CAN THE WAY IN WHICH A CLAIMANT HAS CONDUCTED A CASE MEAN THAT IT SHOULD NOT HAVE SUMMARY JUDGMENT: “CLEAN HANDS” AND OTHER EQUITABLE MAXIMS CONSIDERED
We are looking at an unusual set of arguments here. The defendant, in resisting an application for summary judgment, submitted that the way in which the claimant had conducted the litigation itself meant the court should not grant judgment. It…
MAZUR MATTERS 65 (YES THEY ARE STILL CROPPING UP…): WAS A COMPANY SUING FOR A DEBT IT HAD PURCHASED BREACHING THE LEGAL SERVICES ACT?
Here we are looking at an argument that a company, that had purchased a debt and issued proceedings, was breaching the Legal Services Act. The argument was forcibly put and, just as forcibly, rejected. The judge was clear that a…
“I HAD NEVER COME ACROSS A CASE IN WHICH SO LITTLE RESPECT HAD BEEN PAID TO THE COURT”: INACCURATE TIME ESTIMATES; OVER-LENGTHY SKELETONS; ENORMOUS BUNDLES (OH AND AN ATTITUDE OF “WE’LL COME INTO COURT WHEN WE WANT TO”…): I CAN’T RECALL JUDICIAL CRITICISM MUCH STRONGER THAN THIS,
Over the years we have looked at some fairly “vigorous” judicial criticisms of litigators and non-compliance with procedural requirements. This case contains some of the the most vigorous I have seen. The judge points to wholesale failures by both sides…
WE HAD SUCH A HOPELESS CASE WE SHOULDN’T PAY ALL THE COSTS BECAUSE YOU SHOULD HAVE APPLIED TO STRIKE US OUT: ARGUMENTS WITH AN “AIR OF UNREALITY” ABOUT THEM
A post yesterday looked at two cases where attempts were made to attribute some blame to a litigant’s opponents for not spotting certain issues arising from that litigant’s own conduct. Here we look at a case where this type of…
COST BITES 414 : A WITHDRAWN PART 36 OFFER STILL HAD AN IMPACT ON THE AWARD OF COSTS: CLAIMANTS COULD NOT RECOVER COSTS AFTER DATE OF OFFER
In this case the judge considered the question of whether a Part 36 offer that was withdrawn after trial should have any impact on the award of costs. The judge held that it should. If the claimants had accepted they…
CIVIL PROCEDURE, OPAQUE EVIDENCE AND “YOU SHOULD HAVE KNOWN”: ARGUMENTS THAT HAVE BEEN REJECTED BY THE COURTS – TWO EXAMPLES AND THE UNHAPPY CONSEQUENCES FOR THE LITIGANTS…
We are looking at an argument deployed in a case we considered earlier today. It was an argument that the defendants should have been able to “divine” from the oblique nature of the claimant’s evidence that funding was not in…
COST BITES 413: GET YOUR FUNDING IN PLACE AND TELL EVERYONE IF THE MUSIC HAS STOPPED: CAT AWARDS COSTS ON THE INDEMNITY BASIS DUE TO CONDUCT
It goes without saying that this is a decision that must be music to the defendants’ ears. Not only was the claim dismissed the claimant was ordered to pay costs on an indemnity basis for a large part of the…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES A WITNESS BECOMES A “HOSTILE WITNESS”? WHAT ARE THE CONSEQUENCES?
Earlier this week we looked at a case where a judge allowed the claimants’ application for an order that one of the witnesses they had called be declared a “hostile witness”. This meant that the claimants could then cross-examine their…
CAN THE WORDING OF A COVERING LETTER ENCLOSING TERMS OF BUSINESS FROM A SOLICITOR TO A CLIENT GIVE RISE TO AN ESTOPPEL SO AS TO PREVENT RELIANCE ON THOSE TERMS?
