BACK TO BASICS MONDAY: THE IMPORTANCE OF SERVING THE PARTICULARS OF CLAIM WITHIN THE TIME FOR SERVICE OF THE CLAIM FORM: THE “BEAR TRAP” IN WAITING
The back to basics point today is based on a recent case which shows the importance of serving the particulars of claim within the four month period allowed for service of the claim form. The claimant served the particulars three…
CAN A DEFENDANT MAKE A PART 36 OFFER THAT ATTEMPTS TO BIND THE CLAIMANT IN RELATION TO MATTERS NOT PLEADED?
Here we have an interesting, and important, point about CPR Part 36. Firstly could a defendant establish that a claimant had not beaten a Part 36 offer when that offer dealt with matters that were not part of the pleaded…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
WHEN CAN A JUDGE CHANGE THEIR MIND? THE PRINCIPLES CONSIDERED: AN “AMBUSH” LEADS TO A POINT BEING RECONSIDERED
Here we look at a case where the judge had given a decision on an issue but, on consideration, decided that their initial view may be wrong. The judgment sets out the relevant case law and principles in some detail….
SERVICE POINTS 30 : A PROCEDURAL DEBACLE: THE DEFENDANT HAD LEFT IT FAR TOO LATE TO TAKE A POINT AS TO SERVICE OF THE CLAIM FORM
Many cases relating to service of the claim form involve a procedural debacle. It is rare that they present a “dogs breakfast” such as this. The defendant took a point that the claim had been issued out of time, that…
THE QUESTION OF THE CLAIMANT’S CAPACITY SHOULD NOT HAVE BEEN DEALT WITH AS A PRELIMINARY ISSUE: THE COURT SHOULD APPOINT A LITIGATION FRIEND – THIS DOES NOT PREJUDICE THE DEFENDANT’S POSITION
Here we have a case where a defendant appealed against a decision it agreed with. The judge found that the claimant had capacity and did not require a Litigation Friend. However the defendant’s issue was with the very decision to…
BACK TO BASICS MONDAY: EXHIBITS: A REMINDER OF THE RULES, WHERE THINGS GO WRONG AND HOW TO AVOID PROBLEMS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
AVOIDING THE PITFALLS WITH EXPERT EVIDENCE: WEBINAR 20th MARCH 2026: THE EXPERTS REPORT WAS “ALMOST WORSE THAN USELESS…”
We have seen some graphic examples in the past few weeks of a court robustly rejecting expert evidence adduced on behalf of a claimant. This webinar examines why expert evidence is not accepted, limited, or even wholly rejected at trial….
THE DEFENDANTS’ APPLICATION WAS AN ABUSE OF PROCESS: THE DANGERS OF TRYING SIMILAR THINGS A SECOND TIME AROUND: “THE HENDERSON AND HUNTER PRINCIPLES APPLY TO INTERLOCUTORY HEARINGS AS MUCH AS TO FINAL HEARINGS”
This is an interesting case on the relevance of the “Henderson” principles to applications, in this case for reverse summary judgment/to strike out the claim. A similar application had been made much earlier in the litigation. The judge found for…
COURT OF APPEAL OVERTURNS DECISION ABOUT LATE ACCEPTANCE OF PART 36 OFFER LEADING TO CLAIMANT BEING ENTITLED TO COSTS TO BE ASSESSD
It is a busy day for Court of Appeal decisions on procedure. Here we have an important judgment on Part 36. What are the costs consequences if a defendant makes a Part 36 offer when the case is subject to…
IMPORTANT COURT OF APPEAL DECISION TODAY: A CLAIM IS BROUGHT WHEN A CLAIM FORM IS SENT TO THE COURT EVEN IF IT DOES NOT HAVE THE CORRECT ISSUE FEE
This Court of Appeal decision today clarifies the position when a claimant files a claim at court but mistakenly does not pay the correct fee. The Court held that the claim was “delivered” when the claim was filed at court….
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
MAZUR MATTERS 53: JUDGE REFUSES TO GRANT A SPECIFIC OR GENERAL EXEMPTION TO AN EXPERIENCED LEGAL EXECUTIVE
One of the issues that has followed the Mazur decision arises from the fact that the statute gives the court a power to grant an exemption. Here the judge considered whether the power to grant an exemption should be granted…
A PART 36 OFFER CANNOT BE OUTSIDE THE SCOPE OF THE PLEADINGS: NOR CAN THE OFFEROR ARGUE THAT IT WAS NOT, IN FACT, A PART 36 OFFER AT ALL
Here we have a case where the defendant argued that a second action against it by a claimant was an abuse of process because an earlier action had settled by way of the claimant accepting a Part 36 offer. The…
THE SECRETARY OF STATE REQUIRED RELIEF FROM SANCTIONS: “AN APPALLING MANIFESTATION OF A LAX CULTURE OF NON-COMPLIANCE”
For (at least) the third time in recent weeks we are considering defaults or mistakes made on behalf of a Secretary of State. The delays and mistakes here were manifold. The Secretary of State was fortunate in obtaining an extension…
BACK TO BASICS MONDAY: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF ANY WITNESS STATEMENT OR AFFIDAVIT
Here we are looking at one of the basic rules for witness statements. Curiously it is ignored in about 40 – 50% of the statements I see in practice. Often the oversight is ignored. Some judges take a hard line….
