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…
COST BITES 458: “PLEASE JUDGE WE’D LIKE MORE TIME TO PAY THE COSTS”: THE RULES AND CASES CONSIDERED
Earlier today we looked at two cases about the award of costs after judgment. In both cases the paying party sought additional time to pay. Asking for extra time is sometimes an inevitable request by paying parties. “if a party…
COST BITES 456: THE CLAIMANT HAD SUCCEEDED ON ALL FOUGHT POINTS: THERE WOULD BE NO REDUCTION OF ITS COSTS: INDEMNITY COSTS IN A LANDLORD AND TENANT DISPUTE
It is now relatively common for a losing (and paying) party to seek a deduction from the successful side’s costs. Here we look at a case where such an argument was rejected. The case also serves as a reminder that…
THE CURRENT IMPORTANCE OF PLEADINGS 103: “THE RESPONSIBILITY OF PLEADING THE CLAIM RESTS ON THE CLAIMANT” (OH, AND MATTERS CANNOT BE ADDED IN A SKELETON ARGUMENT SERVED THE DAY BEFORE TRIAL…)
Here we have a case where the claimant complained about the judge finding for the defendant on unpleaded matters. It was held on appeal that the claimant had not particularised the case fully and properly. The difficulty was added to…
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…
FORM N1 HAS BEEN SLIGHTLY AMENDED: THIS COULD BE A TRAP FOR THE UNWARY: PUTTING THE DEFENDANT’S EMAIL ADDRESS ON THE CLAIM FORM DOES NOT CHANGE THE RULES FOR SERVICE…
Form N1 had a slight amendment made on the 23rd October. It is a very minor amendment, but one that practitioners need to be aware of. The one major problem that it could give rise to is if practitioners (or…
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…
THROWBACK FRIDAY “AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED” (WITH THE ADDED BONUS OF AN OBJECT LESSON IN HOW NOT TO DRAW UP A COURT ORDER): NOVEMBER 2013
This case provides two object lessons. Firstly in how not to conduct litigation; secondly in how not to draw up a court order. Both points are important. The second issue is a remarkable attempt by a part to “re-write” a…
LITIGATOR’S LIFELINE 2: WHEN A SOLICITOR MOVES FIRMS: TEN POINTS ON FORMER CLIENTS, CONFIDENTIAL INFORMATION AND INFORMATION BARRIERS
Earlier this week we looked at a case where a defendant made an application to prevent the claimant’s solicitors continue acting. This was on the basis that a solicitor who he had dealings with at a previous firm had now…
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…
PROVING THINGS 303: PROVING POSTAL SERVICE: “A MERE ASSERTION OF NON-RECEIPT DOES NOT SUFFICE TO REBUT THE PRESUMPTION”
Even in this day and age disputes arise as to whether something has been posted or received. We have a consideration of the issues in this First-tier tribunal judgment. The respondent established service of some documents, but not others. Further…
COST BITES 452: COURT DOES NOT SET ASIDE PREVIOUS COSTS ORDERS MADE IN PROCEEDINGS WHERE THE DEFENDANTS WERE ULTIMATELY SUCCESSFUL
A litigant can win a case at trial but still be liable for interlocutory costs orders made against it. This is highly frustrating for the litigant in question. Here we look at an attempt to overturn a costs order made…
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…
BACK TO BASICS MONDAY: WHEN A SOLICITOR APPLIES TO COME OFF THE RECORD: THE NEED FOR EVIDENCE, NOTICE AND PROOF OF SERVICE
Here we are using a recent judgment to look at some basic points about a solicitor’s application to come off the court record. There are nine basic points here. There is also a reminder that the fact that a solicitor…
COST BITES 449: HAD A CLAIMANT BEATEN ITS OWN PART 36 OFFER? IT IT HAD WAS IT UNJUST FOR THE NORMAL CONSEQUENCES TO APPLY? MINING THE RULES FOR AN ANSWER…
Here was have a complex case where the claimant made a complex Part 36 offer. The judge had to consider whether the claimant had considered it was effective. If it was effective was it “unjust for the normal consequences to…
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…
