Key cases and updates from our Corporate Claims team

Liability:

Inclusion in a bundle does not amount to agreement that the contents are true

• Failure to object = document is admissible.
• Truth and reliability remain live issues for trial.
• Authenticity challenges must be made earlier (e.g. CPR 32.19 notice).
• Hearsay within documents still engages statutory considerations.
• Bundle preparation is procedural, not evidential agreement.

In Mohammed Arif v John Baker & Ors [2026] EWCC 14, HHJ Tindal reiterated the effect of CPR PD32 para.27.2: documents included in an agreed trial bundle are admissible as evidence of their contents unless a party objects or the court orders otherwise.

The Defendant accepted that an expert report in the bundle was admissible but argued that its contents (being hearsay) should be treated with caution under the Civil Evidence Act 1995, s.4.

The case reinforces the distinction between admissibility and weight. The court also endorsed earlier guidance in Bains v Irshad & Anor [2025] EWHC 491 (Ch), confirming that parties agree only that documents should be before the court—not their accuracy.

-------------------------------------------------------------------------------------

Significant delays can be fatal, even with an arguable defence.

• “Real prospect of success” is a threshold requirement.
• Promptness is critical and overlaps with Denton stage 3.
• Poor explanation for default will weigh heavily against relief.
• Courts will prioritise procedural compliance and efficiency.

In Eco Green Capital Ltd v Wetzel [2026] EWHC 800 (KB), the High Court (Turner J) considered an appeal against refusal to set aside default judgment under CPR 13.3. The court reaffirmed that a Defendant must first establish a real prospect of successfully defending the claim as a threshold requirement. Promptness is a mandatory consideration but not the first hurdle in the analysis.

Following FXF v English Karate Federation Ltd [2023] EWCA Civ 891, applications to set aside default judgment engage the Denton v TH White Ltd [2014] EWCA Civ 906 relief from sanctions framework.

The Defendant’s delay—nearly 11 months—was found to be serious and significant, and wholly lacking good reason. Evidence showed the claim form had been properly served but ignored.

Even assuming a triable defence, the application failed due to lack of promptness and the Denton analysis, particularly the need for efficient and proportionate litigation under CPR 3.9.

Link to full judgment

-------------------------------------------------------------------------------------

Proportionality of a costs schedule is assessed holistically, not by time spent

• Summary assessment can result in very substantial reductions.
• Guideline hourly rates remain an important benchmark.
• Large teams risk duplication and judicial criticism.
• Clear client warnings on costs recovery risk are essential.

In Rowntree v Performing Right Society Ltd & Anor [2026] CAT 25, the Competition Appeal Tribunal summarily assessed costs following refusal of a collective proceedings order.

The Defendants’ costs schedule of approximately £2.6 million was reduced to £750,000, with the Tribunal adopting a “broad axe” approach to proportionality. The court rejected indemnity costs and instead applied the standard basis, focusing on reasonableness and proportionality rather than hours claimed.

Significant criticism was directed at excessive hourly rates, which exceeded guideline rates without justification, and the apparent over-lawyering (large teams, duplication of work).

The Tribunal emphasised that costs must be proportionate not only to the value of the claim, but also to the stage of proceedings and complexity of issues. Despite substantial sums incurred, the issues at the certification stage were relatively straightforward and did not justify the level of expenditure.

-------------------------------------------------------------------------------------

Separate representation requires prior court approval - applications should be made at the outset, not retrospectively.

• Courts will impose strict safeguards, especially on costs and duplication.
• Neutrality of the opposing party does not guarantee approval.
• Significant risk of adverse costs orders for procedural missteps.

In APK Communications & Ors v Vodafone Ltd [2026] EWHC 811 (Comm), the High Court (Bryan J) considered whether multiple firms could act for co-claimants within the same proceedings.

The court reaffirmed that joint Claimants must ordinarily have single representation, and separate representation is an irregularity requiring court approval, granted only in exceptional circumstances. The Claimants failed to seek permission at the outset and delayed their application until shortly before the CMC, attracting judicial criticism. Despite this, the court permitted co-counselling on the specific facts, primarily due to access to justice arguments and the implementation of stringent safeguards.

Critically, the court imposed a costs cap, limiting recoverable costs to what would have been incurred by a single firm, alongside detailed record-keeping obligations to prevent duplication. The court emphasised that co-counselling remains rare and fact-specific, and future applicants face a “substantial task” in justifying it.

Link to full judgment

-------------------------------------------------------------------------------------

Discontinuance in small claims can still trigger costs liability for unreasonable conduct

• Delay in discontinuing weak claims is a significant risk factor.
• Courts distinguish between unreasonable and improper conduct when deciding costs basis.
• Detailed LIP schedules can be fully recoverable if proportionate and evidenced.

In Smart Parking Ltd v Young (DDJ McKay, 2026), the court considered costs following a late notice of discontinuance in a small claims matter. Although CPR 38.6 (costs following discontinuance) does not automatically apply on the small claims track, discontinuance remains relevant when assessing unreasonable conduct under CPR 27.14(2)(g).

