Category: AJH Advocacy

Disclosure is an important stage of litigation, and sometimes parties can be prohibited by the fact that the disclosure they need or ought to obtain and disclose is not within their physical possession but held by a third party.

I remember in my litigation days that when you sued a tour operator regarding an accident or illness at a hotel abroad, the tour operator would metaphorically shrug when you sought disclosure of certain documents, as the records were held at the hotel abroad and were not the tour operator’s documents. However, it was not always as simple as that.

This article considers this issue in more detail.

To what extent can a litigant be responsible for acquiring documents held by third parties?

CPR 3.8 says the following:-

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if –

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it; or

(c) he has or has had a right to inspect or take copies of it.

It is really easy for a party to know what is within its physical possession.  The question is to what extent is the right to possess and the right to inspect and take copies of it. A straightforward example is a person’s medical records. A Claimant would be entitled to both the right to possess, inspect or take copies of it.  

What about bank statements? The same principle would apply as it would to medical records, you have a right to your own bank statements. However, what happens if the spouse of the Claimant potentially has bank statements that could influence the case? That was a point considered by Knowles J in the High Court appeal of Morgan-Rowe v Woodgate [2023] ALL ER (D) 02 (Oct).

The first instance decision was considered by a Recorder who determined that liability should be at 50% due to the Claimant’s contributory negligence, but the real battleground was the credit hire being claimed by the Claimant. The Recorder found that the Claimant was impecunious based on the financial evidence given by the Claimant and relied on in support of the assertion that she was impecunious.

The Defendant appealed to the High Court because they were of the view (amongst other arguments on the issue) that the claimant had failed to disclose all financial records and therefore should be barred from being able to rely on impecuniosity. The argument centred on bank accounts believed to belong to the Claimant’s husband, revealed indirectly through a transaction on a joint HSBC account. The Defendant argued that there must have been other accounts and credit cards, that these statements should have been disclosed, and that failure to do so meant the Claimant should be considered poor.

The Recorder had found that the accounts in question were in the husband’s sole name and when considering CPR 31.8, could not make the finding that there was a failure to disclose. 

Knowles J did not disturb the Recorder’s findings. He said there was no evidence that the Claimant possessed her husband’s bank statements, had any legal right to them, or had the right to inspect or copy them, meaning none of the requirements of CPR 31.8(2) were met. Knowles J explained that a married couple with separate bank accounts do not automatically control each other’s financial records. Therefore, the husband’s statements were not within the claimant’s control, were not part of standard disclosure, and there was no breach of the disclosure order.

Is the right to possession, inspect or take copies a straightforward question?

No, it is not. Courts don’t apply CPR 31.8 only to whether there’s a strict legal right. They look at the true relationship between the litigant and the third party with the documents. Even if there’s no formal legal right to possess them, documents may still be considered within a party’s control if the relationship suggests they can access them.

In the case of North Shore Ventures Limited v Anstead Holdings Inc [2012] ALL ER (D) 89 (Jan) the Claimant had a US$35 million after securing a Judgment against the Defendants. After the judgment, the Defendants put assets into family trusts, where they and their families were beneficiaries. The Claimant suspected the trusts were used to hide assets and prevent enforcement. It asked for a Court order to see trust documents, even though the trustees held them. The Defendants claimed they did not have the documents and had no legal right to access them, so they were not in their “control” under CPR 31.8. The Defendants appealed the order.

The Court of Appeal was asked to consider whether documents held by third-party trustees could nevertheless be treated as being in the Defendants’ “control” for the purposes of CPR 31.8. The Court of Appeal dismissed the appeal.

They confirmed that CPR 31.8 is not limited to strict legal rights. When documents are held by a third party, the Court looks at the true relationship between the litigant and the holder. Even without a legal right, documents may still be under a party’s control if, in practice, the third party acts on their instructions or there’s an understanding that documents will be provided on request.

The Court said it can find documents within a party’s control based on the situation, not just law. In this case, the Judge believed the trusts were set up to protect assets and that the trustees weren’t acting independently. They followed the defendants’ requests. This meant the documents held by the trustees were considered controlled by the defendants because they created the trusts, their families benefit, and the setup looked like an attempt to avoid enforcement. The court inferred strong practical control.

A document can be in a party’s control if they can realistically get it, the holder usually acts on their wishes, or there’s an informal understanding for access. A strict legal right is not necessary.

This Contrasts with Morgan-Rowe, where the court found that the husband’s bank accounts were genuinely independent and there was no evidence of control. Whereas in North Shore the trustees followed the Defendants’ instructions. 

Third parties and third-party applications. 

In Morgan-Rowe, the Recorder highlighted that it was open to the Defendant to make a third-party application under CPR 31.17. The test is substantially higher than that for a pre-action disclosure application. Under CPR 31.17 the applicant must show:-

• That the documents are likely to either support or adversely affected the case, and
• It must be necessary to fairly dispose of the claim or safe costs

Once the applicant gets over that high threshold, the Court then has the discretion to balance the factors to consider whether to exercise its power to order a third party who is not a part of the proceedings to disclose.  

Further, as with PAD applications, the presumption is the applicant will pay the Third Party’s costs of complying with the Order and the application itself (although, as per CPR 46.1, the Court can consider making a different Order when considering the reasonableness of opposing the application).

In April 2026, CPR 31 is going to be amended to include the following:-

31.12A.  The court may order a party to request any person to produce for disclosure and inspection any document which may support the case or adversely affect the case of any party to the proceedings

This will not force a third party to disclose documents, but it ensures that parties have asked third parties for relevant documents. I am uncertain whether this would require a party to sign a statement of truth explaining their efforts to obtain the evidence or whether it would significantly affect the likelihood of a third-party disclosure application and the 31.17.

Concluding remarks.

Disclosure held by a third party is not a new principle. It’s been relevant for many years and the mechanisms have been widely available to parties where it is necessary. However, it doesn’t always mean it can be utilised.

Even if Knowles J found that CPR 31.8 could mean the Claimant had failed to comply with the credit hire debaring Order in Morgan-Rowe, would that mean that a spouse’s financial position is relevant to determining whether or not the Claimant was impecunious?

Third-party disclosure is a useful but controlled tool. The Courts won’t allow wide-ranging searches (amounting to fishing expeditions) but will intervene if outside documents are genuinely needed to resolve issues.

Whether through CPR 31.17 applications or by viewing documents as within a party’s control under CPR 31.8, the emphasis will be on substance over form. Who actually has the evidence and who can access it? Practitioners should define requests only when the evidence is necessary and be ready to explain who owns the documents.

