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…
PROVING THINGS 212: MISTAKE, TRUSTS & TAXATION: “IT IS CLEAR THAT HIS WITNESS STATEMENT WAS CONSTRUCTED WITH ONLY PASSING REFERENCE TO WHAT HIS EVIDENCE IN CHIEF WOULD BE IF CALLED TO GIVE ORAL EVIDENCE”
The adequacy of witness evidence was considered in detail in the judgment of Deputy Master Marsh in Dukeries Healthcare Ltd v Bay Trust International Ltd & Ors [2021] EWHC 2086 (Ch). It shows the danger of setting out a case…
WITNESS STATEMENTS AND HILLSBOROUGH: AN ACADEMIC ANALYSIS OF HOW THE EVIDENCE WAS GATHERED
I have written several times about the major difficulties caused by the process of taking witness statements following the Hillsborough disaster. The process of taking statements is analysed by an academic in Hillsborough disaster: a revealing analysis of the language…
WHEN TWO EXPERTS ARE BETTER THAN ONE: IT MAY BE MORE ART THAN SCIENCE…
Many of the reported cases in relation to the courts and witness experts are about the judge restricting the use of experts. In Borro Ltd & Ors v Aitken [2021] EWHC 1902 (Ch) HHJ Johns QC (sitting as a High…
WITNESS STATEMENTS AND GATHERING WITNESS EVIDENCE: THE LESSONS THAT LAWYERS MUST LEARN FROM HILLSBOROUGH: WEBINAR 19th JULY 2021
On the 19th July 2021 I am presenting a webinar that looks at the implications of the Hillsborough case from the point of view of collecting witness evidence. Booking details are available here . NB – the webinar will be broadcast…
WHEN CAN A LAY WITNESS GIVE THEIR “OPINION”? SOMETHING YOU NEED TO KNOW
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) shows that it is essential for civil litigators to have detailed knowledge of what is “opinion” evidence and when it is allowed in a…
DEFENDANT UNSUCCESSFUL IN APPLICATION TO STRIKE OUT PART OF CLAIMANT’S WITNESS EVIDENCE: WHEN “HYPOTHETICAL” EVIDENCE MAY BE ADMISSIBLE
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) is possibly the first time that Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts has been considered by the…
“CARE MUST BE TAKEN IN ASSESSING A WITNESS WHO IS REPLYING TO QUESTIONS ASKED THROUGH AN INTERPRETER”: SOME PROBLEMS EXEMPLIFIED
Some of the difficulties a court has when considering witness evidence through a translator are set out in the judgment of Deputy Judge Agnello QC in Jackson v Song [2021] EWHC 1636 (Ch). “I have considered the evidence of…
COURT REFUSES PERMISSION TO ADDUCE NEW EVIDENCE AFTER DRAFT JUDGMENT WAS CIRCULATED
In Karunia Holdings Ltd v Creativityetc Ltd [2021] EWHC 1864 (Ch) HHJ Halliwell considered, and refused, a claimant’s application to adduce new evidence after a draft judgment had been handed down in an application for summary judgment. ” The…
EXPERT EVIDENCE, NECESSARY EXPERTISE AND ADMISSIBILITY: BOP-ME, MASKS AND EXPERTISE
There is an interesting discussion of the use of expert evidence in the context of specialist proceedings in the judgment of Mr Justice Fraser in Bop-Me Ltd v Secretary of State for Health and Social Care (Rev 1) [2021] EWHC…
WHEN A PARTY WANTS TO CHANGE ITS EXPERT: PRE-ACTION REPORTS, “EXPERT SHOPPING” AND CANDOUR
In the judgment today in Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC) Mr Alexander Nissen QC (sitting as a Judge of the High Court) considered the circumstances in…
WEBINAR ON PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: 8th JULY 2021
On the 8th July 2021 I am presenting a webinar on Periodical Payments and Provisional Damages. Booking details are available here. THE WEBINAR This webinar looks at the law, practice and procedure relating to provisional damages and periodical payments…
TRANSCRIBERS, LIVE RECORDING AND COURT HEARINGS: COURT SENDS OUT A WARNING: FOLLOW THE RULES AND GET PERMISSION IN ADVANCE
In JR & B Farming Limited v Hewitt [2021] EWHC 1704 (Comm) HH- Davis-White QC (sitting as a High Court judge) issued a clear warning to parties and transcription services that they must follow the correct procedure if a record…
IF YOU HAVE GOT ISSUES WITH DISCLOSURE YOU SHOULD HAVE SORTED THESE OUT WELL BEFORE TRIAL: HIGH COURT JUDGMENT