Here we look at a case where a solicitor’s (former) client argued that the wording of a covering letter enclosing the firm’s terms and conditions meant that they were estopped from relying on those terms. It is an interesting example…
CAN THE COURT REFUSE TO ISSUE A CLAIM FORM? CAN THE STAFF LAWFULLY REFER THE ISSUE TO THE JUDGE? AN UNUSUAL APPLICATION FOR JUDICIAL REVIEW
Here we look at an unusual application for judicial review. It is all about the powers of the County Court to refer matters, upon issue, to the judge for consider. It makes clear that court staff have no power to…
WAS A SOLICITOR’S CAP ON LIABILITY FOR NEGLIGENCE TO £3 MILLION “REASONABLE”: COULD IT SURVIVE THE UNFAIR CONTRACT TERMS ACT REQUIREMENTS?
One of the issues in this case related to whether a solicitor’s contractual cap of £3 million was reasonable. The solicitor’s terms of business limited liability to £3 million. Could that cap, on the facts of this case, survive the…
WHY PRINCE HARRY (AND OTHER PROMINENT CLAIMANTS) LOST WHEN THE JUDGE FOUND THAT THEY WERE ALL HONEST WITNESSES – BUT OTHER WITNESSES THEY CALLED PROVED TO BE “HOSTILE”
We are looking at a judgment that has already received major attention from the media. A number of prominent people brought a civil action against Associated Newspapers. The judge found that they were all honest witnesses. However honesty did not…
BACK TO BASICS MONDAY: THE PERILS OF ISSUING A SECOND TIME: CPR 38.7 EXPLORED: NOTE THE NEED FOR SPEED…
We looked at a case last week which was a “second action” against the same defendants. It was struck out on several grounds, one of which was under CPR 38.7. It is worthwhile looking at the rule in detail …
MAZUR MATTERS 64: THE COURT REJECTS WOULD BE APPELLANT’S ARGUMENT THAT A CLAIMANT’S REPRESENTATIVE HAD NO RIGHT OF AUDIENCE
The Court considered a “Mazur” type argument in this application for permission to appeal. The appellant arguing that the claimant had never been lawfully represented at previous hearings. This argument did not get very far. The judge indicated that, even…
THE CURRENT IMPORTANCE OF PLEADINGS 86: DEFENDANT REFUSED PERMISSION TO AMEND DEFENCE ON THE MORNING OF TRIAL
Here we look at what can only be described as a “very late” application to amend a defence. It was made on the morning of the first day of trial. Surprisingly there was no explanation as to why an application…
COST BITES 411: NON-PARTY COSTS ORDER MADE AGAINST CLAIMANT’S DIRECTOR : HE WHO EXPECTS TO BENEFIT RUNS A RISK OF PAYING THE COSTS…
This case considers the issue of whether it was appropriate to make a non-party costs order. The Master reached a clear conclusion that it was. The individual in question was effectively the driving force behind the litigation in addition to…
THE TCC GUIDANCE ON THE USE OF ARTIFICIAL INTELLIGENCE: A DETAILED EXAMINATION
The section on the use of AI in the latest edition of The Technology and Construction Court Guide is relatively short. However it is significant. It shows that the courts recognise that AI is going to be used. “All legal…
NEW (4th) EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE 2026: A QUICK GUIDE TO THE CHANGES AND THE NEW PARTS
The Fourth Edition of the Technology and Construction Court Guide came into force on 1 July 2026. It is much more than a routine update. Whilst much of the familiar structure remains, there are significant additions reflecting changes in legislation,…
