CIVIL PROCEDURE BACK TO BASICS 103: THE STANDARD FORM FOR PART 36 OFFERS
Yesterday I gave a webinar about Part 36, this will shortly be available on YouTube. The webinar reviews cases over the past 12 months. One of the points being considered was the arguments in Henderson & Jones Ltd v Salica Investments…
WITNESS STATEMENTS, FORGED DOCUMENTS AND A FINDING OF CONTEMPT OF COURT: A WHOLE BUNCH OF PROBLEMS
This is a case where the judge found that the claimant and a witness relied on documents that they knew to be forged. It is an important reminder of the lengths that some people can go to in litigation. It…
COST BITES 242: THE WORDING OF THE RETAINER DID NOT ENABLE THE SOLICITOR TO RENDER INTERIM STATUTE BILLS: THE BILLS HAD INSUFFICIENT INFORMATION IN ANY EVENT
I am grateful to my colleague Paul Hughes for sending me a copy of the decision we are looking at today. Another case on the ongoing saga of whether a retainer allows a solicitor to serve interim statute bills. The…
CLAIMANT FAILS TO BEAT DEFENDANT’S PART 36 OFFER “BY A WHISKER”: IS IT UNJUST FOR THE USUAL PART 36 CONSEQUENCES TO APPLY?
Here we are considering a High Court decision about the consequences of a Part 36 offer. The claimant failed to beat the offer “by a whisker” because of the way in which interest was calculated. The judge considered the claimant’s…
CAN THE COURT ORDER A CLAIMANT TO DELIVER UP REPLIES TO PART 18 QUESTIONS BEFORE A DEFENCE IS FILED? THE ISSUE CONSIDERED IN THE HIGH COURT
There are relatively few cases on procedural issues relating to Part 18. In this case the judge considered whether the court had power to compel a claimant to reply to Part 18 questions from the defendant before a defence was filed. …
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES 2025: WEBINAR 4th JUNE 2025
This webinar looks at recent cases in relation to periodical payments and periodical payments, including an interesting negligence case brought against solicitors who failed to claim provisional damages. Booking details are available here. It then looks at the…
THE CURRENT IMPORTANCE OF PLEADINGS 13: INAPPROPRIATE PLEADING OF FRAUD LEADS TO COSTS ON AN INDEMNITY BASIS
I am not sure whether there are more cases about pleadings recently, or whether I am noticing them more having started this series. However issues relating to statements of case keep arising. Here we look at a case where the…
PERSONAL INJURY POINTS 6: HOW IS THE COURT GOING TO APPROACH THE COSTS OF ACCOMMODATION WHEN THE CLAIMANT HAS A REDUCED LIFE EXPECTANCY – & HOW DOES THE COURT DEAL WITH THIS ON AN APPLICATION FOR AN INTERIM PAYMENT?
The decision in Swift -v- Carpenter set out the approach the courts should normally take when a claimant needs to purchase accommodation because of their injuries. However that judgment, expressly, left open issues relating to the approach the courts should take…
PERSONAL INJURY POINTS 5: THE PUBLICAN WAS NOT VICARIOUSLY LIABLE FOR THE ACTS OF A SEPARATE SECURITY COMPANY
When a claimant is injured by doormen working on licensed premises is the publican vicariously liable if the assailants were employed by a separate security company ? The answer is “it depends”. The issue is primarily one of control. It…
THE CURRENT IMPORTANCE OF PLEADINGS 11: THE COURT WON’T STRIKE OUT PARTS OF THE DEFENCE BECAUSE… ITS ACTUALLY THE PARTICULARS OF CLAIM THAT DON’T MAKE MUCH SENSE
NB – SEE THE APPEAL JUDGMENT ON ONE ISSUE IN THIS CASE IN Prudence v Gloucestershire Hospitals NHS Foundation Trust [2026] EWHC 96 (KB) Here we are looking at a judgment that is all about statements of case (or at…
PROVING THINGS 261: PROVING FUTURE INTENTIONS: AN INTENTION TO HAVE MEDICAL OPERATIONS CARRIED OUT PRIVATELY
Today we are looking at a case where the defendant appealed against a decision that the claimant could recover the future cost of medical treatment to be carried out on a private basis. Statute states that there is no duty…
COST BITES 240: THERE IS NOT A “CATCH 22” POSITION IN RELATION TO THE DRAFTING OF THESE CONDITIONAL FEE AGREEMENTS
We are continuing to work through the results of one case in relation to the recoverability of success fees from a client’s damages. The claimants, seeking to challenge their former solicitors deduction of costs from their damages, argued that the…
AVOIDING UNDERSETTLEMENT: PROTECTING THE CLIENT AND PROTECTING YOURSELF: WEBINAR 29th MAY 2025
“We go back through your claim in fine detail and if we find that your previous solicitor wasn’t thorough enough and your claim was mishandled, we’ll squeeze out all the compensation that you’re entitled to, getting you more money, and…
THE CITATION OF FALSE AUTHORITIES: THE LEGAL REPRESENTATIVES HAVE A DATE IN COURT ON THE 23rd MAY
I have written several times about the remarkable decision in Frederick Ayinde, R (on the application of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) where false authorities were presented to the court. I have also written about …
CLAIM WAS (ARGUABLY) ISSUED IN TIME WHEN IT ARRIVED AT THE COURT: LATE SERVICE OF THE PARTICULARS OF CLAIM DOES NOT DEPRIVE THE COURT OF JURISDICTION
