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…
PROVING THINGS 300: COMPANY FAILS TO PROVE ITS OWN FINANCIAL SITUATION: APPLICATION FOR A STAY REFUSED
A major theme of this series has been a failure by litigants to put evidence before the court to establish their case. That is a feature of this case. The defendant company was arguing that its own financial position was…
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…
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…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
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…
WITNESS EVIDENCE WEDNESDAY (ii): THE DEFENDANT’S WITNESS HAD NO FIRST HAND KNOWLEDGE OF THE ISSUES, KEY DOCUMENTS AND KEY WITNESSES WERE NOT PRESENT
Here we look at another case where witness evidence was found wanting. Again this is because of a failure to identify the source of information or belief. This was coupled with the fact that crucial witnesses who could give first…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
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…
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…
HOW SHOULD A CLAIMANT RESPOND TO THE COUNTER-SCHEDULE? WEBINAR 14th OCTOBER 2026
A great deal of the claimant lawyer’s time is spent considering and building a case on damages. However it is sensible for the lawyer to stop and think how realistic the claim for damages is. One of the best means…
PROVING THINGS 299 : DISCLOSURE FAILURES, MISSING DOCUMENTS AND THE RELIABILITY OF WITNESS EVIDENCE: THE CONSEQUENCES AT TRIAL
This is a case that demonstrates the importance of disclosure and the dangers of failing to preserve, or positively destroying, documentary evidence in a civil case. The judge found the (first) defendant’s conduct in that regard was extremely telling. Much…
ARTIFICIAL INTELLIGENCE HALLUCINATIONS – CAUSING PROBLEMS FOR THE PROFESSION AGAIN: “… THIS DECISION ILLUSTRATES THE CONSIDERABLE PROCEDURAL DIFFICULTIES WHICH CAN ARISE WHEN INAPPROPRIATE USE IS MADE OF AI”
I have today received a copy of the second edition of Andrew Hogan’s book on AI for Lawyers (a review of which will be appearing soon). Problems with the use of AI continue to blight the profession (at home and…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
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…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
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…
THE CURRENT IMPORTANCE OF PLEADINGS 98 : THE COURT REJECTS A LATE APPLICATION TO AMEND: THE CLAIMANT DID NOT HAVE A STRONG CASE
We have already look at this case in relation to the claimant’s application for relief from sanctions. The claimant was granted relief in relation to late service of the proposed amendments. However that did not, in fact, get the claimant…
FALSE DOCUMENTS, LATE EVIDENCE AND ARTIFICIAL INTELLIGENCE: A WHOLE HOST OF ISSUES THAT MAKE JUDICIAL LIFE MORE DIFFICULT…
Much of the discussion in relation to Artificial Intelligence to date has related to its ability to “hallucinate” false cases. However it can also be used to create extremely realistic false documents. This is an issue considered by the judges…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLYING TO RELY ON EXPERT EVIDENCE (2): A GUIDE FOR RESPONDENTS: 10 KEY POINTS WITH USEFUL LINKS
This post is (obviously) the mirror image to the earlier post on applying to rely on expert evidence. Here we look at guidance for those opposing an application to rely on expert evidence. Again there are links to posts that…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT… APPLYING FOR PERMISSION TO RELY ON EXPERT EVIDENCE ? A GUIDE FOR APPLICANTS: 10 KEY POINTS WITH USEFUL LINKS
A post yesterday dealt with an unsuccessful application to rely on expert evidence. This is an opportune moment to review the steps that a party seeking to rely on expert evidence should take. In the interest of balance a later…
COST BITES 460: THE FACT THAT A DEFENDANT LOST ON A COUNTERCLAIM DID NOT PREVENT THE COURT FROM ORDERING THE CLAIMANT TO PAY 70% OF THEIR COSTS: ORDER UPHELD ON APPEAL TO THE HIGH COURT
There are certain cases that litigators should keep in their cabinets to show to clients who are overkeen to litigate. This is one of them. The parties were arguing over a boundary line, with one of the issues being whether…
