PROVING THINGS 242: THE CLAIMANT WHO WAS GIVEN A SECOND CHANCE TO PROVE HIS DAMAGES CLAIM
We are looking again at the judgment of Mr Justice Julian Knowles in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB). This was looked at earlier in relation to the trial judge’s observations about the wholly inadequate counter-schedule. However…
DRAFTING EFFECTIVE ATTENDANCE NOTES IN LITIGATION: COST EFFECTIVE DELEGATION FOR LITIGATORS: SOME FUNDAMENTAL POINTS ADDRESSED IN TWO WEBINARS
Last week I had the pleasure of giving a lecture, alongside many of my colleagues in the costs team in chambers. There were about 100 lawyers present, many with considerable experience. I was able to take a straw poll of…
WHEN A PARTY IS BANKRUPT: WEBINAR ON THE 16th SEPTEMBER 2024: AN IMPORTANT TOPIC THAT MAY HELP FLOAT YOUR BOAT
In The Mayor And Burgesses of the London Borough of Richmond v Trotman [2024] EWHC 2145 (KB) Mr Justice Kerr was critical of the claimant’s failure to consider the consequences of the defendant being bankrupt. Insolvency issues in litigation…
“IN CONTRACT YOU BARGAIN FOR A RESULT”: JUDGE UPHOLDS COMPANY’S CLAIM FOR 20% OF COMPENSATION RECEIVED
I am grateful to Martin Hirst for sending me a copy of the judgment of HHJ Holmes in NC Investigating Services Ltd -v- Crossley (1st March 2024), a copy of which is available here OT APPROVED, MHIRST, H1QZ65P0, NCINVESTIGATION, CROSSLEY,…
CLAIMANT’S (LATE) APPLICATION TO RELY ON EXPERT EVIDENCE DISMISSED:”LITIGATION NEEDS TO BE CONDUCTED EFFICIENTLY AND AT PROPORTIONATE COST”
In IlliquidX Ltd v Altana Wealth Ltd & Ors [2024] EWHC 2191 (Ch) Chief Master Shuman dismissed the claimant’s application to rely on expert evidence. It was held that the application was made too late and, in any event, not…
THE COUNCIL MUST PAY THE COSTS OF ITS EXPERT’S CHANGE OF MIND: THE DUTY TO TEST THE STRENGTH OF THE CASE WITH AN EXPERT CONSIDERED
There is an interesting consideration of the duties relating to the interplay between lawyer and expert in the judgment of Fordham J in Halton Borough Council, R (On the Application Of) v Secretary of State for Levelling Up, Housing and…
“IT IS ENTIRELY OUTSIDE THE REMIT OF AN EXPERT TO DECIDE WHICH WITNESSES OF FACT HE BELIEVES OR DISBELIEVES”: DEFENDANT’S WITNESS DOES NOT FARE WELL
We are returning to the judgment of Mr Justice Julian Knowles in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB). More accurately to the first instance decision which the defendant attempted (unsuccessfully) to appeal. This time in relation to…
A COUNTER-SCHEDULE THAT TOTALLY TOTALLY FAILED TO DO ITS JOB: COURT REFUSES PERMISSION FOR DEFENDANT TO RELY ON COUNTER-SCHEDULE THAT “SERVES NO PURPOSE WHATSOEVER”
This blog has looked extensively at judicial criticism of schedules of damages over the years. It has to be remembered that counter-schedules also have to be properly drafted. This is emphasised. in the judgment of Mr Justice Julian Knowles in…
A TRIAL BUNDLE THAT WAS A “CHAOTIC MESS”; NON COMPLIANT WITNESS STATEMENTS AND EXPERT REPORTS AND “PROCEDURAL TRENCH WARFARE”
There are interesting procedural aspects in the judgment of Simon Gleeson in Carl v Hawkins & Ors [2024] EWHC 2186 (Ch). The case, about historic sports cars, involved (among other things) “procedural trench warfare”; highly defective bundles; non-compliant witness statements;…
VALUATION EXPERTS SHOULD SHOW THEIR CALCULATIONS: ESTIMATING A VALUE AND WORKING BACKWARDS TO JUSTIFY THAT DOES NOT FIND FAVOUR WITH THE COURT
