MAZUR MATTERS 46: A “CLAIMANT’S REPRESENTATIVE” HAD NO RIGHT OF AUDIENCE IN THIS SMALL CLAIMS TRIAL: “IT IS TO DISTORT THE PURPOSE OF SCH 3, PARA 7 BEYOND RECOGNITION THAT THE TRADITIONAL ROLE OF AN INHOUSE MANAGING CLERK UNDERTAKING THE ROUTINE WORK OF THE DISTRICT JUDGE BE EXTENDED INTO A WHOLESALE UNQUALIFIED ADVOCACY SCHEME”
This is the first time I have seen Mazur mentioned and considered in an issue as to rights of audience. In this case the judge held that the representative sent by the claimant to attend a small claims trial did…
THROWBACK FRIDAY: APPLICATIONS FOR RELIEF FROM SANCTIONS: 10 POINTS TO IMPROVE THE ODDS: LOOKING BACK TO JANUARY 2016
This blog celebrates its 13th birthday later this year. Civil Litigation Brief started as a series in the Solicitors Journal 35 years ago. Needless to say it has a large “back catalogue”. I wanted a regular opportunity to bring important…
WHEN CAN A JUDGE ADD ADDITIONAL MATERIAL TO A JUDGMENT AFTER HANDING DOWN? COURT OF APPEAL CONSIDERED THE ISSUE
Here we are looking at an old case. However it has only recently arrived on BAILII and deals with an issue that remains relevant today. The Court of Appeal considered the issue of when is it appropriate for a judge…
ANOTHER EXAMPLE OF AN APPLICATION FOR AN EXPEDITED TRIAL BEING REFUSED: A GOOD REASON FOR EXPEDITION HAS TO BE SHOWN
As promised we are looking at a second case where an expedited hearing was refused. The judge here went through the principles relating to expedition and found that good reasons had not been made out. The judge also rejected an…
WHEN THE COURT REFUSES AN APPLICATION FOR AN EXPEDITED TRIAL: THERE IS NO POINT IN LABOURING THE ISSUE…
This is the first of two cases today where we look at examples where the courts have refused to grant an order for an expedited trial. This case was an unusual one, the judge reviewed the established principles and found…
EXPERT WATCH 29: THE JUDGE IS WARY OF A CLINICAL EXPERT WHO IS “HEAVILY INVOLVED IN THE BUSINESS OF LITIGATION”
There have been a number of cases in recent years where judges have been wary (sometimes highly sceptical) of expert witnesses who make their living solely from being involved in litigation. We have another example here. There is no indication…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
THE CURRENT IMPORTANCE OF PLEADINGS 45: THE PARTICULARS OF CLAIM SHOWED NO ARGUABLE CAUSE OF ACTION AND WERE STRUCK OUT
Here we have an example of a case where the allegations against the proposed (Part 20) defendant were inadequately pleaded. So inadequate that the judge struck out the particulars and refused the applicant’s permission to rely on amended particulars (which…
BACK TO BASICS MONDAY: MAKING APPLICATIONS: WORDING AND TIMING
Last week we looked a case where the parties to a day long application had incurred costs over of £1.3 million. That case emphasises that applications can be expensive. Further they can sometimes be expensive, leaving the applicant in a…
COST BITES 321: THE GUIDELINE HOURLY RATES ARE NOT “SOMEWHAT OUT OF DATE”
The previous post on the updating of the Guideline Hourly rates leads us to this next case. It poses the question – are the rates “somewhat out of date”. As we shall see the judge gives a clear answer. (There…
NEW YEAR: NEW GUIDELINE HOURLY RATES: SEE THE DETAILS HERE: EFFECTIVE FROM YESTERDAY
The new Guideline hourly rates were published yesterday. They take effect from 1st January 2026 (for anyone working on that day…). They have been updated using service producer price inflation (SPPI). THE INCREASES The increases are 2.28%, using the…