The judgment of Mr Justice Martin Spencer in Chouza v Martins & Ors [2021] EWHC 1669 (QB) contains much of interest and importance to anyone involved in fatal accident litigation. Indeed I will be writing a series of posts on…
EIGHT YEARS OF BLOGGING: LOOKING BACK AND LOOKING FORWARD
Today marks the 8th anniversary of Civil Litigation Brief as a blog. This may be an appropriate time to look back and consider some “facts and figure” FACTS AND FIGURES Last year the blog had 1,464,443 views and 505,431 visitors…
“THERE COMES A POINT WHEN APOLOGIES ARE NOT ENOUGH”: LATE APPLICATIONS IN THE COURT OF PROTECTION
In University Hospitals Dorset NHS Foundation Trust & Anor v Miss K [2021] EWCOP 40 Mrs Justice Lieven observed that applications, made very late in the day, by hospital trusts, cause considerable disruption. (The blunt reality here, however, is that…
THE USE OF EXPERT WITNESSES TO CONSTRUE EUROPEAN DIRECTIVES AFTER BREXIT: HOW THE COURT WORKS WITH “ONE OR BOTH HANDS TIED BEHIND ITS BACK”
In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) Mr Justice Martin Spencer considered the “nightmare position” the courts are now in as a result of the European Union (Withdrawal) Act 2018 in relation to interpreting European Directives. This…
WITNESS STATEMENTS & HILLSBOROUGH (A REPEAT II): CONFIRMATION BIAS AT ITS WORST
The tragic events of Hillsborough are in the news again. I am here repeating a post first written in 2016. The post is on one small part of the process: the initial gathering of evidence. It was the flawed nature…
NO NEED TO CALL CLAIMANT’S MEDICAL EXPERT IN A FAST TRACK TRIAL: MUST BE A GOOD REASON TO DEPART FROM THE NORMAL PROCEDURE
I am grateful to Claire Haley from Aegis Legal for sending me a copy of the judgement of HHJ Freedman in Taylor -v- TUI UK Limited (County Court at Newcastle 22nd January 2021). The judge overturned a decision that the…
CLAIMANTS WIDE RANGING EVIDENCE EXCLUDED: HIGH COURT DECISION TODAY
In BB & Ors v Al Khayyat & Ors [2021] EWHC 1499 (QB) Mr Justice Chamberlain allowed, in part, an application by a defendant that certain evidence put forward by the claimants in relation to an application be excluded. THE…
TAKE CARE: THE SOLICITOR SIGNED THE STATEMENT OF TRUTH ON MATTERS WHICH WERE FOUND TO BE “DIRECTLY UNTRUE”
I am picking up another point from the judgment in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). That is the care that must be taken when a solicitor signs a statement…
ARGUING THAT A CONVICTION FOLLOWING A GUILTY PLEA WAS WRONG: GUIDANCE FROM THE COURT OF APPEAL
In Munir v Revenue And Customs [2021] EWCA Civ 799 the Court of Appeal considered the steps available to a litigant who wished to argue that a criminal conviction was erroneous. In particular a litigant most probably needs to waive…
APPLICATIONS BY EMAIL: JUDGES SHOULD BE ALERT AND THE PROCESS PROCEDURALLY FAIR: COURT OF APPEAL DECISION
There are some case where the parties attempt to litigate by correspondence, particularly correspondence with the court. Letters and emails proliferate, with no real structure. The rules of evidence, and the difference between “facts”, “arguments” and “submissions” are usually entirely…
HILLSBOROUGH AND WITNESS STATEMENTS 1 (A REPEAT): THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
This is a repeat of a post first written on this blog in April 2016. There is always a danger in writing about a tragedy that the human consequences, the pain and suffering of the victims and family members are…
LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT”
Over the years we have seen some biting judgments about the conduct of experts in civil litigation. I struggle to recall one as extraordinary as the judgment of Mrs Justice Joanna Smith in Dana UK AXLE Ltd v Freudenberg FST…
WITNESS STATEMENTS: HILLSBOROUGH AND THE ROLE OF THE SOLICITOR
The previous post on this blog presented what is most probably the first academic research into the taking of witness statements. It is remarkable that such a central part of the lawyer’s role remains unresearched. The blunt reality is that…
