MAZUR MATTERS 62: THE REVISED COURT OF APPEAL JUDGMENT: SOME SMALL BUT SIGNIFICANT REVISIONS
There is a revised version of the Court of Appeal judgment in Mazur. Some paragraphs were amended slightly (but significantly). These amendments do not appeal to have made their way to the version of the judgment that is publicly available….
THE CURRENT IMPORTANCE OF PLEADINGS 75: A CLAIMANT DOES NOT ALWAYS NEED TO PLEAD A CLAIM FOR INTEREST: AN INTERESTING POINT… BUT BE VERY WARY…
Here we look at an argument that a claimant was not entitled to interest because it was not pleaded. The judge rejected the argument on two grounds. Firstly that CPR 16 does not apply to Part 8 claims; secondly that…
THE CURRENT IMPORTANCE OF PLEADINGS 74: A PARTY CANNOT SIMPLY SEEK TO AMEND THE LIST OF ISSUES TO INCLUDE AN ISSUE THAT IT HAS NEVER PLEADED
Here we have an unusual case in that the defendant, rather than seeking to amend its defence, sought permission to amend the list of issues to enable it to argue a new point which (the judge found) had not been…
WEBINARS AVAILABLE ON DEMAND: WITNESS STATEMENTS; MAZUR; INFORMING THE CLIENT ABOUT THE COSTS OF LITIGATION AND PART 36: A HEADY BREW TO LIGHTEN UP ANY LITIGATOR’S DAY…
Four webinars are now available “on demand” from Civil Litigation Brief: PD57AC; Mazur in the Court of Appeal; Informing the Client about the Costs of Litigation; Part 36 recent developments. THE COSTS (The costs are £75.00 plus VAT if you…
A CLAIMANT’S PART 36 OFFER THAT GAVE A 9% DISCOUNT WAS “SOBER AND REALISTIC”: IT WAS NOT UNJUST FOR THE DEFENDANT TO FACE THE NORMAL CONSEQUENCES OF FAILING TO BEAT IT
Here we have another case where the court considered an argument that it was “unjust” for an unsuccessful defendant to face the normal Part 36 consequences when they had failed to beat a claimant’s Part 36 offer. This judgment shows…
THE CURRENT IMPORTANCE OF PLEADINGS 73: COURT STRIKES OUT CLAIM FOR £2.1 MILLION FOLLOWING McLAREN CATCHING FIRE: THE CASE WAS NOT PROPERLY PARTICULARISED
Here we have a case where the judge considers in considerable detail the principles relating to pleading, the striking out of pleadings, and the possibility of being allowed to amend. None of these favoured the claimant. “It is not sufficient…
WITNESS EVIDENCE WEDNESDAY: WITNESS EVIDENCE, A LATE APPLICATION FOR SUMMARY JUDGMENT AND THE LAW OF UNINTENDED CONSEQUENCES…
Here we have an example of a litigation strategy backfiring. The applicant made a (late) application for summary judgment to be heard on the first day of the trial. The respondents filed evidence in response to the application. Much of…
THE POSITION FOLLOWING DEATH OF A PARTY: THE FAMILY PROCEDURE RULES CANNOT “BORROW” PROVISIONS FROM THE CPR: APPEAL STRUCK OUT
This blog has looked, many times, at the problems caused by the death of a party during the course of litigation. Here we look at a problem that occurred in the Family Court. The fundamental point here is that the …
COST BITES 388: A COMPANY CANNOT CLAIM ITS OWN EMPLOYEE’S TIME AS LEGAL COSTS WHEN IT WAS REPRESENTED ON AN APPEAL
Here we have a reiteration of a long established principle as to costs. A company can only recover legal costs on an assessment, not the costs of being a litigant. Here the appellant sought to recover both. The Costs Judge…
THE COURT HAS NO POWER TO EXTEND TIME FOR ISSUE WHEN A SOLICITOR WISHES TO CHALLENGE A SRA INTERVENTION (AND WHY IT IS ADVISABLE TO PUT ALL THE NECESSARY INFORMATION ON THE CLAIM FORM…)
We are used to looking at some extremely tight timelines on this blog, in particular in relation to issue and service. Here we have a case where the court found that the court has no power at all to extend…
COST BITES 387: THERE IS NO PRESUMPTION THAT THERE MUST BE A DETAILED ASSESSMENT WHERE A CASE LASTS MORE THAN ONE DAY: JUDGE SUMMARILY ASSESSES COSTS AFTER A THREE DAY HEARING
Here we have a case where there was an argument whether there should be a summary or detailed assessment. The judge made it clear that there is no presumption against summary assessment simply because a hearing lasted more than one…
