MAZUR RECORDING – NOW AVAILABLE
The webinar on Mazur I did last Friday is now available from Steve Cornforth who kindly arranged it. Details are below. (You can watch the recording on any screen you like – well nearly…) HOW TO GET IN TOUCH WITH…
MAZUR MATTERS 10: THE STATUTORY DEFENCE TO THE CRIMINAL OFFENCE: WHY YOU (PROBABLY) WON’T GO TO JAIL: BUT THE POSITION GOING FORWARD MAY BE DIFFERENT…
A person unlawfully “conducting” litigation can be imprisoned for up to two years, be fined and is also in contempt of court. This makes uncomfortable reading for many. However there is a statutory defence. There is useful case law…
MAZUR MATTERS 9: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION”? (2): AN EARLY COURT OF APPEAL DECISION WHICH HELPS
We are continuing with a detailed examination of the cases and principles relating to what is meant by the “conduct of litigation”. Here (with some major caveats in mind) we look at the Court of Appeal decision that has been…
PART 36: SHOULD THE COURT EXERCISE ITS DISCRETION SO THAT THE NORMAL PART 36 PROVISIONS DO NOT APPLY? THE HIGH COURT CONSIDERS THE “FORMIDABLE OBSTACLE”…
Here we have a case where the court considered the defendant’s argument that the normal provisions of Part 36 should not apply when that defendant had failed to beat a claimant’s Part 36 offer. The burden on a party arguing…
MAZUR MATTERS 8: WHAT IS MEANT BY THE “CONDUCT OF LITIGATION” (1): HOW HELPFUL ARE THE REGULATORS?
This is the start of a new sub-series concentrating on one issue. We will be looking at what has become one of the key matters of concern for many litigators – what is meant by the “conduct of litigation”. There…
MAZUR MATTERS 7: LINKS TO SOME USEFUL RESOURCES: SOME INTERESTING READING FOR THE WEEKEND…
I have just finished presenting a webinar on the Mazur decision. I have a distinct feeling that this will not be the last. It was the first time I can remember where the time spent on questions afterwards exceeded the…
MAZUR MATTERS 6: FURTHER GUIDANCE FROM CILEX: “FIRMS WILL NEED TO SATISFY THEMSELVES THAT THEY ARE COMPLIANT WITH THE LAW”
CILEX have provided further guidance in a document produced yesterday “CILEx Regulation – Interim Guidance The conduct of litigation and supervision”. (It may not be too late to register for the webinar on this topic today at 12.00 – details…
MAZUR MATTERS 5: THE SRA STATEMENT: “WE KNEW THE LAW ALL ALONG” (WITH NO EXPLANATION AS TO HOW THEY GOT IT WRONG)
Along with the reminder that the webinar on Mazur is on Friday 3rd October (details available here) it is notable that SRA issued a statement on Mazur yesterday. The full text of which is below. There is no hint of…
MAZUR MATTERS 4: DOES MAZUR COVER ANYTHING PRIOR TO THE ISSUE OF PROCEEDINGS? THREE CASES THAT CONSIDER THE ISSUE
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). Here we consider the issue relating to…
MAZUR MATTERS 3: CILEX MEMBERS – THE REAL VICTIMS OF ALL THIS: WHAT CILEX MEMBERS CAN DO ABOUT THIS
If any members of the profession are entitled to be disgruntled (to put it mildly) about the decision in Mazur it is CILEX members who conduct litigation. They have hard earned qualifications and extensive experience. However, unless they come within…
COST BITES 294: “A DETAILED ASSESSMENT IS NOT THE FORUM TO RESCUE OR TO ATTEMPT TO CHANGE THE EFFECT OF A POORLY WORDED ORDER”: THE COURT WOULD NOT CONSIDER ASSERTIONS OF POTENTIAL FUNDAMENTAL DISHONESTYOF THE PRIMARY ACTION ON ASSESSMENT