A JUDGE SHOULD NOT HAVE PREVENTED A DEFENDANT TENANT SPEAKING AT A POSSESSION HEARING JUST BECAUSE THEY HAD NOT FILED A DEFENCE: THE CIVIL PROCEDURE RULES HAVE PRIMACY OVER A PEREMPTORY ORDER
I am grateful to barrister James Stark for sending me a copy of this judgment which is important to all those involved in landlord and tenant litigation, but also raises interesting issues as to how far an order of the…
EXPERT WATCH 55: WAS THIS WAR? (OR CAUSED BY WAR): TRIAL JUDGE CONSIDERS THE EVIDENCE OF TWO EXPERTS ON GEOPOLITICS, BUT FINDS ONE IS PARTISAN
It is never helpful to a party’s case when a judge comes to the conclusion that the expert they have instructed is partisan. We have an example of this in this extremely high value case. There is interesting commentary on…
COST BITES 410: A CLAIMANT’S COMPLIANCE WITH THE RULES RELATING TO ISSUE AND PLEADING CANNOT BE USED AS A GROUNDS FOR REDUCING ITS RECOVERABLE COSTS
It is common for an unsuccessful part to argue that its liability to pay costs should be reduced because of the “conduct” of the successful party. We see such arguments raised here – with no degree of success. A party…
SERVICE POINTS 48 : A DEFAULT JUDGMENT IN THE FIRST ACTION (AGAINST A DEFENDANT WHO WAS NEVER SERVED) LEADS TO A SECOND ACTION BEING STRUCK OUT
This is a sorry tale. Someone who may have had a perfectly good claim for damages for personal injury has their case struck out because of procedural mishaps by their own solicitors. It all stems from a failure to serve…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION IN A WITNESS STATEMENT WHEN THERE IS A CORPORATE CLIENT: PROBLEMS KEEP OCCURRING
Today we are looking at what is a common issue, and common mistake, when someone makes a witness statement for, or on behalf of a corporate client. The CPR expressly provides that a witness must state the source of “information…
COST BITES 409: A PART 36 CASE TO FINISH OFF THE WEEK: CLAIM £8.4 MILLION GET £102,000 (HAVING TURNED DOWN AN OFFER OF £3.175 MILLION): IT IS NOT “UNJUST” FOR THE CLAIMANT TO FACE TO NORMAL PART 36 CONSEQUENCES, NOR WOULD THE COURT “PICK AND CHOOSE” IN RELATION TO THE COSTS PAYABLE
If ever a case served as a warning to the risks of litigation it is this one. The claimant sought damages of up to £8.4 million but obtained judgment of £102,000. This turned out to be expensive litigation, with the…
COST BITES 408: WHO (IF ANYONE) SHOULD PAY THE COSTS WHEN THE COURT MAKES NO DECISION ON THE SUBSTANTIVE ISSUE?
In this case the judge considered an argument that a claimant who made, but failed, in an application for an interim injunction should not necessarily be liable for costs. This argument was put forward on the basis that the court…
A SOLICITOR SHOULD JUST NOT BE SAYING THIS IN A WITNESS STATEMENT: IT “STRAYED WELL BEYOND WHAT SHE COULD LEGALLY GIVE EVIDENCE ABOUT FROM HER OWN KNOWLEDGE INCLUDED HEARSAY FROM AN UNNAMED SOURCE AND INCLUDED STATEMENTS OF OPINION WHICH SHE DID NOT HAVE THE EXPERTISE TO GIVE…”
There are numerous cases reported on this blog where judges have been critical of the “evidence” given by solicitors in witness statements. In many cases, even on cursory examination, it transpires that the lawyer is not in a position to…
THE CURRENT IMPORTANCE OF PLEADINGS 85: THERE IS NO “FREE PASS” WHEN AN ACTION IS BROUGHT ON BEHALF OF MULTIPLE CLAIMANTS: “THERE IS A DEFINITE SENSE OF THE CLAIMANTS THRASHING ABOUT, TRYING TO FIND ANY ISSUES WHICH COULD BE TRIED WHICH AVOIDED ANY INVESTIGATION OF ANY FACTS.”
