VERY LATE CHANGE FROM PART 8 TO PART 7: NUANCED CASE MANAGEMENT IN THE TCC
There is an interesting piece of case management in the judgment of Recorder Andrew Singer QC (sitting as a Judge of the Technology and Construction Court) in Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC). …
“RECKLESS EXPERTS”: SHOULDERING THE BLAME: WHEN THE EXPERT HAS NOT READ THE DOCUMENTS TO HAND
The judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) was looked at earlier. It made the point that “reckless” reporting by experts can lead to experts being in contempt of court. This led me to…
EXPERT EVIDENCE – SHOULD YOU FRET ABOUT WHAT THE EXPERT HAS QUOTED? I DON’T LIKE MONDAYS BUT YOU CAN KEEP THE GUITAR PARTS
In Moylett v Geldof & Anor [2018] EWHC 893 (Ch) Mr Justice Carr considered some aspects relating to the admissibility of expert evidence. Statements of others included in a report are not expert evidence, however the inclusion of those statements did…
USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…
The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge. The main difficulty was that the…
WHEN WITNESSES DID NOT ATTEND TRIAL 3: ADVERSE INFERENCES ARE DRAWN IN A CLINICAL NEGLIGENCE CASE
There are three cases today about the implications of witnesses not attending trial. This was an issue in Asante v Guy’s and St Thomas’ NHS Foundation Trust [2018] EWHC 2570 (QB). The absence of key witnesses from the defendant led…
WHEN WITNESSES DO NOT ATTEND TRIAL 2: ADVERSE INFERENCES CAN ALSO BE DRAWN FROM INADEQUATE DISCLOSURE
In Yuchai Dongte Special Purpose Automobile Company Ltd v Suisse Credit Capital (2009) Ltd [2018] EWHC 2580 (Comm) Christopher Hancock QC (sitting as a Deputy High Court Judge) stated that he could and would draw adverse inferences when a decision was…
WHEN WITNESSES DO NOT ATTEND TRIAL 1: WITNESS EVIDENCE NOT ALLOWED: A BROKEN FINGER IS NOT A GOOD EXCUSE NOT TO ATTEND COURT
This is the first of two posts today in relation to witnesses not attending to be cross-examined. In EC Medica Group UK Ltd & Ors v Dearnley-Davison & Ors [2018] EWHC 1952 (Ch) Kelyn Bacon QC (sitting as a Deputy High…
PROVING THINGS 129: IMPATIENT PATIENT DID NOT BREAK THE CHAIN OF CAUSATION: SUPREME COURT DECISION TODAY
The Supreme Court decision today in Darnley -v- Croydon Health Service NHS Trust [2018]UKSC 50 marks a development in the law of negligence, and also in relation to proving causation. “Far from constituting a break in the chain of causation,…
AVOIDING PROCEDURAL PITFALLS – AND PUTTING THEM RIGHT: WEBINAR 6th DECEMBER 2018: HELPING LITIGATORS SLEEP SOUNDLY AT NIGHT…
On the 6th December I am presenting a webinar “Avoiding Procedural Pitfalls and Putting Them Right”. The aim is to look at the key problem areas of civil procedure, how to avoid problems and how to rectify problems if things…
YOU’RE FIRED: A LITIGATION LAWYER ON THE APPRENTICE 2: TRICKY CROSS-JURISDICTIONAL ISSUES: OUR LAWYERS SURVIVE
I am glad to report that both lawyer and law student survived the first round of the Apprentice. They were not, it has to be said, not at the forefront of the programme. There was no sign of “laying down…
ADVISING YOUR CLIENT ON LITIGATION RISKS 2 & 3 : RISKING IT ALL ON A RECOLLECTION OF A MEETING & THE WITNESS WHO GIVES A WHOLLY NEW ACCOUNT FROM THE WITNESS BOX
The judgment in Slade (t/a Richard Slade And Co) v Abbhi [2018] EWHC 2039 (Comm) (24 September 2018) illustrates another risk of litigation. The risk of a witness giving a wholly new account whilst giving evidence at trial. THE CASE The…
“EFFICIENCY” AND THE COURT SYSTEM 3: WANT TO BE A LAWYER? BUY YOURSELF A SELFIE STICK
In the third (and I suspect not the last) I want to set out a series of tweets which arose from the earlier posts on this topic. There were a series of tweets about the problems caused by courts losing…
ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the…
WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS
In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes. …
BACK TO BASICS 15: CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A PRIMER
In the 10th post in this series I looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve…
ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE
A recent decision by the Bar Standards Board held that a barrister had not acted with reasonable competence when he failed to inform his client in relation to the risks of bringing a private prosecution. This decision highlights the need…
