A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
CIVIL PROCEDURE BACK TO BASICS 36A: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
THE ASSESSMENT OF EXPERT WITNESS CREDIBILITY: THE EARLIER THE BETTER (PARTICULARLY IF IT COSTS SOMEONE £7.5 MILLION)
The judgment of Mr Justice Snowden in Davey v Money & Anor [2019] EWHC 997 (Ch) will, no doubt, be read anxiously by all litigation funders. The judge held that the “Arkin cap” – a limit on the liability of…
RECORDINGS ARE DOCUMENTS: AN APPROACH TO EVIDENCE THAT WAS UNSATISFACTORY
In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court. It provides a…
CIVIL PROCEDURE BACK TO BASICS 36 : WHAT TO DO WHEN A PROPOSED DEFENDANT HAS DIED AND THERE IS NO GRANT OF PROBATE
A search term that arrived on this blog earlier today asked “how to you sue a dead person?” The basic answer is that you can’t. You have to sue their executors or administrators. The problem arises when probate has not…
CIVIL PROCEDURE BACK TO BASICS 35: WITNESS CREDIBILITY: MORE THAN MEMORY OR HONESTY
The question of witness credibility is often the central issue of most cases that get to trial. Surprisingly it is a matter that barely features in legal education. A knowledge of the factors that a judge will take into account…
CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS
The maker of a witness statement must given the source of their information or belief. This obligation is often overlooked, or simply paid lip service to. However the careful following of this rule could prevent many of the common problems we…
LAWYERS: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Last night I did a post on using social media to help young lawyers (and some not so young lawyers). Specifically on how it is possible to gather information and advice from around the professions (and indeed around the world)….
SOCIAL MEDIA AS A SOCIAL GOOD:WE’RE LOOKING FOR ADVICE FOR LAWYERS WHEN THE SKY FALLS IN
Two posts last weeks dealt with the hundreds of replies I got when I asked on Twitter what advice should be given to smooth the path young or aspirant lawyers. This led to wider coverage than I could have imagined…
APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS
In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements…
WHEN AN EXPERT RELIES ON MATTERS FROM THE INTERNET FOR MATTERS OUTSIDE THEIR EXPERTISE THEN YOUR CASE IS LIKELY TO FALL APART: THE CIDER HOUSE RULES
I am returning to the decision of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch). Here was are looking at the judge’s view of one of the experts….
GIVING EVIDENCE AT TRIAL: JUST BECAUSE THE COURT HAS SAID YOU MAY – IT DOESN’T MEAN YOU WILL: HOW TO FAIL OF YOUR OWN ACCORD
Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying…
YOU SPEND A FORTUNE ON EXPERT WITNESSES AND THEN FIND OUT THAT THEY ARE NOT ADMISSIBLE OR THEIR EVIDENCE ISN’T “EXPERT” AT ALL
There are parts of the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch) that merit close consideration by anyone involved in litigation that (they…
WITNESS STATEMENTS: THE IMPORTANCE OF THAT “FIRST DRAFT”
If you think “first drafts” of witness statements are not that important it is worthwhile having a look at the judgment of Mrs Justice Whipple in PPX v Aulakh [2019] EWHC 717 (QB). It is also an example of a…
A WITNESS STATEMENT IS NOT A PLACE TO VENT YOUR SPLEEN: “DEPLORABLE PERSONAL ATTACKS” COULD HAVE AN EFFECT ON COSTS
There is a short closing remark in Mr Justice Mostyn’s judgment in Rothschild v Charmaine De Souza [2018] EWHC 1855 (Fam) that shows the danger of including personal attacks in witness statements. It is comforting to see how often this type…
BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA
I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp (7th December 2018). The judgment deals with the issue of the relevance…
JUDICIAL FOOTNOTES: I’LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The previous post on the judgment of Canadian judge J.W. Quinn. J. led (believe it or not) to a heated – and I hope not entirely serious – discussion between some of hte lawyers on which was the best footnote…
“LEAVE AN UNTRUTHFUL MAN IN THE WITNESS BOX LONG ENOUGH AND HE WILL REVEAL HIMSELF TO THE WORLD”: WHEN A WITNESS FALLS..
I have lost count of the number of times people have asked me where they can find that “Canadian” case “you know, the one with the judge”. It is a case about witness credibility, in a blunt style. The Hearing Clinic…
SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…
WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…
WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL
The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered by the entire profession. Particularly those who draft statements, and those…
WHAT IS THE ROLE OF THE LITIGATOR? WHAT HAPPENS WHEN YOU RAISE A RHETORICAL QUESTION ON TWITTER..
