CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to…
tWENTY YEARS OF THE CIVIL PROCEDURE RULES: ALL THAT TIME AND THEY HAVE MADE FEW FRIENDS
I have already done a post on the 20th anniversary of the Civil Procedure Rules on the 26th April. In an effort to find supporters I tried again. The Civil Procedure Rules, it appears, has very few friends… …
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
CIVIL PROCEDURE BACK TO BASICS 36: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
THE ASSESSMENT OF EXPERT WITNESS CREDIBILITY: THE EARLIER THE BETTER (PARTICULARLY IF IT COSTS SOMEONE £7.5 MILLION)
The judgment of Mr Justice Snowden in Davey v Money & Anor [2019] EWHC 997 (Ch) will, no doubt, be read anxiously by all litigation funders. The judge held that the “Arkin cap” – a limit on the liability of…
RECORDINGS ARE DOCUMENTS: AN APPROACH TO EVIDENCE THAT WAS UNSATISFACTORY
In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court. It provides a…
CIVIL PROCEDURE BACK TO BASICS 36 : WHAT TO DO WHEN A PROPOSED DEFENDANT HAS DIED AND THERE IS NO GRANT OF PROBATE
A search term that arrived on this blog earlier today asked “how to you sue a dead person?” The basic answer is that you can’t. You have to sue their executors or administrators. The problem arises when probate has not…
CIVIL PROCEDURE BACK TO BASICS 35: WITNESS CREDIBILITY: MORE THAN MEMORY OR HONESTY
The question of witness credibility is often the central issue of most cases that get to trial. Surprisingly it is a matter that barely features in legal education. A knowledge of the factors that a judge will take into account…
CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS
The maker of a witness statement must given the source of their information or belief. This obligation is often overlooked, or simply paid lip service to. However the careful following of this rule could prevent many of the common problems we…
LAWYERS: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Last night I did a post on using social media to help young lawyers (and some not so young lawyers). Specifically on how it is possible to gather information and advice from around the professions (and indeed around the world)….
SOCIAL MEDIA AS A SOCIAL GOOD:WE’RE LOOKING FOR ADVICE FOR LAWYERS WHEN THE SKY FALLS IN
Two posts last weeks dealt with the hundreds of replies I got when I asked on Twitter what advice should be given to smooth the path young or aspirant lawyers. This led to wider coverage than I could have imagined…
APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS
In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements…
WHEN AN EXPERT RELIES ON MATTERS FROM THE INTERNET FOR MATTERS OUTSIDE THEIR EXPERTISE THEN YOUR CASE IS LIKELY TO FALL APART: THE CIDER HOUSE RULES
I am returning to the decision of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch). Here was are looking at the judge’s view of one of the experts….
GIVING EVIDENCE AT TRIAL: JUST BECAUSE THE COURT HAS SAID YOU MAY – IT DOESN’T MEAN YOU WILL: HOW TO FAIL OF YOUR OWN ACCORD
Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying…
YOU SPEND A FORTUNE ON EXPERT WITNESSES AND THEN FIND OUT THAT THEY ARE NOT ADMISSIBLE OR THEIR EVIDENCE ISN’T “EXPERT” AT ALL
There are parts of the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch) that merit close consideration by anyone involved in litigation that (they…
WITNESS STATEMENTS: THE IMPORTANCE OF THAT “FIRST DRAFT”
If you think “first drafts” of witness statements are not that important it is worthwhile having a look at the judgment of Mrs Justice Whipple in PPX v Aulakh [2019] EWHC 717 (QB). It is also an example of a…
A WITNESS STATEMENT IS NOT A PLACE TO VENT YOUR SPLEEN: “DEPLORABLE PERSONAL ATTACKS” COULD HAVE AN EFFECT ON COSTS
There is a short closing remark in Mr Justice Mostyn’s judgment in Rothschild v Charmaine De Souza [2018] EWHC 1855 (Fam) that shows the danger of including personal attacks in witness statements. It is comforting to see how often this type…
BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA
I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp (7th December 2018). The judgment deals with the issue of the relevance…
JUDICIAL FOOTNOTES: I’LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The previous post on the judgment of Canadian judge J.W. Quinn. J. led (believe it or not) to a heated – and I hope not entirely serious – discussion between some of hte lawyers on which was the best footnote…