Whether CPR 31.12A’s introduction in April will assist this issue on standard disclosure is something that practitioners will no doubt find out.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

A personal injury practitioner is often instructed by someone injured in a public location, not on a highway, but on premises that are open to the public. It is well known that the relevant law imposing a duty of care to keep lawful visitors reasonably safe on such premises is the Occupiers’ Liability Act 1957 (with the Occupiers’ Liability Act 1984 increasing the scope to trespassers in certain circumstances).

Whilst the 1957 Act (which came into force on the 1st January 1958) has some additional scope for those who are children and are present in the exercise of their calling, the duty is reasonably fair, clear and reduced to a single concept of visitor.

However, if pleadings were to omit the 1957 Act, then the landscape would be wholly different. Instead of a common duty of care, the occupier would owe different duties of care to different individuals. In essence, the Court would be in a position to consider negligence occurring in the 21^st century, contrary to Victorian case law. 

Prior to the 1957 Act, there were generally three types of visitor:-

• Invitee
• Licensee
• Trespasser

For ease, I will use the term ‘Claimant’ even though in the cases below, they would be referred to as the ‘Plaintiff’.

Invitee v licensee

Pearson v Lambeth [1950] 2 K.B 366 is a case where a person was deemed to be a licensee. The Claimant used a public toilet provided by Lambeth Borough Council, accessible via steps between two walls. At night, a sliding metal grille was pulled across and locked, but during the day it was pushed back and could not be locked open. While inside, children known to swing on the grille pulled it partly forward. When the claimant returned up the steps, he hit his head on the metal hasp hanging from the grille and was injured.

The trial judge dismissed the claim, finding that the Claimant was a licensee and that the council had no knowledge of the specific danger, so it did not breach its duty of care.

The Court of Appeal allowed the appeal because whilst they found the Claimant to be a licensee, they say that the Council had sufficient knowledge of the risk created by third party interference (i.e., children who regularly tampered with the grille, which made it capable of becoming dangerous). 

With regard to finding that the Claimant was a licensee, the Court of Appeal said the following:-

This conclusion, if well founded, would absolve us from considering the other issue, namely, whether the plaintiff was indeed a mere licensee or an invitee. If we are wrong, and the plaintiff was an invitee, he would in this character a fortiori be entitled to recover. But, as the issue has been argued before us at some length, we think that we should set out briefly the grounds of our conclusion that the plaintiff was a licensee only. The general principles on which persons coming on the premises of an occupier with his consent are classified as invitees and licensees, respectively, are easy to formulate, but not always easy to apply. They are somewhat over-simplified in the formula in Salmond’s Law of Tort 10 th ed., at p. 476 justly commended by MacKinnon L.J. : ” The invitor says ‘ I ask you to enter upon my business.’ The licensor says ‘ I permit you to enter on your own business ‘.”

Succinct and vivid as is this formula is, it might suggest that the visitor is an invitee only if the business on which he comes is exclusively that of the occupier. This is, of course, not what is meant. It is more exact to say that an invitee is a person who comes on the occupier’s premises with his consent on business in which the occupier and he have a common interest; e.g., a shopper has an interest to buy and a shopkeeper an interest to sell. It is sometimes said that the interest must be pecuniary or at least ” material.” This certainly does not mean that a visitor who is not required to pay and does not pay is necessarily excluded from the class of invitees : e.g., many shops encourage customers to enter and inspect their wares without any obligation to buy.

The Court of Appeal found that using the public toilet was in keeping with a licensee, but found the Claimant was still entitled to damages because, in these circumstances, the Defendant had actual knowledge of the potential danger because they knew of the probability of children being pulled and moved by children. They didn’t need to know or foresee the precise manner in which the danger would translate into an actual casualty.

An invitee would be owed a higher duty of care to be safe from harm.

In the case of Stowell v The Railway Executive [1949] 2 K. B. 519, the Claimant went to Paddington Station to meet his daughter and help with her luggage. As he walked along Platform 9, he slipped on oil or grease and was hurt. Earlier that day, a fish train had arrived, and fish boxes often leaked water, slime, and oil. Staff were supposed to clean and sand the platform after deliveries. Evidence showed oil was still there, and staff had enough time to see and clean it.

The High Court needed to consider whether the Claimant was an invitee or a licensee. They were able to find that the Claimant was an invitee because the railway promoted people entering the platforms to meet arriving passengers. Assisting passengers with luggage helped both the passengers and the railway, as it sped up clearing the platform. Thus, the Claimant was present on the premises for a purpose that shared a business interest with the Defendant.

The duty of care to an invitee was to protect them from unusual dangers they knew or ought to have known about. The unusual danger was to be judged by the perspective of the particular invitee, and people on busy platforms are entitled to expect the surface to be safe and are not required to watch every step. Therefore, the Defendant was negligent as they knew or ought to have known about the oily patch. The Defendant’s staff failed to remove it or make it safe, and this was the cause of the Claimant’s accident.

The shared business interest point could become problematic. Could a door-to-door salesman walk through a garden to a front door and claim a shared business interest? If so, was that status lost when the householder refused the salesman?

Dunster v Abbott [1954] 1 WLR 58 (CA)

This is a case where the Claimant was an advertising canvasser who visited the Defendant’s house hoping to sell advertising space. The Defendant was not interested and escorted the claimant out along a dark driveway and over a small concrete bridge crossing a ditch.

After estimating that the Claimant had reached the road, the Defendant switched off a garage light, but the Claimant was still on the bridge. Believing he was on the pavement, he turned right, tripped, fell into the ditch, and was injured. Initially, the Claimant was treated as an invitee and awarded damages, though with a reduction for contributory negligence. The Defendant appealed.

The Court of Appeal allowed the appeal and dismissed the Claimant’s cross appeal. It was determined that the Claimant was only a licensee, rather than an invitee, because an invitee must be attending on business in which both parties have a common interest and in this circumstance, the Claimant was attending on his business only, for which the Defendant had no interest in.

This is where Lord Justice Denning made the following observation:-

A canvasser who comes without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him it seems rather strange that your duty to him should be different when he comes up to the door than when he goes away. Does he really change his colour in the middle of the conversation? And what is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions. Such is the morass into which the law has floundered in trying to distinguish between licensees and invitees.

In the present case the canvasser came to the door, the householder asked him in, the canvasser stated his business; the householder was not interested, and the canvasser left. Upon those facts I am clearly of opinion that the canvasser was not an invitee but only a licensee, because he was there on his own business and not on any matter in which the householder had an interest. We all know that a guest whom the householder invites to dinner is only a licensee, even though the householder has an ulterior business motive in asking him. It would be strange if a householder owed a higher duty to a canvasser who comes unasked than he does to a guest who comes on his express invitation.

