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 …
THE CURRENT IMPORTANCE OF PLEADINGS 72: THE COURT WOULD NOT ALLOW THE CLAIMANTS A “FALL BACK” POSITION OF A SECOND HEARING: “A TRIAL IS THE FIRST AND LAST NIGHT OF THE SHOW; IT IS NOT A DRESS REHEARSAL”
Here we have a situation which presents a real dilemma for those seeking, and pleading, a claim for damages. In this case there were a large number of permutations in the claimants’ claim for damages. Only some of these had…
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…
A FIRM OF SOLICITORS ISSUED PROCEEDINGS WITHOUT AUTHORITY TO DO SO: ORDERED TO PAY £900,000 ON ACCOUNT OF COSTS: SOME EXPENSIVE LESSONS HERE…
Here we are not looking at a judgment as such but the reasons for an order made yesterday in the High Court. The court struck out an action and ordered that the claimants’ solicitors pay £900,000 on account of costs. …
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 386: THREATS TO REPORT THE DEFENDANTS’ SOLICITORS TO THE SRA WAS ONE OF THE REASONS THE CLAIMANT HAD TO PAY COSTS ON AN INDEMNITY BASIS: WEAPONISERS BEWARE
This case is another warning to those who are thinking about issuing committal proceedings on a “tactical” basis. The judge decided that the claimant’s conduct in the bringing of committal proceedings in this matter should lead to their paying costs…
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…
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…
WITNESS EVIDENCE WEDNESDAY: A USEFUL ENCAPSULATION OF THE COURT’S APPROACH TO DISPUTED WITNESS EVIDENCE: WITNESSES CAN LIE FOR VARIOUS REASONS
This judgment contains a neat summary of the approach that the court takes when it is faced with a case that rests primarily on witness evidence. The judge reviewed the case law and it was very relevant to the task…
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…
BACK TO BASICS MONDAY: WHAT TO WEAR TO COURT: “IF YOU ATTEND COURT DRESSED INAPPROPRIATELY, COURT STAFF MAY REFUSE YOU ENTRY”
The issue of what is appropriate dress for court is a very basic one. It has, in the past, sported controversy. However correct and appropriate dress is important, it helps the litigants. It pays to remember that some clients…
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…
OPENING LINES OF JUDGMENTS: “THE MOST LITIGATED “FAMILY” DISPUTE IN LEGAL HISTORY (MAYBE…)
The opening lines of judgments sometimes disclose an epic saga of litigation. This is certainly the case here. A case that may well replace Jarndyce -v- Jarndyce as the classic example of lengthy (and presumably expensive) litigation – with quite a…
ATTENDING A CIVIL COURT AS A WITNESS: USEFUL LINKS FROM HOME AND ABROAD: A GOOD START BUT WITH MORE WORK TO DO
Yesterday I wrote how little support there seemed to be for those attending civil courts to give evidence. I have since found some useful guidance and here are the links. I will be more than pleased if people write in…
COST BITES 382: SHOULD THE COURT DEPART FROM THE FIXED COSTS REGIME? : “THIS HAS BECOME A COMPLEX APPLICATION…”
One of the (many) things that litigators need to keep an eye on in years to come is the circumstances in which the courts depart from fixed costs regimes. If this happens too readily then the purpose of the regime…
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…
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…
EXPERT WATCH 46: GUIDANCE AS TO THE INSTRUCTION OF EXPERTS IN THE COURT OF PROTECTION: (BUT SOMETHING FOR ALL OF US TO TAKE AWAY…)
The guidance given in this case is obviously of interest to those who practice in the Court of Protection (as practitioner or expert). However some of the points made here are of general interest. In particular in relation to the…
FILING A NOTICE OF APPEAL OUT OF TIME: A TALE OF THREE CITIES: RELIEF FROM SANCTIONS GRANTED WHEN THE APPEAL WAS LATE BUT THE SOLICITORS “DID NOTHING WRONG AT ALL”
In this case the judge granted permission to appeal when the appeal notice was lodged 25 days out of time. Not only is this an example of the court using its discretion under Denton and taking into accounts issues with…
