WHEN POSSIBLE FRAUDULENT CONDUCT EMERGES – CAN A SOLICITOR SIMPLY CARRY ON AS BEFORE? THE ISSUES CONSIDERED
Here we look at difficult conduct issue. This is in the context of applications for judicial review. However some of the problems are universal. What does the lawyer do if there are “red flags” that indicate that the solicitor is…
PROPORTIONALITY AND LITIGATION (3): WHAT DO YOU DO IF YOUR OPPONENT IS BEHAVING DISPROPORTIONATELY?
The previous post in this series looked at cases where the parties had “drifted” into disproportionate conduct and costs. However we should not be naive. Some litigants, and some litigators, will expressly threaten to run up costs as a litigation…
PROPORTIONALITY IN LITIGATION (1): A TEN POINT GUIDE FOR CIVIL LITIGATORS: A REVIEW OF CASE LAW AND POSTS OVER THE PAST 13 YEARS
Yesterday we looked at a judgment in the Court of Appeal where the sum at stake was £25. The court was, shall we say, “sceptical” about whether this litigation was for the benefit of the actual client. For a while…
WHEN CHAT GPT DRAFTED A “SKELETON” ARGUMENT – 300 PAGES AND 132,000 WORDS LONG: THE LITIGANT RETAINS RESPONSIBILITY AND MUST COMPLY WITH THE RULES
We have here another example, in a judgment today, of the difficulties caused by the use of AI. ChatGPT “helpfully” drafted a “skeleton” argument that was 300 pages long (the maximum page length allowed was 20 pages). This was coupled…
ADVISING THE CLIENT OF THE RISKS OF LITIGATION: TEN USEFUL CHECKLISTS COUPLED WITH THE RELEVANT LINKS
The previous post considered the nature of a solicitor’s duty in a conveyancing transaction. The judgment considered the nature of the solicitor’s duty to warn of risks. Here we pull together many posts and cases on advising on the risks…
COST BITES 450: IF THE CLAIMANT SUCCEEDED ON A CASE THAT WAS NOT PLEADED SHOULD IT THEN PAY THE DEFENDANTS’ COSTS?
Here the “Cost Bites” series interacts with the “Present Importance of Pleadings”. The judge considered issues relating to liability to pay costs when the claimant had succeeded, but on a basis that was not pleaded. In these circumstances should the…
DRAFTING A REPLY: WHAT IT SHOULD CONTAIN AND WHAT IT SHOULD NOT: THE KEY ISSUES CONSIDERED
You may have noted that the theme of today is the Reply. Here we look at how a Reply should be drafted if a decision is made that one should be served. “A Reply should not, however, be used to…
CLAIM AGAINST A SOLICITOR WAS STRUCK OUT: THERE HAD BEEN NUMEROUS PROCEDURAL DEFAULTS AND THESE WOULD HAVE BEEN FORGIVEN…
We are looking at a case where a claim against a defendant solicitor was struck out. It was struck out because there was no arguable case against the solicitor. However the claimants had also breached numerous rules before and after…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
COST BITES 447 : SHOULD A DEFENDANT’S DERAILMENT OF AN EARLY NEUTRAL EVALUATION LEAD TO INDEMNITY COSTS ORDERS BEING MADE AGAINST IT?
Here we have an interesting judgment on the interaction between costs, pleadings and the court’s encouragement of an ADR Process. The claimant argued that a defendant’s conduct lead to the adjournment, and eventual abandonment of an Early Neutral Evaluation (“ENE”)….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (2): HOW TO SPOT “FALSE” AUTHORITIES AND WHAT TO DO ABOUT IT (PLUS SOME USEFUL LINKS)
Many practising lawyers will now have seen cases where AI has been used to put forward legal propositions. Sometimes this involves “hallucinated” cases, statutes or rules. More problematically a real case or statute is cited, however the citation is wrong…
BACK TO BASICS MONDAY: LAWYERS AND ARTIFICIAL INTELLIGENCE (1): THREE IMPORTANT PRINCIPLES: YOU OWN THE WORK; AI IS NOT AN AUTHORITATIVE SOURCE OF LAW; IT IS NOT ENOUGH THAT THE CASE EXISTS…
The post earlier today on the misuse of AI when defending an SDT hearing has led me to start a short series about the dangers of lawyers (litigators in particular) using AI. This is not an anti-AI stance. There is…
MORE ON THE USE OF ARTIFICIAL INTELLIGENCE AND “HALLUCINATING” CASE LAW AND LEGAL PRINCIPLES: THE SOLICITORS DISCIPLINARY TRIBUNAL GIVES A CLEAR VIEW…