Here we are looking at an attempt by a paying party defendant to raise issues of conduct, including potential fundamental dishonesty, at the assessment of costs stage. The defendant argued (or attempted to argue) that the costs judge should take…
MAZUR MATTERS 2: THE ROLE OF THE SOLICITORS REGULATORY AUTHORITY : THE REGULATOR THAT GOT THE LAW WRONG AND IS NOW “PONDERING” WHAT TO DO…
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). One interesting aspect of the case is…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
This is an important and interesting case about findings of dishonesty on the part of a practising solicitor in their failure to make relevant checks on the background of their client. It was not suggested that the solicitor was aware…
MAZUR MATTERS 1: THE PENALTIES FOR NON-QUALIFIED STAFF CONDUCTING LITIGATION (AKA “HOW MUCH TIME COULD I SERVE”)
The webinar on Friday the 3rd October will deal with many of the major issues that arise from the the decision in Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). However it is clear that it…
ISSUING AN INJUNCTION MEANS “PROCEEDINGS” ARE UNDERWAY AND THE CLAIMANT HAS TO PAY THE COSTS AFTER IT WAS SET ASIDE: ALLOWING THE CLAIMANT’S ARGUMENTS IN THIS APPEAL WOULD BE AN “AFFRONT TO COMMONSENSE”
Here we look at an ingenious argument about the meaning of “proceedings” and the costs consequences if a claimant has an injunction order set aside. The claimant argued that the nature of the action he pursued did not amount to…
MORE ABOUT WHO CAN PROPERLY “CONDUCT LITIGATION”: THE SUBMISSIONS OF THE LAW SOCIETY AND SOLICITORS REGULATION AUTHORITY: “TASKS MAY BE DELEGATED BUT CONDUCT OF THE LITIGATION MAY NOT”
As I said yesterday the matters discussed in the recent judgment about whether a fee earner can conduct litigation may have a widespread impact. It is important that litigators are aware of the views of the Law Society and the…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
A DECISION OF PROFOUND PRACTICAL IMPORTANCE TO SOLICITORS: WHEN IS SOMEONE EMPLOYED BY A SOLICITOR ENTITLED TO “CONDUCT” LITIGATION? A HIGH COURT DECISION THAT WILL HAVE WIDESPREAD RAMIFICATIONS
We are looking at a High Court decision that could have major ramifications for the way in which firms of solicitors organise their practices. In particular in relation to the qualifications of staff who conduct litigation, what is meant by…
THREE WEBINARS ON EXPERTS: THE JOINT EXPERT AND MEETING OF EXPERTS; PART 35 QUESTIONS AND EXPERTS IN THE COURTS IN 2025
The way in which the “Expert Watch” series has quickly developed shows that issues relating to expert evidence continue to give rise to problems. These three webinars explore many of the major issues in relation to experts. Dealing with the…
BARRISTER REFERRED TO THE BSB BECAUSE OF THE USE OF AI “HALLUCINATED” CASES: IGNORANCE THAT THIS WAS HAPPENING IS NO DEFENCE
We have another example of a lawyer getting into trouble (potentially very serious trouble) through the use of Artificial Intelligence and its ability to “hallucinate” cases. It was accepted that the error was not deliberate. However the Upper Tribunal pointed…
COST BITES 285: DOES THE COURT NEED TO VARY THE RECEIVING PARTY’S BUDGET WHEN IT HAS ORDERED THAT COSTS BE PAID ON AN INDEMNITY BASIS?
We are looking again at the award of indemnity costs. The judge ordered that costs be paid to the claimant on the indemnity basis. He then went on to consider whether, given that decision, it was necessary to retrospectively vary…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 2: WHERE DO YOU LOOK WHEN FACED WITH AN ARGUMENT ON ASSESSEMENT THAT COSTS SHOULD BE REDUCED BECAUSE OF “PROPORTIONALITY”?