Ultimately, being a licensee meant the Defendant had only a duty to warn the Claimant of concealed or unusual dangers of which he was aware. The Licensee must take the premises as they find them in all of circumstances. Even as an invitee, the Court of Appeal found that the Defendant was not negligent, but this case shows the dangerous of having different levels of duty of care depending on the type of visitor you are.

What about trespassers?

In the case of R Addie & Sons (Collieries) Ltd v Dumbreck [1929] ALL ER Rep 1, the Defendants owned a colliery field with dangerous haulage equipment, including a horizontally exposed wheel connected to a cable used for transporting ashes. The poorly fenced field, with large gaps in the hedge, was accessible to children from nearby houses, and despite warnings from employees, children frequently entered it, mistaking the machinery for an attractively dangerous play area.

Tragically, a small child was fatally injured when he wandered into the field, approached the active wheel, and was caught. The child’s father sued the owners, alleging negligence for failing to adequately fence or guard the machinery to prevent such access.The House of Lords allowed an appeal by the Defendants. They found that the child was a trespasser because there was no permission for children to enter the field, and despite knowing about the trespassing, the Defendants had only warned them without encouraging or tolerating their presence.

The House of Lords confirmed that an occupier has no duty to a trespasser unless there is deliberate harm or reckless conduct, and in this case, the defendants were only negligent without malicious intent.The House of Lords rejected the proposition of a higher duty toward child trespassers. Despite the dangerous and attractive machinery, knowing that children often entered the field did not change the legal position. Age was irrelevant once classified as a trespasser. They found that occupiers were not required to fence against the world, and that failing to do so does not turn trespassers into licensees or create liability.

Consideration

The duty of care introduced by the Occupiers’ Liability Act 1957 marked a meaningful change from the old, often inconsistent common law rules. Before the 1957 Act, liability was largely based on the type of visitor you were, with different protections that could lead to confusion, including whether you substantially changed from one type of visitor to another during a visit to the occupiers’ premises. 

The 1957 Act eliminated the invitee/licensee distinction and established a single statutory duty for all lawful visitors, making sure occupiers take reasonable steps to keep them safe. 

However, the warning is this. If those who draft proceedings fail to include reliance on the 1957 Act and plead the allegation that the Defendant had failed to breach s2 of the 1957 Act, then the Claimant risks the Court having to consider the duty of care owed by the Defendant under the stricter common law duty. 

After all, all recent case law is considering the application of the 1957 Act after it had been pleaded and relied on by the Claimant.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Whether you are a litigator or an advocate in civil proceedings, Part 36 plays a pivotal role and, if utilised correctly, can bring a matter to a reasonably amicable conclusion. The difficulty is that if not used in an appropriate manner, it will quite often lose its bite (such as making an unrealistic offer or making it far too late).

Quantum offers are often utilised more than liability offers, with the latter being the subject of Mundy v TUI UK Limited [2023] EWHC 385 (Ch), casting doubt on whether liability offers are even worth making.  However, the Court of Appeal in Smithstone v Tranmoor Primary School [2026] EWCA Civ 13 has overturned the controversial High Court decision of Colins Rice J.

Under CPR 36.2(3), a Part 36 offer can relate to the whole claim, part of the claim, or any issue within the claim. A liability-only offer is usually an agreement to settle the liability aspect at a certain percentage, such as 90% in favour of the claimant, with quantum to be decided later. The probative value of making such an offer is evident: acceptance resolves liability, narrows the issues and dispute, and saves time and costs. Strategically, rejecting such an offer can also lead to increased costs under CPR 36.17 if the offeror later achieves a better result. Punitive, but also proactive in encouraging settlement. 

So how could an offer that would reduce the issues, costs and court resources be deemed not to trigger the Part 36 consequences? 

Mundy v TUI UK Limited

Mundy was an appeal against a first instance decision where the Claimant successfully established his cyclospora infection was contracted from the food at his hotel, which was provided for under an all-inclusive contract from his tour operator.  The Claimant had made a £20,000 Part 36 offer to settle but also a liability-only Part 36 in the sum of 90/10% in his favour. He ended up being awarded around £200 less than the Defendant’s Part 36 offer of £4,000. 

The Claimant appealed to the High Court on the basis that he should not be ordered to pay the Defendant’s costs from the expiration of the £4,000 to trial because he had beaten his 90/10% Part 36.

Upon dismissing the appeal, Collins Rice J expressed concern towards 90/10% liability offers and their role. She concluded that such an offer did not constitute an offer to settle the claim or a measurable part of it, and its value could not be meaningfully separated from the eventual damages award.

 The court explained that CPR 36.17 primarily deals with comparing offers and judgments “in money terms,” but in cases where liability is binary, an offer based solely on liability does not lend itself well to such comparisons. Relying on having “beaten” a liability-only offer could undermine the structured and predictable framework of Part 36. Consequently, she found that the Claimant could not rely on CPR 36.17(4) solely because liability was established at trial. While the 90/10 offer might influence the Court’s discretion on costs, it should not automatically trigger Part 36 benefits. 

For some time, litigators contemplated whether liability only trial had any merit. Until the Court of Appeal considered the same issue in Smithstone.

Smithstone v Tranmoor Primary School

In Smithstone, a ten-year-old injured his fingers when they got caught in a door at the Defendant’s School. He filed a personal injury claim for negligence and breach of the Occupiers’ Liability Act 1957.

The claim proceeded under the low-value fixed costs regime. Before any medical evidence was provided, the Claimant made a Part 36 offer to settle for 90/10% liability in his favour. The school rejected this offer and denied liability. However, the parties settled for a sum of money and went to an approval hearing. The Court approved the settlement and ordered the Defendant to pay the Claimant’s fixed costs. The Claimant appealed, arguing that the liability-only offer displaced the fixed-cost regime (because Part 36 costs in the pre-1^st October 2023 regime were assessed on an indemnity basis).

The Court of Appeal dismissed the appeal because liability had not been determined and therefore the Claimant could not demonstrate that the settlement was at least advantageous as the 90/10% liability Part 36 offer. 

What was important, however, was the consideration of Mundy:-

34 …… But insofar as Collins-Rice J may have suggested (obiter) that a 90:10 liability offer is ineffective as a matter of principle to engage CPR 36.17, I disagree. Whether litigation is complex and of high value, or straightforward and of relatively modest value, the Courts should, and the Civil Procedure Rules do, encourage settlement of specific issues where the case as a whole cannot be settled. In a case where liability is to be tried before quantum the benefits of a liability-only offer in saving costs and court time are obvious.

