DELAYS, ADJOURNMENTS AND THE SIZE OF THE TRIAL BUNDLE: NOT JUST AN ACADEMIC PROBLEM: ELECTRONIC BUNDLES DOESN’T MEAN YOU CAN JUST THROW EVERYTHING IN
The judgment of Mr Justice Constable in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 (TCC) contains another interesting insight into the preparation of trial bundles and how that, in itself, can become highly contentious. …
AN EXPERT SHOULD HAVE EXPERTISE IN THE ISSUE THEY ARE GIVING EVIDENCE ON: THEY CAN’T SIMPLY TEACH THEMSELVES FOR THE PURPOSE OF THE CASE
There are some important observations on expert evidence in the judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat). An expert must give evidence within the scope of their expertise. To assert…
CIVIL PROCEDURE BACK TO BASICS 99: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF A WITNESS STATEMENT AND AFFIDAVIT
The purpose of this series is to look at the most basic elements of civil procedure. One, very common, omission practitioners make is to fail to follow the mandatory requirements of Practice Direction 32 in relation to the information on…
PROVING THINGS 232: CAR FIRES AND EXPERT EVIDENCE: WHY EXPERTS SHOULD MIND THEIR LANGUAGE: A MOVE FROM “MUST” TO “MORE THAN PROBABLE” REPRESENTS A SIGNIFICANT CHANGE
The judgment of Mr Justice Freedman in Nash v Volskwagen Financial Services (UK) Ltd [2023] EWHC 2326 (KB) contains important observations in relation to the law and evidence relating to causation. However I want to look at the judge’s consideration…
WITNESS STATEMENTS: THE FRAGILITY OF MEMORY AND THE DANGERS THIS POSES
A major issue at most trials is the question of what a witness can actual “remember”. How much of a witness statement is genuine recollection and how much is implanted? Much judicial time is spent in considering this question. There…
THE COVER UP IS INVARIABLY WORSE THAN THE ERROR: WHAT TO DO WHEN MISTAKES ARE MADE
The post earlier this week based on the article by the Honourable Joseph Quinn led to to look in detail at one point made – that of avoiding a “cover up” and acting immediately to deal with mistakes. This led…
SOCIAL MEDIA AND LITIGATION: THE RETIRED JUDGE’S VIEW: “THE WORLD’S PRIVATE INVESTIGATOR – ON RETAINER FOR EVERYONE”
Over many years this blog has looked at several judgments and articles, by the Canadian judge, The Honourable Joseph Quinn. I refer people often to Things Lawyers do to Annoy Judges, and the judgment in Hearing Clinic (Niagara Falls) Inc…
WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL
We are looking back at a post in 2019. Primarily because the issues the case raises in relation to lawyers making witness statements are prevalent. There are numerous examples on this blog of the difficulties that can occur when a…
WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST
It has taken to the third time of writing about the decision in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB) to get to the detail of what the appeal was actually about. This part of the judgment is important…
EXPERTS: WHY IT IS UNWISE FOR A CLAIMANT TO BE AT A JOINT MEETING ON SITE: WHO SAYS YOU ARE GOING TO BE ABLE TO CALL EXPERT EVIDENCE ANYWAY? HIGH COURT DECISION
We are returning to the judgment of Mr Justice Cotter in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB). This time looking at the observations made in relation to experts. Firstly it was unwise for a claimant to be present,…
THE IMPORTANCE OF TAKING FULL WITNESS STATEMENTS: A RECAP: IF A FULLER WITNESS STATEMENT HAD BEEN TAKEN THE LOSS AT TRIAL COULD HAVE BEEN AVOIDED