The principles considered here work for both sides. Where does a receiving party look when the paying party wants to reduce costs because of “proportionality”? Where does a paying party look to gain guidance on such issues. I am here…
COST BITES 274: IN CONSIDERING WHETHER TO AWARD INDEMNITY COSTS HOW RELEVANT IS A DEFENDANT’S WITHDRAWN PART 36 OFFER? (THE CLAIMANT THAT TURNED DOWN $50 MILLION DOLLARS – AND THEN LOST AT TRIAL…
Here we look at a short judgment on costs. The judge considered whether an indemnity costs should be made and the date from which the indemnity costs order should take effect. There were several factors specific to this case, however…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
HOW NOT TO APPLY TO SET ASIDE A JUDGMENT WHICH IS ALLEGED TO HAVE BEEN OBTAINED BY FRAUD: THE JUDGE MARKED THE “ILL CONSIDERED AND POOR MANNER IN WHICH THE APPLICATION HAS BEEN PREPARED AND PROSECUTED”
It is possible to apply to set aside a previous judgment when the applicant’s case is that that judgment was obtained by fraud. However here we look at an almost textbook example of how not to go about this. The court…
EXPERT WATCH 7: “THIS CASE IS NOT SHORT OF ADVOCATES”: AN EXPERT REPORTING FOR THE CLAIMANT SHOULD NOT HAVE BEEN ONE OF THEM: FURTHER THEY SHOULD HAVE DISCLOSED THAT THEY HAD “COPIED” THEIR REPORT
Yesterday I imposed a 24 hour respite on this series “unless something really interesting comes up”. I have broken that promise, it lasted 22 hours. However the cases on experts keep coming in and, I think, readers need to know…
EXPERT WATCH 4: THE EXPERT SHOULD INFORM THE COURT IF MEMBERSHIP OF A PROFESSIONAL ORGANISATION HAD CEASED, PARTICULARLY IF THIS IS LINKED TO DISCIPLINARY PROCEEDINGS AGAINST THEM
We are returning (and not for the last time) to a recent decision where the court considered the expert evidence in detail. Here we look at the judgment in relation to an expert who failed, until prompted, to inform the…
COST BITES 258: APPLICANT’S FAILURE TO ACCEPT SUGGESTION IN A LETTER LEADS TO INDEMNITY COSTS BEING MADE AGAINST IT
We are looking at a case where the judge found that an applicant should have accepted a suggestion that their application be withdrawn. Because they did not take up that application the applicant was ordered to pay costs on the…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
“HALLUCINATED CASES” LEAD TO PARTY SUCCEEDING AT FIRST INSTANCE: THE COURT OF APPEALS OVERTURNS THE DECISION – BUT RESPONDENT RELIED ON ANOTHER HALLUCINATED CASE IN AN ATTEMPT TO OBTAIN COSTS…
Here we look at another case where a party to litigation relied on “hallucinated” cases – created by Artificial Intelligence. The impact of those cases here were potentially more profound in that a party’s case – based on those false…
COST BITES 257: SOLICITOR AND OWN CLIENT ASSESSMENTS AND “UNUSUAL COSTS”: WHY THE ATTENDANCE NOTE IS OFTEN THE SOLICITOR’S BEST FRIEND
A solicitor is under a specific duty to warn the client when “unusual costs “are being incurred, particularly those costs that may be irrecoverable on an inter party basis. Here we have an example of a (former) client asserting that…
PROFESSIONAL NEGLIGENCE NEWS 3: INADEQUATE ATTENDANCE NOTE LEADS TO WOEFUL RESULTS: THE APPEAL THAT SHOULD NOT HAVE HAPPENED
Here we are looking at a decision where manifold service failures on the part of solicitors were identified. However we will look at one issue – the consequences of an attendance note not being full and complete. Counsel advised on…
COST BITES 255: SOME IMPORTANT LESSONS HERE: LEGAL OMBUDSMAN HOLDS THAT A FIRM ACTING ON A DBA CANNOT BE PAID TWICE FOR THE SAME WORK: FULL REFUND ORDERED (WITH INTEREST)
The courts have, on occasion, indicated that the legal ombudsman may be a more cost effective way of resolving solicitor and own client costs disputes than expensive litigation. We are looking at such a case here, an ombudsman decision in…
COMMITTAL PROCEEDINGS “BROUGHT FOR COLLATERAL PURPOSES” DISMISSED: NOTICE TO SHOW CAUSE ISSUED AGAINST THE CLAIMANT’S SOLICITORS: WHY THIS IS A VERY DANGEROUS STRATEGY
There are many ways in which a litigant, dissatisfied with a judgment of the court can respond. They can apply to set the judgment aside; they can appeal; they can issue fresh proceedings attempting to argue that the action was…
PART 36, REFUSAL TO MEDIATE AND SHOULD A PARTY BE SUBJECT TO THE PART 36 PENALTIES WHEN AN OFFER WAS MADE TO THREE DEFENDANTS?
What should the court do in a case where a Part 36 offer is made in relation to a number of defendants but the claimant only succeeds against one of them? Can a failure to accept an offer of mediation…
COST BITES 252: WHEN CAN A SOLICITOR PROPERLY TERMINATE A RETAINER? WAS THE CLIENT “THROWN TO THE LIONS”?