RESEARCH INTO THE TAKING OF WITNESS STATEMENTS: A POST FROM PROFESSOR PENNY COOPER AND DR MICHELLE MATTISON
A recent High Court decision emphasised that all legal cases are, in reality, all about the facts. Despite that there is very little research into the role of the judge as fact finder. There is even less research on the…
PARTY ALLOWED TO RELY ON WITNESS SUMMARIES: RELIEF FROM SANCTIONS GRANTED WHEN PERMISSION SOUGHT RETROSPECTIVELY
In Benyatov v Credit Suisse Securities (Europe) Ltd [2021] EWHC 1318 (QB) Mr Justice Freedman gave the claimant permission to rely on witness summaries. He also granted the claimant relief from sanctions in relation to late service of those summaries. …
LAWYERS, CLIENTS AND WITNESS STATEMENTS: REDUCING THE RISKS: SOME EXAMPLES AND A STRATEGY
Many people kindly send me cases for publication on this site. Sometimes the information they send with the case is as enlightening as the case itself. In a recent example I was told that a litigant had tried to throw…
A FINDING OF FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND INACCURATE STATEMENTS LEAD TO CLAIMANT LOSING £44,890
I am grateful to Aled Morris from Horwich Farrely for sending me a copy of the decision of HHJ Beard in Anderson -v- Porch (14th January 2021), a copy of which is available here OT APPROVED HORWICH, F38YJ633, ANDERSON, PORCH,…
FAILURE TO COMPLY WITH DIRECTIONS IN THE FAMILY COURT: “THEY ARE NOT PREFERENCES, REQUESTS OR MERE INDICATIONS; THEY ARE ORDERS”
I am always wary of venturing into an area occupied by many exceptional family bloggers. However court order, and in particular compliance with court orders, is part of the regular diet of this blog. That is why a case with…
JOURNALIST ALLOWED TO VIEW DOCUMENTS REFERRED TO IN COURT JUDGMENT SIX YEARS AGO: CPR 5.4C CONSIDERED
In Goodley v The Hut Group Ltd [2021] EWHC 1193 (Comm) Mr Justice Calver allowed a journalist’s application for sight of documents referred to in open court. The judgment contains some important observations in relation to CPR 5.4C. THE…
OBJECTING TO EVIDENCE BEING ADMITTED CAUSES PROBLEMS ON APPEAL : CLAIMANT GETS BITTEN BY ITS OWN HORSE
In Lifestyle Equities C.V. & Anor v Ahmed & Anor [2021] EWCA Civ 675 the Court of Appeal allowed, in part, an assessment against the assessment of damages. What is interesting here is the point that the claimants objection to…
APPLICANT FAILS TO SATISFY COURT THAT LITIGANT LACKED CAPACITY: HIGH COURT DECISION
In Greetham v Greetham [2021] EWHC 998 (QB) Mr Justice Soole rejected an application in relation the appointment of a litigation friend. The applicant failed to prove that the litigant lacked capacity. Further the court did not accept that the…
A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES
Returning to the judgment of Mr Justice Cavangh in TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…
A SCHEME SETTING UP COMPENSATION FOR VICTIMS IS NOT SUBJECT TO WITHOUT PREJUDICE PRIVILEGE
There are many procedural issues considered in the judgment of TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB). Here I want to look at one – whether the trial judge should be informed of the…
WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS
In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
PROVING THINGS 210: HAVE EVIDENCE OF VALUE AT TRIAL TO AVOID THAT SINKING FEELING
Famously a brand new car loses a substantial amount of its value once it is driven from the showroom. A similar principle may well apply to motor yachts. This issue was considered by Mr Simon Salzedo QC (sitting as a…
WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS
Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….
WHEN YOUR SOCIAL MEDIA POSTS UNDERMINE YOUR OWN CASE (AND IT HAPPENED TO SOLICITORS…)
Legal Futures yesterday carried a report of the case of Scott -v- Fisher Jones Greenwood LLP. A case in which the respondent failed to file a response in time and an application for an extension of time was refused. Here…
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