” 4: THE COURT SHOULD LOOK AT THE ENTIRETY OF ACTIVITIES UNDERTAKEN “IN THE ROUND”
The decision Mazur continues to attract considerable comment, for good reason. Here we consider the question of how the courts approach the issue. (13 may be lucky for some. Just remember the court considers the position “in the round”). …
SURVEILLANCE EVIDENCE UNDER SCRUTINY, ADMISSIBILITY AND CONDUCT CONSIDERED: “THE PROVIDING OF PATENTLY UNTRUE WITNESS STATEMENTS TO THE COURT, ENDORSED WITH STATEMENTS OF TRUTH, IS A MATTER OF SERIOUS CONCERN TO THE COURT”
This is the most serious criticism of surveillance operatives as I have seen. The judge found that the operatives, filming on behalf of a defendant for the purpose of litigation, had been “fundamental and repeated” errors. The operatives then put…
WITNESS STATEMENTS: GUIDANCE FOR THOSE WHO TAKE THEM AND THOSE WHO SUPERVISE THEM: WEBINAR 15th OCTOBER 2025
On a regular basis on this blog we see cases where judges have been highly critical of the witness statements used at trials or hearings. This criticism is not a rare event and is usually justified. Many witness statements are…
EXPERT WATCH 17: A DETAILED CONSIDERATION BY THE HIGH COURT OF WHEN EXPERT EVIDENCE IS PERMITTED OR “REASONABLY REQUIRED”: COMPLIANCE WITH THE RULES IS VERY IMPORTANT HERE
It is rare for there to be a detailed consideration of the principles relating to whether expert evidence is necessary, admissible or desirable. There is a detailed consideration of the principles here, combined with some clear observations on the necessity…
MAZUR MATTERS 10: THE STATUTORY DEFENCE TO THE CRIMINAL OFFENCE: WHY YOU (PROBABLY) WON’T GO TO JAIL: BUT THE POSITION GOING FORWARD MAY BE DIFFERENT…
A person unlawfully “conducting” litigation can be imprisoned for up to two years, be fined and is also in contempt of court. This makes uncomfortable reading for many. However there is a statutory defence. There is useful case law…
MAZUR MATTERS 6: FURTHER GUIDANCE FROM CILEX: “FIRMS WILL NEED TO SATISFY THEMSELVES THAT THEY ARE COMPLIANT WITH THE LAW”
CILEX have provided further guidance in a document produced yesterday “CILEx Regulation – Interim Guidance The conduct of litigation and supervision”. (It may not be too late to register for the webinar on this topic today at 12.00 – details…
PROVING THINGS 270: DEFENDANT FAILS TO PROVE A FAILURE TO MITIGATE LOSS: NO MARKET FOR REJECTED HOSPITAL GOWNS
The burden of proving a failure to mitigate loss lies on the party alleging it. It is a case that has to be pleaded. Once pleaded then the case has to be proven. Here we look at a case where…
MAZUR MATTERS 4: DOES MAZUR COVER ANYTHING PRIOR TO THE ISSUE OF PROCEEDINGS? THREE CASES THAT CONSIDER THE ISSUE
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). Here we consider the issue relating to…
EXPERT WATCH 16: IS PART 35 PERMISSION NEEDED WHEN A DOCTOR GIVES OPINION EVIDENCE AS TO A PARTY’S ABILITY TO PARTICIPATE IN LITIGATION?