We have now looked at numerous court cases where lawyers have come to grief because of the use of Artificial Intelligence to cite law incorrectly, or simply manufacture false cases and equally false legal principles and citations. Here we have…
DEALING WITH FISH FILES, PROCRASTINATION AND DELAY: THE LITIGATOR’S FRIEND: A REMINDER OF USEFUL LINKS, POSTS AND GUIDANCE AND SOME USEFUL CHECKLISTS
Many of the problem areas of litigation we look at regularly (possibly daily) are often the result of human error. Sometimes there are mistakes as to substantive law, more often there are mistakes as to procedure. One major theme is…
WITNESS EVIDENCE WEDNESDAY: “BACKDATING LETTERS” TO DELIBERATELY MISLEAD COULD COST YOU: £4.58 MILLION IN THIS CASE: (METADATA COMES INTO PLAY NOW)
We are looking here at a judgment about witness credibility made by an Employment Tribunal several years ago. In particular the Tribunal found that the Defendants’ witnesses had deliberately backdated letters in an attempt to mislead. The reason we are…
COST BITES 445: USEFUL CHECKLISTS (2): A CHECKLIST ON COSTS IN HOUSING DISREPAIR CASES (FOR DEFENDANTS) TOGETHER WITH SOME USEFUL LINKS
Yesterday we looked at a checklist on costs for claimants in housing disrepair cases. In the interest of balance I said the next in the series would be aimed at defendants. Here is the checklist as promised. It encourages litigators…
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
CAN YOU HAVE AN INTERIM INJUNCTION WHEN YOU HAVE BEEN REFUSED IDENTICAL RELIEF IN THE PAST? CLAIMANTS NOT ALLOWED A SECOND BITE OF THE CHERRY
Can a party who has an application for an injunction dismissed then issue proceedings and seek an injunction in identical terms? The answer in this case is no. The principles that prevent litigants seeking “two bites of the cherry” apply…
COST BITES 441: NO ORDER FOR COSTS – EVEN THOUGH THE APPLICANT WAS SUCCESSFUL: THERE ARE MANY LESSONS TO LEARN HERE…
Last week this blog had a fairly detailed review of those circumstances which often lead to no order for costs being made. We have another example here. The applicant had succeeded in the application it had made, however the judge…
COST BITES 438 : CLAIMANT’S UNTENABLE ARGUMENTS LEADS TO REDUCTION IN COSTS RECOVERED: HOURLY RATES FAR TOO HIGH, EVEN WHEN THE CLAIM WAS “ONLY” FOR £9 MILLION
This decision as to costs gives rise to two interesting issues. Firstly the claimant’s costs of an injunction application were reduced substantially because assertions were put forward on a basis that were “unsustainable” and which should never have been pursued,…
THROWBACK FRIDAY: AVOIDING NEGLIGENCE CLAIMS IN LITIGATION AN 8 POINT SURVIVAL GUIDE (AUGUST 2019): AND LOOK AT THE LINKS…
This week we go back to August 2019 with a simple (but I hope effective) post on avoiding negligence claims in civil litigation. Eight of the major problem areas were identified and succinct solutions offered. (There have been hundreds of…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
COST BITES 435: ANOTHER APPLICATION TO REVISE A COSTS BUDGET (DURING A TRIAL): WITH A DIFFERENT RESULT: SOME INTERESTING COMMENTS ON CONDUCT ALONG THE WAY…
We have had a number of cases relating to amending costs budgets recently. This one has a different result. The need to revise the budget arose from the judge’s decision that there should be a separate hearing on damages. This,…
CAN DELAY IN APPLYING TO STRIKE OUT AN ACTION FOR ABUSE OF PROCESS BE AN ABUSE OF PROCESS IN ITSELF? THE DANGERS OF LETTING TIME GO BY
Here we have a case where it was argued that the defendant’s delay in bringing an application to strike out for abuse of process was an abuse of process in itself. The case points to authorities that “acquiescing” in an…
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
COST BITES 430 : THE ARMED FORCES HEARING LOSS LITIGATION? WHO WON AND WHO SHOULD PAY THE COSTS?
The issue of “who won” in litigation is usually a relatively easy one. Here we have a judgment in a complex series of test cases where the parties disagreed who had been successful. There was a major difference in views….