Today we are looking at a case that raises important issues. The judge decided that calling someone gay is not defamatory. However here we are not concerned with the substantive issues but two procedural issues raised in the case. Firstly…
THE CURRENT IMPORTANCE OF PLEADINGS 10: THE DUTIES ON A PARTY PLEADING ALLEGATIONS OF FRAUD OR DECEIT
Allegations of fraud have to be pleaded with care. Those pleading such assertions must have “reasonably credible material” to support them. Here we look at a case where allegations of deceit were made. The judge found that the allegations had…
ANOTHER (YES ANOTHER) CASE OF FAKE AUTHORITIES BEING CITED TO THE COURT: APPEAL STRUCK OUT AS AN ABUSE OF PROCESS
Unbelievably we are looking at another case where the court found that false authorities had been cited to it. The appeal was struck out as an abuse of process. “In my judgment, the Court needs to take decisive action…
THE DEFENDANT’S DELAY LEADS TO COURT OF APPEAL REFUSING TO SET ASIDE DEFAULT JUDGMENT: THE IMPORTANCE OF BEING PROMPT
Today we are looking at a case where a defendant waited 16 months before applying to set aside a default judgment. That application to set aside was successful at first instance but overturned by the Court of Appeal. The Court…
THE JUDGE’S DECISION TO GRANT RELIEF FROM SANCTIONS TO A DEFENDANT WAS APPROPRIATE: SOME WORDS AS TO HOW PEREMPTORY ORDERS SHOULD BE DRAFTED.
Today we are looking at a case where the Court of Appeal upheld a decision granting a defendant relief from sanctions. However this is a case of “two halves” in that the claimant had a more favourable decision in relation…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
THIRD PARTY HAD FUNDED THE LITIGATION AND WAS LIABLE TO PAY THE DEFENDANT’S COSTS : A “CHILDISH AND INEFFECTUAL ATTEMPT” TO DECEIVE THE COURT DID NOT PASS MUSTER
It is a well known principle that a third party funder can be liable to pay the costs of an action. However what happens when the funding agreement is dressed up as something else – a car sale for instance? …
THE COURT DOES NOT REQUIRE EXPERT EVIDENCE TO CONSTRUE A TERM IN AN AGREEMENT: AN EXPERT CANNOT BE USED TO USURP THE FUNCTION OF THE COURT
Is an expert needed to construe a contractual agreement. Here we have a case where the Master was very much against the applicant who sought permission to rely on an expert. An expert was not needed to report on market…
THE CURRENT IMPORTANCE OF PLEADINGS 9: THE PRIMARY FACTS UNDERLYING ALLEGATIONS OF DISHONESTY MUST BE PLEADED
Parties alleging dishonesty and fraud have to be very careful in the way they plead their case. These matters cannot be pleaded lightly, and there are professional obligations on the pleader to ensure that there is reasonably credible material that…
WHEN CASES RELIED UPON IN WRITTEN ARGUMENTS WERE SIMPLY “FALSE”: WASTED COSTS ORDER MADE AGAINST COUNSEL AND SOLICITORS
This blog celebrates its 12th anniversary next month. Civil Litigation Brief started as a column in the Solicitors Journal 35 years ago. Over that time many people have helpfully sent me and pointed me me to cases of interest. In…
DOES AN ELECTRONICALLY ISSUED AND SUBSEQUENTLY AMENDED CLAIM FORM REQUIRED RE-SEALING AND FILING PRIOR TO SERVICE? AN IMPORTANT ISSUE CONSIDERED
If a claimant serves a “amended” claim form that has not been resealed does that amount to good service? That issue was considered in the case we are considering today. The result is of considerable practical significance. However it pays…
THE ROLE OF LEADING COUNSEL IN RELATION TO EXPERT REPORTS AND WITNESS STATEMENTS: A CLIENT CAN PAY FOR WHAT THEY WANT, BUT THESE COSTS WILL NOT BE RECOVERABLE INTER PARTES
How far should leading counsel, or counsel generally, be involved in the preparation of expert reports and witness statements? One obvious reply is “not at all”, given that the evidence should come from the expert or witness. These issues were…
DEDUCTIONS OF INSURANCE PAYMENTS FROM PERSONAL INJURY DAMAGES: TWO RECENT CASES CONSIDERED: A POINT FOR BOTH CLAIMANTS AND DEFENDANTS TO WATCH
The principle that insurance payments are sometimes deducted from a claim for personal injury damages is overlooked. Here we are looking at two recent cases where this principle was considered and applied. In one case, at least, the principle does not…
CLAIMANT NOT ENTITLED TO SECURITY FOR COSTS: APPLICATION BY A THIRD PARTY WAS NOT A “NEW CLAIM”
Normally only a defendant can apply for security for costs. In this case the claimant applied for security for costs when a third party made an application. The question for the court was – in these circumstances can the applicant…
NEW EDITION OF THE KINGS BENCH GUIDE: THE GENERAL CHANGES AND THE GUIDANCE ON ANONYMITY ORDERS
There is a new edition of the King’s Bench Guide. There are some additions and changes. In particular the Guide notes the difference between an application for an anonymity order made at an approval hearing and one that is not….