Here we look at a case where a party was seeking a stay of litigation on medical grounds. Medical evidence was provided which supported the litigant’s stance. The claimant took objection to the report as it contained “opinion” and the…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
EXPERT WATCH 15: A CHANGE OF APPROACH BY EXPERTS (WHICH FAVOURED THE SIDE THAT INSTRUCTED THEM) HAS TO BE LOOKED AT “PARTICULARLY CRITICALLY” BY THE COURT
We are looking at a case where expert evidence was of considerable importance. The claimants had already had permission to rely upon one of their experts disallowed because of issues relating to conduct. Here we have an example of the…
EXPERT WATCH 13: “IT SUGGESTS THE WITNESS WAS SEEKING TO BUILD A CASE FOR THE CLAIMANTS RATHER THAN INDEPENDENTLY ANALYSE THE EVIDENCE IN REACHING HIS OPINION”: THE JUDGE FINDS THIS TROUBLING
Here we are looking a judicial observations about the role of forensic reconstruction experts. There are telling comments on the reasons the judge preferred one expert over another. Again it comes down to a simple failure to consider and apply…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
AI USED IN THE WRITING OF A JUDICIAL DECISION: READ ALL ABOUT IT…
There has been much discussion of the advantages, and disadvantages, in lawyers using AI. This is clearly going to be a major issue for the legal profession going forwarded. Last week I reviewed Andrew Hogan’s book on this topic. There…
EXPERT WATCH 13: WHEN THE CLAIMANT ATTEMPTED TO INTRODUCE A NEW CASE DURING CROSS-EXAMINATION OF THE DEFENDANTS’ EXPERT (HOW DO WE THINK THIS WENT?)
We are looking at a case where the claimant’s expert, belatedly, accepted that the reports he was relying on were unreliable. The claimant then attempted to introduce new matters and evidence to bolster an alternative case. The judge rejected that…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 3: WHERE DO YOU LOOK IF YOU WANT (OR WANT TO OPPOSE) AN APPLICATION THAT A TRIAL BE ADJOURNED BECAUSE A PARTY OR WITNESS IS ILL?
The motivation for this series arises from a personal experience earlier this year. I had travelled to a hotel in readiness for a trial the following day. At midnight I found out that the other side were asking for an…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
THREE WEBINARS ON EXPERTS: THE JOINT EXPERT AND MEETING OF EXPERTS; PART 35 QUESTIONS AND EXPERTS IN THE COURTS IN 2025
The way in which the “Expert Watch” series has quickly developed shows that issues relating to expert evidence continue to give rise to problems. These three webinars explore many of the major issues in relation to experts. Dealing with the…
IT WOULD BE AN “AFFRONT TO JUSTICE” NOT TO SET ASIDE THIS “FINAL” JUDGMENT: THERE IS A LOT HERE THAT EVERYONE INVOLVED IN THE LITIGATION PROCESS SHOULD PROBABLY READ
We are looking at a number of cases that, on the face of it, are highly unusual. One judge has already indicated that there is a strong prima facie cases that some related cases “are all fraudulent”. There are…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: EX-SOLDIER FAILS IN HER CASE AND NOW NO LONGER HAS THE PROTECTION OF QOCS
Here we look at a case where the claimant was found to be fundamentally dishonest. The judge commented on the irony of the fact that she had a substantial claim for damages, even without that dishonesty. Nevertheless the evidence of…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
EXPERT WATCH 12: “THE EXPERT EVIDENCE FOR BOTH SIDES HAD PROBLEMS”: THE JUDGE PREFERS THE DEFENDANT’S EXPERT
We look here at an unusual set of facts relating to the judge’s assessment of expert evidence. Firstly the judge found that the claimant’s expert had no real experience of the specific issue in question in the action; she also…
LIABILITY FOR ACCIDENTS INVOLVING OUTDOOR ACTIVITIES: WEBINAR 3rd SEPTEMBER 2025
As recent events have shown the consequences of inadequate training, supervision and knowledge of those responsible for running outdoor activities can lead to major injuries and fatalities. The webinar looks at the case law, statutes and general guidance in relation…