The Claimant pursued a parking charge despite prior settlement and delayed discontinuance for several months, during which the Defendant repeatedly requested withdrawal.

The court held the claim was prematurely issued and the Claimant’s conduct over a five-month period was unreasonable, causing stress and unnecessary litigation. The Defendant’s application to set aside the discontinuance was refused, but he was awarded costs due to the Claimant’s conduct. Costs were assessed on the standard basis, not indemnity, as there was no improper conduct—only unreasonableness. As a litigant in person, the Defendant recovered costs at the prescribed hourly rate under CPR 46.5 and PD 46.3, with detailed time records accepted as reasonable.

-------------------------------------------------------------------------------------

Smith v Manchester awards remain highly relevant where Claimants remain employed.

• Ogden/multiplicand approach may be rejected where it produces unreal outcomes.
• Courts prioritise fact-specific assessment over statistical assumptions.
• Expert credibility and independence are critical to quantification.

In Abbott & Ors v Ministry of Defence [2026] EWHC 941 (KB), the High Court considered the correct approach to future loss of earnings where the Claimant remains in successful employment.

The Claimant (Mr Lambie), despite accepted disability (NIHL), had a strong and uninterrupted career with no current loss of earnings and positive future prospects. The Claimant argued for a multiplier/multiplicand approach using Ogden Tables, producing a claim of ~£370,000. The court rejected this as “obviously unreal” on the facts, emphasising the need for individual judicial evaluation over statistical modelling.

Instead, the court applied the Smith v Manchester Corporation (1974) principle, awarding a lump sum for loss of earning capacity. The award reflected risks on the open labour market and reduced promotion prospects, rather than actual loss. Expert evidence was central: the court preferred the Defendant’s expert due to relevant practical experience and analytical rigour, criticising the Claimant’s expert for uncritical reliance on the Claimant’s account.

Some causation features relevant NIHL claims that may be of interest to those involved in disease claims. In particular: 

• The reliability of occupational screening audiometry – court accepted screening audiograms, where the features are in keeping with alter audiometry are reliable.
• Quantification - calculating NIHL over 1,2 and 3kHz remains the preferred method (but does not rule out some circumstances where 1,2 and 4kHz might be appropriate where the claimant complains of difficulty hearing where there is background noise. This is for the clinician to determine).
• Latency – the court opined that there is not enough scientific evidence to support latent onset of NIHL post cessation of exposure.
• Cochlear synaptophy cannot be diagnosed or quantified in humans pre death.
• Late onset tinnitus. The court was not prepared to put a time limit on when tinnitus, late in onset would be deemed not causative to exposure. However the court did determine that the closer to exposure the tinnitus commenced, the more likely it would be considered to be causative. The courts will have to scrutinise the tinnitus onset date and expert evidence when considering cases where late onset of tinnitus is a factor.
• De minimis – 4dB or less with no other features (i.e. tinnitus) is regarded a de-minimis
• Court will be reluctant to award future LOE and will rely on conventional approach in considering Smith & Manchester awards.

Link to full judgment

-------------------------------------------------------------------------------------

Witness statements must reflect the genuine words and recollection of the witness - use of AI risks breaching PD57AC compliance and undermining credibility.

• Failure to preserve draft versions may be procedurally damaging.
• Courts may discount or reject evidence where AI involvement is unclear or unexplained.

In Godwin v Godwin [2026] EWHC 923 (Ch), the High Court considered the use of artificial intelligence (specifically ChatGPT) in the preparation of witness statements. The witness statements purported to comply with CPR Part 32 and PD57AC, including statements of truth and certificates of compliance. However, the parties admitted using AI for “grammar, spelling and presentation”, describing it as a “digital assistant”. The judge found no good reason for using AI, particularly where conventional tools (e.g. Word spellcheck) were available and clear drafting guidance had been provided.

Crucially, the court was concerned that AI involvement undermined the requirement that statements be in the witness’s own words. The absence of original drafts and the unusual phrasing raised suspicion that AI may have materially influenced the content. As a result, the judge could not be confident in the authenticity of the evidence and treated it with caution, reducing its weight.

Link to full judgment

-------------------------------------------------------------------------------------

Updates

Consultation on solicitors’ fees

The Civil Justice Council launched a consultation Thursday on reforming solicitors' costs, which could change how solicitors bill clients and how disputes over their fees are resolved. The 12-week consultation, which closes July 16, will look at whether Part III of the Solicitors Act 1974 remains fit for purpose and whether the framework for challenging solicitors' costs should be simplified.

-------------------------------------------------------------------------------------

Conduct of litigation:

The Law Society has confirmed that it will not appeal the Court of Appeal’s decision in Mazur. Legal professionals now await updated guidance from the SRA in light of the judgment which confirmed that non-authorised individuals can conduct litigation under the supervision of an authorised lawyer. The Court of Appeal has also made amendments to its judgment to make clear that law firms are not at risk of committing a criminal offence through inadequate supervision of unauthorised persons.

Link to full judgment