In Sahota v Sahota & Ors [2024] EWHC 2165 (Ch) HHJ Rawlings (sitting as a High Court Judge)was critical of an expert witness who, in essence, worked backwards in relation to a valuation. The judge found that having come to…
WITNESS STATEMENTS, WITNESSES, EVIDENCE AND PSYCHOLOGY: GUIDANCE FROM THE EAST: ANOTHER EXAMPLE FROM A DECADE AGO THAT REMAINS RELEVANT
We are looking again at the skills necessary to take accurate witness statements. Here we revisit a real gem of an article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and the…
A WORKING EXAMPLE OF THE DANGERS OF NOT TAKING A FULL WITNESS STATEMENT: DISASTER CAN STRIKE: A DECADE ON AND THIS CASE IS STILL RELEVANT
One case I regularly refer to when speaking, or writing, about taking witness statements is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC). This case gives a working example…
NO “VYING AND REVYING”: WITNESS STATEMENTS, EVIDENCE AND LOTS OF OTHER MATERIAL BESIDES: AFTER 287 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Anyone involved in civil litigation will spend a great deal of their time reading witness “evidence” which, in reality, is no such thing. Witness statements tend to be seen as an opportunity to put forward opinions, submissions and innuendo. As…
PROVING THINGS 241: “WHICH WITNESS’S ACCOUNT IS PREFERRED?”: CONTEMPORARY EVIDENCE IS BEST
In Gadsby v Hayes [2024] EWHC 2142 (KB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the evidence of witnesses in a case where the accident had happened ten years previously. The accounts given near the time…
NON-COMPLIANT WITNESS STATEMENTS (AGAIN): THE SOLICITOR’S STATEMENT OF COMPLIANCE WAS “FALSE”:
For the third time this week I find myself writing about judicial criticisms of the way in which witness statements have been prepared. This case has by far the most excoriating comments. In Fulstow & Anor v Francis [2024] EWHC…
PROVING THINGS 240: PROVING THE “EELES” CRITERIA ON AN APPLICATION FOR AN INTERIM PAYMENT: GAPS IN THE EVIDENCE PREVENT A FINAL DETERMINATION BEING MADE
In XS1 (A Child) v West Hertfordshire Hospitals NHS Trust [2024] EWHC 1865 (KB) Master Stevens adjourned a claimant’s application for a substantial interim payment. The primary ground for this was that there was insufficient evidence before the court to…
FAILING TO COMPLY WITH THE RULES FOR WITNESS STATEMENTS FOR THOSE NOT PROFICIENT IN ENGLISH – “DISAPPOINTINGLY A NOT INFREQUENT OCCURRENCE”
In SZ Solicitors -v- Bharj [2024] 8WLUK 65 HHJ Monty KC dealt with the problems that arose when a party had not complied with the rules in relation to providing a witness statement for a witness who is not proficient…
THREE WEBINARS: MAKING APPLICATIONS TO THE COURT; INSOLVENCY AND SOCIAL MEDIA AND THE PERSONAL INJURY LAWYER
In September and October there are a number of webinars relating to procedure and evidence. Firstly on the essential issue (but often overlooked) elements and rules relating to making applications to the court; secondly on insolvency and personal injury and…
WITNESS STATEMENTS: PD57AC “MORE HONOURED IN THE BREACH THAN THE OBSERVANCE”: AND THIS HAS CONSEQUENCES
In KSY Juice Blends UK Ltd v Citrosuco GmbH [2024] EWHC 2098 (Comm) HHJ Pearce (sitting as a Judge of the High Court) observed that the requirements for drafting witness statements in PD57AC were “more honoured in the breach than…
PROVING THINGS 239: THE IMPORTANCE OF BEING ABLE TO PROVE THE DATE THAT VIDEOS WERE TAKEN
We are looking at one particular factual issue that arose in Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB). The applicant Trust was unable to prove the date that various videos were taken. Consequently they were unable to…