EXAGGERATING AND INFLATING CLINICAL NEGLIGENCE CLAIM LED TO CLAIMANT BEING SENTENCED TO SIX MONTHS IMPRISONMENT: “THERE IS NO ROBIN HOOD DEFENCE HERE”
In Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611 (QB) Mr Justice Griffiths sentenced a claimant to six months imprisonment following the exaggeration of a claim for damages. “She was, by her contempt of court, effectively stealing…
SOLICITORS AND ATTENDANCE NOTES: JUDGES NEARLY ALWAYS PREFER THE CONTEMPORANEOUS NOTES
The judgment of HHK Keyser QC (sitting as a High Court judge) in Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch) serves as a reminder of the importance of contemporary attendance notes as a source of evidence. “the best…
THE NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: WHY THE IRON FIST? BASICALLY – THE PROFESSION HAD IT COMING
As anyone practising in the BPC is just about to discover the rules on witness statements coming into force next month are highly prescriptive, even covering the way in which questions are to be asked to witnesses. Further it has…
ALL YOU NEED TO KNOW ABOUT FUNDAMENTAL DISHONESTY: WEBINAR 11th MAY 2021
I am co-presenting a webinar with solicitor John McQuater on fundamental dishonesty in personal injury action on the 11th May 2021. HOW TO BOOK Details of how to book are available here. THE WEBINAR This webinar will bring you right…
COURT CAN COMPEL SOLICITOR TO ATTEND COURT TO EXPLAIN THEMSELVES (THIS CASE WAS OVERTURNED ON APPEAL)
NB THIS CASE WAS OVERTURNED ON APPEAL, SEE THE DECISION AT Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 The decision of Mr Justice Saini in Hunt Annolight Ltd & Ors [2020] EWHC 3744 (QB) has just arrived on…
PROVING THINGS 206: THE EMPLOYERS LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969 IN ACTION
I am grateful to Martin McKenna from Aegis solicitors for sending me a copy of the judgment of DDJ Morgan MBE in Johnson -v- National Platforms Ltd (a copy of which is available here Johnson v Nationwide Platforms Limited (Final))….
PROVING THINGS 205: COUNSEL NOT ENTITLED TO £6,922,532 IN FEES BUT WERE ENTITLED TO EXEMPLARY DAMAGES
In Cakebread & Anor v Fitzwilliam [2021] EWHC 472 (Comm) Sir Ross Cranston (sitting as a High Court judge) considered an argument from the claimant barristers that an arbitrator had erred in refusing to award them their fees. The essential…
“WHAT’S THE DIFFERENCE BETWEEN KNOWLEDGE AND BELIEF?” WHY IS THIS IMPORTANT? 10 KEY POINTS RE-VISITED
The question “What’s the difference between knowledge and belief” was a search term that led to this blog yesterday. I mentioned this on Twitter and it has led to some interesting responses, ranging from the philosophical to the whimsical. You…
THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The number of people who had not read the judgement of Canadian judge J.W. Quinn looked at last Sunday made me think that this would be a good time to remind people of the judgment in Bruni -v- Bruni in 2010. The…
MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”
In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation. “Parties must be…
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WITNESS STATEMENTS IN THE DOCK AGAIN: “DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE”
The judgment of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm) provides a further example of the contention that obtaining witness evidence is probably not part of the “stock in trade” of those who…
CIVIL PROCEDURE BACK TO BASICS 91: MAKE SURE YOUR CLIENT IS STILL ALIVE WHEN YOU ISSUE – AT CERTAINLY AT THE TIME OF TRIAL: A SITUATION THAT IS UTTERLY BIZARRE
The facts in Amirtharaja & Anor v White & Anor [2021] EWHC 330 (Ch) are unusual to say the least. Someone who had died two years prior to issue was included as a party in a claim form. The matter…
PROVING THINGS 204: WHY FIRST-HAND EVIDENCE IS IMPORTANT: “THE FIRST HAND EVIDENCE… IS TO BE PREFERRED OVER THOSE WHO GAVE EVIDENCE FOR THE BANK”
In Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Chief Insolvency Court Judge Briggs considered the Gestmin principles in a case where a bank failed to establish that a client had signed a guarantee. It is a good example…
“Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)”: A good time to repeat one of our favourite cases…
Periodically I feel bound to remind people of the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn. In the middle of “lockdown”, when we may well…
A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE
In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) HHJ Platts (sitting as a High Court Judge) rejected the defendant’s case that a witness who was “wholly unreliable” was also fundamentally dishonest. “Failing…
