EXPERT EVIDENCE: AN EXAMPLE OF AN EXPERT BEING UNBALANCED (FROM 2015).
Looking back at previous posts there are, numerous, indeed hundreds, where the courts have considered the role of experts. The cases that appear on this blog tend to be where judges have found the experts wanting. It almost feels unfair…
EXPERT EVIDENCE: COURT OF APPEAL STATE WHY THE JUDGE SHOULD BE WARY OF RELYING ON SCIENTIFIC PAPERS
In D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663 the Court of Appeal set out a clear warning about the dangers of trial judges analysing research literature in detail. The literature should be read through the prism…
ANOTHER BLOG FROM THE PAST: THE DIFFERENCE BETWEEN “EVIDENCE” AND “SUBMISSIONS”: A PROBLEM THAT PERSISTS TODAY
As part of the 11th anniversary process I am looking at a blog that was written in June 2014. “WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)”. It is very interesting to…
THE HIGH COURT DOES NOT HAVE JURISDICTION TO HEAR AN APPEAL FROM A CIRCUIT JUDGE WHEN THAT DECISION WAS ITSELF AN APPEAL: DECISION ON THIS POINT
It is always important to remember that appeals from Circuit Judges, which are themselves a decision made on appeal, can only be heard by the Court of Appeal. In Jarvis v Metro Taxis Ltd [2024] EWHC 1452 (KB) Mr Justice…
IS ANYTHING IMPORTANT HAPPENING ON THE 4TH JULY? WEBINAR ON CONTRIBUTORY NEGLIGENCE – RECENT CASES
There is a danger that this webinar may be overshadowed by other events on the day. This webinar considers the law and practice in relation to contributory negligence. Booking details are available here. THE WEBINAR The webinar considers the…
WHEN THE JUDGE PREFERS ONE EXPERT WITNESS OVER ANOTHER: A CLINICAL NEGLIGENCE EXAMPLE
In Woods v Doncaster And Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB) Mrs Justice Lambert preferred the claimant’s expert evidence to that that of the defendant. This was not because either expert was unduly partisan. Rather it…
UNCONTROVERTED EXPERT EVIDENCE: THE TRIAL JUDGE WAS NOT ENTITLED TO OVERRIDE THE UNQUESTIONED REPORT: GRIFFITHS -v- TUI LEADS TO CLAIMANTS BEING SUCCESSFUL ON APPEAL
I am grateful to Jatinder Paul from Irwin Mitchell for sending me a copy of the decision of HHJ Humphreys in the Wrexham County Court. The report involves a personal injury case alleging negligence which led to food poisoning which…
BARNS, EVIDENCE, DOCUMENTS AND MEDIATION: A LOT TO THINK ABOUT HERE
There are some interesting observations about both evidence and mediation in the judgment of HHJ Mithani KC in Conway v Conway & Anor (Rev1) [2024] EW Misc 19 (CC). “One matter that seriously concerns me is why the Defendants…
WITNESS STATEMENTS THAT BREACH THE PRACTICE DIRECTION: WHAT IS THE APPROPRIATE APPROACH? HIGH COURT DECISION
In Vainker & Anor v Marbank Construction Ltd & Ors [2022] EWHC 2785 (TCC) Mrs Justice Jefford considered the appropriate approach where a party objected to the contents of witness statements that did not comply with Practice Direction 57AC. She…
EXPERT EVIDENCE, ADJOURNMENTS, CAPACITY AND APPLICATIONS TO COMMIT FOR CONTEMPT: COURT OF APPEAL UPHOLDS DECISION AT FIRST INSTANCE
In Solicitors Regulation Authority Ltd v Khan & Ors [2024] EWCA Civ 53 the Court of Appeal considered the issue of expert evidence in relation to capacity, in the context of applications for contempt of court. It was held that…
CROSS-EXAMINING EXPERTS: USEFUL GUIDES AND HINTS
There are hundreds of posts on this blog about the role of experts in civil litigation. In many of those cases the experts have been cross-examined and this has not ended well – for them. I have already planned a…
CIVIL EVIDENCE: WHEN YOU TELL A WHOPPER THE FIRST TIME AROUND – IT COMES BACK TO BITE YOU IN A SECOND TRIAL
In McDonald’s Restaurants Ltd v Shirayama Shokusan Company Ltd [2024] EWHC 1133 (Ch) Mr Justice Edwin Johnson found that a company had misrepresented its intention at a trial which involved, essentially, the claimant’s right to a new tenancy of business…
COSTS – WHEN YOU SOMETIMES THINK THE WORLD HAS GONE MAD: SPEND £28,535 TO CHALLENGE AN ATE PREMIUM OF £392…