WHEN A DAY LONG APPLICATION FOR PERMISSION TO AMEND INCURS COSTS OF OVER £1.3 MILLION (AND STILL THE BUNDLES AREN’T QUITE RIGHT…)
There are some interesting observations here about the strategy a party should adopt when facing an application to amend. Such an application is not a “mini trial”. It is clear from this case that substantial costs can be incurred in…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
THE AUTOMATIC STAY UNDER CPR 15.11: WAS IT IMPOSED IN THIS CASE? WHAT CRITERIA SHOULD THE COURT CONSIDER WHEN AN APPLICATION IS MADE TO LIFT IT? WAS THE DELAY AN ABUSE OF PROCESS
If a claimant serves proceedings and then does nothing the rules impose an automatic stay on proceedings. CPR 15.11 states that a stay takes effect from 6 months after the date on which a defence should have been filed. Here…
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
JURISDICTION CHALLENGE UNDER CPR 11 WAS “TOTALLY WITHOUT MERIT”: THE APPLICANT HAD ACCEPTED JURISDICTION IN ANY EVENT: INDEMNITY COSTS ORDERED
Here we look at an unusual application to challenge jurisdiction under CPR Part 11. It was unusual because it invited the court to consider the case on the merits. The court was not impressed with this approach, declaring it to…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
REVIEW OF THE YEAR 11: OPENING LINES OF JUDGMENTS 2025: “FOR MILLIONS OF YEARS MEN LIVED JUST LIKE ANIMALS”: ST PAUL’S CATHEDRAL, SHERLOCK HOLMES AND FINDING INGENIOUS WAYS NOT TO PAY TAX: ALL LITIGATION LIFE IS HERE…
Consideration of the opening lines of judgments has been a feature of this blog for some years now. It has sometimes been a way of providing a little light relief towards the end of what is often a 12 month…
REVIEW OF THE YEAR 9: CASES ON SANCTIONS (AND RELIEF FROM…)(POSSIBLY A POOR CHOICE OF SUBJECT JUST BEFORE CHRISTMAS…)
There have been times in the past when it has felt that the issue of sanctions for non-compliance was the only issue in civil procedure. The number of (reported) cases has reduced, possibly because the relevant principles are now clear….
FRAUDSTERS OPERATING IN THE GUISE OF OFFICIAL COURT ENFORCEMENT STAFF: £45,549 LOST: A WARNING TO ALL DEFENDANTS AND JUDGMENT DEBTORS HERE
A judgment debtor is in a vulnerable position. There are companies out there taking advantage of that vulnerability by pretending to be official enforcement agencies and taking money off the debtors. We have such a case reported here. The judge…
WHEN THE WITNESS STATEMENT OF THE DEFENDANT CONTAINS PASSAGES THAT ARE CUT AND PASTED FROM AN EXPERT’S REPORT: SOMEONE MAY NOTICE THIS…
It is clear that many judge’s approach witness statements with a degree of scepticism, regarding them more as a lawyer’s construct than the actual recollection of the witness. In this case the defendant’s own witness statement included passages that were…
REVIEW OF THE YEAR 7: STATEMENTS OF CASE ON THIS BLOG: MATTERS OF THE PLEADING OBVIOUS
The “Current importance of Pleadings” series started in March of this year. It is another one of those issues that has featured heavily throughout. Being able to focus on “pleading” issues in a particular series has been useful. The problems…
COST BITES 320: CLAIMANT WAS ENTITLED TO SEEK A FURTHER INTERIM PAYMENT AS TO COSTS: “I THINK IT CONSIDERABLY UNFORTUNATE THAT THIS POINT HAS BEEN TAKEN”
Later this month we are taking our traditional end of year look at “opening lines of judgments”. Sometimes opening lines provide a clue as to the judge’s thinking. When the first sentence contains the words “I think it is considerably…
WITNESS EVIDENCE WEDNESDAY: JUDGE CONSIDERS ADMISSIBILITY OF WITNESS EVIDENCE ON THE FIRST DAY OF TRIAL: “ARE YOU EXPERIENCED”?