PROVING THINGS 127: WRITTEN CONTRACT – WHAT WRITTEN CONTRACT? APPLICATION FOR AN INJUNCTION FAILS WHEN CLAIMANT CANNOT PROVE A CONTRACT WAS EVER SIGNED
The judgment of HHJ Neil Bidder QC in Tenon FM Ltd v Cawley & Ors [2018] EWHC 1972 (QB) shows a failure by a claimant to prove the most basic of issues. The claimant could not establish that a defendant had…
PROVING THINGS 126: FAILURE TO PROVE DISHONESTY
The judgment in Autogas (Europe) Ltd v Ochocki & Ors [2018] EWHC 2345 (Ch) highlights the difficulties for a claimant who has to prove fraud as an essential element of their claim. The judgment also emphasises the needs to plead allegations…
DEALING WITH PROCRASTINATION: A POST I HAVE FINALLY GOT AROUND TO…
Every litigator, indeed every living being, has problems with procrastination. In civil litigation this can lead to major problems and is, if truth be known, responsible for a large number of procedural issues. Here we look at practical solutions to…
CIVIL PROCEDURE BACK TO BASICS 13: WHAT IS MEANT BY WITNESS “CREDIBILITY”? WHY THIS IS OFTEN CENTRAL TO A LITIGATOR’S WORK
Many civil cases turn on witness credibility, yet very little training and education is given to lawyers about assessing credibility. Every litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings…
AN EXPERT’S IMPARTIALITY CAN ONLY BE STRETCHED SO FAR: THE COURTS HAVE SAID THIS TYNE AND TYNE AGAIN
I am grateful to barrister Charles Holland for sending me a copy of the decision of District Judge Meek in Endless Stretch -v- Newcastle County Council. A copy can be found in the link on this page. This case is…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
DRAWING ADVERSE INFERENCES WHEN WITNESSES ARE ABSENT: COURT OF APPEAL DECISION TODAY: COURT HAS A DISCRETION AS TO THE INFERENCES TO BE DRAWN
I am grateful to barrister Luka Krsljanin for sending me a copy of hte Court of Appeal decision today in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. The Court rejected an argument that the trial judge…
PROVING THINGS 124: “PUT BLUNTLY: THAT EVIDENCE IS WHOLLY INADEQUATE”: DEFENDANT’S EVIDENCE ON AN INJUNCTION APPLICATION
In Jahangiri v St. George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 (QB) Mr Justice Nicklin observed that witness evidence put forward by the defendant was far from adequate. “The Court is best assisted when the evidence of someone who…
WHO SIGNED THE STATEMENT OF TRUTH? THIS COULD BE A VERY IMPORTANT QUESTION: TICKING A BOX IS NOT SUFFICIENT
I am looking again at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). Here we look at the crucial question of who signed the statement of truth. A difficult concept when a claim form…
PROVING THINGS 123: THE PERSONAL INJURY CLAIMANT WHO COULD NOT SAY WHETHER OR NOT HE HAD BEEN INJURED
We looked at the case of Kavak v FMC – HHJ Pearce Manchester CC 24.04.18) in an earlier post, primarily in the context of re-allocation. However that case provides a clear illustration of a failure to prove a basic element of…
CHANGING TRACK AFTER TRIAL: CLAIM RE-ALLOCATED FROM FAST TRACK TO SMALL CLAIMS TRACK: CLAIMANT CONFINED TO SMALL CLAIM TRACK COSTS
I am grateful to Michael Cordeux from Plexus Law for sending me a copy of the decision of His Honour JudgePearce, sitting in the Manchester County Court, on the 9th April 2018. It is an example of how a case…
THE KIMATHI DECISION 5: REVIEW OF SECTION 33 PRINCIPLES: WHY LIMITATION WASN’T HEARD FIRST
This is the fifth in the series that looks at the decision of Mr Justice Stewart in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). The judgment contains a useful review and survey of Section 33 and…
THE KIMATHI DECISION 4: THE APPROACH TO WITNESS EVIDENCE: MEMORIES ARE FLUID AND MALLEABLE: SOME KEY POINTS ON GESTMIN
This is the fourth in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). The trial judge was looking at evidence of matters that had happened some 50 years earlier,…
PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE
Many cases rest on the credibility of witnesses. A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation…
YOU’VE STARTED SO YOU’LL FINISH: MASTER SETS ASIDE NOTICE OF DISCONTINUANCE SERVED BY INSURER
In Advantage Insurance Co Ltd v Stoodley & Anor [2018] EWHC 2135 (QB) Master Davison set aside the claimant’s notice of discontinuance made after reading the defendant’s additional written submissions after a hearing. The notice of discontinuance was viewed as “tactical….