As part of the series looking back at previous posts we are revisiting a case first looked at in 2014. It provides a good example of the very real dangers of not taking a comprehensive statement. A witness was interviewed…
PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT
In Cheshire Estate and legal Limited -v- Blanchfield & Others* HHJ Bever, sitting as a Judge of the High Court, considered witness statements served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing…
“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE
Many witnesses give inaccurate evidence. Sometimes this is due to dishonesty, others are mistaken. Many, it is to be suspected, fall foul of “litigation wishful thinking”. This concept was explored by Mr Justice Richards in Old Park Capital Maestro Fund…
EXPERTS AND THE COURTS: THE DUTY TO INFORM EXPERTS OF CHANGE OF CIRCUMSTANCES: THE EXPERT’S DUTY TO INFORM THE COURT AND PARTIES OF A CHANGE OF VIEWS
We are looking again at the judgment of Mr Justice Cotter in Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) (A copy of the judgment, on Old Square Chambers website, is available here.) Again we are looking at the judge’s comments…
WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS
There is a short passage in the judgment of Costs Judge Leonard in Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement. THE CASE The judge was considering issues of…
A MULTI-LINGUAL WITNESS IS NOT COMPELLED TO GIVE EVIDENCE IN THEIR “FIRST LANGUAGE”: DECISION PREVENTING CLAIMANT GIVING EVIDENCE OVERTURNED ON APPEAL TO THE HIGH COURT
I am grateful to Ten Legal Associates Ltd for sending me a copy of the judgment of Mr Justice Freedman in Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB), a copy of that judgment is available here. AFZALJUDGMENT TRANSCRIPT …
A LICENCE TO THRILL: JAMES BOND, THE MOVIES AND THE COURTS: LEGAL TALES THAT WON’T SCARE THE LIVING DAYLIGHTS OUT OF YOU
This morning I am encouraging you to read ‘James Bond and the Law’ : A talk to the Manchester Business and Property Courts Forum [2023] UKSpeech 7REH2, given by Mr Justice Foxton. A look through at the James Bond franchise…
EVIDENCE OF EXPERTS SHOULD BE SCRUTINISED AND NOT SIMPLY TRANSPOSED INTO SCHEDULES: “A CARE EXPERT SHOULD BE ABLE TO FULLY JUSTIFY ANY ASPECT OF CARE… WHICH THE COURT IS BEING ADVISED SHOULD BE PROVIDED”
In Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) Mr Justice Cotter sent out another warning about the inadequate state of expert reports. Here we look at the judgment in relation to the care experts. (A copy of…
A THUMBS UP EMOJI LED TO A BINDING CONTRACT: LESSONS FROM CANADA
In South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII) Keene J. decided that a thumbs up emoji “👍” led to a binding contract being created. The case is mentioned in Legal Cheek here and has led to…
REDACTION OF DOCUMENTS SHOULD NOT BE ROUTINE: ADMINISTRATIVE COURT DECISION
In FMA & Ors v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) Mr Justice Swift made the point the redaction of documents in judicial review proceedings should not be routine. THE CASE The judge was…
UNSUCCESSFUL RESPONDENT CANNOT INTRODUCE NEW EVIDENCE AFTER DRAFT JUDGMENT HANDED DOWN
In Manolete Partners Plc v White [2023] EWHC 1644 (Ch) HHJ Hodge KC (sitting as a High Court judge) considered an application to adduce further evidence after a draft judgment had been circulated. The application was refused. The respondent was…
PROVING THINGS 230: WATCH THE METADATA: IF THERE ARE DIFFERENT DATES THEN THIS REQUIRES AN EXPLANATION
