WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”
In Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) emphasised the importance of procedural rules. There are quite a few interesting observations in relation to disclosure, redaction, civil…
“NOT ALL JUDGES OR COUNSEL ARE HUMOURLESS AUTOMATONS”: NO JUDICIAL BIAS WHEN EVIDENCE GIVEN BY WAY OF A SONG
It is not often that appeals over planning decisions make their way to this blog. It must be even rarer for such appeals to consider the question and appropriateness of humour (and song) in the judicial process. That is what…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
THE TRIAL JUDGE SHOULD HAVE FOUND THAT THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: INADEQUATE DISCLOSURE LEADS TO QOCS BEING DISAPPLIED
In Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB) Mr Justice Julian Knowles refused a claimant’s appeal against a finding that the defendant was not negligent. He granted the defendant relief from sanctions and allowed an appeal against a…
REFUSAL TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL: “THE SANCTION WAS WHOLLY DISPROPORTIONATE AND IT WAS WRONG NOT TO GRANT RELIEF”
In Michael v Lillitos [2019] EWHC 2716 (QB) Mrs Justice Steyn overturned a decision refusing relief from sanctions. The Appellant had made payments by cheque rather than by bank transfer. It is also an important example of the pitfalls caused…
PROVING THINGS 165: CLAIMANT IN CLINICAL NEGLIGENCE CASE PROVES NEGLIGENCE BUT FAILS TO ESTABLISH CAUSATION
In Bell v Bedford Hospital NHS Trust [2019] EWHC 2704 (QB) the claimant established clinical negligence but failed to prove causation. THE CASE The claimant suffered a major stroke that left her with significant permanent disabilities. She claimed that…
THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES
I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here. The Court of Appeal have ordered a retrial in the case. There are important observations about the role of the judge in…
PROVING THINGS 164: THE NEED FOR A CAR FOR PRIVATE PURPOSES IS NOT SELF PROVING AND THE COURT WILL NOT INFER SUCH A NEED.
In Hussain v EUI Ltd [2019] EWHC 2647 (QB) Mr Justice Pepperall dismissed a claimant’s appeal in relation to the assessment of damages. “Need for social and domestic purposes is not self-proving and, in this case, cannot simply be inferred”…
CIVIL PROCEDURE BACK TO BASICS 67: EXPERTS ASKING THE COURT FOR DIRECTIONS: THIS CAN REALLY CUT THE MUSTARD…
One, unusual, aspect of the decision in Mustard v Flower & Ors [2019] EWHC 2623 (QB) is that the experts had sought directions from the court. This brings attention to the (apparently) little used provisions of CPR 35.14. Experts have the…
WHY WOULD ANYONE WANT TO RECORD THEIR MEETING WITH AN EXPERT WITNESS? TWO EXAMPLES WHERE THE COURT’S FOUND THAT AN EXPERT’S STATEMENT OF AN INTERVIEW WAS UNRELIABLE
An earlier post dealt with the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB) and the claimant’s decision to record her appointments with the defendant’s medical experts. The issue of what, precisely, was said to an expert can…
COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT
In Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts. This decision raises some interesting issues. (The case…
DISTRICT JUDGE SHOULD NOT HAVE “PARTIALLY” RECUSED THEMSELVES: THINGS THAT SHOULD NEVER HAVE BEEN IN A WITNESS STATEMENT: A VERY INTERESTING ASSESSMENT OF COSTS…
I am grateful to Simon Fisher from DWF for providing me a copy of the judgment in Akers -v- Kirlkland [2019] EWHC 2176 (QB) Mr Justice Waksman discussed, in detail, the circumstances in which a judge should recuse themselves and…
THE HONEST WITNESS WHOSE EVIDENCE WAS NOT ACCEPTED – BUT WHO STILL WON HER CASE: A CLOSE ANALYSIS OF THE LAY AND EXPERT EVIDENCE IN MORDEL
The result of the judgment today in Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) has already been well publicised. A mother succeeded in her claim that the defendant trust was negligent in failing to check her…
WHEN WITNESSES ATTEMPT TO GIVE EXPERT EVIDENCE: LOOK OUT FOR THOSE PURPLE PASSAGES
This blog has reported on numerous cases where lay witnesses have attempted to give expert evidence (and, indeed, where expert witnesses have tried to give evidence of matters of fact). This issue can be seen in the judgment of Lord…
CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4
A party seeking to rely on expert evidence requires permission from the court. It is surprising how often the rule requiring the court to be provided with details of the cost of that expert is overlooked. “When parties apply for…
REALISTIC TIME ESTIMATES: THE IMPORTANCE OF GETTING THIS RIGHT
There is a short passage in Barrowfen Properties Ltd v Hambros Investments Ltd & Anor [2019] EWHC 2548 (Ch) where Chief Insolvency and Companies Court Judge Briggs makes it clear that an application had been given an inadequate time estimate….
LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE
This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners…
LEGAL PROFESSIONAL PRIVILEGE PERSISTS AFTER DISSOLUTION OF A COMPANY: COURT OF APPEAL DECISION TODAY
In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 the Court of Appeal held that legal professional privilege survives the dissolution of a limited company. THE CASE The claimants wanted to bring an action against a…
PROVING THINGS 163: PROVING MITIGATION OF LOSS: A CLAIMANT NEED NOT TAKE THE RISK OF STARTING UNCERTAIN LITIGATION AGAINST A THIRD PARTY
The need for a defendant to prove a failure to mitigate is something that has been covered before on this blog. In Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) Mr Justice Bryan considered the legal principles. …
LATE SERVICE OF WITNESS SUMMARIES: HERE’S AN INGENIOUS ARGUMENT – THAT DIDN’T WORK: PERMISSION TO ADDUCE ADDITIONAL EVIDENCE FROM PARTIES OWN WITNESS ALSO REFUSED
In Smith & Anor v Crawshay [2019] EWHC 2507 (Ch) HHJ Paul Matthews considered an argument that the defendant was allowed to rely on a witness summary. He also refused permission to adduce further evidence in evidence-in-chief from a witness…
SERVICE OF THE CLAIM FORM ISSUES, ANONYMITY, EXPEDITED TRIALS AND … SPEARMINT RHINO
I have been meaning to write more about anonymity and civil litigation, in particular orders made under CPR 16. This issue arose today in a surprising context in AAA -v- Rakoff [2019] EWHC 2525 (QB). The case raises issues in…
CIVIL PROCEDURE, COSTS, EVIDENCE AND – DINOSAURS : A REVIEW OF THE MONTH – ARTICLES AND POSTS (SEPTEMBER 2019)
Every month I plan to provide links to useful articles and posts on civil procedure. I am happy for anyone to send me links that are relevant to the topics that this blog covers. (Links to posts does not constitute…
INTERIM PAYMENTS ON ACCOUNT OF COSTS: A RECENT EXAMPLE AND USEFUL LINKS
“Cashflow is the lifeblood of business”, is a common maxim. This applies in the legal profession as much as anywhere else. Interim payments on account of costs is an important issue for litigators and their clients. This was considered in…
STOP ARGUING WITH THE JUDGE AFTER JUDGMENT IS GIVEN: POST-JUDGMENT SUBMISSIONS LEADS TO CASE GOING OFF THE RAILS
The judgment today in AR & ML [2019] EWFC 56 is of considerable importance to all those who seek to “re-argue” a case after judgment rather than appeal. Mostyn J attempts to put an end to what he identified as…
SERVE YOUR EVIDENCE IN RESPONSE VERY LATE IN THE DAY – WHAT IS THE COURT GOING TO THINK?
In Gregory & Anor v Moore & Ors [2019] EWHC 2430 (Ch) Chief Master Marsh commented upon evidence served in response, but very late in the day. In the absence of an explanation in relation to late service the Master…
LAWYERS GIVING EVIDENCE 3: THE SOLICITOR (GIVING EVIDENCE WHILST REPRESENTING HIS CLIENTS) HAD BECOME FAR TOO CLOSE TO THE CASE TO BE OBJECTIVE
In the third post on the dangers of lawyers giving evidence we are looking at the judgment of Recorder Monty QC in Afia v Mellor & Anor [2013] EW Misc 23 (CC). The only witness called for the defendants was…
PROVING THINGS 162: WHEN THE GOVERNMENT DOESN’T HAVE THE COMMONS TOUCH
Constitutional lawyers will be writing about the Supreme Court decision today for decades to come. However I want to look at the more basic issue of the evidence that was placed before the courts. This was not a case…
LAWYERS GIVING EVIDENCE 2: “HARD TO FATHOM” WHY THE SOLICITOR WAS TENDERED AS A WITNESS
In the second post about the dangers of lawyers giving evidence we turn to the judgment of Master Marsh in Pineport Limited -v- Grangeglen Ltd [2016] EWHC 1318 (Ch). This was a relief from forfeiture hearing in which the only witness…
LAWYERS GIVING EVIDENCE 1: ENGAGING “TOTALLY INAPPROPRIATELY WITH LEGAL SUBMISSIONS”
An earlier post reported on the dangers of lawyers giving evidence when that “evidence” is in fact a set of legal submissions. It is clear that this issue is not confined to one jurisdiction. This can be seen from the…
CLAIMS FOR DAMAGES: WHY JUDGES GO “BACK TO BASICS”: A REMINDER FOR LITIGATORS
This is the first of a series of posts designed (to be frank) to remind people that the next edition of “Damages for Personal Injury and Death” will be published later this year. One interesting aspect of writing a book,…
“WHAT’S THE DIFFERENCE BETWEEN A SKELETON ARGUMENT AND A WITNESS STATEMENT?” NOW THERE’S A QUESTION…
That very question “the difference between a skeleton argument and a witness statement” appeared in a search that led someone to this blog today. It may be worrying that someone has to ask. The important distinction is often ignored. Day…
WHAT A DAY FOR BUNDLES – SUPREME COURT SHENANIGANS DOESN’T LEAD TO PANNICK: A RECAP OF AVAILABLE GUIDANCE
Yesterday the Supreme Court was hearing two appeals in relation to the the prorogation of Parliament. The line up of legal talent is immense. However every single litigation lawyer watching could identify with the problems that the court was having…
CIVIL PROCEDURE BACK TO BASICS 63: WHEN WILL THE COURT REDUCE THE NUMBER OF WITNESSES ALLOWED?