EXPERT WATCH 39: BOTH EXPERTS “ACTED AS SURROGATE ADVOCATES ON BEHALF OF THEIR INSTRUCTING PARTY”: MORE LESSONS TO BE LEARNT…
We have another High Court decision where the judge was highly critical of the approach of each expert. The judge found that each took on the role of advocate rather than expert. The criticisms are stark “they were similar in…
WEBINAR ON PART 36: NOW AVAILABLE “ON DEMAND”: WATCH IT WHEN AND WHERE YOU WANT…
I have had some enquiries about whether the webinar given today on Recent Developments in Part 36 is available this webinar is available “on demand. It is now available – the details are available here. (The CLB Member discount…
COURT OF APPEAL DECISION ON PART 36 FIXED COSTS AND LATE ACCEPTANCE HEARD – DECISION PENDING (PLUS A FINAL PLUG FOR THE WEBINAR ON PART 36 ON THE 26th FEBRUARY 2026)
The Court of Appeal has heard an appeal against the decision in Laura Attersley v UK Insurance Limited [2025] EWHC 884 (KB). This is an interesting decision on Part 36. I understand that judgment is pending. This was one of many…
WITNESS EVIDENCE WEDNESDAY: A WITNESS STATEMENT “MADE UP OF SUBMISSIONS OR COMMENTARY ON DOCUMENTS RATHER THAN EVIDENCE”
There are numerous warnings and strictures about not putting submissions, commentary and opinion in witness statements. More than one observer has commented that these rules are routinely ignored. We have examples of this here. We also have an example of…
MAZUR MATTERS 50: THE CALM BEFORE THE STORM: GETTING READY FOR THE APPEAL THIS AFTERNOON: BUT IF YOU WANT TO WATCH – YOU HAVE TO ASK…
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP begins at 2.00 today, it continues on Wednesday and Thursday. It is not being live streamed (To be fair I have been sent a link – the Court…
![PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER - YES THEY CAN]](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2026/02/Par36Interest.png?resize=150%2C150&ssl=1)
PART 36 ISSUES: CAN A JUDGE CONSIDER INTEREST UNDER PART 36 WHEN INTEREST HAD BEEN AN ISSUE DETERMINED IN THE ACTION? [SPOILER – YES THEY CAN]
The judgment here considers an interesting point in relation to Part 36. The judge had, in the substantive judgment, considered issues relating to the interest to be paid by the defendant. The defendant had failed to beat a Part 36…
FATAL ACCIDENTS WEBINAR SERIES 2026: ADVANCE NOTICE : JUNE – JULY 2026: BASIC PRINCIPLES AND SOME INTERESTING NEW DEVELOPMENTS CONSIDERED
The recent High Court decision in Denning v Stone [2025] EWHC 3517 (KB) is a powerful reminder of the very particular nature of fatal accident damages. Although the deceased’s farm was not making a profit, the court awarded £377,577 to…
BACK TO BASICS MONDAY: WHAT HAS TO HAPPEN WHEN A LEGAL REPRESENTATIVE SIGNS THE STATEMENT OF TRUTH: A STARK REMINDER
There are major dangers when a lawyer signs a statement of truth on behalf of their client. I had actually planned a post on this issue before seeing the judgment last week which features below.. For many years this site…
MORE DECISIONS ABOUT ARTIFICIAL INTELLIGENCE AND “HALLUCINATED” CASES: THE UPPER TRIBUNAL IS FAR FROM HAPPY: LEGAL PROFESSIONALS WHO DELEGATE THEIR WORK REMAIN RESPONSIBLE FOR ENSURING ITS ACCURACY