But even in a fast-track case where all contested issues will be resolved by a district judge or deputy district judge in the course of a single hearing, liability-only or quantum-only offers are still to be encouraged. The policy considerations identified in Huck v Robson and Broadhurst v Tan remain to this day. The 90/10% offer was, in my view, to be treated as a genuine offer to compromise, just as the 95/5% offer was treated in Huck v Robson.

35 Accordingly, while Judge Baddeley understandably regarded Mundy v Tui as binding on him, I would overrule it on the issue of principle. That is not, however, enough to get the Claimant home, since the next issue is whether on the facts of this case the outcome was at least as advantageous to the Claimant as the proposals contained in his offer.

Broadhurst v Tan [2016] EWCA Civ 94, which was significant for pre-1st October 2023 cases because it established that the cost consequences of Part 36 should consider the actual costs incurred and be assessed on an indemnity basis. It also looked at Huck v Robson [2002] EWCA Civ 398, where a 95/5% split was found effective when 100% liability was proven, demonstrating that Part 36 was not limited solely to global monetary offers.

Concluding thoughts

Overall, liability-only Part 36 offers are valid and do not automatically exclude Part 36 consequences. In my view, Smithstone was unlikely to succeed because there must be a judgment that beats a Part 36, and court approval of a settlement is not the same as the court making a ruling after hearing all evidence at trial. Additionally, the Court retains the discretion not to award cost consequences if it believes doing so would be unjust. Litigators should keep this in mind when proposing Part 36 offers. If you cannot demonstrate that realistically how the agreement to liability would have likely led to a settlement of quantum as well, then there would be grounds for the other party to argue that it would be unjust to do so.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

I’m spending my Sunday morning watching the final Mission Impossible movie, which includes many clips from earlier films, including the very first from 1996 when I was eight.

One of the most prominent pieces of technology shown from the first Mission Impossible film (aside from the latex face mask) was glasses with a built-in camera, which played a crucial role in the plot (I won’t spoil why). I recall thinking how amazing it would be to have tiny cameras that could be integrated into everyday objects, so discreetly that no one would know.

Roll forward thirty years and we legitmiate glasses from manufacturers (such as Ray Ban) which, amongst other features, have a built-in camera. It’s incredible, but it does make me wonder how susceptible Courts will be to court users who could now be wearing recording equipment in everyday wear, such as glasses.

The Legal Prohibition on Courtroom Photography

The Courts of England and Wales are still subject to s41 Criminal Justice Act 1925, which makes it unlawful to take or attempt to take any photograph, or to make a sketch for publication, of judges, jurors, witnesses, or parties to proceedings in court. Many believe that taking any photographs within Court can amount to a breach of s41:-

41 Prohibition on taking photographs, &c., in court.

(1)No person shall—

(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;

and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.

(1A)See section 32 of the Crime and Courts Act 2013 for power to provide for exceptions.

(a)the expression “court” means any court of justice (including the court of a coroner), apart from the Supreme Court;

(b)the expression “Judge” includes . . ., registrar, magistrate, justice and coroner:

(c)a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.

I previously wrote an article discussing how some interpret s41(1) as prohibiting taking photographs in courts and also forbidding a portrait or sketch of anyone involved in court proceedings for publication. Others see the restriction as applying to any photograph, portrait, or sketch of any person connected to the court proceedings.

Realistically, the safe approach is not to take photographs. However, there can be circumstances where a photograph is not a photograph in the conventional sense, but a scan of a document with a phone, immediately creating a PDF copy of the document. Would that amount to take a photograph? If one were to take the approach that photographs in court and sketch/portraits of people in court are two separate actions that are subject to s41, scanning a document in Court has the possibility of being a breach of s41.

Example – HM Solicitor General v Cox & Parker-Stokes [2016] EWHC 1241 (QB)

The Queen’s Bench Division considered whether secretly taking photographs in court and posting them on social media could amount to contempt of court.

The case came from a murder sentencing at Bristol Crown Court. Two friends of the offender used their phones in court to take pictures; one photographed the Defendant in the dock, and the other photographed the judge. Some of the images even showed Court signs warning about the prohibition of cameras. After the hearing, the photos were posted on Facebook, where they were seen by many and drew various comments. Members of the victim’s family later saw the posts, which caused them serious upset and they advised the police.

The Solicitor General brought contempt proceedings against the two individuals, rather than relying on a breach of s41 of the 1925 Act, because that was a summary conviction with a level 3 fine.  It was the contention of the Solicitor General that the gravity of the conduct was the ‘wilful defiance and affront to the authority of the court’. 

The High Court allowed the application for contempt. There was a specific act intended to prevent a photograph from being taken. The immediate impact can be a distraction to proceedings, including witnesses, jurors, parties, and Court staff. S41 of the 1925 Act was clearly intended to prevent this immediate impact. The Court then considered that more damage can be caused by sharing or publishing the photographs. The impact can then be more widespread, affecting more than just the hearing itself, such as impacting the victims, their families and undermining the authority of the court, essentially impacting the public’s confidence in the justice system.

Further, the Court made it clear that specific conduct of sharing the photographs goes beyond the statutory offence of s41 because whilst s41 was useful in giving the court the immediate power to deal with anyone seen taking photographs in court in order to ensure it maintained control over the proceedings, the later steps of sharing the photographs (whilst not in the face of the court) was contempt and could interfere with any subsequent hearings, appeals and so forth. 

Discussion

As cameras become increasingly embedded in everyday technology, from phones to glasses, and the increase of apps utilising the camera, such as document-scanning apps, the boundary between ordinary, innocent use and unlawful conduct is becoming harder to see when at Court.

A rather innocent act, such as taking a photograph of a document at Court, could in fact fall within the scope of s41 of the 1925 Act. The varied interpretations could mean that a breach does not require a relevant person (Judge, juror, witness or party) to be within the photograph.

Although the consequences of a breach of s41 are relatively limited when compared with the potentially severe sanctions for contempt of court, being a summary offence punishable by no more than a level 3 fine, currently capped at £1,000 per offence, it’s still an offence and should not be taken lightly.

Undoubtedly, individuals who take and share photographs, whether intentionally or not, such as on social media, face the risk of contempt charges. Practically, I suggest court professionals avoid photographing documents altogether and reduce the chance of accidental violations of s41 by sharing documents via email or secure short-range wireless methods like Apple AirDrop.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

The European Communities (Rights against Insurers) Regulations 2002 can simplify the enforcement steps needed in an RTA matter. It can also reduce issues when it comes to service, because the claim can be served against the insurer when Solicitors have not been nominated (or, if they are a limited company, even when Solicitors have been nominated as per Collier v WIlliams [2006] EWCA Civ 20).