ANOTHER COMPLAINT ABOUT COURT BUNDLES: “IT IS SIGNIFICANTLY MORE DIFFICULT TO PROMOTE THE INTERESTS OF JUSTICE…”
It is getting to the stage that I am concerned about receiving complaints from readers if this blog does not have a regular feature on bundles. In fact we have not looked at a case since June, so we are…
SERVICE POINTS 4: DEFAULT JUDGMENT SET ASIDE: THE CONTRACTUAL METHOD OF SERVICE WAS UNFAIR AND THUS INVALID BECAUSE OF THE PROVISIONS OF THE CONSUMER RIGHTS ACT 2015
There are relatively few cases relating to service of proceedings by a contractually agreed method. We have some significant issues considered in this case. Firstly whether the defendants were, in fact, parties to the contract that the claimant relied upon…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
EXPERT WATCH 11: EXPERT ASSERTS THAT THE CLAIMANT WAS MALINGERING BUT WOULDN’T TELL THE COURT ABOUT THE DETAILS OF THE TESTS THAT LED TO THAT CONCLUSION
We have seen some unusual conduct of experts on this site. However the case we look at today has elements that we have not looked at before. An expert carried out tests on the claimant and, as a result of…
THE CURRENT IMPORTANCE OF PLEADINGS 30: WHEN A LAWYER DEFENDANT TRIES TO ARGUE A POINT DIRECTLY CONTRADICTORY TO ITS PLEADED CASE: THIS “FLIES IN THE FACE OF THE PLEADED ADMISSION”
We are continuing to look at the interesting inter-lawyer dispute considered in the previous post. This time at the defendant’s pleaded case and its attempt to resile from a clear admission and put an alternative case in its place. (You…
PROVING THINGS 268: LAW FIRM DEFENDANT FAILS TO ADDUCE EVIDENCE TO PROVE ITS ASSERTIONS – IT WAS BOUND BY ITS OWN “BAD BARGAIN”
Here we have an interesting dispute between two firms of lawyers. The claimant sued the defendant under a contractual agreement following the transfer of files. What is particularly interesting here is the judge’s observations on the lack of evidence brought…
ALLOCATION TO THE SMALL CLAIMS TRACK OR FAST TRACK IN HOUSING CASES 3: WEBINAR 10th SEPTEMBER 2025
Earlier today we have looked at two appeals in relation to allocation in housing disrepairs. Each appeal was successful for different reasons. My involvement in one of the appeals has led me, along with Steve Cornforth, a webinar on Allocation…
CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2025 (1): LIMITATION IN PERSONAL INJURY CLAIMS – HOW DOES ANYONE MISS A THREE YEAR LIMITATION PERIOD?
In an ideal world all personal injury limitation periods would be three years, and all other action six. However we do not live in an ideal world. The first, and most obvious, place to look at avoiding negligence claims is…
SERVICE POINTS 2: CLAIM FORM WAS VALIDLY SERVED AT AN ADDRESS WHERE THE DEFENDANT NO LONGER LIVED: THERE WAS NO APPLICATION TO DISPUTE THE JURISDICTION IN ANY EVENT
For the second in this series we are looking at a case where the question of whether the claim form had been properly served was raised by the defendant at trial. There were numerous reasons why the defendant’s argument on…
EXPERT WATCH 10: CLAIMANT UNSUCCESSFUL ON APPEAL IN ATTEMPTING TO OVERTURN THE TRIAL JUDGE’S PREFERENCE FOR THE DEFENDANT’S EXPERTS: “THE IRREDUCIBLE FACT IS IS THAT THE JUDGE ACCEPTED THE EXPERT EVIDENCE OF THE RESPONDENT’S KEY WITNESS AND PREFERRED TO OVER THE EVIDENCE OF THE APPELLANT’S KEY EXPERT WITNESS”
There are relatively few cases where a party appeals on the basis that trial judge was wrong to accept the evidence of one party’s expert witness in preference to the other. There are even fewer cases where such an appeal…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
COST BITES 266: THE DEFENDANT WHO OBTAINED AN ORDER FOR INDEMNITY COSTS IN HER FAVOUR AND STILL ENDED UP CONSIDERABLY OUT OF POCKET: PART 36 OFFERS IN THE ASSESSMENT PROCESS: PLUS – “COSTS CAPPING” CONSIDERED – AND REFUSED
We are looking at a case where a defendant successfully defended an application to commit, was awarded indemnity costs and yet ended up considerably out of pocket. It shows the importance of a well judged Part 36 offer by the…
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