As I’ve said before the hallucinated cases just keep on coming. The issues were considered by the Upper Tribunal (Immigration and Asylum Chamber) here. There are important points about the need to supervise staff who undertake legal research. It is…
THE CURRENT IMPORTANCE OF PLEADINGS 55: THE PARTICULARS OF CLAIM CONTAINED A (SIGNIFICANTLY) FALSE FACT: JUDGE FINDS THAT THIS WAS PRINCIPALLY DUE TO THE FAULT OF “BARRISTER M”
It is rare for a judgment about pleadings to be “gripping” reading. We have such a case here. From the opening lines, to the detailed consideration of how the pleadings went wrong, the narrative is compelling. We even have an…
COST BITES 356: DO FIXED COSTS APPLY WHEN THE CASE IS TRANSFERRED AWAY FROM A FIXED COSTS REGIME TO ONE WHERE COSTS ARE “AT LARGE”
Here we are considering a Court of Appeal decision about what costs order should be made when an action is transferred from a fixed costs regime to one where costs are at large. On the face of it the decision…
SERVICE POINTS 28 : EFFECTIVE SERVICE ON A RESIDENCE IN ENGLAND COULD NOT TAKE PLACE WHEN THE DEFENDANT WAS IN FACT ABROAD – AND LEGALLY PREVENTED FROM RETURNING
We are looking at a Court of Appeal judgment today which overturned a finding that a defendant had been properly served at an address in England. The defendant was not living in England when proceedings were served and, indeed, there…
COURT OF APPEAL ALLOWS APPEAL AGAINST STRIKING OUT: THE APPELLANTS HAD NEVER BREACHED A PEREMPTORY ORDER: HOW “UNLESS ORDERS” SHOULD BE CONSTRUED
For the second time this month we are looking at a successful appeal against the construction of an “unless” order. In both cases the judges below had found that the appellants had breached the order. In both cases that finding…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
COST BITES 353: VARYING A COSTS BUDGETS (1): THE PRINCIPLES CONSIDERED: WHAT IS MEANT BY “SIGNIFICANT DEVELOPMENTS”?
We are taking a detailed look at a judgment that deals with proposals to vary costs budgets. This post will look at the judge’s considerations of the rules, principles and guidance that relates to variation of budgets. Later posts will…
PART 36: RECENT CASES, KEY ISSUES AND KEY PROBLEMS CONSIDERED: WEBINAR 26th FEBRUARY 2026
A detailed working knowledge of Part 36 in practice is no longer optional for litigators. Recent decisions show the courts applying the rules with increasing rigour, exposing parties to serious and often unexpected costs consequences. This webinar cuts through…
PROVING THINGS 280: DEFENDANT FAILS TO PROVE THAT AN ACTION HAD BEEN COMPROMISED: THE TERMS “SUBJECT TO CONTRACT” MEAN THAT ACCEPTANCE DID NOT GIVE RISE TO A BINDING COMPROMISE
Documents are often marked “subject to contract”. This case considers the practical implications of such markings. In particular whether an apparent acceptance of an agreement gave rise to a binding agreement. As we shall see the wording was found to…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION (2): CONTRIBUTIONS FROM THE NICE PEOPLE OF TWITTER:
I am here summarising the Advice given by lawyers on the social media site formerly known as Twitter. In April 2019 I asked lawyers what their advice would be for their colleagues in the profession when things go wrong. Specifically…
COST BITES 351: WHAT HAPPENED TO THOSE COSTS BUDGETS IN PRACTICE? “COMPARE AND MATCH” IS NOT ALWAYS AN ACCURATE GUIDE:THE KEY QUESTION IS – WHO WILL BE DOING THE MOST WORK?