However, it still requires the driver to be identified, as Regulation 3 of the 2002 Regulations takes effect because the Claimant would have a cause of action against the insured driver. If you do not know the identity of the driver, how can you know if the Defendant insurer would be liable to indemnify the collision? That was the determination of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6.

Cameron v LV

On 26^th May 2013, Ms Bianca Cameron was injured in a road traffic collision in Leeds involving a Nissan Micra. The collision was caused by the Micra’s driver, who drove away and was never identified. The Micra was registered to Mr Naveed Hussain, but he was not driving at the time. He later refused to identify the driver and was convicted of failing to do so.

The car was insured with Liverpool Victoria Insurance Company Ltd (LV), but the policy was taken out in the name of “Mr Nissar Bahadur,” who was believed to be fictitious. Neither the registered keeper nor the driver was insured to drive the car. Ms Cameron obtained the registered keeper’s details and initially brought the claim against them, with LV as a second Defendant to satisfy any judgment against the registered keeper under section 151 of the Road Traffic Act 1988. When it became clear that the registered keeper was not the driver, Ms Cameron applied to amend her Particulars of Claim to say  “ the unknown driver of…”.

In the first instance and at the Court of Appeal, the Claimant prevailed on this point. However, the Supreme Court overturned the decision and found in favour of the Defendant. The Supreme Court held that a basic principle of justice is that no person can be made subject to the court’s jurisdiction unless they have notice of the proceedings sufficient to enable them to take part. It follows that a claim cannot properly be issued or amended against an unnamed defendant where it is conceptually impossible to bring the proceedings to that person’s attention.

They found that proceedings can only be brought to a Defendant insurer’s attention if the Defendant is described in the claim form in a way that makes it possible, in principle, to locate or communicate with them and to identify whether a particular person is the one being sued.

In this case, the description of the driver was based solely on a past act and did not make it possible to locate or identify him. As a result, the driver could not, as a matter of English law, be sued under that description. Alternatively, the claim would have otherwise been brought against the MIB under the untraced driver’s agreement.

Recent example

I was recently instructed in a matter which was proceeding to trial and the Defendant had denied purely on the basis that the Claimant had not identified the driver and therefore the claim against the Defendant insurer was defective. It did not deal with the accident or the heads of loss (including credit hire).

Upon reviewing the Particulars of Claim I noted the pleadings said “the Defendants insured was the driver of “, which was very vague. I then considered the bundle and came across correspondence which included one email from the Defendant Insurer saying”-

Thank you for your recent communication. Please note our interest as Motor Insurers of [name redacted].

Having reviewed the circumstances of this incident, we will not be disputing liability.

I also noted a subsequent email:-

Thank you for your e-mail.

We are indemnifying our insured, we will be listed as 1st defendant. You may intimate proceedings against [Defendant insurer name and address redacted].

It was going to be my contention that the correspondence, the naming of the insured and confirming the identity meant that both parties were quite aware of who the insured driver was and therefore was distinguishable from Cameron. I prepared a skeleton argument and my opponent, upon my arrival to Court, sent a copy of her skeleton to me. Before I read it, we were asked (advocates only) to appear before the Judge.

Amongst other points (put to both myself and my opponent), the Judge asked my opponent about correspondence containing an admission, the apparent identity of the insured, and confirmation that indemnity was not an issue. My opponent said she would argue that it was not an admission that the insured person was the driver. The Judge advised that even if the issues did get resolved in favour of the Claimant, it was unlikely we would be able to have the trial heard as well. He indicated that this might be a case where we should step outside and exhaust all negotiations before reverting to make submissions.

In the end, the parties reached a compromise. The Judge indicated that it would have been an interesting issue but gave no indication of his preliminary view.

Conclusion

In essence, whilst my submissions may very well have had some traction, it was a real risk that the Claimant had not named the driver (or who he believed the driver was). If the Claimant had named the insured, and the Defendant then decided to challenged that the insured was the driver, then it could be address accordingly.

My backup approach would have been to argue that as, per In Soo Kim v Youg [2011] EWHC 1781 (QB) and Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435, this was the first time the issue was being addressed by the Court and that a remedy should be allowed before the draconian step of a strike out. The Defendant did not make an application to strike out and was silent on the point at the allocation hearing. Any prejudice to the Defendant would have been remedied by the Defendant having the opportunity to plead a positive case against the Claimant. However, on the other hand, the Claimant had not taken any steps to remedy their case upon receipt of the Defence.

Whilst Cameron was an issue regarding the principle of the insurer being a named Defendant for the purposes of s151 Road Traffic Act 1988, the principle does apply to the 2002 Regulations as it is clear from Regulation 3 that it concerns an insured person, not a vehicle. You can’t compel an insurer to insure a person that they may or may not insure.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

I wasn’t going to write an article about this. I had my views about the interpretation of sch 3 Legal Services Act 2007 when I read the reserved decision of Vehicle Control Services Ltd v Langley [2026] EWCC, sitting in the County Court at Haverfordwest. However, I have had a few people contact me about it.

In particular, I focus on the points raised about Schedule 3 par 1 (7)(a) and (b). I do not comment on para 1(7)(c) regarding whether the matter is in chambers. This article also does not concern qualified advocates, advocates who come under the definition of a lawyer who can represent a party at a small claims trial as per PD27A para 3.1 or under the Lay Representatives (Right of Audience) Order 1999 – none of these were considered in the Judgment.

DJ Pratt was of the view that the advocate did not meet the criteria for Sch 3 Legal Services Act 2007 because they did not meet the following criteria:-

1. (7)(a) – the person is an individual whose work includes assisting in the conduct of litigation. 
2. (7)(b) – the person is assisting in the conduct of litigation –
3. Under instruction given (either generally or in relation ot the proceedings) by an individual to whom sub-paragraph (8) applies and
4. Under the supervision of that individual

DJ Pratt found that the small claim trial would take place in chambers. I don’t intend to address that point. 

The person is an individual whose work includes assisting in the conduct of litigation 

DJ Pratt says, at paragraph 11 of his judgment, that the definition of litigation to be found in paragraph 2 of schedule 2 to the Act as “‘…the issuing of proceedings…the commencement, prosecution and defence of such proceedings, and…the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).’

He then says the following:-

42. Vehicle Control Services’ in house team and DCB Legal have solely taken all the steps in the litigation. Elms Advocacy Agency Limited have only acted as an advocacy agency sub-subcontracting to Mr Boaten. They have taken no step recognisable as ‘litigation’. It is clear that Mr Boaten has no connection to the Vehicle Control Services. Neither he nor the advocacy agency have undertaken any step in the litigation save attend on an advocacy only basis. Neither Mr Boaten nor the agency have written any letters, signed any documents, issued any proceedings, or taken any other steps in the litigation. Advocacy alone cannot be conducting litigation.