In Adams & Ors v FS Capital Ltd & Ors [2023] EWHC 1649 (Ch) Mr Justice Edwin Johnson commented on the difficulties caused by the defendants’ failure to establish why the metadata for documents was different to the dates shown…
FOUR INTERESTING POSTS ON EXPERTS: HOW TO CROSS-EXAMINE, HOW TO INSTRUCT, DON’T BE LATE AND – WHATEVER YOU DO – DON’T DO THIS
Expert evidence has been a regular feature on this blog. Here we are looking at four posts from June 2014 which give rise to issues that resonate today. Advice on cross-examining experts, consideration of instructing experts, an attempt to introduce…
PROVING THINGS 229: CLAIMANT FAILS TO PROVE CERTAIN HEADS OF DAMAGES: DECISION UPHELD ON APPEAL
The judgment of Mr Justice Ritchie in Lal v Reeder [2023] EWHC 1437 (KB) is a classic example of a failure to prove things. The trial judge found that the claimant had failed to establish certain heads of damage. That…
PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS “IN ALMOST IDENTICAL FORMAT” FAIL TO BRING HOME THE DOUGH
The judgment of Lionel Persey KC (sitting as a Judge of the High Court) in Finsbury Food Group Plc v Axis Corporate Capital UK Ltd [2023] EWHC 1559 (Comm) shows some significant issues in relation to the evidence presented in…
ON THIS BLOG 10 YEARS AGO: PART 36; INTERIM PAYMENTS AND SUING THE “MAN OF STRAW”
Now that the blog is 10 years (and 2 days) old it gives me an opportunity to look back at previous posts in a way that remains useful. Some (but not all) of the posts over the past decade stand…
USING TRANSLATORS: COURT HEARINGS AND WITNESS STATEMENTS: WHERE CAN IT ALL GO WRONG
In Alam v Alam & Anor [2023] EWHC 1460 (Ch) the Court had to deal with issues relating to translators and witness statements. There were several issues in relation to the use of translators. The evidence of one witness was…
THE DANGERS OF ACCIDENTALLY DISCLOSING WITHOUT PREJUDICE OFFERS: THE TRIAL JUDGE WAS “HANDED A BOOBY-TRAPPED BUNDLE”
The judgment of Sir Jonathan Cohen in Koukash v Koukash [2022] EWHC 1001 (Fam) underlines the importance of keeping without prejudice offers out of the sight of the trial judge. A finding in a family case was overturned because one…
BE CAREFUL WHEN INSTRUCTING AN EXPERT: TEST THEIR EVIDENCE BEFORE TRIAL: THE CONSEQUENCES FOR YOUR CLIENTS COULD BE PROFOUND
We have looked at the decision in relation to costs in the case of ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) in an earlier post. The decision on costs, and the primary judgment on…
CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS
This is not the first time that this series has dealt with this issue. The post earlier this week on the judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) shows that it is a regular issue….
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
PROVING THINGS 226: PROVING CONTRIBUTORY NEGLIGENCE (AND A WEBINAR ON THAT VERY SUBJECT…)
There is often very little attention paid to judgments in relation to contributory negligence. Commentators tend to concentrate, on the whole, on primary liability. If considered at all contributory negligence is often an after thought – a “finding on the…
WHEN AN EXPERT DECLAIMS A POINT “WITH A LEVEL OF SCIENTIFIC CERTAINTY”: BUT THE HANDWRITING SAMPLE WAS NOT FROM THE CLAIMANT
There are plenty of examples of difficulties with expert’s giving evidence on this blog. Another example of problematic expert report can be seen in the judgment of Mr Justice Saini in Packham v Wightman & Ors [2023] EWHC 1256 (KB)….
