“EACH OF THE CLAIMANTS’ STATEMENTS TENDED TO TAKE THE FORM OF A STANDARD TEMPLATE”: THE PERILS OF IDENTICAL EVIDENCE
It may say a lot about contemporary litigation that the practice of numerous witnesses producing near identical witness statements is so common that I almost decided not to write about it. The practice was considered by HHJ Judge Hodge QC…
CIVIL EVIDENCE AND THE RULE IN HOLLINGTON -v- HEWTHORN: FACTUAL FINDINGS BY ONE JUDGE CANNOT BIND ANOTHER JUDGE IN DIFFERENT PROCEEDINGS
The judgment of HHJ Paul Matthews in Crypto Open Patent Alliance v Wright [2021] EWHC 3440 (Ch) provides enough material for half a dozen seminars on civil evidence. Here we look at one aspect of it, the rule in Hollington -v-…
REVIEW OF THE YEAR (3): SOME FACTS, FIGURES AND INTERESTING QUESTIONS (“ARE PART 36 OFFERS INCLUDED IN THE TRIAL BUNDLE?”)
This year the blog has had 529,639 visitors and 1,349,269 views. 535 posts have been published. The number of posts were not as hectic as last year (770 posts) but 2020 was dominated by guidance on litigating in a Covid…
REVIEW OF 2021 (2): CIVIL LITIGATION CASE OF THE YEAR: MOTHER AND CHILD DO NOT BECOME HOMELESS AFTER SUCCESSFUL APPEAL
In Williams v Nilsson & Anor [2021] EWHC 3184 (Ch) HHJ Richard Williams (sitting as a High Court judge) allowed an appeal in a case relating to ownership of property. There is plenty about procedure and evidence in this case,…
WHEN A CLAIMANT APPEARS AS THEIR OWN EXPERT WITNESS: IT RARELY ENDS WELL
In Tehrani v Hamilton Bonaduz AG & Ors [2021] EWHC 3457 (IPEC) HHJ Hacon considered a case where a claimant appeared as their own expert witness. THE CASE The claimant, a professor, brought an action asserting that the defendant…
COVERT RECORDINGS AND EVIDENCE: AN ISSUE FROM A FAMILY CASE
An issue relating to the covert recording of conversations arose in the decision of Recorder Briggs in Children (Private Law: Covert Recordings: Adjournment of Final Hearing), Re [2021] EWFC B82. A party wanted to rely on a “transcript” of secret…
“A SOLICITOR, NO MATTER HOW EXPERIENCED OR INEXPERIENCED, MUST BE TAKEN TO KNOW THE CIVIL PROCEDURE RULES “(ii): A REMINDER OF THE BACK TO BASICS SERIES
The post yesterday on the case where it was stated that every lawyer is taken to know the Civil Procedure Rules has led to me re-visit the “Back to Basics” series on this blog. The series now has 91 posts*…
WHEN A CLAIMANT RELIES ON EXPERT EVIDENCE TO PROVE LIABILITY: THE (NOT SO) SLIPPERY SLOPE TO FAILURE
I am grateful to barrister Frederick Simpson for sending me his note of a decision where the claimant relied heavily on expert evidence in order to establish their claim. There were weaknesses in the report which contributed to the claimant’s…
WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…
WITNESSES AND REMOTE HEARINGS: HOW IS IT GOING? IT IS WORTHWHILE AS LONG AS THE TECHNOLOGY WORKS
I am grateful to John De Bono QC for sending me a copy of the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without…
PROVING THINGS 220: ANOTHER CASE WHERE FUNDAMENTAL DISHONESTY NOT ESTABLISHED
In Long v Elegant Resorts Ltd [2021] EWHC 1330 (QB) HHJ Pearce, sitting as a judge of the High Court, did not accept the defendant’s contention that the claimant had been fundamentally dishonest. The defendant was relying on a factor…
PROVING THINGS 219: FAILING TO PROVE ALLEGATIONS OF FUNDAMENTAL DISHONESTY
In Mathewson v Crump & Anor [2020] EWHC 3167 (QB) Dan Squires QC (sitting as a Deputy High Court Judge) did not accept the defendants’ submissions that the claimant had been fundamentally dishonest in pursuing a personal injury claim. THE…
PRACTICE NOTE FROM SENIOR COSTS JUDGE: DEDUCTIONS FROM DAMAGES: CHILDREN AND PROTECTED PARTIES
The Senior Costs Judge has issued a Note on the procedure to be followed in the Senior Courts Costs office on approval of costs settlements where the claimant is a child or protected party. THE NOTE APPROVAL…