In Bendriss v Nicholson Jones Sutton Solicitors Ltd [2024] EWHC 1100 (SCCO) Costs Judge Rowley dismissed a claimant’s application for specific disclosure. One notable aspect of the application was that the claimant had spent £28,535 in respect of this one application in…
DEFENDANT’S APPLICATION FOR RELIEF FROM SANCTIONS REFUSED: AN APPLICATION TO DISPUTE JURISDICTION SHOULD BE DONE PROMPTLY
In Ibrahim v AXA Belgium [2024] EWHC 856 (KB) Master Fontaine refused the defendant’s application for an extension of time to dispute the jurisdiction. The defendant should have applied within 14 days of acknowledging service, it took 30. The defendant’s…
“GOOGLESPOOFING” AND THIRD PARTY DISCLOSURE: DEFENDANT FAILS TO PERSUADE THE COURT THAT RECORDINGS ARE NECESSARY
In Parker v Skyfire Insurance Company Ltd [2024] EWHC 1060 (KB) Mrs Justice Dias dismissed a defendant’s appeal against a refusal to give disclosure of documents of a third party car hire company. The documents were not necessary to dispose…
EVIDENCE OBTAINED BY TORTURE: THE JUDGMENT AT FIRST INSTANCE AND THE SUPREME COURT DECISION
The question of whether evidence obtained by torture in civil proceedings is one that, thankfully, rarely comes before the court. However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v-…
IS A PARTY ENTITLED TO SEE THEIR OPPONENT’S CORRESPONDENCE WITH AN EXPERT LEADING UP TO THE JOINT MEETING? AN ISSUE THAT IS IMPORTANT – BUT UNDECIDED
In Frasers Group plc v Saxo Bank AS & Anor [2024] EWHC 188 (Comm) HHJ Pelling KC considered issues relating to whether a party’s correspondence with their expert leading up to the joint meeting of experts should be disclosed. The…
“LITIGATION WISHFUL THINKING”: A REPEAT, BUT AN IMPORTANT ONE
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…
AVOIDING MISTAKES WHEN DRAFTING WITNESS STATEMENTS: WEBINAR 9th MAY 2024
Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give. This webinar looks at how practitioners can avoid basic errors…
PROVING THINGS 238: TAX AND FILMS: A DANGEROUS MIX – BUT THE CLAIMANTS FAILED TO PROVE THEY HAD LOST ANYTHING
In Upham & Ors v HSBC UK Bank PLC [2024] EWHC 849 (Comm) Mr Justice Bright considered the losses said to be suffered by a number of claimants who had invested in a tax deferment scheme. Most of the claimants…
DEFENCE AND COUNTERCLAIM STRUCK OUT BECAUSE THE DEFENDANT RELIED ON WITHOUT PREJUDICE COMMUNICATIONS
In West v Churchill & Anor [2024] EWHC 940 (Ch) HHJ Keyser KC (sitting as a High Court Judge) struck out a defence and counterclaim that referred to without prejudice negotiations and correspondence. There had been no agreement reached between…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 30th APRIL 2024
This blog often looks at cases where litigation has gone wrong, be it limitation, service or someone falling foul of the rules or court orders. One of the saddest aspects of many of these cases is that if prompt and…
A COURT CANNOT SIMPLY IGNORE AN UNCHALLENGED EXPERT REPORT: DOG SAVED BY THE ADMINISTRATIVE COURT
The significance of unchallenged expert evidence at court was considered by the Administrative Court in Fitzgerald v CPS [2024] EWHC 869 (Admin). Although this is a criminal case it considers the authorities in civil actions and the central point that…
PROCEDURE, DAMAGES, LIABILITY, COSTS AND LIMITATION: A SERIES OF WEBINARS THIS YEAR AIMING TO HELP AVOID OR DEAL WITH PROBLEMS IN LITIGATION
The issues arising from many of the cases looked at on this blog are being considered in a series of webinars starting later this month. The webinars cover many of the problem areas of litigation: what to do when things…
FUNDAMENTAL DISHONESTY: “SUBSTANTIAL INJUSTICE” CONSIDERED IN DETAIL: HIGH COURT DECISION TODAY
In the judgment given today in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) Mr Justice Ritchie dismissed the claimant’s claim as being fundamentally dishonest. The judgment contains a detailed consideration of the issues relating to the…
ARTIFICIAL INTELLIGENCE IN THE COURTS: SELECTED HIGHLIGHTS FROM THE JUDICIAL GUIDANCE