THE DISCLOSURE OF PART 36 OFFERS: IS THE DATE OF AN OFFER PART OF ITS “TERMS”? A QUESTION THAT HAS SOME PRACTICAL CONSEQUENCES: THE HIGH COURT CONSIDERS THE ISSUE
The rules allow the parties to disclose the existence of a Part 36 offer after a split trial. However the judge cannot be told the “terms” of the offer. Here the court considered the interesting (and important) issue of whether…
BACK TO BASICS MONDAY: 10 KEY POINTS ABOUT DRAFTING A DEFENCE AND THE POSTS THAT SHOW WHY THIS MATTERS
The post last Friday about the inadequate drafting of a defence was the 19th this year on the way in which defences are pleaded. This is a useful time to visit some basic principles in relation to how a defence…
DECODING THE DIRECTORIES: ALSO WHO ASSESSES THOSE WHO ASSESS US: CAN LAWYERS BITE BACK? A WHOLLY FICTIONAL EXAMPLE…
I first wrote about the “true meaning” of entries into directories eight years ago. Since they are in the news this week this is a good opportunity to remind people of what those phrases actually mean. However recent developments have…
EXPERT WATCH 75: A CASE REPLETE WITH EXPERT ISSUES: A FAILURE TO PREPARE A JOINT REPORT PLUS THE CLAIMANT CREATES DIFFICULTIES FOR ITSELF WHEN IT DOES NOT ASK ITS EXPERT TO REPORT ON POSSIBLE ALTERNATIVE OUTCOMES
This is the second post on experts today. Here we are in a very different context – the law of dilapidations. This is an area that often requires expert input. In this case we see manifold problems with the way…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PROVING DAMAGES: 10 KEY POINTS AND LOTS OF RELEVANT LINKS
The post earlier this morning identifying a case, from 2015, where a claimant failed to prove any damages, highlighted the need for a recap on this topic. There are a large number of posts on this very topic. In the…
THROWBACK FRIDAY: “PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT” (OCTOBER 2015)
Here we look at an issue that has given rise to numerous posts on this site over the years – a party fails to prove an essential element of their case. Here the failed to adduce evidence that they had…
THE CHANCERY DIVISION IS NO MORE: A PRACTICE NOTE FROM THE CHANCELLOR OF THE HIGH COURT
Today is the first day that we don’t have a Chancery Division. Here we look at a Practice Note that set out some practical changes. “Ah, cousin, cousin, it’s a weary word this Chancery!” — Charles Dickens, Bleak House, Chapter…
THE CURRENT IMPORTANCE OF PLEADINGS 96: WHEN YOU HAVE PLEADED AN INADEQUATE DEFENCE IT IS NOT A GOOD PLAN TO DEMAND THAT THE CLAIMANT PAY FOR ADEQUATE PARTICULARS TO BE PROVIDED…
Here is a classic case of a failure to draft a Defence properly. It contains a number of surprising elements. Firstly the defendant, having filed an inadequately particularised Defence, stated it would provide further particulars only if the claimant paid…
AI AND CIVIL JUSTICE: PREPARING FOR THE TSUNAMI – LORD BRIGGS ON ACCESS TO JUSTICE, PROCEDURAL RULES AND THE HUMAN JUDGE
Issues relating to the use of AI continue to “interest” the legal profession. They also interest judges. Here I summarise Lord Briggs’ Keynote Address to the Oxford Civil Justice Systems in the 21st Century Conference. “… if human judges want…
ONLINE POSSESSION PROCEEDINGS: A USEFUL CHECKLIST FOR PRACTITIONERS
The post earlier this morning set out the major elements of the new Practice Direction on the Online Procedure Rules for Possession Proceedings. At the moment these have limited geographical scope. However it is likely that they will apply more…
ONLINE POSSESSION PROCEEDINGS: A NEW PRACTICE DIRECTION, COURT COMMUNICATIONS AND SOME IMPORTANT DEADLINES: CAME INTO FORCE ON THE 29th SEPTEMBER…
The Practice Direction: Online Procedure Rules for Possession Proceedings, updated on 29 September 2026 (and came into force at 12.00 that very day), introduces a procedural framework for specified County Court possession claims. It supplements the Online Procedure Rules 2026…
COST BITES 458 : SHOULD A COURT ORDER A THIRD PARTY TO PAY THE COSTS? CAN (OR SHOULD) AN ORDER BE MADE FOR PAYMENT BY BITCOIN? THE COURT OF APPEAL HAS ITS DOUBTS…
Here we look at specific issues as to the payment of costs arising from cryptocurrency, Bitcoin in particular. Firstly the costs order made had the effect of ordering a party (who had not been ordered to pay costs) to, in…