THE RICS PRACTICE ALERT ON ACTING AS AN EXPERT WITNESS IN HOUSING DISREPAIR AND OTHER HIGH VOLUME CASES: OF INTEREST TO ALL EXPERTS (AND THOSE WHO INSTRUCT THEM)
The RICS has produced a Practice Alert aimed specifically at those acting as expert witnesses in housing disrepair and other high volume cases. It some ways the Alert is surprising in that it says nothing new, that is most of…
JUDGE STRIKES OUT CLAIM FOR LOSS OF EARNINGS: IT IS “INCOHERENT” AND OBSTRUCTS THE JUST DISPOSAL OF THE CLAIM
It is an easy matter for a claimant to insert a claim for a substantial loss of earnings into a schedule of damages. However a claimant then has to prove that loss. Further, even prior to trial, a defendant is…
COST BITES 234: A REMINDER THAT A SOLICITORS ACT ASSESSMENT CAN SOMETIMES BE AN EXPENSIVE PROCESS FOR A CLAIMANT
A central aim of this series is to look at what actually happens when costs are assessed. We see an example in the case we are looking at here. It was the claimant’s application for a Solicitors Act assessment of bills…
RELIEF FROM SANCTIONS AFTER BREACHING A PEREMPTORY ORDER AND FAILING TO PLEAD A CASE PROPERLY: CLAIMANT ALLOWED TO CONTINUE (IN PART)
We are looking again at the judgment in Michele Carrington v American International Group UK Limited [2025] EWHC 1010 (TCC). This time in relation to the issue of relief from sanctions. The claimant had failed to comply with a peremptory order to…
THE CURRENT IMPORTANCE OF PLEADINGS 7: “THE CLAIMANT AND WILL NOT BE PERMITTED TO PLEAD SUCH A CLAIM IN BROAD AND VAGUE TERMS”: A CLAIMANT HAS TO PLEAD HOW THE ALLEGED BREACHES HAVE CAUSED THE ALLEGED LOSS
Here we are looking at an application that was all about the claimant’s inadequate pleadings. After putting the defects right (at at third attempt) the case was allowed to proceed – but it was a lengthy and expensive process for…
THE DENTON PRINCIPLES AND EXTENSIONS OF TIME TO APPEAL (AGAIN): DELAYS REQUIRE AN EXPLANATION – NOT A CHRONOLOGY
The judgment of HHJ Karen Walden-Smith in Khan & Anor v Secretary of State for Housing, Communities and Local Government & Anor [2025] EWHC 969 (Admin) is the second example this week of the court considering the Denton principles when…
THE DENTON PRINCIPLES: RELIEF FROM SANCTIONS AND EXTENSIONS OF TIME TO APPEAL: A “NUANCED APPROACH” IS REQUIRED
In Yaxley-Lennon v HM Solicitor General [2025] EWCA Civ 476 the Court of Appeal considered the Denton principles in the context of extending time for permission to appeal. The case emphasises that the absence of a good reason for default…
PROVING THINGS 260: COURT OF APPEAL JUDGMENT ON ADVERSE INFERENCES: “WE REJECT THIS NEW WAY OF PUTTING THE ADVERSE INFERENCE CASE”
I am grateful to David Platt KC for drawing my attention to the Court of Appeal decision in Alexander Johnstone v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467, in particular to the judgment in relation to adverse inferences. The Court of…
EXPERT EVIDENCE FOR HOUSING LAWYERS: WEBINAR 14th MAY 2025
I am giving a webinar for the Steve Cornforth Consultance on the 14th May 2025. It is aimed at housing lawyers and aims to have a comprehensive look at the rules, guidance and cases on the use of experts in…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: TEN KEY POINTS CONSIDERED: ACT PROMPLY, ACT PROPERLY AND DON’T TELL LIES
Legal Futures carries a report of a paralegal banned from the profession because she tried to cover up a mistake by lying to the court. This gives me a reason to reiterate points made regularly on this blog about what…
“ARGUMENT SHOULD BE LEFT TO THE SKELETON ARGUMENTS”: GUIDANCE ON WITNESS STATEMENTS IN THE COMMERCIAL COURT REPORT