Here we are looking at a very small part of a judgment in relation to costs on a solicitor/own client assessment. On of the arguments put forward by the (former) client was that the retainer was wrongfully terminated shortly before…
IF YOU ARE GOING TO CRITICISE AN EXPERT THIS MUCH YOU SHOULD HAVE RAISED IT AT THE CASE MANAGEMENT HEARING: HIGH COURT REJECTS EACH PARTY’S ATTACKS ON OPPONENT’S EXPERTS
We have seen plenty of cases where the courts have not been slow in their criticism of expert witnesses. Here we have a different situation where the judge was critical of the attacks, by each party, on the credibility of…
HOW FAR IS A TRIAL JUDGE BOUND TO FOLLOW THE VIEWS OF A JOINTLY INSTRUCTED EXPERT? WELL – READ THIS FOR SOME TRENCHANT VIEWS…
When the parties jointly instruct an expert how far is the judge “bound” by the views that the expert reaches? This is an issue we are looking at for the second time within 6 days. We have an interesting consideration…
THE CURRENT IMPORTANCE OF PLEADINGS 20: CLAIMANT’S COSTS REDUCED BY 50% BECAUSE OF THE NATURE OF THE PLEADED CASE (OR… HOW TO LOSE £3.3 MILLION IN COSTS…)
Today we are looking at a case where a successful claimant’s cost were halved because of its “vague and expansive” pleadings, coupled with a failure to “specify with clarity and precision” what its case was. (Half a sixpence…
IF YOU DISCONTINUE AN ACTION THEN YOU’RE (NORMALLY) BE GOING TO PAYING THE COSTS: THE HIGH BURDEN IMPOSED IN AN APPEAL AGAINST A DECISION AS TO COSTS
Anyone attempting to appeal against an order for costs faces an uphill battle. This may be doubly so if the costs order is made presumptively because they have discontinued an action. Here we consider a case where the difficulties of…
THE WRONGFUL SHARING OF EMBARGOED JUDGMENTS: “A WARNING TO ALL SOLICITORS”: ANOTHER LAYER OF RESPONSIBILITY AND ISSUES TO CONSIDER
Cases relating to the wrongful sharing or disclosure of embargoed judgment have become a surprisingly common feature of litigation in recent times. Here we look at another High Court decision where this has happened. The judge states that there are…
ANOTHER CASE ON ARTIFICIAL INTELLIGENCE AND “HALLUCINATED CASES”: PLUS THERE MAY BE “MISCHIEF” IN THE BACKGROUND
A few weeks ago I was cagey in reporting a case about AI generated false authorities because I could not believe any lawyer could do this and was wary of the accuracy (indeed authenticity) of the report. Today I am…
WHAT ARE THE CONSEQUENCES WHEN A WITNESS BREAKS THE “PURDAH” RULES? THE ISSUES CONSIDERED IN THE HIGH COURT
The “purdah” rule – that a witness cannot discuss the case and their evidence with others, including their legal team, once they have started giving evidence is of utmost significance. Here we are looking at a case where a witness…
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…
WHEN QOCS DOES NOT APPLY TO THE WHOLE OF A CLAIM: WHAT PERECENTAGE SHOULD THE CLAIMANTS PAY: THE MATTER CONSIDERED IN THE HIGH COURT
For the second time today we are looking at the rules relating to Qualified one way costs shifting (QOCS) and its exceptions. Here the defendant had spent £2 million successfully defending a claim, only part of that action was a…
WILL A COSTS ORDER NORMALLY BE MADE AGAINST A CREDIT HIRE COMPANY? COURT OF APPEAL DECISION THIS MORNING
This is the first of several points that will look in detail at the Court of Appeal decision today in relation to the liability of credit hire companies to pay costs. This first post outlines the main findings. Later posts…
THE CORRECT PROCEDURE IF A PARTY WANTS TO ATTEMPT TO RELY ON “WITHOUT PREJUDICE” DOCUMENTS: THE EXCEPTIONS TO THE WP RULE CONSIDERED
We are looking at a judgment from today which considers the “without prejudice” rule in some detail. In particular the steps a party should take if it wishes to argue that it should be able to rely on without prejudice…
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…
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