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…
EXPERT WATCH 8: “SCIENCE DOES NOT CHANGE” : EVIDENCE THAT WAS “UNIMPRESSIVE IN PARTS AND OF LITTLE ASSISTANCE TO THE COURT”
To end the week I am looking at another decision about expert witnesses (it has been a theme this week). This time we are looking at accident reconstruction experts. One expert was found wanting, the judge favoured the other. The…
EXPERT WATCH 7: “THIS CASE IS NOT SHORT OF ADVOCATES”: AN EXPERT REPORTING FOR THE CLAIMANT SHOULD NOT HAVE BEEN ONE OF THEM: FURTHER THEY SHOULD HAVE DISCLOSED THAT THEY HAD “COPIED” THEIR REPORT
Yesterday I imposed a 24 hour respite on this series “unless something really interesting comes up”. I have broken that promise, it lasted 22 hours. However the cases on experts keep coming in and, I think, readers need to know…
EXPERT WATCH 5: AN EXPERT SHOULD DISCLOSE PREVIOUS CRITICISMS MADE BY JUDGES: PARTICULARLY WHEN THEY HAVE BEEN WARNED ABOUT THIS BEFORE…
We have seen a trend in a number of recent cases of advocates cross examining experts and referring to judicial criticism made in previous cases that experts have been involved in. The judgment here goes one further and indicates that…
EXPERT WATCH 4: THE EXPERT SHOULD INFORM THE COURT IF MEMBERSHIP OF A PROFESSIONAL ORGANISATION HAD CEASED, PARTICULARLY IF THIS IS LINKED TO DISCIPLINARY PROCEEDINGS AGAINST THEM
We are returning (and not for the last time) to a recent decision where the court considered the expert evidence in detail. Here we look at the judgment in relation to an expert who failed, until prompted, to inform the…
EXPERT WATCH 3: EVIDENCE FROM EXPERTS ON FOREIGN LAW: SOME OF THE EXPERTS FOUND WANTING
Here we are looking at a judge’s assessment of witnesses who gave evidence as to foreign law. Some of the witnesses were found to be less then helpful. (This case appears to have taken up several months of court time….
EXPERT WATCH 2: THE EXPERT WHO REPORTED WITHOUT ALL THE RELEVANT EVIDENCE TO HAND AND THEN WOULD NOT RECOGNISE HE HAD MADE A MISTAKE
Here we look at a case where an expert reported without having all the relevant evidence to hand. In fact he only saw the claimant’s witness statements a few days before the trial. This, added to other issues, led to…
EXPERT WATCH 1: THE DUTY TO STATE THE SOURCES OF THE EXPERT’S INFORMATION
This is the start of a series examining cases where expert evidence is considered by the courts. As matters stand there are already dozens of posts on this site where the conduct of experts has been considered (and often criticised)…
“INADEQUATE REASONS” IN CIVIL JUDGMENTS: THE COURT OF APPEAL PROVIDES A PRIMER FOR JUDGES (AND SOME IMPORTANT POINTS FOR THE REST OF US)
Here we look at a Court of Appeal decision last week on inadequate reasons given in judgments. This has major practical implications for judges and practitioners. Appeals because of “inadequate” reasoning are those that are the most unfair to all…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
COST BITES 260: THE “CLIENT” WAS NOT LIABLE TO PAY THE SOLICITORS BILLS : EACH ENTITY PUT IN ITS TIME AND EFFORT AT ITS OWN RISK
Today we are looking at a highly unusual solicitor and own client costs assessment. After hearing evidence over five days the judge decided that there was no retainer between the “client”and the solicitor. The client was not liable to pay…
A DEFENDANTS’ FIRM OF SOLICITORS COULD LAWFULLY GIVE DETAILS OF CLAIMANTS IN SIMILAR CASES WHEN DEFENDING FUNDAMENTAL DISHONESTY CLAIMS
Here we are looking at a case where claimants brought an action claiming that their data protection rights had been breached by a defendant firm of solicitors. The defendant had collated a list of claimants who had relied on a…
WHEN A PARTY RELIES ON “NON PART 35 COMPLIANT” EXPERT REPORTS: THIS IS HARDLY LIKELY TO CARRY MUCH WEIGHT…
The first question the lawyer must ask when being presented with a report for use in proceeding is – is this report CPR 35 compliant? If it is not then it may have little, if any value. There is a…
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
PROFESSIONAL NEGLIGENCE NEWS 3: INADEQUATE ATTENDANCE NOTE LEADS TO WOEFUL RESULTS: THE APPEAL THAT SHOULD NOT HAVE HAPPENED
Here we are looking at a decision where manifold service failures on the part of solicitors were identified. However we will look at one issue – the consequences of an attendance note not being full and complete. Counsel advised on…
IF A CLAIMANT ISSUES AND LITIGATES WHEN THEY DO NOT HAVE CAPACITY – ARE THEY LIABLE FOR THE COSTS INCURRED? COURT OF APPEAL SCRUTINISES EXPERT EVIDENCE AND FINDS IT WANTING
Yesterday we looked at issues relating to the capacity of a solicitor’s client and their consequent liability to pay costs. Today we look at a case about inter partes costs. If a claimant brings proceedings but does not, in fact,…
THE CURRENT IMPORTANCE OF PLEADINGS 22: WHOLE BATCHES OF CASES STRUCK OUT BECAUSE THE PARTICULARS WERE DEFICIENT: RELIEF FROM SANCTIONS REFUSED
Here we are looking at a case where numerous actions brought by the claimant were struck out because the Particulars of Claim were wholly deficient. They remained wholly deficient even after the court had made a peremptory order compelling the…
CHILDREN AND FATAL ACCIDENT LITIGATION 2025: WEBINAR 8th JULY 2025
There are particulars challenges and difficulties facing a practitioner in cases where children are the only or primary dependants in a fatal claim. This webinar addressed the key issues, in relation to the law, practice and procedure and helping with…
WHEN CAN A JUDGE HEAR AN ISSUE THAT IS NOT “LISTED”? THE ISSUES CONSIDERED IN THE HIGH COURT
If an action is listed for hearing on a specific issue when can the judge hear, and make an order in relation to a different issue? This is an issue considered in the case we are looking at here. The…
AVOIDING PROBLEMS IN CIVIL LITIGATION 1: HOW DOES ANYBODY MISS A LIMITATION PERIOD?
This is the first in the promised series about avoiding problems in civil litigation. The most obvious place to start is with limitation issues. These sometimes prove particularly problematic for personal injury and clinical negligence lawyers. However there is no…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WHEN A PARTY MAKES A SECOND APPLICATION TO RELY ON EXPERT WITNESS HOW SHOULD THE COURT RESPOND? THE SAGA CONTINUED
We are looking at this case for the third time. There were issues in relation to witness evidence and expert evidence. The problems continued after trial when the judge realised that neither party had addressed her on a mandatory requirement…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
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