EVIDENCE AND WITNESS STATEMENTS: AVOIDING THE PITFALLS: WEBINAR 25th FEBRUARY 2021
I am giving a webinar on avoiding the pitfalls in evidence and witness statements on the 25th February 2021. Details are available here. “Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be…
ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT
A common search term that leads to this blog is “opinion evidence in witness statements”, this remains a major issue in many areas of practice. It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
KIDS CLUB AND THE DANGERS OF SELECTIVE EVIDENCE: WITNESS STATEMENTS IN AN INSOLVENCY CONTEXT
The decision in the Official Receiver -v- Batmanghelidh and others [2021] EWHC 175 (Ch) involves some consideration of the way in which the claimant presented the evidence. Whilst the claimant was under a particular duty in this case this involves…
PROCEDURE, SUMMARY JUDGMENT, “SURMISE AND MICAWBERISM” AND… THE ROYAL FAMILY
A blog about civil procedure doesn’t get to write about the Royal Family much. However the judgment of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) strays into our territory. There…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (3): VULNERABLE PARTIES AND WITNESSES (AGAIN)
I am returning to the changes being introduced in relation to vulnerable parties and witnesses because the new rules are now available here . The new Practice Direction was looked at in detail in an earlier post. CHANGES TO…
UPDATED DENTON RESOURCE: AVAILABLE ONLINE NOW
The Sanctions Case Watch section of this blog does its best to keep up to date with cases relating to relief from sanctions. It does this in chronological order. There is always a link in that section to the useful…
DELIBERATELY DESTROYED DOCUMENTS IN LITIGATION, ADVERSE INFERENCES AND… REINDEERS
In the judgment today in Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) Mr Justice Calver considered the inferences that should be drawn when he found that a party…
YOU CAN’T CLAIM THE COSTS OF ADVERTISING FOR CLIENTS IN YOUR COST BUDGET: YOU REALLY CAN’T
An interesting point arose in the judgment of Mr Justice Saini in Weaver & Ors v British Airways Plc [2021] EWHC 217 (QB). The costs of advertising for clients to join a Group Litigation Order are not recoverable, they were…
INEFFECTIVE REDACTION IN DISCLOSED DOCUMENTS: A WARNING TO ALL LITIGATORS (AND LOCAL AUTHORITIES…)
Sometimes documents can be redacted. The judgment of Mr Justice Pepperall in London Borough of Lambeth v AM (Judgment No. 2) [2021] EWHC 186 (QB) shows that great care must be taken in “redacted” documents provided electronically. THE CASE The…
VULNERABLE WITNESSES IN CIVIL PROCEEDINGS: THE NEW RULES: WEBINAR 22nd MARCH 2021
I am presenting a webinar on the 22nd March 2021 dealing with the new rules relating to vulnerable witnesses in civil proceedings. The new rules are coming into force on the 6th April 2021. These change the rules so that…
RULE CHANGES COMING INTO FORCE IN APRIL 2021(1): VULNERABLE WITNESSES AND THE OVERRIDING OBJECTIVE
There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021. AMENDMENT TO THE OVERRIDING OBJECTIVE The new rules are referred to,…
CIVIL PROCEDURE ROUND UP: POSTS AND ARTICLES ON PROCEDURE AND COSTS: JANUARY 2021
We all know that January has been a very long month. There has been much written about procedure and costs. Here is the first round up of the year. COSTS ACL – Master upholds default costs certificate in case where draftsman…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: A MANDATORY OBLIGATION THAT IT IS DANGEROUS TO OVERLOOK
We have looked many times at cases where problems have occurred because someone making a witness statement fails to comply with the mandatory obligation to give the sources of their information and belief. The problems this can lead to are shown…
WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)
A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases. The dangers of asking leading…
IMPORTANT COVID UPDATES FROM HMCTS: USEFUL LINKS FOR THE PRACTITIONER
The latest HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak contains some important links for those using the courts. LINKS HMCTS held a webinar for legal professionals to provide information on the arrangements in place at courts…
THE MISUSE OF WITNESS STATEMENTS: 2021 SHOWS THAT THE TREND CONTINUES: THREE CASES THAT ARE PROBABLY THE TIP OF AN ICEBERG
A search term that led to this blog earlier this week was “witness of fact giving expert evidence”. This, and changes coming into force in the Business and Property Courts in March mean that this is a good time to…
PROVING THINGS 203: EVIDENCE AND SCOTT SCHEDULES IN COERCIVE CONTROL CASES: SCOTT SCHEDULES “INEFFECTIVE AND FREQUENTLY UNSUITABLE”