A MYRIAD OF PROCEDURAL ISSUES A BANKRUPT CLAIMANT; AN APPLICATION TO RESILE FROM AN ADMISSION AND AN ATTEMPT TO STRIKE OUT A COUNTERCLAIM FOR “WAREHOUSING”
This is a case that bristles with procedural issues. Firstly as to what happens when a claimant, involved in a partnership with others, goes bankrupt. Secondly whether that litigant could withdraw an admission that he had not status. Thirdly whether…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
“GRASPING THE NETTLE”: “THERE HAS BEEN ENOUGH DELAY” IN THIS APPEAL: COURT CUTS THROUGH ISSUES AND REQUIRES APPELLANT TO MAKE AN ELECTION AS TO WHETHER HE REQUIRES AN ORAL HEARING
In this case an order for possession was obtained because of arrears of rent. The tenant appellant appealed. The arrears stand at £73,000 and there was a risk of further delay. The judge “grasped the nettle” in making the appellant…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
ARTIFICIAL INTELLIGENCE IN COURT: AN INTERESTING PRACTICE DIRECTION FROM THE HIGH COURT IN IRELAND : GOOD ADVICE FOR US ALL
In England and Wales we are still considering appropriate guidance for the use of Artificial Intelligence in the courts. The High Court in Ireland has issued a specific Practice Direction on the use of Generative AI in Court Documents. It…
COST BITES 422: THE ORDER FOR INTERIM COSTS IN THE AMY WINEHOUSE CASE : THE JUDGE WAS UNIMPRESSED WITH CLAIMANT’S “WEAK ARGUMENTS TO BOLSTER HIS ALREADY WEAK COSTS SUBMISSIONS”
We are looking at a case where the trial judge made an order for interim payment on costs following a decision that the claimant should pay the defendants’ costs on the indemnity basis. The judge also considered an issue, raised…
COST BITES 421 : THE AMY WINEHOUSE CASE IS BACK IN COURT: CLAIMANT’S AGGRESSIVE CONDUCT OF A CASE WHERE HE LOST “ON EVERY MATERIAL POINT OF FACT AND LAW” LEADS TO AN ORDER FOR INDEMNITY COSTS TO PAY COSTS ON THE INDEMNITY BASIS
We are looking at another case where the claimant’s conduct of the case has led to costs being awarded on an indemnity basis. The judgment is clear that the claimant deliberately adopted an aggressive case which had no factual merit…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
ANOTHER BREACH OF JUDGMENT EMBARGO CASE: WHY SOLICITORS MUST BADGER THEIR CLIENTS ABOUT COMPLIANCE: “THE COURT EMBARGO IS FUNDAMENTALLY DIFFERENT FROM JOURNALIST EMBARGO”
Here we have yet another breach of the embargo on the handing down of a court judgment. The breach appears to have occurred because of a misunderstanding as to the important distinction between a court embargo and a journalism embargo. …
MAZUR MATTERS 66: THE LEGAL SERVICES BOARD FINAL REPORT ON MAZUR: “REGULATORY REVIEW OF ADVICE AND GUIDANCE PROVIDED TO THE PROFESSION ON THE CONDUCT OF LITIGAITON BY APPROVED REGULATORS AND REGULATORY BODIES”
The LSB report was published yesterday. It deals with matters that remain of practical significance to working litigators. Remember a breach of the Legal Services Act in relation to the conduct of litigation is both a criminal offence and a…
COST BITES 417: THE LIABILITY FOR COSTS OF EACH CLAIMANT WHEN A MULTI-CLAIMANT ACTION WAS DISCONTINUED: BEING PART OF SUCH AN ACTION MAY NOT BE CHEAP…
There has been much publicity recently about liability for costs when “multi-claimant” actions fail, are struck out or discontinued. We have a case that considers those issues here, albeit on a relatively small scale. Each claimant was liable to pay…
“STING OPERATIONS”, SECRET AGENTS, NAIVE SOLICITORS DISCLOSING THEIR CLIENT’S PRIVILEGED INFORMATION, STRIKING OUT AND ABUSE OF PROCESS: COURT OF APPEAL DECISION HIGHLIGHTS THE MAJOR RISKS OF “PRIVILEGE HUNTING”
Here the Court of Appeal looks at one of the most remarkable issues of “litigation conduct” that has occurred in recent years. The claimants hired a “black ops” operative to befriend and obtain privileged and confidential information from the defendants’…
WHAT SHOULD A SOLICITOR DO IF A CLIENT IS PUTTING FORWARD AN ACCOUNT THAT MAY BE UNTRUE AND THEN THERE ARE “RED FLAGS”? WHEN IS THE LINE CROSSED: THE DUTIES CONSIDERED IN DETAIL
A solicitor is, generally, not under a duty to satisfy themselves that their client is telling the truth. However what happens when there are “red flags” which indicate the client is using the solicitor’s services in furtherance of a fraud? …
COST BITES 416: SHOULD THE COURT IMPOSE A COSTS CAP WHEN THE CASE WAS BUDGETED? THIS IS RARELY GOING TO BE SUCCESSFUL…
This is an interesting judgment on whether the court should impose a costs cap in a case that was already subject to costs budgeting. The defendant had made an application to vary the budget which was pending. The judge had…
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…
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
“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…
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…
COST BITES 412: SHOULD THE CLAIMANT’S FAILURE TO GIVE FULL AND FRANK DISCLOSURE ON AN APPLICATION TO SERVE OUT LEAD TO THE DEFENDANTS RECOVERING INDEMNITY COSTS: CONDUCT CONSIDERED
This judgment considers whether certain, admitted, failures by the claimant to give full and frank disclosure should lead to costs being awarded against it, even though it defeated the defendants’ application to set aside the order that was made. The…
HALLUCINATED CASE LAW AND THE CROWN PROSECUTION SERVICE (OF ALL BODIES…)
All cases of hallucinated cases are serious, however some may be more serious than others. If we have a situation where the Crown Prosecution Service files documents which rely on cases that simply do not exist, this has to be…
EXPERT WATCH 57: JUDGE DECIDES THAT AN EXPERT, THAT HAS NOT COMPLIED WITH THEIR DUTIES TO THE COURT, SHOULD BE NAMED; “HE HAD A CHOICE TO INVOLVE HIMSELF IN THESE PROCEEDINGS AND TO BE PAID FOR DOING SO…”
Here we are looking at a decision related to the case we looked at yesterday relating to a medical expert in a family case. The judge gave a decision on whether an expert, who she found had failed in their…
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