The previous post looked at the judge’s general observations in this case. Here we look how those principles were applied in practice. It is clear that the arguments that the costs were excessive by way of comparison did not always…
BACK TO BASICS MONDAY: THE DIFFERENCE BETWEEN THE DATE OF RECEIPT AT COURT FOR LIMITATION PURPOSES AND DATE OF ISSUE FOR THE PURPOSES OF SERVICE: AVOID TESTING THIS DISTINCTION IF YOU CAN
Here we look at an issue that can cause confusion, it is important from the point of view of determining the date from which the date of service runs. The relevant date for limitation purposes is the date of receipt…
COST BITES 349 : THE CLAIMANT SHOULD HAVE BEEN GRANTED 100% OF THEIR COSTS: THE SECRETARY OF STATE’S FAILURE TO COMPLY WITH THE PRE-ACTION PROTOCOL WAS A HIGHLY RELEVANT FACTOR
It is rare for the Court of Appeal to overturn a first instance decision as to costs. We see an example of this happening here. The Upper Tribunal awarded the claimant 75% of his costs of a judicial review application…
PART 36: LIABILITY ONLY OFFERS AND THE COURT OF APPEAL: WE DON’T HAVE CLARITY AND CERTAINTY WE DO HAVE CONFUSION AND AMBIGUITY
Those with long memories will recall the confusion and uncertainty that the Court of Appeal caused in Carver v BAA Plc [2008] EWCA Civ 412 when the concept of a “near miss” was introduced in relation to Part 36. A…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
MEMBER NEWS: A REMINDER OF MEMBER BENEFITS AND WHERE TO FIND THE DISCOUNT CODES: ESSENTIAL TOPICS COVERED IN WEBINARS THROUGHOUT THE YEAR
A reminder that member subscribers have access to discounts on webinars being presented throughout the year. The details of the webinars, the discounts and how to find the discount codes are below. The first webinar sets out the practical consequences…
THE CURRENT IMPORTANCE OF PLEADINGS 54: ALTHOUGH THE PARTICULARS WOULD NOT BE STRUCK OUT SOME WORDS NEED TO BE CHANGED: CHOOSE YOUR WORDS WITH CARE…
We are returning to look at the case where the Master refused to strike out pleadings on the grounds that they were an abuse of process. However it was also made clear that the use of certain words in the…
WHEN PERMISSION IS (AND IS NOT) REQUIRED TO DISCONTINUE A CLAIM BROUGHT ON BEHALF OF MINORS: IT STILL HAS SERIOUS COSTS CONSEQUENCES THOUGH
Here we are looking at an interesting issue relating to discontinuance. In some circumstances a claim brought by a minor or protected party cannot be discontinued without the court’s permission; in other circumstances no permission is required. The distinction is…
THE CIVIL PROCEDURE (AMENDMENT) RULES 2026 (2): THE COURT CAN ORDER A PARTY TO REQUEST ANY PERSON TO PRODUCE DISCLOSURE AND INSPECTION
We are continuing with our look at the The Civil Procedure (Amendment) Rules 2026 which come into force on the 6th April 2026. Here we look at a totally new provision which gives the court power to order a party to…
WITNESS EVIDENCE WEDNESDAY: THE USE OF ARTIFICIAL INTELLIGENCE IN THE DRAFTING OF WITNESS STATEMENTS: “IT IS DIFFICULT TO DISTINGUISH BETWEEN WHAT F SAYS AND WHAT AN ALGORITHM TELLS F TO SAY”
There is much material about witness evidence and witness statements on this site. In recent years we have also been discussing the use (and misuse) of artificial intelligence. We can be fairly sure that there will be much more about…
COST BITES 346: CONDUCT, “PART 36 OFFERS” AND THE STATUTORY PRESUMPTION ON A SOLICITORS ACT ASSESSMENT: THE COSTS OF “ASSESSMENT” ARE DISTINCT TO THE COSTS OF “PROCEEDINGS”
In this judgment given yesterday a Costs Judge considered the relevance of conduct in a Solicitors Act assessment. In particular whether an offer expressed as a “Part 36 offer” by the claimant client could amount to “special circumstances” to displace…
DEFENDANTS GIVEN PERMISSION TO RELY ON SURVEILLANCE EVIDENCE SERVED LATE: EVEN THOUGH THIS LED TO THE ADJOURNMENT OF THE TRIAL
A defendant that wishes to rely on surveillance evidence must choose its timing with extreme care. If the evidence is disclosed too early then the claimant could be “tipped off”; too late and this could be categorised as an “ambush”. …
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION(1): A PRIMER FOR “WHEN THE SKY IS FALLING”
Very little (if any) of the legal curriculum is devoted to what to do when things go wrong. Not enough (in my view) is devoted to preventing things go wrong. However here we concentrate on what do when something goes…
ANOTHER ISSUE ABOUT UNLESS ORDERS: CAN A COURT MAKE AN ORDER SPECIFYING A SUM FOR DAMAGES IF THE DEFENDANT DOES NOT COMPLY?
There have been a number of cases about unless orders recently. This one looks at the issue of whether the court can make an order and state that, if there is default, the claimant can enter judgment for a specific…
BACK TO BASICS MONDAY: WHEN YOU MUST AND WHEN YOU CAN’T SERVE THE CLAIM FORM ON A SOLICITOR: TRY TO AVOID TELLING THE COURT YOU ARE “SURPRISED” BY THE RULES…
The issue of when a claim form can be served on a defendant’s solicitor is one that has been considered many times on this site over the years. There can be two fatal errors for claimants. (1) Serving on a…
AVOIDING THE PITFALLS: PROCEDURAL DEFAULT, SANCTIONS AND OTHER ISSUES THAT CAUSE ACTIONS TO FAIL: WEBINAR 6th FEBRUARY 2026
As regular readers of this site know procedural mistakes derail more civil claims than weak evidence or bad law. Missed deadlines, defective pleadings, non-compliance with court directions and costs failures can all result in serious sanctions — or the claim…
You must be logged in to post a comment.