We are returning to this Court of Appeal decision for a second time. Initially we looked at the judgment in relation to the outcome – that the claims could be brought together. However there are important points made here in…
FIVE THOUSAND CLAIMANTS AND JUST EIGHT COURT FEES: COURT OF APPEAL UPHOLDS DECISION ON CPR 7.3
In this case the Court of Appeal upheld a decision that some 5,000 individual small value cases could proceed together as, essentially, one action. The provisions of CPR 7.3 were considered and the Court held that the High Court Judge…
THE COURT WAS WRONG NOT TO STRIKE THE DEFENCE OUT: A FAILURE TO DISPUTE A POINT IN THE JERSEY COURTS MEANT IT WAS NOT OPEN TO A DEFENDANT TO ARGUE IT IN A SECOND ACTION
This is a case where, on appeal, it was held that it was not open to a defendant to bring an action because they had already had the ability to raise issues with a court in Jersey. The judge held…
WHERE THINGS GO WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU 3): ADVISING A CLIENT THAT IF THEY DISCONTINUE THEN THEY CAN’T COME BACK
We are again looking at the lessons that practitioners can learn from a Legal Ombudsman decision. This time it relates to the need to explain the consequences of taking a procedural step. The point here is that many matters that…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 2: ADVISING A CLIENT THAT THEY ARE NOT LIABLE FOR COSTS BECAUSE PROCEEDINGS HAVE NOT BEEN SERVED
This post arises out of the previous post in the series. However here I want to concentrate on one issue arising out of this. The claimant’s solicitors appear to have advised the claimant that they would not be liable to…
WHERE THINGS WENT WRONG IN LITIGATION (AND STOPPING IT HAPPENING TO YOU) 1: COSTS ADVICE ON DISCONTINUANCE
This series is about examining cases where things went wrong for litigators and what readers can do to avoid this happening to them. The aim is not to criticise those who make mistakes but to use their experience to prevent…
THE ONLINE PROCEDURE (RULES AND PRACTICE DIRECTIONS) RULES 2026 COME INTO FORCE ON THE 7th SEPTEMBER: HERE IS A SUMMARY (AND THE RULES THEMSLVES)
The Online Procedure Rules have been published and come into force on the 7th September 2026. Initially these apply just to possession proceedings. However they are a sign of things to come. ” The Overriding Objective of these Rules is to…
EXPERT WATCH 52: A REMINDER THAT THE JUDGE REMAINS THE SOLE FINDER OF FACT: (HOWEVER THIS A CASE WHERE THE JUDGE IS HIGHLY COMPLIMENTARY ABOUT SOME OF THE EXPERTS)
Here we look at the judge’s comments on expert evidence arising from a complex case in the Commercial Court. The judgment provides a reminder that experts should not be instructed to comment on matters of fact which are the sole…
RELIEF FROM SANCTIONS: AS STRONGLY WORDED A REFUSAL AS I HAVE SEEN: THE CONCEPT “DOES NOT EMBODY A PRINCIPLE OF “BREACH NOW REPENT LATER”
Here we look at a strongly worded judgment where relief from sanctions was refused. A party had exceeded the page limit set by court directions and also served the statement late. The judge dismissed the arguments that the other side…
COST BITES 406: CAN A PARTY RECOVER UNNECESSARY COSTS AS DAMAGES? THE CONSEQUENCES OF AN UNNECESSARY SECOND ACTION CONSIDERED IN THE HIGH COURT
This is a judgment that considers the difficult issue of whether a claimant, who has been put to unnecessary costs of pursuing to separate actions because of the defendant’s conduct, can claim the unnecessary elements of costs back as damages. …
THE WEBINAR ON THE SRA GUIDANCE ON EFFECTIVE SUPERVISION: WHAT LITIGATION FIRMS NEED TO KNOW: TOGETHER WITH LOTS OF CHECKLISTS AND TEMPLATESNOW AVAILABLE “ON DEMAND”
For those who could not make the live broadcast yesterday the webinar is available “on demand”. Viewers also receive copies of a series of checklists and guides to compliance. Including A general Supervision Checklist The Litigation Supervisor Checklist The Supervised…
SHOULD THE COURT ALLOW A “NEWLY APPOINTED” EMPLOYEE TO REPRESENT A LIMITED COMPANY AT A HEARING?