43. I find that Mr Boaten has not been assisting in the conduct of litigation. Mr Boaten’s claim to be an Exempt Person must fail at this first hurdle. Nevertheless, for completeness I will consider the other conditions.

Let us take Elms out of the equation for now. Let us imagine that at Haverfordwest, we did not have an advocate from Elms but an in-house paralegal from DCB Legal.  The paralegal walks in and sits down, ready to present the case on behalf of VCS. DJ Pratt looks up and invites the paralegal to explain their right to appear. 

DJ Pratt says neither Elms nor the advocate had written letters, signed any documents, issued any proceedings or any steps in the litigation. Is DJ Pratt saying that a paralegal at DCB who hasn’t done any work on the file cannot attend on behalf of the client even if they are being supervised? Are they expected to provide evidence to support that they have done work? Then comes the big question. DJ Pratt gives examples of what they could have amounted to assisting in litigation, but given Mazur, isn’t it more likely that those steps could have amounted to litigation?

I think that DJ Pratt has, as HHJ Backhouse suggested in Halborg v Apple, applied the definition in an incredibly narrow manner.

In my view, it cannot be limited to only individuals who have physically assisted in some way shape or form with the litigation. It would be perverse that an employee of the solicitors’ firm on record for the party would be under supervision for attending the hearing, but having not done any work at all on the file was deemed not to be assisting in the course of litigation.

DJ Pratt emphasises the importance of distinguishing between conducting litigation and advocacy. He is correct that they are two separate regulatory actions. However, assisting with litigation does not mean conducting mitigation. For example, attending a hearing on behalf of the principal solicitor, like a case management conference, counts as assisting the litigation because it helps move the case forward.

Under the supervision of that individual

DJ Pratt considered HS (Chambers Proceedings: Rights of Audience) [1998] 1 FLR 868 (which would have considered the Court and Legal Services Act 1990, with similar exemptions) and quoted the following:-

‘It appears to me that the plain object of s 27(2)(e) is to preserve the traditional right of solicitors’ managing clerks to conduct proceedings in chambers on behalf of the solicitors who employ them. Such managing clerks are traditionally men and women of great experience, often members of the Institute of Legal Executives. They can be relied on to observe the same principles of detachment, objectivity and professional duty as a qualified solicitor or barrister…

I am bound to say that this construction [as suggested] seems to me to fly in the face of the general principle in s 17 by extending rights of audience to an advocate subject to none of the usual constraints which bind an advocate employed or engaged by a solicitor and acting under his instructions in the ordinary way.’

It is that last sentence that stands out to me because I believe this is where DJ Pratt errs. In Re Pomeroy & Tanner [1897] 1 CH 284, Stirling J said the following:-

Let us look at it as a matter of principle. It is well settled that between the client and the London agent of the country solicitor, there is no privity. The relationship of solicitor and client does not exist between the client and the London agent. What is done by the London agent is part of the work done by the country solicitor for the client. The country solicitor does or may do part of the work personally. He does or may do part of his work through clerks whom he employs in the country, or, if necessary, and the necessity occurred in this case, he may do part of his work through a London agent. But as between the country solicitor and the client, the whole of the work is done by the country solicitor. 

While the client had a legal relationship only with the country solicitor and not with the London agent, any work performed by the London agent was legally considered part of the country solicitor’s work, and the solicitor remained fully responsible to the client for all of it.

Whilst Elms would not have a legal relationship with VCS, all work done by Elms would be treated as part of DCB’s work and DCB would have remained full responsible to hte client for all of it. It would also be the case that if costs were being assessed on a standard or indemnity basis, the costs to DCB would be claimed as profit costs and not a disbursement? 

In Crane v Canons Leisure Centre [2007] EWCA Civ 1352, the Court of Appeal determined that the solicitors’ costs are determined by the nature of the work. They said if they delegate the work but retain supervision, and never relinquish responsibility, then those costs are those of the solicitor. 

I return to Elms and DCB.  DCB instructs Elms (a law firm regulated by CILEX). The responsibility of the work is never relinquished. Therefore, any work carried out by Elms must be under the specific instruction and control of DCB.  

In my view if the authorised person within Elms supervises an unqualified advocate, the Elms authorised person is doing so under the control and responsibility of DCB. Therefore, supervision would be met.

Consideration

This goes back to my initial perspective on Halborg and how the Court of Appeal was able to see that the interpretation of sch 3 seemed ‘too academic’. It’s likely that we will come across various first-instance decisions and find ourselves in a ‘battle of the transcript’ situation again, since no appeal at the appropriate appellate level is expected to happen.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

A law firm receives instructions from a Claimant to pursue a personal injury claim. Suddenly and unexpectedly, the firm is informed by a family member that their client has sadly passed away.

The next issue is that the limitation period is approaching, and the firm issues a protective claim form to preserve the Claimant’s claim whilst they scramble to secure an appropriate personal representative to continue with the claim.

However, as many firms do, a fatal error has occurred. Unfortunately, the firm did not have the appropriate instructions or an appropriate standing to issue the proceedings. What is worse is that, on occasion, when a personal representative was not identified, the firm issued as the Claimant, intending to amend the proceedings once a personal representative was identified and a retainer had been engaged.

These are, unfortunately, rather fatal errors that can end proceedings before they begin.

Millburn-Snell v Evans

A well-known authority on the point is Millburn-Snell & Others v Evans [2011] EWCA Civ 577, which demonstrates the point well.

The Claimants appealed a decision to strike out their claim against the Defendant. Before his death, the Claimant’s father was claiming against the Defendant but had not started legal proceedings. The father died intestate, and the Claimants filed a claim as his personal representatives, stating they had the right to do so. Five days before the trial, the Defendant asked to have the claim struck out because the Claimants did not have the legal authority to sue without letters of administration. The Claimants admitted this but asked the Court to allow the claim to continue under CPR 19.8(1). The Judge ruled the claim was invalid and could not be validated later by letters. He also said CPR 19.8(1) was not enough to make the claim suitable for trial. 

The Claimants’ appeal to the Court of Appeal was dismissed. It was decided that a party incorrectly claiming to be an administrator cannot bring a claim because they lack the authority. CPR 19.8(1) did not apply, as it only guides proceedings when a death requires a trial. Usually, someone with a genuine interest in an estate must first obtain a grant of administration to sue. CPR 19(8)(1) does not allow this step to be skipped or replaced.

Practical approach in personal injury claims

When I was a litigator, I came across the issue quite often, and fortunately, I was in a position where limitation was not an issue. However, I could not make any progress until I had a retainer with an appropriate personal representative. It was straightforward when a valid will was in place, because the executives had automatic powers as personal representatives.