It is unusual for a judge to consider the admissibility of witness evidence on the first day of a trial. However, in some ways, this is an unusual case. The judge found that the statement was relevant to the pleaded…
REVIEW OF THE YEAR 5 : 111 POSTS IN THE “COSTS BITES” SERIES (AND COUNTING): DON’T LOOK AWAY NOW…
There is no doubt at all that the Costs Bites series is one of the most widely read on this blog. The series started in July 2022 and the aim is to look at what is happening in relation to…
USING WHATSAPP AND OTHER MEANS OF COMMUNICATION WITH CLIENTS: THE RISKS CONSIDERED
The previous post looked in detail at the issues in a solicitor and own client assessment caused by the solicitor’s use of WhatsApp. That judgment gives rise to much wider issues in relation to how solicitors communicate with clients. In…
COST BITES 319: WHATSAPP MESSAGES CAN FORM PART OF A SOLICITOR’S FILE: THE DEFENDANT FIRM WAS, THEREFORE, IN BREACH OF A PEREMPTORY ORDER
This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp form from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication,…
“HALLUCINATIONS” IS NOT A GOOD WORD FOR FALSE CASES GENERATED BY AI: THIS JEOPARDISES THE RULE OF LAW: LESSONS FROM THE COURTS OF OREGON
The issue of the citation of false cases generated by Artificial Intelligence is, it is clear, an international one. Here we have a decision from the Court of Appeals in the State of Oregon. Among other things it challenges the…
COST BITES 318: PART 36 ISSUES: DOES AN AGREEMENT ON DAMAGES AFTER TRIAL MEAN THAT THE NORMAL PART 36 CONSEQUENCES DO NOT APPLY?
Do the normal Part 36 consequences apply when the parties agree damages and lodge a consent order after a trial on liability? That is the issue considered by the High Court here. (Part 36 consequences apply – the writing is…
CIVIL PROCEDURE BACK TO BASICS 107: THE IMPORTANCE OF PROVIDING A DRAFT ORDER WITH AN APPLICATION
One important aspect of civil procedure that is often overlooked is the importance of an applicant providing a draft order to the court. As the case we are looking at shows this is not a mere formality. A draft order…
WAS THIS AN ABUSE OF PROCESS/ABUSE OF PROCESS OR WERE PREVIOUS JUDICIAL OBSERVATIONS “OBITER DICTA”? AN IMPORTANT ISSUE CONSIDERED
Most (hopefully all) law students learn about the difference between the ratio decidendi of a case and “obiter dictum”. These important distinctions can have real world consequences. We look at a judgment here where that was the major issue between the…
REVIEW OF THE YEAR (2) – THE WORST PART: “HALLUCINATED” CASES IN THE COURTS: HOW IS ARTIFICIAL INTELLIGENCE BEING HANDLED & WHAT DOES THE FUTURE HOLD FOR AI AND LAWYERS?
If I had to pick the most frightening development of the year it is the revelation that parts of the legal profession have been relying on “hallucinated” (that is false) cases they have “found” by using Artificial Intelligence. Here we…
THE CURRENT IMPORTANCE OF PLEADINGS 43: SHOULD THE COURT STRIKE OUT A DEFENCE THAT RELIES ON “FOREIGN ILLEGALITY”? WHAT DETAIL IS NEEDED?
This case considers the matters that a defendant must plead if it wants to rely on a defence of “foreign illegality”. That is the claim should not succeed because some of the matters were (allegedly) unlawful in a foreign jurisdiction. …
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
A BREACH OF “PURDAH” OBLIGATIONS WHEN A WITNESS IS GIVING EVIDENCE: MISGUIDED BUT NOT DISHONEST
This is a brief reminder of the importance of the obligations of a witness not to communicate with others (including their own legal team) whilst in the course of giving evidence. “This was obviously ill-advised but I accept that, by…
COST BITES 316: THE CLAIMANT HAS JUDGMENT FOR £175,380 BUT WHO (IF ANYONE) SHOULD PAY THE COSTS? A SURPRISING RESULT (JUST THINK “OUCH”..)