BACK TO BASICS MONDAY: THE RIGHT OF A DEFENDANT TO ASK FOR A CLAIM FORM TO BE SERVED: CPR 7.7 CONSIDERED
We have had two cases this year that deal with the provisions of CPR 7.7. A rule that allows a defendant to serve a notice requiring service of a claim form. It is worth knowing that this rule exists and…
ARTIFICIAL INTELLIGENCE AND THE CITATION OF MISLEADING AUTHORITIES: ANOTHER WEEK, ANOTHER CASE: IF YOUR NAME IS ON THE DOCUMENT YOU “OWN” IT…
We are looking at another case where the judge has expressed major concerns about the use of Artificial Intelligence in the preparation of documents for the court. The situation is now a (depressingly) familiar one where the use of AI…
COST BITES 385: THE COURTS SHOULD BE WARY OF DECIDING PRELIMINARY APPLICATIONS AND ISSUES ON A PROVISIONAL ASSESSMENT: THIS COULD UNDERMINE THE WHOLE PURPOSE OF THE REGIME
We are looking at an interesting decision in relation to the court being asked to determine preliminary issues in the provisional assessment process. The judge held that the courts have jurisdiction to determine preliminary applications and issues however it should…
THROWBACK FRIDAY: LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT” (MAY 2021)
When looking at previous posts we are looking for issues that remain relevant today. This case, about the conduct of experts and their interaction with lawyers, remains highly pertinent. The judge held that the breaches were so severe that the…
SERVICE POINTS 41: THE DEFENDANTS REQUIRED AN EXTENSION OF TIME TO DISPUTE JURISDICTION FOLLOWING INVALID SERVICE OF THE CLAIM FORM: A POINT FOR PRACTITIONERS TO WATCH…
Here we have a case where the defendants created unnecessary difficulties for themselves when taking a point as to invalid service of the claim form. The claim form was not properly served. The defendants acknowledged service indicating that they were…
SERVICE POINTS 40: SERVICE BY EMAIL WAS NOT VALID NEITHER WAS SERVICE AT THE “LAST KNOWN ADDRESS”: THE CLAIMANT HAD TO ADDUCE EVIDENCE AS TO HIS STATE OF KNOWLEDGE
We are looking at a case that bristles with procedural points, including several issues relating to valid service. Here we look at just one of those issues – whether proceedings had been validly served when sent by email or to…
THE DEFENDANT’S ACCEPTANCE OF A PART 36 OFFER FROM THE CLAIMANT DID NOT PREVENT A SECOND ACTION IN RELATION TO A DIFFERENT (BUT RELATED) ISSUE
This is a case where the Court of Appeal allowed an appeal (in part) in relation to the striking out of a “second” action between the parties. The Court held that part of the second action was not an abuse…
SERVICE POINTS 39: ISSUES OVER CORRECT SPANISH ADDRESS DID NOT RENDER SERVICE INVALID
Here we have a case as to service when the claimant was successful. There were issues as to service as to the correct address and the correct means of service in Spain. The claimant adduced evidence from a Spanish lawyer…
COST BITES 383: WHO SHOULD PAY THE COSTS FOLLOWING “MIXED” SUCCESS AT A SUMMARY JUDGMENT APPLICATION? WHAT IS A FAIR AND REASONABLE AMOUNT? (SOMETHING ABOUT APPROPRIATE DELEGATION AND HOURLY RATES TOO…)
This judgment considers issues relating to the liability of costs, reasons why “mixed” success should lead to a reduction and the appropriate quantum for costs on a summary assessment. There are also interesting issues here in relation to hourly rates…
THE CURRENT IMPORTANCE OF PLEADINGS 71: COURT REFUSES CLAIMANT PERMISSION TO AMEND EVEN THOUGH THE CURRENT CASE WAS “UNTENABLE”: LESSONS HERE FOR EVERYONE
Here we have a case where the judge refused the claimant permission to amend the Particulars of Claim in circumstances where it was conceded that the current pleading was “untenable”. There are important lessons here for everyone involved in preparing…
THROWBACK FRIDAY: THE GOOD STUFF ABOUT BEING A LITIGATOR – FROM NICE LAWYERS (MAY 2020)
