INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE
In Sinha v Taylor & Ors [2022] EWHC 1096 (Comm) Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure. THE CASE The…
PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE
There are many cases where the courts have had to consider the loss of earnings of a claimant whose career pattern, and thus earnings, are not wholly certain. Often these relate to those working in sports or entertainment. In Mathieu…
PROVING THINGS 230: NEGLIGENCE AND BREACH MUST STILL BE PROVEN WHEN BRINGING CONTRIBUTION PROCEEDINGS
In Percy v White & Anor [2022] EWCA Civ 493 the Court of Appeal overturned a decision based on a contribution notice. This case makes it clear that a party bringing contribution proceedings still has to establish breach and causation…
A DEFENDANT WAS BOUND BY THE TERMS OF AN ORDER AGREED BY THEIR COUNSEL: THE DEAL WAS DONE
In Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge, found that a defendant was bound by the terms of an order drawn up with the agreement of their…
COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE
In Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action. The court was fairly critical about the evidence that had been placed before it…
RAKING UP OLD CASES WAS NOT A FRUITFUL GROUND FOR CROSS-EXAMINATION OF AN EXPERT
In contemporary litigation it is not unusual for the parties to spend some time (perhaps a considerably time) looking for material about previous cases that expert witnesses were involved in. This may not always be time well spent. In Richards…
STRIKING OUT PART OF A WITNESS STATEMENTS: SOME PART OF THESE HAVE TO GO: HIGH COURT DECISION
The judgment of Mrs Justice Steyn in Vardy -v- Rooney & News Group Newspapers Ltd [2022] EWHC 946 (QB) also contains a consideration of an application to strike out part of the witness statement. There is a review of the…
THE NATIONAL ARCHIVES AND COURT JUDGMENTS: UP AND RUNNING
Court and Tribunal decisions are now freely available from The National Archives. THE PAGE The case law finder can be found here. THE PRESS RELEASE The press release explaining matters can be found here. NOTE THAT BAILII CARRIES ON …
JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL
In Coote -v- Ullstein [2022] EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them. The judge…
PROVING THINGS 229: WHO BEARS THE BURDEN OF PROOF WHEN A CLAIMANT SEEKS DAMAGES GROSS OF TAXATION
We are returning for the second, but not the last, time to the judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB). The judge awarded an injured claimant damages for loss of earnings gross of tax. …
PROVING THINGS 228: PLEADING AND PROVING MITIGATION OF LOSS: THE NEED FOR A DEFENDANT TO ESTABLISH A “CONCRETE CASE”
The judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB) is interesting for a large number of reasons. Here we look at the judgment in relation to pleading and proving mitigation of loss. “A…
WITNESS STATEMENTS AND LANGUAGE DIFFICULTIES: JUDGE EXAMINES THE “MINEFIELD” FOR THE LITIGANT
In Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) Mrs Justice Joanna Smith considered the problems that arose when a witness provided a statement in English but was not totally proficient in that language. The decision to provide the…
“IT SHOULD BE UNDERSTOOD THAT DELIBERATE FLOUTING OF ORDERS, GUIDANCE AND PROCEDURE IS A FORM OF FORENSIC CHEATING AND SHOULD BE TREATED AS SUCH”
In Xanthopoulos v Rakshina [2022] EWFC 30 Mr Justice Mostyn considered some key aspects of procedure, including costs and transparency. Here we look at that part of the judgment that deals with compliance with the rules. “This utter disregard…
WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”
In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case. The defendant’s different accounts on different occasions did not help his cause. The judge…
COURT REFUSES DEFENDANT’S APPLICATION THAT DEFENDANT’S KENYAN WITNESSES SHOULD APPEAR BY VIDEO LINK:
In Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) Mrs Justice Eady refused the defendant’s application that its witnesses give evidence by video link from Kenya. “I am left with, on the one hand, an absence of…
LITIGATION FRIEND GAVE FALSE EVIDENCE AND WAS IN CONTEMPT OF COURT: “GOOD DAYS” DOES NOT EXPLAIN CLAIMANT’S LEADING THEATRICAL ROLES
In Hull University Teaching Hospitals NHS Trust v Colley [2022] EWHC 854 (QB) Mr Justice Bourne sentenced a litigation friend to six months in prison (suspended for two years) for giving false evidence in support of her daughter’s claim for…
ASSESSING WITNESS CREDIBILITY: CREDIBILITY IS NOT NECESSARILY THE SAME THING AS HONESTY
Here I want to discuss the issue of witness (and client) credibility. Many cases will turn on credibility and any litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings and…
PART 18 REQUESTS SHOULD NOT BE AUTOMATIC ASPECT OF LITIGATION, NOR SHOULD THEY BE MADE AS A MATTER OF ROUTINE: HIGH COURT DECISION
The judgment of Richard Salter QC (sitting as a Deputy Judge of the High Court) in Al Saud & Anor v Gibbs & Anor [2022] EWHC 706 (Comm) contains a detailed consideration of the rules and case law relating to…
“LEGAL PROCEEDINGS DO NOT EXIST FOR THE PURPOSE OF PERMITTING PARTIES TO PUT IRRELEVANT MATTERS INTO THE PUBLIC DOMAIN”: EVIDENCE ON BEHALF OF THE DUKE OF SUSSEX IS CURTAILED
In The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 682 (Admin) Mr Justice Swift excluded irrelevant material in witness statements and other documents. He also refused the claimant’s request…
TEXTING WHILE DRIVING AND CIVIL LIABILITY: JUDGES KNOW, YOU KNOW: “A CONCLUSION I REACH WITHOUT ENTHUSIASM BUT THE EVIDENCE IS COMPELLING”
In HRA v KGC [2022] EWHC 650 (QB) Mr Justice Turner considered the question of liability. It is an example of a phone record playing a part in the decision that the defendant was negligent. The judge found that the…
PROVING THINGS 227: FAILURE TO PROVE A DEBT CLAIM: “THE PROOF REQUIRED TO DEMONSTRATE THAT THE CLAIMANT IS ENTITLED TO THE SUMS WHICH IT CLAIMS IS SADLY LACKING”
The judgment of Mr Justice Turner in Emery Planning Partnership Ltd v Bevan [2022] EWHC 494 (QB) illustrates a failure by a claimant to prove a debt claim. It is (yet another) object lesson that facts and evidence are needed…
“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE
In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making…
“IT IS INAPPROPRIATE FOR JUDGES THESE DAYS TO BE EMAILING ADVOCATES ASKING THEM TO UNDERTAKE TASKS AT THE WEEKEND”: PART OF A JUDGMENT
There is much of interest in the judgment of HHJ Carter in N (A Child) (Termination of children’s guardian) [2022] EWFC B16, a case that may well be of considerable interest to family lawyers. Here I want to concentrate on…
EXPERT EVIDENCE: KNOWING WHERE IT CAN ALL GO WRONG – AND AVOIDING PROBLEMS BEFORE THEY OCCUR:WEBINAR ON EXPERTS AND FOR EXPERTS: 21st MARCH 2022
A number of recent cases have emphasised the importance of those who instruct experts, and experts themselves, being fully aware of the nature and scope of the duties of an expert. This webinar looks at cases where experts have gone…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: WEBINAR 22nd MARCH 2022
Over the past few months this blog has covered several cases where clinical negligence cases have been determined, ultimately, on the accuracy of witness recollection. For example the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS…
EXPERTS GOING WRONG – AGAIN : THIS TIME IT HAS COST (SOMEONE) £225,000: THE WORK TURNS INTO DUST
It is rare for me to write about judgments from secondary sources. However the judgment of Senior Master Fontaine in Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) is noted in two reliable sources and it is a case…
JUDGE CALLS A FOUL: CLAIMANT NOT ALLOWED TO RELY ON WITNESS STATEMENTS THAT BREACHED THE RULES: IF YOU ARE GOING TO CERTIFY COMPLIANCE WITH A PRACTICE DIRECTION IT MAY HELP TO READ IT BEFOREHAND…