It is not uncommon to see discussions in relation to who should pay the costs after a judgment is given. This is a judgment with a twist, in that the court considered, at the end of protracted litigation, whether anyone…
WHAT IS THE APPROPRIATE COURSE WHEN A PARTY ALLEGES THAT A JUDGMENT WAS OBTAINED BY FRAUD? THE HIGH COURT CONSIDERS THE ISSUES
What should a party do if it alleges that a judgment has been obtained by fraud? Can it apply within the proceedings themselves to set the judgment aside or should it issue separate proceedings? In this case the judge carried…
COST BITES 315: A LACK OF AUTHORITATIVE CASE LAW DOES NOT JUSTIFY A DEPARTURE FROM THE GENERAL RULE THAT THE LOSING PARTY PAYS THE COSTS
Should the fact that there is no authoritative case law on a topic lead to a “different” order as to costs. This was one of the issues considered by the judge in this case. Similarly the court considered the relevance…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
REVISITING THE ISSUES: THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The post earlier today about the significant difference between a non-admission and denial has led me to revisit previous posts on the case. This post from 2020 which reviewed the case law on the distinction. There are plenty of clear…
COST BITES 314: PERSONAL INJURY CLAIM SHOULD HAVE BEEN BROUGHT IN THE RTA PROTOCOL: CLAIMANT LIMITED TO FIXED COSTS
This is the second case today that was sent in by a helpful reader. I am grateful to Ben Millns from Kennedys who has sent me a copy of this judgment. It relates to the question of whether a personal…
CONSTRUING A COURT ORDER: WHAT DOES THE WORD “IMPECUNIOSITY” MEAN? “IT DEPENDS” – THE ISSUE CONSIDERED ON APPEAL IN THE HIGH COURT
In this case the court made a court order which meant that the claimant was debarred from relying on issues relating to “impecuniosity” at trial. The appeal was, in part, about what “impecuniosity” meant in that context. (It was reasonable…
WHEN CAN ADVERSE FINDINGS ABOUT A WITNESS IN A CASE BE APPEALED? THE COURT OF APPEAL CONSIDERS THE ISSUES
It is not unusual for trial judges to be critical of the conduct or evidence of a witness in a case. What should a witness do if the judgment is critical of them? Do they have a right of anonymity? …
ANOTHER “HALLUCINATED” AUTHORITIES CASE: A FALSE CITATION AUTHORED OR REVIEWED BY A LAWYER WITHOUT ATTRIBUTION CAN STILL BE SUBJECT TO REFERENCE FOR MISCONDUCT OR CONTEMPT
The citation of “false” authorities shocked me (and many others) when the cases first started. Now it feels as if they are becoming a commonplace occurrence. They are, however, just as shocking. Here we have a case where the judge…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
SERVICE POINTS 25: DOES AN EARLIER ORDER FOR SUBSTITUTED SERVICE BY EMAIL INCLUDE SERVICE OF AN APPLICATION TO COMMIT: SHOULD THE COURT RETROSPECTIVELY AUTHORISED SERVICE?.
Here we consider an argument as to whether an application to commit for contempt was validly served. The respondent argued that the application needed to be served in person. The applicant’s argument was that there was in place an order…
WHEN AN APPLICATION IS OVER – CAN A PARTY MAKE FURTHER WRITTEN SUBMISSIONS? THE ISSUES CONSIDERED
We have seen many cases on this blog where litigants have attempted to use draft judgments to “reopen” the judge’s conclusions. Here we have a warning about attempts to make further written submissions after the hearing has been concluded. (Once…
MAZUR COMPLIANT SUPERVISION AND COST EFFECTIVE DELEGATION IN 2025: WEBINAR 5th DECEMBER 2025: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
With an appeal pending (at some indefinite time) and the profession still rife with uncertainty we need to consider, head on, issues relating to delegation and supervision. Get this right and you will be part of a well run and…
INDEMNITY COSTS ORDERED IN CASE WHERE CLAIMANTS OBTAINED INFORMATION FROM DEFENDANTS’ SOLICITOR IN A “STING” OPERATION: “THE CLAIMANTS SOUGHT TO JUSTIFY THE UNJUSTIFIABLE”
This is a case worth reading if you want to see strong judicial commentary on litigation conduct. The judge was clear in his view of the conduct that the claimants had engaged in and surprised by its lack of self…
WHEN ONE CLAIMANT FILES A NOTICE OF DISCONTINUANCE: YOU CAN TRY TO CHECK OUT BUT YOU CAN’T NECESSARILY LEAVE
A claimant can normally file a notice of discontinuance at any time. However, as this case shows, the position is more complex when there is more than one claimant. Here we look at a case where someone was surprised to…
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