In May 2020 we were in the grip of the COVID crisis. Many of the posts from that period deal with issues arising from COVID, including a series (“The (Not So) Lonely Litigator’s Club – which looked at how people…
PROVING THINGS 289: CLAIMANT FAILS TO ESTABLISH BASIC FACT OF ASBESTOS EXPOSURE
This is another case that highlights the evidential difficulties of establishing exposure in asbestos cases. The principal victim is often dead, the claimant (usually a widow) cannot give direct evidence of the facts of exposure and the case is reliant…
COST (MEGA) BITES 382: THE AMOUNT WAS “STAGGERING” BUT THE COURT CANNOT INTERFERE WITH AN ARBITRATOR’S AWARD OF $26 MILLION FOR COSTS
Anyone going through a detailed assessment of costs can look ruefully at this judgment about costs in arbitration proceedings. The arbitrator awarded $26 million in costs based on very scant information. As it turns out the courts had no power…
THE CURRENT IMPORTANCE OF PLEADINGS 69: ALLEGATIONS OF DISHONESTY SHOULD HAVE PLEADED: IT IS INAPPROPRIATE TO QUESTION WITNESSES ON THE BASIS THAT THEY HAD ACCEPTED A PROPOSITION WHEN THEY HAD NOT DONE SO
There are several matters of interest in this judgment given last Friday. Firstly that allegations of fraudulent conduct were made when those assertions had not been pleaded. Secondly the judge was critical of the attempt to cross-examine witnesses on the…
BACK TO BASICS MONDAY: WHAT AFFECT DOES A BANK HOLIDAY HAVE ON THE COMPUTATION OF TIME UNDER THE CPR?
Normally there are no posts on bank holidays. But this subject is apposite. If you are having a day off today, what impact does a bank holiday have on the computation of time. COMPUTATION OF TIME AND BANK HOLIDAYS…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
THE CURRENT IMPORTANCE OF PLEADINGS 68: COURT OF APPEAL HOLDS THAT THE JUDGE SHOULD NOT HAVE ALLOWED AMENDMENTS: THE PLEADINGS WERE “INCOHERENT, SELF-CONTRADICTORY AND INSUFFICIENTLY PARTICULARISED”
Here we have a rare case where the Court of Appeal overturns a decision of the first instance judge to allow a party to amend their pleadings. There is a detailed analysis of why the proposed amendments were deficient. “I…
SERVICE POINTS 38: THE CLAIMANT SERVES AT THE WRONG ADDRESS BUT THE DEFENDANT FAILS TO APPLY IN TIME (A CLASSIC STORY)
This is a case where lessons can be learnt by both claimants and defendants. The claimant served at the wrong address, however the defendant did not respond promptly or timeously. KEY PRACTICE POINT There are lessons here for both parties….
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
THE DEFENDANT WAS OUT OF TIME FOR APPLYING FOR PERMISSION TO APPEAL: THE COURT DID NOT HAVE POWER AT THIS STAGE IN ANY EVENT
This judgment provides a short reminder that if a party wants to seek permission to appeal from the court that made the decision then that application must be made at the hearing being appealed itself, or any adjournment of that…
IS AN APPLICATION VALID IF THE INCORRECT COURT FEE IS PAID? THE ISSUES CONSIDERED…
We have had a flurry of cases recently about the consequences of failing to pay the correct fee when issuing proceedings. Here we have a case where the court considers the implications of a failure to pay the correct fee…
SERVICE POINTS 37 : IS SERVICE ON A P.0. BOX GOOD SERVICE? (OH – AND BY THE WAY – AS IT TURNS OUT – THE CLAIM FORM WAS NEVER, IN FACT, SERVED AT ALL): A BIT OF A SURPRISE FOR THE CLAIMANT AT THE APPEAL STAGE
Is service on a P.O. Box address good service? That was the issue being considered in this appeal. However the claimant was in for a bit of a shock. Enquiries by the judge revealed that the claim form had never…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 4: WHY IS PD57AC BREACHED SO OFTEN? “SOLICITORS MIGHT FEEL UNDER PRESSURE TO SIGN CERTIFICATES OF COMPLIANCE … EVEN WHEN THEY KNOW THAT STATEMENTS WERE NOT COMPLIANT…”
There has a been a regular flow of cases where the courts have commented that PD57AC has not been complied with, it is “more honoured in the breach than the observance”, was noted in one judgment. Given that these are…