In Greencastle MM LLP v Payne & Ors [2022] EWHC 438 (IPEC) Mr Justice Fancourt was highly critical of the way in which witness statements on behalf of a claimant had been drafted. The statements involved wholesale breaches of the…
WHEN A DEFENDANT FAILS TO PRESERVE DATA ON SURVILLANCE EVIDENCE IT IS IN BREACH AND THE COURT REQUIRES AN EXPLANATION
An earlier post looked at the judgment of HHJ Walden-Smith in Stannard -v- Euro Garages Ltd [2022] EW Misc 3 (CC). There is another aspect of that judgment which is of interest. The defendant were relying on surveillance evidence. However the…
A WITNESS GIVING EVIDENCE WHILST DRIVING A CAR: THEN FROM A CROWDED OFFICE AND THEN WITHOUT MOST OF THE DOCUMENTS AVAILABLE: THIS DOES NOT END WELL
There are passages in the judgment of Recorder Douglas Campbell QC in ASR Interiors Ltd v AWS Trading Ltd & Anor [2022] EWHC 372 (IPEC) which demonstrate a remarkably “relaxed” attitude to giving evidence in court by one of the…
WITNESS STATEMENTS, CPR 32 AND … SPIES: GOVERNMENT MUST GIVE SOURCE OF INFORMATION OR BELIEF
The judgment in HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) [2022] EWHC 380 (QB) relates to confidentiality and spies. It also contains some important observations on the information needed, and formal requirements, when a witness…
CLAIMS FOR LOSS OF EARNINGS: LEARNING FROM RECENT CASES: WEBINAR 7th MARCH 2022
The “Proving Things” series on this blog often looks at cases relating to loss of income. Recent cases on this topic are explored in a webinar on the 7th March 2022: Claims for Loss of Earnings: Learning from Recent Cases,…
LITIGATION PRIVILEGE: WHEN DOES IT START? HOW DOES THE COURT DEAL WITH ISSUES ARISING? A HIGH COURT CASE
It is difficult to envisage a more apposite tribunal than Charles Hollander QC when matters relating to documentary evidence are in issue. This makes the reading of the decision in Kyla Shipping Co Ltd & Anor v Freight Trading Ltd…
COURT OF APPEAL ALLOWED APPEAL BECAUSE OF PROCEDURAL UNFAIRNESS: INADEQUATE WITNESS STATEMENTS SHOULD NOT BE SUPPLEMENTED BY ADDITIONAL QUESTIONING: THE RIGHT TO CROSS-EXAMINE IS FUNDAMENTAL TO A FAIR HEARING
In Rea & Ors v Rea [2022] EWCA Civ 195 the Court of Appeal (hearing a 2nd tier appeal) overturned a decision of the trial judge and ordered a re-trial when the appellants had not been given an opportunity to…
NEW RULES COMING INTO FORCE ON THE 6th APRIL 2022 (5): THE “PERSON” WHO MAY NOT BE NAMED…
A minor amendment is being made to CPR Part 39. The amendment enables any person not to be named if the court thinks this necessary. The rule is no longer confined to a party or witness. Amendment of Part 39…
WHEN DOES A LITIGANT HAVE CAPACITY? AVOIDING CIRCULAR ARGUMENTS: THE NEED FOR LEGAL ADVICE IS NOT A DETERMINING FACTOR
There is an interesting discussion of capacity to litigate in the judgment of Mr Justice Mostyn in Richardson-Ruhan v Ruhan & Ors [2021] EWFC 6. It is also worth remarking on the judge’s comments on how the expert’s evidence in…
OH WHY ED SHEERAN CAN’T USE A STAND IN: DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS
In Sheeran & Ors v Chokri & Ors [2021] EWHC 3553 (Ch) Mr Justice Meade set out some of the duties owed by a litigant in relation to the disclosure process. “… Mr Sheeran’s manager undertook the disclosure exercise on…
SEEKING TO ADDUCE NEW EVIDENCE AFTER THE TRIAL HAS ENDED: DENTON PRINCIPLES APPLY, A FORMAL APPLICATION IS REQUIRED: OVERIDING OBJECTIVE LEADS TO REFUSAL
In JD Group Ltd, Re [2022] EWHC 202 (Ch) Deputy Insolvency and Companies Court Judge Agnello QC refused an application to adduce new evidence after a trial had ended, and judgment was pending. A formal application was required, Denton principles…
THE USE OF A SECOND REPORT IN THE LOW VALUE ROAD TRAFFIC PROTOCOL: FAILURE TO DISCLOSE FIRST REPORT TO THE DEFENDANT DID NOT LEAD TO MEDICAL EVIDENCE BEING EXCLUDED
I am grateful to barrister Kriti Upadhyay for sending me copies of the judgment of Mrs Justice Foster in Greyson -v- Fuller [2022] EWHC 211 (QB), a copy of which is available here Greyson v Fuller – HC Judgment 3-2-22…
