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Legal Mind Case and Commentary No 31: Fixing Mistakes - [Koch HCH and Bowe J, August 2020]

24/08/20. This is the thirty-first in a series of Case reports and Commentaries from Professor Koch and colleagues.

Case: Exall 04/20 Update and Commentary on Civil Procedures

Background Summary

Exall finds four key themes pertaining to mistake making which are common in many civil cases in the UK courts. These involve dwelling on mistakes, need for an action plan, getting moving and preventing mistakes in advance where possible.

These themes are discussed below in greater detail.


Mistakes do happen in everyday litigation – these are made by any or all ‘players’ whether the claimants, lawyers, experts or others. We are all human and therefore have the capacity to, unwittingly, make an error. This may be due to a) omission of relevant information or b) misinterpretation of information given or, in extremis c) conscious withholding of information or the giving of inaccurate and mis-leading information. The last of these three themes is consistent with unreliability and dishonesty.

When a mistake is identified at any point in the litigation process, it is crucial not to dwell on the mistake and ruminate without action. It is important to be open about this in order to rectify it. “Stop digging” is the appropriate metaphor.

Keeping the channels of communication open between the various players e.g. lawyers and experts is essential. Most mistakes or errors are not, in fact, as serious as initially thought and can be rectified relatively early. It is imperative to communicate clearly the steps you plan to take to remedy the problem (e.g. explicit revision of documents; production of addendum addressing the ambiguous information), and provide or obtain details of the expected timeline of sorting the issue out.

Time is usually of the essence and the person involved should put the above plan into action straight away. A timely telephone call and/or email reduces anxiety and reflects a ‘bias for action’ which, although not disputing the mistake itself, gives the correct impression of a willingness to rectify it.

Clearly, it is best if the index mistake had not been made but that is the search for perfection. There are few errors that are truly unfixable by sound decision making and dialogue, especially as most parties are aware that we all make mistakes from time to time.

It is important to use this process and discuss and learn about a difficult situation in which the error was made. By so doing, once can hopefully be able to identify and prevent future similar problems before they occur or, at least, prevent the associates difficulties.


Prof. Hugh Koch, Dr Jackie Gorman and Dr Jenny Bowe.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (

Dr Jenny Bowe, Clinical Psychologist for HK Associates


Exall G (2020) Covid repeats 6: What they don’t teach you at law school: Owning and fixing your mistakes. Civil Litigation Briefing.

Koch HCH (2017) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Koch HCH (2019) Legal Mind Case and Commentary: Publication Directory 2019. Expert Witness Publications. Manchester

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