PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS
There is an interesting consideration of causation in the Court of Appeal judgment today in Clay v TUI UK Ltd [2018] EWCA Civ 1177. This has the flavour of a case that may go further. There is an interesting dissenting judgment…
PROVING THINGS 1O2: FAILING TO PROVE CHANCE OF RECONCILIATION
A claimant in a fatal accident claim does not have to prove an entitlement to a dependency claim on the balance of probabilities. The court can, in appropriate cases, look at the case on the basis of loss of chance,…
PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since…
EXPERTS AS ADVOCATES FOR THE CLAIMANTS’ CAUSE: WITNESSES WHOSE EVIDENCE WAS VERY DIFFERENT TO THEIR WITNESS STATEMENTS
I am grateful to Dominic Regan for sending me a copy of the judgment of Mrs Justice Andrews today in Gee -v- Depuy International Ltd [2018] EWHC 1208. The judgment is 762 paragraphs long and will be widely read by…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have…
BUNDLES: CREDIT WHERE CREDIT IS DUE: CORE BUNDLE OF EVIDENCE DRAWS THANKS FROM THE TRIAL JUDGE
Most of the posts on bundles on this blog have been judges complaining about their quality or quantity. It is worthwhile looking at the observations of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB) (of which…
PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT
In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 4: A VIEW FROM THE CLERK’S BENCH: MANNERS MAKETH THE ADVOCATE
In this post I am recommending you read “The Art of Advocacy: Twenty Tips for your First Court Appearance” a post on the “Survive Law” blog. Unlike the other posts in these series this is written by Jennifer who was a…
PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT
One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness. Litigants can (and often do) have strong views about the case and what they said and did. The fact that…
I’M NOT TAKING A PLEADING POINT – BUT: FAILURE TO PUT A POINT IN CROSS-EXAMINATION NOT FATAL TO CLAIMANT’S CASE
The judgment in Auckland v Khan & Anor [2018] EWCA Civ 1148 is in short form. However it does illustrate the difficulties of appealing on “pleading points” and findings of fact. “There are certainly cases in which the failure to put…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
PROVING THINGS 95: OH… WHY A COMBATIVE EXPERT WITNESS NEVER HELPS: LEAVE ADVOCACY TO THE ADVOCATES…
Crown Office Chambers have a short post on their website that deals with the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. The post provides a link to the judgment itself. The judgment is another example of a…
PROVING THINGS 94: : THE DEFENDANT WANTS TO CHOOSE BOTH THE CLAIMANT’S LITIGATION FRIEND AND SOLICITOR: EVIDENCE IN SUPPORT FAR FROM COMPELLING
There are some audacious applications. However an application by defendants that attempts to dictate who the claimant’s litigation friend should be, and who their solicitor should be, should – at the very least – be backed up by firm evidence. …
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
CIVIL PROCEDURE – BACK TO BASICS 7: BUNDLES: A CHANCE TO REVISIT “SEDLEY’S LAWS”
If there is a league for blogs with the most number of posts about bundles then Civil Litigation Brief may well be in the top 10 (sadly I suspect even in the top place). There is a reason for this….
PROVING THINGS 92: WHERE THE CLAIM FOR DAMAGES WAS LARGELY “WISHFUL THINKING”: £1 MILLION CLAIM REDUCED TO £25,104 (OH & THROW IN A ERRANT EXPERT AS WELL)
The judgment of John Martin QC (sitting as a High Court judge) in London College of Business Ltd v Tareem Ltd & Anor [2018] EWHC 437 (Ch) is a prime example of a failure to prove damages. The claim was…
WHAT IS THE DIFFERENCE BETWEEN “KNOWLEDGE” AND “BELIEF”? A CASE AND A REVIEW OF 10 KEY POINTS
This blog has looked, many times, at the importance of giving the source of information and belief when a party (and particularly when a legal representative) makes a witness statement. It is sometimes possible for you opponent to attempt to…
PROVING THINGS 91: HOW TELLING IS A “FIST BUMP”? A JUDGE NOTICES THINGS THAT GO ON OUTSIDE THE WITNESS BOX
There are a number of issues that arise in the judgment of Mrs Justice Yip in the judgment today Clark v Farley & Anor [2018] EWHC 1007 (QB). It shows how how a defendant failed to prove its case and the…
NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT
In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002]…