We have looked before at problems caused by Artificial Intelligence being used in court. It is worthwhile looking at the Courts and Tribunals Judiciary publication “Artificial Intelligence (AI) Guidance for Judicial Office Holders. It shows some of the dangers in…
WITNESS STATEMENTS AND WITNESS EVIDENCE: WHEN LAWYERS CAN BE THEIR OWN WORSE ENEMIES: “THE ABSENCE OF SUCH EVIDENCE IS IN THE NATURE OF A DEAFENING SILENCE”
There are numerous, indeed hundreds, of posts on this blog that deal with the difficulties that can arise in relation to witness statements and witness evidence. Often it is a failure to address basic and fundamental points in relation to…
WHEN WITNESSES TOTALLY CHANGE THEIR EVIDENCE AT TRIAL: A CASE IN POINT
In Advantage Insurance Company Ltd v Harris [2024] EWHC 626 (KB) HHJ Russen KC (sitting as a High Court Judge) found that a claimant in a personal injury action had been in contempt of court for making false statements. It…
COST BITES 138: IN THE ABSENCE OF A CHARGING CLAUSE THE SOLICITOR COULD NOT BE PAID FOR ACTING AS AN EXECUTOR (SEE ALSO “PROVING THINGS…)
In Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 the Court of Appeal upheld a decision that a solicitor Executor could not charge for legal work done in the absence of a charging clause in a will. Although…
THE VEXED QUESTION OF WITNESS STATEMENTS WHEN THE MAKER CANNOT SPEAK ENGLISH: LEADS TO MAJOR PROBLEMS AND A WASTED COSTS ORDER
We are going to be looking twice at the decision of Mr Justice Martin Spencer in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). The next post will look at procedure in…
THE DANGERS OF SERVING A NOTICE OF NON-ADMISSION: LEADS TO INDEMNITY COSTS BEING AWARDED
Another aspect of the judgment in Duke of Sussex & Ors v MGN Ltd (Re Costs) [2024] EWHC 274 (Ch) was the defendant’s conduct in serving a notice of non-admission. Service of the notice led to considerable extra costs being incurred. …
PROVING THINGS 237: CLAIMANT FAILS TO PROVE ITS CASE, FAILS TO PROVE IT HAD SUFFERED DAMAGES HAD IT SUCCEEDED (SOMETHING ABOUT EXPERT EVIDENCE TOO)
In Hamsard One Thousand And Forty-Three Ltd v AE Insurance Brokers Ltd [2024] EWHC 262 (Comm) the claimant failed to establish its case. The judgment shows many issues with the claimant’s evidence, in particular the problems that flowed from issues…
CHANGES TO THE FIXED COSTS RULES 2: 20 PAGES IN AN EXPERT’S REPORT DOES NOT MEAN 20 PAGES
Another change being introduced on the 6th April 2024 is a change (or possibly clarification) in relation to to the number of pages in an expert report in the Intermediate Track. The substantive report is still limited to 20 pages….
“TELL ME MORE, TELL ME MORE”: COURT OF APPEAL SENDS OUT CLEAR MESSAGE OF THE DANGERS OF SEEKING “CLARIFICATION” OF A JUDGMENT: IT MIGHT NOT GET YOU VERY FAR…
In YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 the Court of Appeal issued a clear warning about the misuse of the practice of “seeking clarification” from the judge following a judgment. The decision is aimed specifically at…
WHAT HAPPENS WHEN THE JUDGMENT WAS NOT RECORDED? APPEAL PROCEEDS BY WAY OF A REHEARING
There are interesting issues considered in the judgment of Mr Recorder Adrian Jack in AS v AB [2024] EWFC 24. A party was appealing. The recording (and backup recording) failed to record the judge’s judgment and there was no agreed…
ATTEMPTING TO GIVE NEW EVIDENCE WHEN THE ADVOCATE IS MAKING SUBMISSIONS: ANOTHER ISSUE IN THE POST OFFICE CASE
The recent post about the decision in Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin), caused me to review another earlier blog post about the Post Office case. It concerned an attempt to introduce new…
SERVING A SKELETON LATE DOES NOT A HAPPY JUDGE MAKE: IT IS A VICE TO SUPPLY MATERIALS LATE IN THE DAY
In Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin) Fordham J sent out a reminder to practitioners (and particularly those who draft skeleton arguments) of the need to file skeleton arguments in accordance with…
EVERY LITTLE HELPS: EACH DEFENDANT ORDERED TO PAY £18,000 EXEMPLARY DAMAGES IN STAGED CRASH CASE