BACK TO BASICS MONDAY: WHEN YOU ARE SEEKING PERMISSION TO RELY ON EXPERT EVIDENCE THE COURT HAS TO KNOW HOW MUCH IT WILL ALL COST…
Here we are looking at a basic requirement that is often overlooked. When a party is applying for permission to rely on expert evidence there is a mandatory obligation to provide the court with an estimate of costs. THE…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
CLAIMS FOR LOSS OF EARNINGS: AVOIDING THE PITFALLS: WEBINAR 19th JUNE 2026 (TOGETHER WITH A USEFUL QUESTIONNAIRE AND SERIES OF CHECKLISTS)
It is surprising how many allegations of negligence are made against lawyers because of a failure to consider and obtain damages for loss of earnings. In addition there are a growing number of cases where claimants have come to grief…
SERVICE POINTS 36 : “THIS IS AN AREA OF UNDOUBTED STRICTNESS”: ERRORS IN SERVICE OF THE CLAIM FORM WERE FATAL TO THE CLAIM
Regular readers of this site will not need reminding of the strictness of the rules relating to service of the claim form. Here we have another example. The claimant failed to serve the sealed claim form within the period allowed…
COST BITES 377: THE COURT WOULD NOT STAY A PAYMENT ON ACCOUNT PENDING THE DEFENDANT’S APPEAL AND/OR APPLICATION FOR A RIGHT TO SET OFF THEIR OWN COSTS (WHY WHAT IS TAKEN OUT OF DRAFT ORDER CAN BE AS IMPORTANT AS WHAT IS LEFT IN…)
Here we have an unusual issue, caused by the defendant agreeing to an unusual order (more accurately the removal of a proposed term of an order). The defendant was liable to pay the claimant’s costs of a hearing which were…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
SERVICE POINTS 35: HOT OFF THE PRESS: THE HIGH COURT UPHOLDS INITIAL FINDING THAT AN ELECTRONICALLY ISSUED AND SUBSQUENTLY AMENDED CLAIM FORM DOES NOT HAVE TO BE RE-SEALED PRIOR TO SERVICE
The cases on service of the claim form continue to flow. Here the defendant appealed a decision that it was not necessary for a claimant to serve a sealed copy of an amended claim form. As we shall see the…
EXPERT WATCH 43: WHEN AN EXPERT DOESN’T HAVE “REAL WORLD” EXPERIENCE OF THE MATTERS IN THEIR REPORT – THEY START ON THE BACK FOOT…
The previous post on costs and mediation led to me to look at the initial judgment on liability. This is because the court considered an argument that the situation with the claimant’s expert was so poor as to warrant indemnity…
AN APPEAL WAS LODGED IN TIME: SOMETIMES THE COURT DOES NOT HELP – BUT HINDER: “I HAVE CONCLUDED THAT THE COURT THWARTED THE LITIGANT’S PROPER AND REASONABLE ATTEMPT TO BRING THE APPEAL IN TIME”
Here we have a case where an important time limit was, on the face of it missed, because the court itself “thwarted” genuine attempts to lodge an appeal in time. It is an object lesson the care that needs to…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
“OVERHEATED LANGUAGE” A “CAVALIER APPROACH” AND “THIN ALLEGATIONS”: WHY IT PAYS TO BE CAREFUL AND DETAILED WHEN MAKING APPLICATIONS TO DISCHARGE INJUNCTIONS
We have seen many cases where the courts have been critical of a party’s failure to comply with the duties of full and frank disclosure when obtaining an order without notice. However here we have a case where the judge…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
A REMINDER – DOCUMENTS IN AN AGREED BUNDLE ARE ADMISSIBLE AT THE HEARING AS EVIDENCE OF THEIR CONTENTS.
We are just looking at a few lines from a judgment we looked at earlier this morning. They contain a reminder that documents in an agreed bundle are admissible as evidence at the hearing. However this does not mean that…
MAZUR MATTERS 60: THE REVISED LAW SOCIETY GUIDANCE NOTE: SOME KEY POINTS: THIS WILL REQUIRE CLOSER OVERSIGHT OF THE WORK BEING DONE
One remarkable aspect of the Mazur decision is that in a very real sense it is the losers of the case who get to decide what goes on going forward. The Court of Appeal rejected the submissions of the Law Society…
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