In F v M [2021] EWFC 4 Mr Justice Hayden considered issues relating to fact finding in a case of “coercive control”. Although the difficulties here are in the context of a family case, the issues will have some relevance…
ANOTHER WITNESS STATEMENT THAT STRAYED INTO INADMISSIBLE ARGUMENTS, PROTRACTED COMMENTARY AND EXPERT EVIDENCE
There have been a number of recent cases regarding the appropriate drafting of witness statements, in particular attempts to put much inadmissible material into statements. This can be seen in the judgment of HH Russen QC in Philipp v Barclays…
PROVING THINGS 200: ALL THE SERIES IN ONE PLACE: THE (VERY) EXPENSIVE COSTS OF FAILING TO THINK FULLY ABOUT EVIDENCE
There are now 200 posts in the “Proving Things” Series. These centre, usually, on a failure to establish matters at trial. Sometimes the failures are dramatic. In Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) i the claimants had…
CLAIMANT NOT SUCCESSFUL IN APPLICATION THAT A WITNESS ATTEND IN PERSON AND NOT REMOTELY
In Langley v GMB & Ors [2020] EWHC 3619 (QB) Mrs Justice Stacy refused a claimant’s application for an order that a defendant’s witness attend court personally. The matter could proceed fairly with the witness attending remotely. This judgment (given…
“HIS WITNESS STATEMENT … CONTAINED A GREAT DEAL OF ANALYSIS, SUBMISSION AND COMMENTARY ON DOCUMENTS”
Because of the imminent changes in the rules in the Business and Property courts it is an opportune time to see how often the basic principles of witness evidence are not being observed. We see this in the judgment in YJB…
PROVING THINGS 199: “THE BITTER TRUTH”: INNOCENT PARTIES MAY SUFFER NO LOSSES – AND RECEIVE NO DAMAGES
The judgment of Mr Stephen Houseman QC sitting as a Deputy High Court judge in YJB Port Ltd v M&A Pharmachem Ltd & Anor [2021] EWHC 42 (Ch) is another example of a party failing to prove it had suffered…
PROVING THINGS 198: “NOT RELIABLE EVIDENCE”: THOSE EMAILS MAY NOT BE ALL THEY SEEM
In Richards v Harvey [2021] EWHC 21 (Ch) HHJ Cooke, doubted the authenticity of emails relied upon by the claimant. It is a reminder of the importance of a notice to prove. “This document is not reliable evidence of…
PROVING THINGS 197: PROVING LOSS OF EARNINGS IN A PANDEMIC: ACTUAL EARNINGS EXCEEDED POTENTIAL EARNINGS
Sicri v Associated Newspapers Ltd (Rev 1) [2020] EWHC 3541 (QB) is an unusual case in many ways. There are issues that are sensitive and require careful consideration. However there are also observations about claiming loss of earnings and proving…
JUDGMENT ON EXTENT OF POWERS OF HIGH COURT ENFORCEMENT OFFICERS: THE ACCESSIBLE LANGUAGE SUMMARY
In Just Digital Marketplace Ltd (enforcement – controlled goods agreements – taking control of goods) [2021] EWHC 15 (QB) Master McCloud gave an important judgment about the extent of the powers of a High Court Enforcement Officer. However there is no…
A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER
In Ceviz v Frawley & Anor [2021] EWHC 8 (Ch) HHJ Keyser QC made observations about a witness statement. This case highlights the need for practitioners to be aware of the limitations of witness statement. If this kind of statement…
PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK
The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in proving, or disproving, that a document was delivered. In…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS FROM APRIL 2021: IN-HOUSE WEBINAR AVAILABLE
In April this year those practising in the Business and Property Courts will be subject to much more stringent requirements in relation to the preparation of witness statements relating to trial. The lawyer conducting the case will have to sign…
CIVIL PROCEDURE BLOG AND ARTICLES ROUNDUP – DECEMBER 2020
A round up of posts and articles relating to civil procedure from November 2020. COSTS ACL – Definition of proportionality to be expanded to include vulnerability ACL – High Court upholds assessment of success fee in high-value clinical negligence case ACL – Supreme…
PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE
The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence. It also highlights the need to consider,…
REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS
Needless to say this has been an unusual year for litigators. It is always interesting to review what have been the most popular posts on this blog and look at some facts and figures. Can we tell anything about the…
WHEN A LITIGANT HAS “FAILED IN ITS DUTY AT EVERY POINT”: COUNCIL FOUND AT FAULT AND IN DEFAULT
In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin) Mr David Lock QC (sitting as a Deputy High Court Judge) commented on the failure of the defendant council to comply with the…
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