“IT IS NOT ACCEPTABLE ORAL ADVOCACY TO REDUCE WRITTEN SUBMISSIONS TO LITTLE MORE THAN A SERIES OF REFERENCES THAT A JUDGE CAN THEN LEFT TO FIND ACROSS A VAST BUNDLE”
The closing lines of the judgment of HHJ Pelling QC (sitting as a High Court judge) in Libyan Investment Authority v Credit Suisse International & Ors [2021] EWHC 2684 (Comm) highlight many issues in relation to civil advocacy. In particular…
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: THE COURT CONSIDERS WHAT WAS SAID – 17 YEARS AFTER THE EVENT
In HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) Mr Justice Cotter considered the issue of the reliability of witness evidence when the events being considered occurred 17 years previously. It is an example of the kind…
PRISING LAWYERS AWAY FROM THEIR COMFORT BLANKET WHEN DRAFTING WITNESS STATEMENTS: A DETAILED CONSIDERATION OF THE REQUIREMENTS FOR WITNESS STATEMENTS AND PD57AC
In the judgment this morning in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) HHJ Stephen Davies (sitting as a High Court Judge) carried out a detailed consideration of the rules relating to witness statements…
COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL
In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not…
TIME ESTIMATES: “WILDLY OPTIMISTIC TO THE POINT OF ABSURDITY”: AN UNHAPPY JUDGE
In E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC 90 Recorder Chandler made some observations on the difficulties the courts face when the parties list hearings with inadequate time estimates. These are matters of general interest relating to…
WHEN THE DEFENDANT DESTROYS DOCUMENTS AFTER BEING NOTIFIED OF A CLAIM: A “BOMBSHELL” FOLLOWED BY “RADIO SILENCE”: HIGH COURT DECISION
I am grateful to solicitor Thomas Jervis from Leigh Day for bringing my attention to the judgment of Mr Justice Martin Spencer in Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB). The judge was considering the…
WHEN A WITNESS CHANGES A KEY PART OF THEIR EVIDENCE WHILST GIVING EVIDENCE AT TRIAL: THIS DOES NOT END WELL
In Murphy v Milton Keynes Parks Trust Ltd & Anor [2021] EWHC 2917 (QB) HHJ Crane considered that (relatively familiar) scenario of a party giving new evidence at the date of the trial. The claimant, it must be emphasised, was…
WHEN YOUR CASE LARGELY RELIES ON EXPERT EVIDENCE: MAKE SURE YOUR EXPERT IS NOT VIEWED AS BEING PARTISAN
The judgment of Mrs Justice Moulder today in ECU Group PLC v HSBC Bank PLC & Ors [2021] EWHC 2875 (Comm) contains another example of the dangers of relying on expert evidence. The judge did not accept the evidence of…
WITNESS STATEMENT IN RESPONSE TO EVIDENCE GIVEN IN TRIAL NOT PERMITTED: COURT ANXIOUS TO AVOID A NEVER ENDING SPIRAL
In Brake & Ors v The Chedington Court Estate Ltd (New Witness Statement) [2021] EWHC 2882 (Ch) HHJ Paul Matthews refused an application for permission to adduce an additional witness statement. “Of course, it is natural for litigants to…
SURVEILLANCE EVIDENCE IN PERSONAL INJURY CASES: WEBINAR 4th NOVEMBER 2021
On the 4th November I am giving a webinar on surveillance evidence. Booking details are available here. This webinar deals with practice and procedure in relation to the production of surveillance evidence in personal injury cases and looks at: The…
INTERPRETERS, REMOTE HEARINGS AND A FAIR TRIAL: HIGH COURT APPEAL DECISION
In Gholizadeh v Sarfraz [2021] EWHC 2814 (Ch) Mr Justice Miles considered the issue of fairness when witnesses, giving evidence remotely, did not use a translator. We have a situation where the defendant’s representatives stated, openly, prior to trial that…
CIVIL EVIDENCE AND SOCIAL MEDIA: WEBINAR 28th OCTOBER 2021: GET LINKED IN TO RECENT DEVELOPMENTS…
On the 28th October 2021 I am giving a webinar on Civil Evidence and Social Media. I will be looking at some recent cases where social media has played a part in the outcome of cases. Booking details are available…
STATEMENTS OF OPINION AND COMMENT WILL BE REDACTED: WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: THE NEW RULES CONSIDERED