There was much serious material being discussed at the Legal Futures Civil Litigation Conference yesterday. As best I could I was tweeting observations from the day. I tweeted the rhetorical question asked by Luke Tucker Harrison “What is the role…
PROVING THINGS 146: NO EVIDENCE AT ALL TO PROVE A LOSS, OR THAT THE DEFENDANT CAUSED ANY “LOSS” (THIS IS BECOMING A FAMILIAR STORY)
The number of people who are willing to commit to large scale, and expensive, litigation without having the basic evidence to prove their case on damages has proven to be a staple fare for this series. Another example is the…
SHOULD AN ERRANT EXPERT GO TO JAIL? COURT OF APPEAL DECISION: MAKING A FALSE STATEMENT SHOULD LEAD TO JAIL
In Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 the Court of Appeal set out clear guidance for courts considering sentencing in cases relating to reckless contempt on the part of expert witnesses. A “reckless” statement made…
THE POST OFFICE CASE (AGAIN): STRIKING OUT PASSAGES IN WITNESS STATEMENTS: THE DEFENDANT WITH SUPERNATURAL POWERS
For the third time today I am writing about the case of Bates & Ors v Post Office Ltd [2018] EWHC 2698 (QB). However we are now looking at the earlier interlocutory application by the defendant to strike out large parts…
ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER
The judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) is 1122 paragraphs long, following a two week long trial. There are aspects of this case I will look at again. However, it is interesting…
GIVING NOTICE THAT YOU ARE GOING TO ATTACK AN EXPERT’S CREDIBILITY: ISSUES THAT ARISE WHEN EXPERT’S HAVE PRIOR DEALINGS WITH THE PARTIES
In Hamad M. Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 574 (TCC) Sir Antony Edwards-Stuart expressed concern about an attack on the credibility of an expert witness. In that case there was no evidence to support an assertion that…
PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
CIVIL PROCEDURE BACK TO BASICS 33: INVALUABLE GUIDANCE ON EXPERT EVIDENCE FROM THE ICCA
The Inns of Court College of Advocacy has prepared a very useful guide called “Guidance on the preparation, admission and examination of expert evidence”. It is free of charge and can be downloaded . This post is just a summary…
PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)
In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
WHEN WITNESSES GO “UP HILL AND DOWN DALE” IN AN ATTEMPT TO JUSTIFY THE UNJUSTIFIABLE: TIME TO LOOK AT THE WAY STATEMENTS ARE PREPARED
The judgment of HHJ Stephen Davies (sitting as a judge of the High Court) in Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC) shows why witness statements should be considered carefully prior to…
WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS
In Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…
COURT REFUSED TO ORDER THAT CONTESTED EVIDENCE BE REMOVED FROM EXPERT REPORTS
In A v B [2019] EWHC 275 (Comm) Mrs Justice Moulder refused the defendant’s application to declare inadmissible part of an expert report and a joint expert report. It was held that the principles in Rogers -v- Hoyle are of general…
“IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE, THIS IS IT”
The judgment in Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin) sets out a series of surprising events. Mrs Justice Andrews came down very firmly against granting relief from sanctions. Many of the…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
VIEWING THE WOOD FROM THE TREES: ASSESSING WITNESS CREDIBILITY: A “CUT OUT AND KEEP” GUIDE
The judgment of Teare J in Deripaska and Danilina v Chernukhin case [2019] EWHC 173 (Comm), is (at present) only available via a link on the Serle Court website. It is useful in that a few paragraphs encapsulate the judicial approach to…
PROVING THINGS 140: SPECULATIVE EVIDENCE NOT ENOUGH TO PROVE A “LOSS OF CHANCE”
In Dymoke v Association for Dance Movement Pyschotherapy UK Ltd [2019] EWHC 94 (QB) Mr Justice Popplewell found that a claimant had not adduced sufficient evidence to prove a “loss of chance” in a claim for damages. This shows that a…
CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL
We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge. It is worthwhile looking at the guidance and cases on this…
LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is, involved in the art of persuasion. Litigation is fundamentally about the art of persuasion. Persuasion is a litigator’s daily task: in correspondence, on the phone, with opponents. It is wrong to confine the consideration of this essential skill…
WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT
For the third (and last) time I am returning to the judgment of HHJ Halliwell in Currie v Thornley & Anor [2019] EWHC. 172 (Ch). This time the judge’s observations in relation to witness statements. Using witness statements to “argue” the case…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
HAVING A COPY OF WITNESS STATEMENTS AVAILABLE AT COURT: IT IS IN THE RULES
One other aspect of the decision in Prosser v British Airways Plc [2018] EW Misc B13 is worth noting. There was a rare reference to the requirements of CPR 32.13(1). Copy witness statements must be available at the trial for inspection. …
PROVING THINGS 139: WHEN THE JUDGE HAS TO DECIDE WHETHER ITS ALL BEEN A BIT OF A CRUSH
Most of the cases looked at in this series are decisions in the High Court. However issues of witness credibility and accuracy are a constant issue throughout virtually every layer of court and tribunal. In Prosser v British Airways Plc [2018]…
CIVIL PROCEDURE BACK TO BASICS 28: EXHIBITS TO WITNESS STATEMENTS AND AFFIDAVITS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT
One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement. This can (and does) happen even when the statement states, expressly, that the maker…
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