As with many clients, those without wills caused difficulties, especially when the client had no assets and no reason for a family member to apply for letters of administration. In some cases, the person who might be able to apply for letters of administration will not benefit from the damages sought, due to the intestacy rules.

I successfully recovered the costs of obtaining the Letters of Administration. Strictly speaking, it is a disbursement because it is a cost arising out of the litigation rather than the action. However, especially in the fixed cost regime, the need for the letters of administration is arguably a ‘particular feature of the dispute’, especially after MIB v Santiago [2023] EWCA Civ 838.

It is important that if a client passes away, you keep an eye on the revised limitation period and ensure your ducks are in order to avoid any issues.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Late service of a claim form raises issues far more serious than might initially be viewed. Since serving the claim form is how the court gains jurisdiction over a Defendant, failing to serve on time can trigger a challenge under CPR Part 11.

This allows a Defendant to argue that the Court has no jurisdiction or should not exercise any jurisdiction. Understanding how CPR 11 operates is critical because Defendants can easily lose the right to challenge jurisdiction if the strict procedural rules are not followed.

When must a claim form be served?

The claim form must be served, in accordance with CPR 7.5, within four months (or six months if being served outside of the geographical jurisdiction) or an application is made to extend the time for service. If it is not:

• Service is ineffective;
• The Court’s jurisdiction over the Defendant is not engaged; and
• Any subsequent steps taken by the Claimant (including late service without a valid extension) are vulnerable to challenge.

Where service is late, the Defendant may argue (in accordance with CPR 11(1)) either:

• That the Court has no jurisdiction because the claim form was never validly served; or
• That, even if jurisdiction exists, the Court should not exercise it, for example, because an extension of time for service was wrongly granted or should not be granted retrospectively.

How does the Defendant challenge jurisdiction?

A Defendant who wishes to rely on late service must, in accordance with CPR 11(2):-

1. File an acknowledgement of service, and
2. Make an application) within 14 days of filing the acknowledgement of service.

If the Defendant does not do the above within the requisite time, the Defendant is treated as having accepted jurisdiction and cannot challenge it under CPR 11(5).

An example is Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. The Claimants owned land on which the Defendant had rights under a deed to enter, install a sewer, and restore the land. They alleged that the Defendant failed to do so correctly and sued for breach of the deed, trespass, nuisance, and negligence.

A claim form was issued but not served within four months. Before it expired, the claimants received a two-month extension to serve the claim, citing the need for clarification and settlement. A copy was sent to the defendant for information.

The Defendant sought to set aside the extension, claiming no good reason. After being served, they acknowledged they would defend but did not contest jurisdiction. The Judge initially overturned the extension and struck out the claim, noting the Defendant had already challenged service and didn’t need to apply under CPR 11.

The Court of Appeal allowed the appeal and overturned the strike out. The Defendant failed to apply within fourteen days as per CPR 11, and that was fatal, because it was deemed to have accepted jurisdiction. The Claimant risked making an application to extend without giving the Defendant notice and whilst there was found to be no good reason for not servign in time, because a copy was sent within the four months (albeit not ‘served’) and the claim was not statute barred, the Court of Appeal found that the extension should not have been set aside.

What relief is available to a successful Defendant under CPR 11?

On a successful CPR 11 application, the Court may, in accordance with CPR 11(6), also order, in addition to declaring that it has no jurisdiction or won’t exercise its jurisdiction:-

• set aside the claim form;
• set aside service of the claim form;
• discharge any order extending the validity of the claim form; or
• stay the proceedings.

The opportunities for CPR 11 to be evoked

Claimants often attempt to rescue late service by seeking retrospective extensions under CPR 7.6. This is either an extension sought before the claim form expires (even if the application is heard at a time after the claim form has expired) or retrosepctively.

The latter situation presents greater challenges for Claimants because the Court has even less discretion if the application is made retrospectively. In such cases, the Claimant must demonstrate that all reasonable steps to comply with CPR 7.5 were taken and that they were unable to do so, in addition to making the application promptly.

I once acted for a Claimant where the Solicitors sent the Claim Form for issue. Six months later, the Claimant’s Solicitors began chasing the Civil National Business Centre (‘CNBC’) after being accustomed to long delays in processing new claims. However, the Claim Form had been issued, returned, but had not been received by the Solicitors. An application was made (at the same time of service) under CPR 7.6(3) and was granted on paper. The Defendant (after having made an application under CPR 11 and noting the contesting of jurisdiction in the acknowledgement of service) applied to set aside the Order, arguing that the Court was wrong to have granted the application on paper.

At the hearing, I attempted to argue that the Claimant Solicitors, having experienced significant delays with the CNBC, were reasonable in only beginning to chase the Court after six months. On this basis, they had done all that was reasonable. The Court agreed that the Claimant had failed to take all reasonable steps (such as chasing the CNBC much earlier, even if it led to no response), set aside the Order retrospectively extending the time for service, and made an Order that there was no jurisdiction.

Challenging jurisdiction is not the only remedy available in certain circumstances. In the case of Shiblaq v Sadikloglu (No.1) [2003] EWHC 2128 (Comm) the Defendant sought to set aside a default judgment, alleging improper service. The Claimant had sued for $1,035,000, claiming the Defendant owed money and had agreed to rebuild a yacht at a Turkish boatyard owned by his company. The Claimant stated the Defendant failed to repair and deliver the yacht. Although permission was granted for service in Turkey and notice was posted on the boatyard’s door, the Defendant did not acknowledge receipt. Consequently, the Claimant obtained a default judgment, which they attempted to enforce in Dubai. The Defendant contested the validity of service under Turkish law and sought to set aside the judgment under the CPR, also arguing there was no agreement to refit the yacht, potentially providing a defence.

In this case, the Defendant was unable to rely on CPR 11 because the time had passed to be able to dispute jurisdiction. Instead, the Default Judgment was set aside under CPR 13.2 because service was defective. Interestingly, the Claimant attempted to remedy the defective service with CPR 3.10, CPR 6.8 and CPR 6.9. 

CPR 3.10 is not an appropriate avenue

CPR 3.10 says the following:-

3.10 Where there has been an error of procedure such as a failure to

comply with a rule or practice direction—

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

What this means is the rules will protect proceedings from nulity and can allow matter to proceed even if there was a technical error, subject to the Court’s discretion.

For example, in Pitalia v NHS England [2023] EWCA Civ 657, CPR 3.10 could be used to remedy the application to challenge jurisdiction because the Defendant had failed to tick the appropriate box in the acknowledgement of service, and the application was not explicitly made under CPR 11 to challenge jurisdiction. The Court of Appeal found that the application made could be treated as an application to challenge jurisdiction as CPR 3.10 allowed the procedural error to be overlooked.