Here we are looking at CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now been considered several times by the courts. Firstly by Mr…
HOW DO YOU VALUE A FOOTBALL CLUB: EXPERTS DISCUSS THE ODDS: BLADES AWAY
There is an interesting passage in the judgment in UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 2322 (Ch) in relation to experts. It is an interesting example of expert evidence of valuation in a, relatively unusual, case…
CIVIL PROCEDURE BACK TO BASICS 62: ASKING LEADING QUESTIONS WHEN INTERVIEWING WITNESSES – CAN (OR WILL) LEAD TO PROBLEMS
Examination in chief is rare in civil cases, many (perhaps most) practitioners will never have seen it done in court. There is a rule against asking leading questions when taking a witness through their evidence. There is a good reason…
REDACTION OF RELEVANT DOCUMENTS TO BE DISCOURAGED: THINGS COULD TURN OUT BADLY FOR THE REDACTOR
In Nicoll v Promontoria (Ram 2) Ltd [2019] EWHC 2410 (Ch) Mr Justice Mann was critical of a decision to redact elements of documents disclosed in an application to set aside a statutory demand. “unnecessary and inappropriate redactions are…
CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
AN ABSOLUTE CAR CRASH OF AN APPEAL: KNOW WHAT DOCUMENTS WERE BEFORE THE THE JUDGE – A BASIC ISSUE FOR ALL WOULD BE APPELLANTS
Appeals are always difficult. The appellate court has to be persuaded that the first-instance judge was “wrong”, and this is a fairly rigorous test. It is made far more difficult if the appellate court is given the wrong documents. Particularly…
PROVING THINGS 161: DOCUMENTS BEING DELIBERATELY DESTROYED AND EXPERTS WHO WERE OF VERY LIMITED ASSISTANCE
The judgment in Bajaj Healthcare Ltd v Fine Organics Ltd [2019] EWHC 2316 (Ch) is in what could appear to be a fairly dry dispute about the supply of goods. As the judge observed this was not a simple sale…
CIVIL CONTEMPT: THE KANGAROO COURTS OF THE JUSTICE SYSTEM: THE DANGERS OF NOT FOLLOWING THE CORRECT PROCEDURE
In January this year I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 11: PROCEDURE: AN EIGHT POINT SURVIVAL GUIDE
Here we have a short eight point guide on some of the key problem areas in relation to procedure once proceedings have been issued. Rule 1: Have everything ready pre-issue and have a plan. Effectively this means that you have,…
THE EXPERT AS ADVOCATE AND PROVIDING “CRITICAL COMMENTARY”: IMPORTANT POINTS ON THE ROLE OF THE EXPERT WITNESS TO TAKE AWAY
There are some interesting comments on experts in the judgment of Matthew Gullick (sitting as a High Court Judge) in Pepe’s Piri Piri Ltd & Anor v Junaid & Ors [2019] EWHC 2097. “It is not part of the duty…
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
BEING A LITIGATOR “WHAT I’D TELL A YOUNGER ME”: SUE HARRIS – DIRECTOR AT WALKER MORRIS
For this interview we move to Yorkshire, more specifically to Leeds and the offices of Walker Morris. Sue Harris is one of those energetic people who do a tremendous amount outside their work. A litigator who works in construction and…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
WHEN A SOLICITOR MAKES A WITNESS STATEMENT: STATE THE SOURCE OF INFORMATION AND DON’T GIVE “OPINION” EVIDENCE (IT REALLY DOESN’T GO DOWN WELL)
There are numerous examples on this blog of the difficulties that can occur when a solicitor makes a witness statement on behalf of their clients. The dangers are exemplified in the judgment of Master Marsh in Folgender Holdings Ltd &…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
DELAY OF 18 MONTHS IN GIVING JUDGMENT DID NOT UNDERMINE THE JUDGE’S VIEW AS TO CREDIBILITY
In Nuttal & Anor v Kerr & Anor [2019] EWHC 1977 (QB) Mr Justice Freedman rejected an argument that an excessive delay in giving judgment meant that the trial judge’s conclusions were innately unreliable. (The judgment also reviews the authorities…
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