NON-COMPLIANT CLAIMANTS ARE IN THE LAST CHANCE SALOON (AND THERE ARE 5,000 OF THEM): BUT PARTICULARS MUST BE SERVED AND ADVERSE COSTS STILL PAID
The problem with large scale litigation is that when problems occur there tend to lead to large scale difficulties. We have an example here. Some 5,000 claimants missed a key deadline. As a result they are now outside the terms…
CLAIMANT’S CLAIM AGAINST INSURER FAILS: COURT OF APPEAL UPHOLD DECISION THAT THE INSURED’S FAILURE TO NOTIFY WAS A CONDITION PRECEDENT
The question “Will and Insurer Pay for this?” is a crucial one for most personal injury litigants in particular. In this case the Court of Appeal upheld a decision that an insurer was not liable to pay an injured claimant…
WITNESS EVIDENCE WEDNESDAY: INTERMEDIARIES IN CIVIL PROCEEDINGS: DEFENDANT WITH ADHD ENTITLED TO ASSISTANCE WHEN GIVING EVIDENCE, BUT NOT THROUGHOUT THE TRIAL
There are relatively few cases where the courts have considered the use of intermediaries in civil cases. Here we have a detailed consideration of whether a defendant required an intermediary. The judge did not accept that an intermediary was…
ANOTHER CASE ON BREACH OF A JUDGMENT EMBARGO: WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (1)?
There are numerous cases on breach of a draft judgment embargo on this blog. In this case the solicitor had given clear advice about the embargo but the client, inadvertently, breached it. The case highlights the need for litigants (on…
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. “……
SERVICE POINTS 57: PRESENCE IN THE JURISDICTION, A LAST KNOWN ADDRESS AND THE COST OF GETTING IT WRONG: UNSUCCESFUL CLAIMANT FACES A COSTS BILL OF £500,000…
Once again we are looking at a case where a claimant fails to effect service properly. The claimant failed for two reasons. Firstly the defendant was not “present” in the jurisdiction when the claim form was served. Secondly it appeared…
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…
COST BITES 448: PART 36 AND FIXED COSTS: “VERY LATE” ACCEPTANCE OF A DEFENDANT’S OFFER LEADS TO THE CLAIMANT RECOVERING NO COSTS AT ALL
It was probably inevitable that there would be difficulties in the construction of fixed costs and the interplay with Part 36. We have such a case here. The Court had to consider the implications of the precise wording of fixed…
SERVICE POINTS 56 : PERSONAL SERVICE NOT EFFECTED: COURT RETROSPECTIVELY APPROVES ALTERNATIVE SERVICE OF DOCUMENTS IN CONTEMPT PROCEEDINGS
There are very particular issues relating to service of committal proceedings. Normally an application has to be served personally. Sometimes, however, this is not easy. In this case the judge retrospectively authorised service of a committal application by an alternative…
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…
WILL AN INSURER PAY FOR THIS? A CRUCIAL QUESTION FOR MOST PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMANTS: WEBINAR 30th OCTOBER 2026
The post earlier today about the difficulties in enforcing a judgment in a clinical negligence case against an individual doctor highlights the problems that arise if a defendant is not insured. The issue of when an insurer is liable to…
“LITIGATION SHOULD BE CONDUCTED BY APPLICATIONS AND ORDERS”: “THESE EPISTOLARY COMMUNICATIONS WERE LESS THAN SATISFACTORY…”
There is one brief observation in this judgment which is of some importance in relation to the way that litigators communicate with the court. Attempting to manage a case by correspondence is usually not satisfactory. “Court systems are not well…
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…
WITNESS EVIDENCE WEDNESDAY: WHERE ARE WE NOW ON “MISSING” WITNESSES AND EVIDENCE ? TEN KEY POINTS WITH USEFUL LINKS
Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise. However there is an important element in relation to missing evidence and “missing” witnesses. What inferences should the court draw if a…