However, that did not mean that CPR 3.10 could be used to remedy a failure to serve the claim form. However, there can be specific examples where it can apply. For example, Bank of Baroda, GCC Operations v Nawany Marine Shipping FZE [2016] EWHC 3089 (Comm), the Claimant failed to serve more than one copy of the Claim Form for each of the Defendants. The High Court found the step taken to serve was defective but not completely omitted. Therefore, the defect could be remedied under CPR 3.10.

Avoid jursidiction issues overall

CPR 11 highlights to civil litigators that the biggest risk is failing to serve the claim form at all, which allows a Defendant to challenge jurisdiction with limited recourse for the Claimant. Neglecting proper service can be costly and should be avoided whenever possible. Although minor service defects can sometimes be corrected under CPR 3.10, especially if the service was generally proper and the defect does not invalidate it, this should not be relied upon as a fallback.

In personal injury cases where the claim form was not validly served, it may be better to issue and serve a new claim form, even if the limitation period has expired. This approach could strengthen the claimant’s position to seek relief under section 33 of the Limitation Act 1980 should time limitations become an issue. Ultimately, careful and correct service is the best way to prevent jurisdictional challenges under CPR 11.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

If you are a CILEX Advocate, Solicitor or authorised advocate who undertakes advocacy and you don’t have a court gown, then this could be the chance to get one.

As per the Practice Directions for Court Dress (nos. 3 and 4), CILEX Advocates, Solicitors and other authorised advocates (such as Cost Lawyers, Trade Mark Attorneys and Patent Attorneys) will wear a Solicitors’ gown (rather than a barrister’s gown). For the avoidance of doubt, the one on the right is a Solicitor’s gown.

As of the 12th January 2026, I will no longer require my Solicitor’s gown for being a CILEX Advocate, and therefore I would like it to be passed on to someone. I appreciate, especially with the increase of CILEX Advocates, that there may be an influx of prospective recipients.

I intend to pick a name out of a hat if there is more than one donation. All you need to do is make a donation to St Luke’s Hospice for Plymouth, a minimum of £5 (although you can make a larger donation if you want). I will pick out a name at random and I will cover the cost of delivery.

If you are interested, please screenshot your St Luke’s donation and send it to alec@ajh-advocacy.co.uk. Draw ends 9pm 31st January 2026, any donations after this time will not be accepted in the draw (but thank you anyway for donating to an important charity).

For your information, I am 5 ft 8 (172 cm) and it is an appropriate length gown.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

In civil litigation, especially in personal injury, the credibility of a Claimant is crucial when much turns on the Court accepting the oral evidence of the Claimant. Whether the injury cannot be measured with objective evidence or whether there is doubt about the validity of the accident, the Claimant’s evidence must be strong and reliable to ensure it is accepted, especially with scrutiny under cross-examination.

The Claimant will present evidnece as part of their claim in the form of witness statements, medical reports, medical records and other documents. A Defendant advocate’s dream case is finding the Claimant’s evidence entirely inconsistent throughout, making their ability to controvert the Claimant easier. In contrast, a Claimant presenting evidence where the narrative remains consistent throughout makes it more challenging (and more likely to lead to a settlement prior to trial).

The human condition

Human beings are faillble and the possibility of the Claimant misremembering matters is entirely possible without the overall credibility of the Claimant being compromised.

Courts often recognise that human memory is reconstructive. Memories can be distorted over time. Interaction with others can unintentionally manipulate recall of events. The stress of litigation can have an impact. In civil cases, the process of litigation can often commence months or even years after the event.

Humans may believe their memories are accurate but be unaware that they are misremembering. This can be seen in cases where controverting evidence is put to a witness, and you can see the genuine look on the witness’s face as they try to reconcile the evidence with their recall.

Even this can be problematic for witnesses: if they misremember one point, could they also misremember others? Can any of their evidence be accepted?

Medico-legal reports

Medical evidence is very important for providing a claim for personal injury, but it is also another opportunity for inconsistency to be utilised by the Defendant. I previously wrote about how reporting to doctors (whether treating doctors reported in records or medico-legal experts reported in reports) would amount to an inconsistent statement and can be used to challenge credibility.

Whilst there can be explanations for errors on part of the maker of the record or report, the Claimant may need to resort to finding a way to establish that this was an erroneous reporting (Denton Hall Legal Services v Fifield [2006] EWCA Civ 169). It is inherently more problematic for a Claimant when their own medico-legal reports (which were privileged until instructions were given to disclose these) have inconsistencies compared with medical notes which are completed by someone whose main focus is on treatment, rather than the presentation of reports for the purposes of litigation.

Witness statements

The difficulty for Claimants, when it comes to witness statements, is that, being their evidence in chief, it can be fatal if they include or omit information. What many litigators often forget is that a witness statement replaces the step of the witness going into the witness box and giving live oral evidence before cross-examination.

Advocates can see that litigators can forget this because the witness statement usually ends with “I am willing to attend Court to give evidence”, which is nonsensical because if the witness was giving live oral evidence, they would have been asked by their advocate “anything else to add?” and the witness (in Court, in the witness box) would say “I am willing to attend Court to give evidence”.

Witness statements are sometimes used to address issues with medical evidence, but this is usually done by the advocate during cross-examination. 

Case example

The point is that the evidence should all tie in together. While evidence is rarely perfect, there is a significant difference between a few errors and inconsistency that threatens the credibility.

An example was a case where I acted for a Part 20 Claimant. The Part 20 Defendant’s claim was that she had sustained injury when driving her motorcyle along side traffic when the Part 20 Claimant pulled out in front of her. The Part 20 Claimant argued that following the collision, the Part 20 Defendant injured her when she tried to leave the scene of the accident.

Since my Part 20 Claimant client’s accident details were largely unrelated to the personal injury case pleaded by the Part 20 Defendant, it was up to the Claimant to establish her case. Unfortunately, the medical reports lacked consistency, and the claimed losses, like loss of earnings, were not supported by evidence or considered by the medical experts. Although the Claimant attempted to clarify everything during her oral testimony, her credibility was compromised, making it difficult for the Court to rely solely on her evidence.

Conclusion

Courts will recognise that human memory is fallible, but consistency is key to ensuring and maintaining credibility in civil cases. Small errors usually will not matter too much, but contradictions across witness statements, medical records, reports, and pleadings can be fatal. Once credibility is damaged, it’s hard to restore it fully with oral evidence. Explaining discrepancies late in the process often makes things worse and highlights the problems. Even if a Claimant genuinely believes their account, a lack of coherence in the evidence can prevent the Court from trusting their evidence.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.