The judgment of Mrs Justice O’Farrell in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 is one of the first times the new provisions on witness statements in the Business and Property Courts have been considered by…
THE CONSEQUENCES OF FAILING TO FILE AN ACKNOWLEDGMENT OF SERVICE: NO INJUSTICE WHEN A DEBARRED PARTY ATTENDED A TRIAL BY SKYPE: COURT OF APPEAL DECISION
In Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 the Court of Appeal rejected an argument that a defendant, who had not filed an acknowledgement of service and had been debarred from taking part in the action, suffered injustice…
CAN ONE WITNESS STATEMENT SIMPLY SAY “I AGREE WITH THEM” ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED
I gave a webinar earlier today where an interesting question was asked. If a husband and wife are giving evidence and they agree with each other, can one statement simply say “I agree with them”? This “agreement” of witness statements…
PROVING THINGS 217: WHEN AN ACCIDENT IS UNEXPLAINED: RES IPSA LOQUITUR CANNOT ASSIST
The problems of establishing liability when its cause is not certain are set out in the judgment of Mr Justice Robin Knowles in Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB). THE CASE The claimant suffered serious…
THE DANGEROUS USE OF PRECEDENTS 2: CIVIL LAWYERS – THE PROBLEMS OCCUR HERE TOO
The previous post on the use of “precedents” in divorce petitions could lead civil lawyers to think that “this couldn’t happen here”. There are numerous examples in civil cases of witness statements being drafted to a plan. PRECEDENT WITNESS…
DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES: WEBINAR 14th OCTOBER 2021
As part of a series of webinars on Civil Evidence I am presenting a webinar on witness statements on the 14th October 2021. Looking at rules and guidance relating to witness evidence and the importance of complying with them. Booking…
GRIFFITHS -V- TUI IN THE COURT OF APPEAL 3: THE CLAIMANT DID NOT HAVE A FAIR TRIAL: THE COURTS SHOULD NOT ALLOW LITIGATION BY AMBUSH: THE DISSENTING JUDGMENT
NB THE DECISION IN THIS CASE WAS OVERTURNED BY THE SUPREME COURT. THE SUPREME COURT ESSENTIALLY AGREEING WITH THE DISSENTING JUDGMENT OF BEAN LJ CONSIDERED IN THIS POST. THE SUPREME COURT DECISION IS DISCUSSED HERE. This is the third post…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL 2: THE OTHER GROUNDS OF APPEAL: AN EXPERT’S REPORT WITHOUT REASONING IS “ALL BUT WORTHLESS”
NB THE COURT OF APPEAL DECISION WAS SUBSEQUENTLY OVERTURNED BY THE SUPREME COURT – SEE THE DECISION HERE. This is the second post about the Court of Appeal decision in Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442. Here we…
WHEN AN EMAIL FROM A SOLICITOR IS EVIDENCE OF LOSS: EVIDENCE AT THE STAGE 3 STAGE CONSIDERED ON APPEAL
I am grateful to barrister Sarah Robson for bringing my attention to the decision of HHJ Jarman QC in Akram v Aviva Insurance Ltd [2021] EW Misc 16 (CC). This is a case that highlights the flexibility the courts have…
DELAY IN PURSUING PROCEEDINGS IS AN ABUSE OF PROCESS: LOCAL AUTHORITY’S INSOUCIENCE A CAUSE FOR CONCERN
In London Borough of Havering & Ors v Persons Unknown & Ors [2021] EWHC 2648 (QB) Mr Justice Nicklin had some clear warnings to give in relation to cases where local authorities had failed to pursue cases promptly after obtaining…
A CASE SUMMARY SHOULD BE IMPARTIAL NOT AN EXTENSION OF A SKELETON ARGUMENT
In Beg v Beg & Ors [2021] EWHC 2598 (Ch) HHJ Cooke made some important points about the need for a case summary to be impartial. “A case summary, whether or not an agreed document, is intended to summarise the…
MISSING WITNESSES: THE SUPREME COURT SAYS IT IS REALLY A MATTER OF COMMON SENSE
This blog has looked, many times, at the inferences that courts draw when witnesses do not give evidence at court. In Royal Mail Group Ltd v Efobi [2021] UKSC 33 the Supreme Court made it clear that the principles involved…
WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL
In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a…
EXAGGERATION OF INJURIES IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: HIGH COURT DECISION
In Elgamal v Westminster City Council [2021] EWHC 2510 (QB) Mr Justice Jacobs rejected an appeal from a defendant that argued the trial judge should have found a claimant to be fundamentally dishonest. “The Defendant’s argument, based on the word…
SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON
Now that the nights are drawing in people’s thoughts will, almost invariably, be drawn towards matters of civil evidence and the need to prove things. To cater for this I am presenting six webinars , covering key aspects of civil…
DISCUSSIONS TO SELL LAND WERE WITHOUT PREJUDICE AND COULD NOT BE RELIED UPON AT HEARING: THE WITHOUT PREJUDICE RULE EXAMINED
In Windmill Holdings SPV Ltd v Adams & Anor (LAND REGISTRATION – ADVERSE POSSESSION – evidence) [2021] UKUT 228 (LC) The Upper Tribunal (Lands Chamber), Judge Elizabeth Cooke, upheld the decision of the First-tier tribunal excluding certain evidence on the…
PROVING THINGS 216: THE DANGERS OF RELYING ON EXPERT REPORT TO PROVE VALUE
There are some similarities between the case of Serene Construction Ltd v Salata and Associates Ltd & Ors [2021] EWHC 2433 (Ch) and the previous post in this series. In both cases the claimant’s case related to the valuation of…
CIVIL EVIDENCE: MISSING WITNESSES, HAMLET: “THE REST IS SILENCE…”: OH, AND IT IS THE JUDGE THAT IS ON TRIAL
The judgment of HHJ Hodge (sitting as a High Court judge) in Ahuja Investments Ltd v Victorygame Ltd & Anor (CONTRACT – Purchase of commercial investment property) [2021] EWHC 2382 (Ch) is one of interest to anyone involved in litigation…
ATTEMPT TO INTRODUCE EXPERT EVIDENCE REFUSED: EVIDENCE NOT ADMISSIBLE AND APPLICATION MADE FAR TOO LATE
In Fraine v Foy [2021] EWHC 2302 (Ch) Master Clark refused an application to rely on expert evidence that was served the day before the hearing. The expert evidence was not relevant, not admissible and the application made far too…
A JOINT STATEMENT OF EXPERTS IS FOR THE BENEFIT OF THE COURT AND NOT A PROVING GROUND FOR THE PARTIES’ RESPECTIVE CASES: “OVERLAWYERED” REPORTS: LIMITATION AND DATE OF KNOWLEDGE:
In the judgment today in Aderounmu v Colvin [2021 EWHC 2293 (QB) Master Cook found that the claimant was not under a disability and the limitation period for bringing a personal injury action had expired. The Master exercised the discretion…
PROVING THINGS 214: CORONAVIRUS, COMPANIES AND INSOLVENCY: PETITIONER FAILS TO PROVE ITS CASE
The judgment of HHJ Kelly (sitting as a judge of the High Court) in A Company, Re [2021] EWHC 2289 (Ch) concerns some intricate provisions of the Corporate Insolvency and Governance Act 2020 Ultimately, however it was a matter of…
SOLICITORS AND FUNDERS ENTITLED TO TERMINATE THEIR AGREEMENT: FORMER CLIENTS LIABLE TO PAY COSTS: WHEN LITIGATION GOES AWRY
The judgment of HHJ Cadwallader in Escalate Law Ltd & Anor v Kennedy & Anor [2021] EWHC 2232 (Ch) is an example of legal funders and solicitors falling out with their clients. The judge upheld the decision to withdraw from…
QUESTIONS TO EXPERT SHOULD HAVE BEEN PUT BEFORE THE TRIAL: THE WRITING MAY BE ON THE WALL FOR LATE CHALLENGES
For the second time in two days I am reporting on cases where judges made the point that issues relating to evidence should have been raised before trial. Yesterday Mr Justice Zacaroli held that issues in relation to disclosure should…
PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY’LL TAKE A MILE
An interesting issue as to proof and evidence arose in the decision of Mr Justice Zacaroli in Smith v Dryden & Ors [2021] EWHC 2277 (IPEC). The claimant failed to establish that a song had been “copied”. There are also…
PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES
In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action. It is an example of the…
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