PROVING THINGS 255: HEARSAY NOTICE FROM AN ANONYMOUS CALLER HELPED DETERMINE KEY FINDINGS IN A CIVIL CASE: JUDGMENT IN FAVOUR OF THE CLAIMANT
The judgment of Her Honour Judge Howells (sitting as a Deputy High Court Judge) in Brown & Anor v Sestras & Ors [2023] EWHC 1220 (KB) is an interesting example of the use of hearsay, indeed anonymous evidence. An unknown…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (3): EMBARGOED JUDGMENTS – DON’T DISCLOSE EARLY TO ANYONE (LET ALONE THE LAWYER’S PR TEAM…)
The new guide has extended the section on embargoed judgments. This makes it absolutely clear that the disclosure of judgments to third parties (for example the lawyers’ PR teams) for the purpose of preparing a press release to publicise the…
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
PROVING THINGS 254: WHY YOU CAN NEVER BE CERTAIN ON BEING ABLE TO ESTABLISH CAUSATION: DEFENDANT’S CONDUCT QUESTIONABLE BUT STILL CLAIMANT FAILS TO ESTABLISH LOSS
There are plenty of examples in this series of claimants establishing breach of duty but failing on causation, particularly in the clinical negligence context. the judgment of Clare Padley (sitting as a High Court Judge) in J & J Franks…
PROVING THINGS 253: CLAIMANT FAILS TO PROVE DAMAGES: £123,000 CLAIMED REDUCED TO £946 HIRE AND REPAIR COSTS NOT ESTABLISHED AT ALL
The judgment of HHJ Malek in Mehmood v AIG Europe Ltd & Anor [2023] EW Misc 1 (CC) is a classic – if not graphic – example of a failure to prove damages. The claimant made a claim for £123,000…
CLINICAL NEGLIGENCE, CONTRIBUTORY NEGLIGENCE AND PART 36: A USEFUL NOTE OF JUDGMENT
I am grateful to solicitor Bethan Parry from Browne Jacobson for sending me a note of the decision of HHJ Khan in Rix -v- Wall, the details of which are set out below. The note is interesting in that it…
BEWARE OF OVER-EAGER EXPERTS: AN EXPERT THAT SIMPLY ADDRESSES THE POINTS THAT SUPPORTS THEIR HYPOTHESIS IS HEADING FOR TROUBLE
In Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) HHL Sephton KC (sitting as a High Court Judge) was critical of the role of one of the experts in the case. “A second reason…
Drafting witness statements the rules, the guidance and the cases: Webinar 18th APRIL 2023
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 in detail at the rules and practice…
PARTS OF THE EXPERT’S REPORT SHOULD HAVE BEEN A RED FLAG TO LAWYERS: JUDGE CONSIDERS WHETHER THE PARTIES HAD INSTRUCTED THE CORRECT EXPERT
In M v F & Anor [2022] EWFC 186 Recorder Reed set out the importance of an expert knowing, and complying with, the rules relating to the presentation of expert evidence. The judgment also emphasises the importance of the lawyers…
COURT GRANTS PERMISSION TO CLAIMANTS TO CHANGE EXPERTS: BUT WITH CONDITIONS
The principles relating to the court granting permission to a party to change expert were considered in detail by Mrs Justice O’Farrell in Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC). The…
PROVING THINGS 252: THE SOLICITORS WERE NEGLIGENT BUT THERE WAS NO LOSS: CLAIM DISMISSED
Many a salutary lesson can be learnt from the judgment of Mrs Justice Bacon in Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch). It was a case about negligence in the conduct of litigation….
HANDWRITING EXPERTS COME UNDER THE MICROSCOPE: CLAIMANT’S EVIDENCE NOT ACCEPTED
Issues relating to handwriting experts comprise a surprisingly large percentage of the search terms that lead to this blog. The question of the quality of such experts was considered by Master Clark in Watts v Watts [2023] EWHC 679 (Ch)….
PROVING THINGS 251: PROVING THAT YOU STOLE MY DRAGON IS NOT AN EASY TASK: FIRE BREATHING MONSTERS ARE A VERY OLD CONCEPT INDEED
In Evans v John Lewis Plc & Anor [2023] EWHC 766 (IPECP HHJ Melissa Clarke (sitting as a High Court Judge) had to compare and contrast two fictional dragons. The claimant failed to establish that the defendants’ dragon was so…
WITNESS CREDIBILITY, MEMORY AND ACCURACY: REVISITING GESTMIN
This is another opportune time to re-visit the principles in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm). This is case that is now mentioned regularly in cases involving witness recollection and dispute of facts. WHY LOOK AT GESTMIN?…
THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY
It is quite possible that both parties in an action could be in default. One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…
CROWING OVER COSTS IS NOT A GOOD LOOK FOR A LITIGANT: A REMINDER OF THE IMPORTANCE OF SOCIAL MEDIA
We are looking again at the judgment of Lord Justice Underhill in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262. There is a very brief passage which serves as a reminder that clients can expect…
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