The Commercial Court report for 2023 – 2024 shows that there have been some changes to the Commercial Court Guide. The Guide has removed the requirement to obtain permission for a witness statement to exceed 30 pages. It is hoped…
PROVING THINGS 259: WHEN THE COURT REFUSES PERMISSION FOR THE EXPERTS TO GIVE EVIDENCE AT TRIAL: THESE ARE BASICALLY ISSUES OF FACT
In Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC dismissed the claimant’s application that forensic accountants give evidence at trial. The experts had basically agreed that there were issues of fact to…
SPORTING INJURIES IN THE COURTS: WEBINAR 17TH APRIL 2025: SOME INTERESTING TOPICS TO TACKLE…
Injuries to those involved in sports are not unusual. The issues relating to whether injuries are the result of negligence are complex ones. This webinar looks at the law relating to sporting injuries and, importantly, at the practical issues that…
COST BITES 226: ARE THE COSTS OF DELEGATION RECOVERABLE? POTENTIALLY – BUT THERE IS A CAVEAT – IT MUST NOT LEAD TO INCREASED COSTS
It is prudent for litigators of every type to take a look at decisions made on the assessment of costs. The fundamental questions “am I going to get paid for doing this?” or “Is my client going to recover the…
LITIGATION “WHACK-A-MOLE” – THE MOVING TARGET AND POOR PLEADINGS – IN A CASE ABOUT ALLEGEDLY POOR PLEADINGS
We are looking again at the judgment of Mr Justice Saini in Israel Russell v Barry Coulter [2025] EWHC 493 (KB). This was a case alleging that the defendant barrister had pleaded a case badly. The claim was rejected. However it is…
DEFENDANT’S POINT ON NON-SERVICE OF THE CLAIM FORM NOT ACCEPTED: THE CLAIMANT HAD TAKEN ALL REASONABLE STEPS
The judgment of Fordham J in Baz v General Dental Council [2025] EWHC 643 (Admin) contained an interesting issue in relation to service of the claim form. The defendant conceded that the claim form had been properly placed in the…
THE CURRENT IMPORTANCE OF PLEADINGS 5 : THE CLAIMANT CAN’T NOW ARGUE SOMETHING CONTRARY TO HIS OWN PLEADED CASE
We are looking at another case in which the pleadings played a significant part. In Daniel Maurice Wagner v Bright Station Ventures Management Limited [2025] EWHC 669 (KB) Mr Justice Sweeting rejected an argument from the claimant that was contrary…
THE CURRENT IMPORTANCE OF PLEADINGS 4: A FAILURE BY A CLAIMANT TO ADEQUATELY PARTICULARISE ITS CASE
When you start looking for cases about pleadings it is surprising how issues in relation to statements of case keep popping up. We see it in the judgment of Jeremy Hyam KC in Kau Media Group Limited v Thomas Hart [2025] EWHC…
ADVOCACY THE JUDGE’S VIEW XVI: THE FUTILITY OF TRYING TO READ THE JUDGE’S BODY LANGUAGE
Many of the posts in this series revisit previous series on the judge’s view. This post looks at the recent case of Russell v Coulter (Rev1) [2025] EWHC 493 (KB). The judge made certain observations when disallowing the evidence of a…
TIME FOR PERMISSION TO APPEAL: A “SECOND APPEAL”: COURT REFUSES TO GRANT EXTENSION
For the second time this week we are looking at issues relating to extension of time and appeals. In Abbotsley Ltd v Pheasantland Ltd [2025] EWHC 654 (KB) HHJ Karen Walden-Smith provided a timely reminder that a party who wishes…
UPDATE TO PROFESSIONAL USER GUIDANCE FOR THE DAMAGES CLAIMS PORTAL: SEE THE NEW DOCUMENT HERE
The Professional User Guidance for the Damages Claim Portal has been updated this month. Anyone using the Portal is best advised to have the new guidance to hand. THE UPDATED GUIDANCE The document from HMCTS can be found here…
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