WHO IS A PARTY AFFECTED BY A SUMMARY JUDGMENT? THE CPR; CRYPTOCURRENCY; DELAY IN APPLYING AND THE MERITS OF THE CASE CONSIDERED IN A COURT OF APPEAL JUDGMENT TODAY
We are likely to see much litigation, and quite a few procedural wrangles, arising from Bitcoin and similar “currencies”. Here we have an interesting, and important, question under CPR 40.9. Firstly in relation to whether a party was “directly affected”…
SUPREME COURT PRACTICE DIRECTIONS AMENDED: REPLIES TO OBJECTIONS, BUNDLES, COURT DRESS AND DRAFT ORDERS: WHAT THIS MEANS IN PRACTICE
The Supreme Court announced, on the 21st September 2026, that the Court’s Practice Directions had been amended on the 18th September 2026. To stop anyone being taken by surprise here is a summary of the changes. Those responsible for preparing…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … HOUSING LAW, COSTS AND PROCEDURE: 10 KEY POINTS AND USEFUL LINKS
There are much more specialist blogs available for housing lawyers and I’m glad to say that “Nearly Legal” is recommencing next month. The posts on this site concentrate on procedure and costs and the Ten Key Points here reflect that. …
INTERIM PAYMENTS: THE EXISTENCE OF DISPUTED DEFENCES AND COUNTERCLAIMS DID NOT PREVENT AN AWARD OF £1.4 MILLION
Lord Denning once observed of Cashflow that “It is the very lifeblood of the enterprise”. This remains the case for most modern businesses. In this respect an application for an interim payment can be a powerful tool. Sometimes essential to…
BACK TO BASICS MONDAY: DOCUMENTS ARE ADMISSIBLE WHEN THEY ARE IN AN AGREED TRIAL OR APPLICATION BUNDLE BUT…
Agreeing a trial or application bundle can have consequences that are easy to overlook. Documents in an agreed bundle are usually admissible as evidence of their contents. That does not mean that the parties agree that everything written in them…
WHEN POSSIBLE FRAUDULENT CONDUCT EMERGES – CAN A SOLICITOR SIMPLY CARRY ON AS BEFORE? THE ISSUES CONSIDERED
Here we look at difficult conduct issue. This is in the context of applications for judicial review. However some of the problems are universal. What does the lawyer do if there are “red flags” that indicate that the solicitor is…
CHANGES COMING INTO FORCE ON THE 1ST OCTOBER 2026: HOUSING LAWYERS BE AWARE…
Some, apparently, minor updates to Practice Directions have a major significance for housing law practitioners in particular. Here we look at the major change, which relates to housing disrepair claims and the minor corrections. KEY PRACTICE POINTS The addition…
THE CURRENT IMPORTANCE OF PLEADINGS 95: THE DEFENDANT’S ARGUMENT THAT THE JUDGE HAD AWARDED THE CLAIMANTS MORE THAN THEIR PLEADED CASE
This is another case relating to pleading damages. Here the objection was that the judge had awarded the claimants more than they had pleaded. In some circumstances this may have made a difference. On the facts of this case it…
THROWBACK FRIDAY: FOR WANT OF A PAGE IN A BUNDLE THE DAMAGES WERE LOWER… (SEPTEMBER 2015)
Here we look at a post from 2015 about a missing page in a trial bundle. The claimant argued that the missing page meant that damages had been too low. The judge held that that an application the day after…
THE PAYING PARTY’S MANUAL: HOW TO REDUCE YOUR OWN CLIENT’S LIABILITY TO PAY THEIR OPPONENT’S COSTS: THE WEBINAR, THE BOOK AND THE TOOLKIT
There is surprisingly little practical guidance for litigators on how to reduce their own client’s liability to pay their opponent’s costs. This webinar, book and toolkit aims to help fill that gap. Starting from the premise that potential liability for…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PLEADING DAMAGES? A 10 POINT CHECKLIST TO AVOID YOUR CLIENTS (AND YOU…) GETTING INTO DIFFICULTIES…
The two posts earlier today on the judgment in Amaal Ventures Ltd v Eros Ltd looked at problems arising because of a failure to plead damages. This is not an new issue. Here we use the CLB archive to provide…
THE CURRENT IMPORTANCE OF PLEADINGS 93 : CAN YOU CLAIM £2.569 MILLION IN DAMAGES WHEN YOU HAVEN’T PLEADED IT? NOW THAT’S AN IMPORTANT QUESTION…
If ever there was a case that would persuade you of the importance of pleadings it is this one. The claimant had succeeded on many issues at a trial. It now wanted to claim £2,569 million in damages. However an…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
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