A COURT ORDER SO AMBIGUOUS THAT IT WAS IMPOSSIBLE TO ENFORCE : SOME ESSENTIAL POINTS ABOUT DRAFTING HERE
Here we are looking at a Court of Appeal decision about the drafting and construction of court orders. The order made in this case was totally deficient, consequently it could not be enforced. (Absolute precision is demanded here…) “……
INDEMNITY COSTS ORDERED AGAINST SOME (BUT NOT ALL) CLAIMANTS: A NUANCED HIGH COURT DECISION
We are returning to the same case as the previous post but looking at a different issue. The judge considered whether to make an order for indemnity costs against the claimants. The case is unusual in that such an award…
AN IMPORTANT POINT ABOUT TRIAL BUNDLES: REDACTION SHOULD NOT NORMALLY TAKE PLACE: IT MAKES THE COURT’S JOB MORE DIFFICULT
There is always room for another case about bundles on this site. It is a subject of endless fascination to most litigators, and endless frustration for many judges. Here we are looking at a case where the trial judge observed…
WHAT COSTS REGIME APPLIES WHERE A JUDGE FINDS THAT A SUCCESSFUL CLAIMANT SHOULD HAVE USED THE LOW VALUE PERSONAL INJURY PORTAL? THE ISSUES CONSIDERED ON APPEAL
For the second time this week we are looking at the issue of whether, or not, it was reasonable for a claimant’s solicitor to conclude that a matter should have been commenced outside the Low Value Personal Injury Portal. This…
LAWYERS HEAVILY CRITICISED IN A JUDGMENT: COURT OF APPEAL REFUSES PERMISSION TO APPEAL: A CASE THAT BRISTLES WITH CONDUCT AND PROCEDURAL ISSUES
We have a case here where a solicitor and KC involved in a case were heavily criticised by the trial judge. The solicitor attempted to appeal those findings and the Court of Appeal considered, among many other things, their Article…
CIVIL PROCEDURE BACK TO BASICS 104: YOU CAN’T ACT ON BEHALF OF BOTH SIDES IN LITIGATION – YOU REALLY CAN’T
How does one firm act on behalf of both sides in litigation? Entering judgment for a claimant and then applying, on behalf of the defendant, to have that judgment set aside? The easy answer is that it can’t. This…
PROVING THINGS 263: “IT IS A FUNDAMENTAL PRINCIPLE OF LITIGATION THAT A CLAIMANT MUST PROVE THEIR LOSS… THEY MUST ALSO SATISFY THE COURT AS TO THE AMOUNT OF ANY LOSS WHICH THEY HAVE SUFFERED”
This series has now covered hundreds of examples where litigants have failed to prove their case. We are looking at another example here where a counterclaiming defendant adduced no substantive evidence of a claim said to be worth nearly £500,000. …
SOME QUICK NOTES ABOUT CORPORATE SUBSCRIPTIONS: NEW GROUP NUMBERS ADDED – YOU CAN NOW SUBSCRIBE FOR UP TO 1,000 SEATS (AND MORE BY ARRANGEMENT)
A number of people have been in touch asking whether the site can accommodate larger groups than those set out in the original plan (someone has asked whether there can be “limitless” numbers on a subscription). As a result of…
“ARTIFICIAL INTELLIGENCE” ON TRIAL: WHEN QUESTIONED CHAT GPT WILL TELL YOU ITS MADE THINGS UP: THIS IS “A HALLUCINATION RATHER THAN A REAL LEGAL AUTHORITY”
Artificial Intelligence and legal “research” has been very much in the news of late. I am grateful to my colleague Steven Turner for sending me an example where, upon being questioned, Chat GPT readily conceded that a case it had…
BECOME A MEMBER TO KEEP UP TO DATE: THIS SITE IS BECOMING A MEMBERSHIP SUBSCRIBER SITE – MAKING CLB BIGGER AND BETTER
On the 10th June 2025* this site is becoming a membership site. All the past posts, and the vast majority of future posts will only be available to members who have joined. This post explains what readers need to do…
SAD NEWS: THE DEATH OF DISTRICT JUDGE BRANCHFLOWER
I was saddened to learn yesterday of the death of District Judge George Branchflower. This is a sad loss to his family, his friends and the legal profession. GEORGE’S ROUTE TO THE BAR George had an unusual route to…
CITING FALSE CASES TO THE COURT 3: THE PROBLEMS, THE GUIDANCE AND THE PENALTIES: PERVERTING THE COURSE OF JUSTICE HAS A MAXIMUM SENTENCE OF LIFE IMPRISONMENT…
We are returning to (and not for the last time) to the Divisional Court judgment in relation to the citation of false authorities due to the use of Artificial Intelligence. The Court reviews the dangers, the guidance and the sanctions…
CITING FALSE CASES TO THE COURT 2: A LAWYER IS NOT ENTITLED TO RELY ON THEIR LAY CLIENT FOR THE ACCURACY OF CITATIONS OF AUTHORITY
We are continuing with the examination of the Court’s judgment in relation to cases where false authorities have been cited as a result of a reliance on false authorities, generated by artificial intelligence. Here we have a case where the…
CITING “FALSE” CASES TO THE COURT 1: JUDGMENT ON THE CONTEMPT OF COURT HEARINGS 1: THE CASE OF AYINDE
This blog has already considered the case of Frederick Ayinde, R (on the application of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) on several occasions. False (presumably AI generated) authorities were put before the court. That case,…
THE CURRENT IMPORTANCE OF PLEADINGS 15: THE CLAIMANT HAD NOT PLEADED AN ISSUE SHE WANTED TO RELY ON AT TRIAL: THE ISSUE WAS “NOT PURSUED”
This series is giving rise to more cases than I initially thought. Here we look at an example of a claimant wishing to pursue a specific line of argument but having to accept that it was not pleaded and that…
PARTS OF WITNESS STATEMENT STRUCK OUT – THIS “CARRIES NO WEIGHT AS EVIDENCE”:DOORS FIRMLY SHUT IN RELATION TO INADMISSIBLE COMMENTARY
If we had a pound for every word in witness statements served in just one single month that was irrelevant or inadmissible we could probably go a long way to paying off the national debt. The costs, however, are probably…
THE CLAIMANT DID NOT NEED TO ANSWER THE PART 18 REQUESTS MADE: THESE REQUESTS ARE AKIN TO THE “PRE CPR-PROCEDURE”
There have been a number of cases recently relating to Part 18 questions and questions to experts. Here we are looking at a case where the defendant raised numerous requests to the claimant and sought a peremptory order when it…
PART 35 QUESTIONS TO EXPERTS A POINT ABOUT THE CASE LAW: HOW FAR CAN THE QUESTIONS GO? A CLOSE LOOK AT THE COURT OF APPEAL DECISION IN MUTCH
The previous post about when experts should be called to give evidence also contained a consideration of the nature of questions that can be put to experts. One of my colleagues has suggested that the summary relating to the questioning…
WHEN SHOULD PARTIES BE ALLOWED TO CALL EXPERT WITNESSES TO GIVE EVIDENCE AT TRIAL? THE ISSUES CONSIDERED (IN THE FAMILY COURT)
When should the courts permit experts to give evidence at trial? There are few cases on this topic and today we are looking at a decision in the family courts. The case is relevant to civil practitioners in that it…
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…
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