The judgment of HHJ Baucher in Alghafagi v Tesco Stores Ltd [2023] EW Misc 19 (CC) is one of a series of judgments in related cases. It relates to what the judge has found to be a complex conspiracy to…
THE WITNESS EVIDENCE AT TRIAL WAS DIFFERENT TO THE PLEADED CASE AND THE WITNESS STATEMENTS: ANOTHER EXAMPLE OF WHY CARE IS NEEDED
Earlier this month I posted an article on the need for “self protection” by lawyers when drafting witness statements. An example of why care is needed can be seen in the judgment of HHJ Stephen Davies, sitting as a High…
DAMAGES FOR THE SELF EMPLOYED AND THOSE INVOLVED IN ENTERTAINMENT AND SPORT: WEBINAR 25th JANUARY 2024
On the 24th January there is a webinar looking at claims for damages for self-employed people. It also looks at the issues relating to losses, particularly loss of earnings, caused by those involved in sports and entertainment (it also looks…
PROVING THINGS 236: CLAIMANT’S ARGUMENT THAT IT HAD LOST MORE THAN £6 MILLION FAILED TO TRAVEL: CAUSATION NOT ESTABLISHED
The judgment of Simon Tinkler, sitting as a Deputy High Court Judge, in Ickenham Travel Group Ltd v Tiffin Green Ltd [2024] EWHC 27 (Comm) is another classic example of a failure to prove damages. The defendant had been in…
EXPERTS NOT QUALIFIED TO COMMENT ON THE MATTERS THEY DID: ADMINISTRATIVE COURT DECISION
Another example of expert evidence going awry can be seen in the judgment of Mr Justice Ritchie in Balachandra v The General Dental Council [2024] EWHC 18 . The experts in question were giving evidence in relation to matters that…
“AN EXPERT WITNESS IS NOT HELPING THE COURT BY TRYING TO MAKE THE EVIDENCE FIT THEIR OWN CONCLUSIONS”: JUDGE FINDS EXPERT “UNPROFESSIONAL AND UNACCEPTABLE”
In LCC v V & B [2023] EWFC 268 HHJ Booth commented on one of the expert witnesses. He found that the evidence given involved conjecture. The criticism of the expert is robust. “An expert witness is not helping…
“MY LAWYER DRAFTED MY STATEMENT”: A REMINDER OF THE NEED FOR SELF-PROTECTION
We have seen a high profile example recently of a witness stating that their statement had been drafted by the lawyers involved. This is not a rare occurrence. Here is a recap of some of the issues that litigators need…
MR BATES AND THE POST OFFICE 5: ATTEMPTS TO PUT THE COURT “IN TERROREM” WERE NOT WELCOME
In March 2019 I wrote about the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB), the post noted that “parts of the judgment set out arguments and conduct of litigation that is, to say the…
MR BATES AND THE POST OFFICE 4: THE POST OFFICE’S ATTEMPT TO STRIKE OUT THE CLAIMANT’S EVIDENCE AND ITS CLAIM TO HAVE “SUPERNATURAL POWERS”
On March 16 2019 this blog had three separate posts on the Post Office case. The post repeated here gives an example of the Post Office’s extremely “robust” strategy. It attempted to strike out a large part of the claimants’…
MR BATES AND THE POST OFFICE 3: THE POST OFFICE’S APPLICATION THAT THE JUDGE RECUSE THEMSELVES BECAUSE HE WAS “BIASED” AGAINST THEM
The Post Office was so convinced of the righteousness of its case that it determined that any findings against it must be due to judicial bias. Having lost some applications before the trial judge it attempted to have the judge…
WITNESS EVIDENCE AND WITNESS DEMEANOUR: A GEM OF A CASE: A WITNESS SUMMONS CAN LEAD TO UNWELCOME SURPRISES
Issues of witness demeanour and credibility figured highly in the judgment of District Judge Dinan-Hayward in TM v AM [2023] EWFC 247. It is an interesting story which shows the risks of compelling a witness to attend court and of…
MR BATES AND THE POST OFFICE 2: THE JUDGE’S VIEW ON WITNESS CREDIBILITY
I am repeating a post first written in 2019. Matters that are in the public consciousness now were very much in the consciousness of the legal profession then. This post dealt with the trial judge’s view of the credibility of…
DRAFTING WITNESS STATEMENTS: WHEN THE CLAIMANT’S STATEMENT IS SIMPLY A REHASH OF THE PARTICULARS OF CLAIM
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Recorder Sheehan KC in the case of Ball -v- The Wolverhampton NHS Trust. It is a working example of the difficulties that flow when…
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