“I FIND THAT THE CLAIM WAS CONSTRUCTED BY THE CLAIMANT’S LAWYERS ON A PREMISE WHICH WAS IRRELEVANT AND WAS NOT IN ACCORDANCE WITH THE CLAIMANT’S EVIDENCE OR THE LAW”: WHY MUCH MORE CARE IS NEEDED IN DRAFTING SCHEDULES
We are looking again at the decision in Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB). This time at the judgment in relation to quantum. The case involved a situation where the claimant’s lawyers presentation of the case…
HIGH COURT JUDGE OVERTURNS FINDINGS OF FUNDAMENTAL DISHONESTY AT TRIAL: “ALL CITIZENS ARE EQUALLY ENTITLED TO COME BEFORE THE COURTS IN CIVIL CLAIMS”
In Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB) Mr Justice Ritchie overturned a trial judge’s findings of fundamental dishonesty. The fact that a claimant had lied about the cause of his injuries did not impact upon…
PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED
In Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2021] EWFC B96 HHJ Moradifar found that a signature on an acknowledgment of service had been forged. Consequently the decree of divorce that followed was set aside. THE CASE The…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: CRUCIAL FACTUAL FINDINGS MADE IN FAVOUR OF THE DEFENDANT
It is surprising how many clinical negligence cases rest, ultimately, on findings of fact as to what was said. An example can be seen in the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS Foundation Trust…
PROVING THINGS 224: PROVING LOSS OF EARNINGS: THE IMPORTANCE (& LIMITATIONS) OF THE CLAIMANT’S OWN EVIDENCE
The impairment of someone’s ability to earn their living is always a serious matter. There are a number of approaches that the court can take to the award of damages. Anyone representing a claimant should read McRae -v- Chase International…
THE NEED FOR VARIATION OF THE TONE OF CORRESPONDENCE IN LITIGATION: OUTRAGED OFFENCE AND BEING PASSIVE-AGGRESSIVE IS USUALLY OFF KEY
I am grateful to solicitor Richard Harrison for allowing me to reproduce his post on “The importance of tone in litigation”. This blog has looked, many times, at judicial criticism of intemperate correspondence. Richard’s observations here will strike a chord…
DEFENDANT’S EXPERTS, STRIDENT LANGUAGE AND THE PART 35 DUTY OWED TO THE COURT: JUDGE ISSUES REMINDER
The previous post looked at the rejection of allegations of fundamental dishonesty in Palmer v Mantas & Anor [2022] EWHC 90 (QB). That judgment also contains some observations in relation to several of the medical experts called on behalf of the…
PROVING THINGS 222: SPENDING £200,000 IN COSTS OVER 9 INCHES OF LAND: BEYOND THE JUDGE’S COMPREHENSION AS TO HOW THIS GOT SO EXPENSIVE
In Davis & Anor v Winner [2021] EW Misc 23 (CC) the parties between them appear to have spent over £200,000 in costs. This is a dispute over inches of land. It is not surprising that HHJ Mithani QC expressed…
FAILING TO TAKE STEPS IN RELATION TO A VULNERABLE WITNESS RENDERED THE TRIAL UNFAIR: COURT OF APPEAL DECISION
In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 the Court of Appeal set aside a judgment when the court had not appreciated that a key witness was a vulnerable witness and that steps needed to be taken…
WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE…
In the judgment today in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response to a witness statement that failed…
PLEADING OF SIMILAR FACT EVIDENCE STRUCK OUT: YOU CAN’T MILK OTHER CASES…
In Peter Sharp & Son (a Firm) v GEA Farm Technologies (UK) Ltd [2022] EWHC 64 (Ch) Deputy Master Raeburn considered issues relating to “similar fact” evidence and made an order preventing a claimant from adducing evidence in relation to other…
PROVING THINGS 221: THE COURT WILL NOT SPECULATE
In Hirst & Anor v Dunbar & Ors [2022] EWHC 41 (TCC) Mr Justice Eyre highlighted the need for a claimant to prove losses, and expenditure, the court will not speculate on items relating to expenditure. “In my judgement…
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