COST BITES 381: DOES THE COURT HAVE POWER TO ORDER SECURITY FOR COSTS IN RELATION TO AN ASSESSMENT? SOME INTERESTING COMMENTS ABOUT THE COSTS OF ASSESSMENT ALONG THE WAY…
This case is interesting for several reasons. Firstly the judge considers whether the court has power to order security for costs in a detailed assessment. Secondly there are some interesting observations about the costs incurred in the assessment process (and…
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…
THE COSTS LIABILITY OF A REPRESENTATIVE OF A DECEASED PERSON UNDER CPR 19.12 CONSIDERED: THE SITUATION IS NOT THE SAME AS AN ADMINISTRATOR OR EXECUTOR
This case considers the costs liability of a person appointed under CPR 19.12 to represent a deceased person. The court made it clear that such an appointment is not directly analogous to that of an administrator or executor. Different costs…
COST BITES 380: “ALWAYS CHOOSE A COSTS LAWYER FOR EXPERT LEGAL COSTS ADVICE”: GUIDANCE FROM THE SRA
The Solicitors Regulation Authority have sent out a short Note on selecting professional help to assess legal costs. It is worth reading. Indeed it may be regarded as essential reading. “Using an unregulated costs adviser can expose you and your…
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…
OPENING LINES TO START THE WEEK: “FOR CENTURIES, IT HAS BEEN RECOGNISED THAT HUMAN HEARING CAN BE DAMAGED BY EXPOSURE TO LOUD NOISE”
We usually review the opening lines of judgments at the end of the year. However I thought this would be a good way to start the week, ranging as it does from ancient Greece to Rome and then to important…
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…
THE “WEAPONISATION” OF APPLICATIONS TO COMMIT IN CIVIL PROCEEDINGS: IT’S NOT CLEVER, IT’S NOT “TOUGH” AND IT CERTAINLY IS NOT A MARKETING TOOL
There are some interesting, and important, observations in this judgment about the use (or misuse) of applications to commit in civil proceedings. The judge felt that this case was part of a larger trend to “weaponise” contempt proceedings as part…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COST (MEGA) BITES 378: WHO WOULD SPEND £15,751,483 PLUS VAT TO RECOVER DAMAGES OF £16.91? (WELCOME TO THE SURREAL WORLD OF “COLLECTIVE PROCEEDINGS”: THE CAT ARE CONCERNED THAT LITIGATION IS BEING BROUGHT FOR THE LAWYERS & FUNDERS RATHER THAN CONSUMERS
There are many who have doubts, often profound doubts, about the utility of class actions where each of the recipients will recover minute sums. Those doubters will have their views compounded by the judgment in this case. The likely damages…
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…
PERSONAL INJURY POINTS 12: WHAT IS A CLAIMANT TO DO ABOUT CRU IF THE DEFENDANT IS NOT INSURED AND NOT RESPONDING?
This case considers the issues that arise when a defendant has failed to comply with its statutory obligation to notify the Compensation Recovery Unit of a claim. What duties does the claimant have in these circumstances. The blunt answer is…
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…
SERVICE POINTS 34: IS SERVICE BY EMAIL IS STILL VALID – IF IT SITS IN THE RECIPIENT’S SPAM BOX?
There is an ongoing consultation process about the use of email in civil procedure. It is now commonplace, almost universal. However what is the situation where the email, carrying important notification, lands inside the recipient’s spam box? That is the…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
BACK TO BASICS MONDAY: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the…
THERE MAY BE A LOT OF LAWYERS REPRESENTING A PARTY: HOWEVER THE CLAIM WAS STILL PRESENTED IN AN “UNFOCUSED” MANNER: A “MOVEABLE FEAST” IS NOT A WISE WAY TO CONDUCT LITIGATION
It is not that common for a judge to comment that a claim has been brought in an “unfocused manner”. It is even less common in a case where the case is heavily “lawyered”. We have an example here. The…
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