THE CURRENT IMPORTANCE OF PLEADINGS 101: PUTTING A FIGURE IN THE PARTICULARS OF CLAIM DOES NOT NECESSARILY ENTITLE A CLAIMANT TO DEFAULT JUDGMENT FOR THAT SUM
Does the fact that a specific sum is claimed in the Particulars entitle a claimant to enter default judgment in that sum? Sometimes the answer to that question is no. That was the issue being considered in in this case. …
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…
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…
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…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
COST BITES 463: HOW SHOULD A COSTS ORDER BE PHRASED? MAKING SURE THAT IT DOES NOT JUST OVER “COUNSEL STANDING ON THEIR FEET DURING THE APPLICATION”
Here we have an unusual disagreement about how an order for costs should be phrased. The judge made it clear that the order should make it clear that it was not just covering advocacy. “I prefer the Bourlakovas’ formulation. It…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… INTERIM ORDERS FOR COSTS: 10 KEY POINTS AND USEFUL LINKS
We have looked at the issue of interim costs twice over the past few days. It is an important element of litigation. An order for costs does not put money in the receiving party’s bank account. Detailed assessment may take…
COST BITES 462: A “TOP-HEAVY” LEGAL TEAM AND £929,000 CLAIMED IN COSTS: COURT ORDERS A PAYMENT ON ACCOUNT OF LESS THAN 50%: THE “RULE OF THUMB” OF 60% IS NO ALWAYS APPROPRIATE
We are returning to the case we looked at yesterday. Having determined that it was appropriate for the court to order the applicants to pay the respondents’ costs of the application the judge then considered the question of the amount…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
HOUSING CASES AND ALLOCATION TO THE FAST TRACK: THE FACT THAT THE CLAIM WAS BASED ON AN EARLIER COMPROMISE DID NOT MEAN THAT THIS WAS A SMALL CLAIMS TRACK MATTER
Here we have an interesting decision on whether a dispute about a settlement agreement in a housing disrepair case should be allocated to the Small Claims Track. I am grateful to Steve Cornforth for sending me a copy of this…
THE DANGERS OF DELAY: A CASE WHERE THE COURT CRITICISES LATE SERVICE: IT IS IMPLICIT THAT COURT ORDERS SHOULD BE SERVED IN A “TIMELY MANNER”
This is the third case of the day about delay. Here there was a delay of eleven months in serving an order on named defendants. The judge found it unsatisfactory that the claimant council had not served the order in…
LEAVING FILING UNTIL THE LAST MINUTE IS “COURTING DISASTER”: ONE DAY OUT AND NO EXTENSION OF TIME GRANTED
The previous post mentioned that a theme of today is the importance of complying with rules and directions. This case demonstrates that point clearly. The appellant was one day out in compliance and still no extension of time was given….
PARTIES SHOULD NOT ASSUME THAT EXTENSIONS OF TIME WILL BE GRANTED: JUDGE HIGHLY CRITICAL OF DEFENDANT’S CONDUCT OF LITIGATION
If there is a theme for today it is the importance of compliance with rules and directions. Here we have very strong criticism of the defendant Secretary of State (more accurately his legal team). The judge observed that the defendant’s…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … OPPOSING APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS AND A BONUS POINT ABOUT LISTS OF ISSUES
A blog about civil procedure has to have balance. The previous post considered applications to amend from the applicant’s perspective. Here we consider the position of those opposing an application. Litigators are as likely to be opposing an application as…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS FOR APPLICANTS (PLUS A “BONUS POINT” AND USEFUL LINKS…).)
The posts earlier this morning highlighted the major obstacles facing a litigant who wants to amend their pleadings at a very late stage. This is a good time to look at previous posts on amendments, together with links to the…
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