CPR 39.6 permits a company to be represented by an employee where the employee is authorised by the company and the court gives permission. We have here a case where the proposed representative only became an employee part-way through the…
THROWBACK FRIDAY: THIRTEEN YEARS OF BLOGGING (JUNE 2013): THE TEENAGE YEARS ARE STARTING…
Today we look at the posts from June 2013, that is the month that Civil Litigation Brief first started as a blog (24th June 2013). Prior to that it had been a monthly (and when the Civil Procedure Rules were…
ASKING THE JUDGE QUESTIONS AFTER JUDGMENT IS DELIVERED: THEY HAVE TO BE NECESSARY TO ENABLE THE PARTIES TO UNDERSTAND THE REASONING OF THE DECISION (AND THESE GO TOO FAR…)
As you can see from the “Related Posts” section below this is not the first time we have considered the position where a losing litigant has written to the judge seeking “clarification” and where the judge has felt that this…
THE NEW SRA GUIDANCE ON SUPERVISION 7: RECORDING ARRANGMENTS (IF IT ISN’T WRITTEN DOWN IT HASN’T HAPPENED…)
We are returning to the SRA Guidance on Effective Supervision, this time looking at the importance that is given to recording the supervision arrangements. It is clear that the SRA expects these to be written down. I have provided a…
AN APPLICATION TO SET A DEFAULT JUDGMENT ASIDE (3): THE DENTON CRITERIA CONSIDERED
An application to set aside a properly obtained default judgment requires the court to consider a number of factors. Having considered whether there are “real prospects” of successfully defending the claim and the issue of promptness the court then goes…
AN APPLICATION TO SET A DEFAULT JUDGMENT ASIDE (2): CONSIDERATION OF “PROMPTNESS” WHEN NOTHING HAPPENED FOR A YEAR…
We are continuing our examination of the High Court judgment yesterday about setting aside a default judgment. Here the judge considered the question of “promptness” in circumstances where the default judgment had been entered for a year before the application…
THE NEW SRA GUIDANCE ON EFFECTIVE SUPERVISION 6: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION”? (IT TURNS OUT ITS A MATTER OF “PROFESSIONAL JUDGMENT”)
Knowing what the “conduct of litigation” means is an essential piece of knowledge for all litigators. If you allow “unauthorised” persons to conduct litigation then you (and they) are committing a criminal offence (and you are also in contempt of…
AN APPLICATION TO SET A DEFAULT JUDGMENT ASIDE (1): THE EVIDENCE AS TO THE MERITS: THE JUDGE SHOULD NOT HAVE CONDUCTED A “MINI TRIAL”
A defendant applying to set aside a properly obtained default judgment has a number of hurdles to clear. The court will consider the “merits” of the proposed defence, the reason for the delay, “promptness” and then go on to consider…
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK FROM ABROAD: A POINT TO WATCH : SOME USEFUL GUIDANCE AND PRACTICAL STEPS
There are several cases where the courts have observed that attempts to allow a witness to give evidence from abroad are not, in fact, legal. This was highlighted in a judgment yesterday. Some countries have particular rules governing the taking…
EXPERT WATCH 51: THE EXPERT VALUERS SHOULD HAVE GONE INTO THIS EXERCISE “BLIND” – THEIR CREDIBILITY WOULD BE “MUCH IMPROVED”
In this case the judge expressly sets out a method of instructing the experts which would have been of more assistance to the court. In essence that the valuation experts should have been instructed, initially, without any knowledge of the…
THE COURT OF APPEAL OVERTURNS A JUDICIAL REVIEW DECISION IN FAVOUR OF A SOLICITOR: THE OMBUDSMAN GOT NOTHING WRONG (QUITE A LOT HERE ABOUT VULNERABLE CLIENTS AS WELL…)
In a judgment today the Court of Appeal have overturned a High Court decision that was (partially) in favour of a solicitor who had sought judicial review of a decision of the Legal Ombudsman. The Court has restored the Ombudsman’s…
WHEN A LOCAL AUTHORITY REQUIRES RELIEF FROM SANCTIONS: “IT IS PARTICULARLY IMPORTANT THAT THE PUBLIC BODY FILES ITS PAPERS IN A TIMELY FASHION AND CO-OPERATES WITH THE CLAIMANT”
Here we look at a case where a defendant local authority had to apply for relief from sanctions in relation to breaches of court orders and directions. The judge was critical of the defendant’s conduct, pointing out that there was…
THE NEW SRA GUIDANCE ON EFFECTIVE SUPERVISION 5: GOOD PRACTICE SUGGESTIONS
We are continuing with our examination of the updated SRA Guidance on Effective Supervision. This is a relatively short section but of considerable importance. There is a series of checklists on this topic (these are produced for this blog and…
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