LAWYERS (& OTHERS) – WHY YOU SHOULD WATCH WHAT YOU SAY IN THE PUB: LEGAL PROFESSIONAL PRIVILEGE OUSTED BY INIQUITY OF ADVICE GIVEN
In the judgment today in X v. Y Ltd (PRACTICE AND PROCEDURE – Disclosure) [2018] UKEAT 0261 Mrs Justice Slade held that an email marked “Legally Privileged and Confidential” did not have the protection of professional privilege. The judgment also shows…
THE KIMATHI DECISION 3: THE EVIDENCE GATHERING PROCESS, STANDARD QUESTIONNAIRES AND THE USE OF LEADING QUESTIONS
This is the third in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). Here we look at the evidence gathering process, in particular the use of questionnaires and the…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
THE KIMATHI DECISION 1: PLEADINGS ARE NOT EVIDENCE
The judgment in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB) came after a trial that commenced in May 2016 and lasted until June 2018. It contained a whole range of issues in relation to procedure…
CHANGING WITNESS STATEMENTS: COMPARE AND CONTRAST: EDITING STATEMENTS CAN AFFECT CREDIBILITY
The judgment case of ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust [2018] EWHC 2010 has an interesting passage on witness statements. It is an example of how early witness statements that were not initially disclosed can…
CIVIL PROCEDURE: BACK TO BASICS 10: CHALLENGING THE AUTHENTICITY OF DOCUMENTS MUST BE DONE PROMPTLY: COURT REFUSES LATE APPLICATION – DENTON CRITERIA APPLIED
There is a short addendum to the judgment of Lionel Persey QC (sitting as a High Court Judge) in Lloyd v Kruger [2018] EWHC 2011 (Comm). This deals with a very late application by the claimant to assert that documents were…
CIVIL PROCEDURE:BACK TO BASICS 9: THE COURT NOT ENTITLED TO REJECT WRITTEN EVIDENCE UNLESS IT IS “SIMPLY INCREDIBLE”
There is a short passage in Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court), that serves as a reminder of a basic principle in interlocutory proceedings – a court will not…
PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN
Yesterday I looked at Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) and the comments from the judge in relation to the joint statement of experts. The case also contains interesting observations in relation to proving damages. These are observations on matters…
EXPERTS, LAWYERS & THE JOINT REPORT (II): NO SUBSTANTIVE INPUT FROM LAWYERS PLEASE
This is the second case today looking at observations made in cases this week in relation to the joint meeting of experts. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) HH Honour Judge Stephen Davies stated…
EXPERTS, LAWYERS AND THE JOINT-REPORT (1): JUST ONE AGENDA PLEASE
Curiously there are two cases today that deal with the role of lawyers and the joint report. The first I will look at is the judgment of Mrs Justice Yip in Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB)….
ADVOCACY THE JUDGE’S VIEW: SERIES 3 PART 7: LADY JUSTICE MACUR: NOT DIVERTING FROM A SCRIPT AND STATEMENTS OF PRINCIPLE THAT POSE AS QUESTIONS
In this post I am recommending you read an interview with Lady Justice Macur by the Law Society “the art of good advocacy”. This is an interview following a seminar with the same name given in April 2016. Remember these…
PROVING THINGS 120: PROVING DAMAGES: THE DANGERS OF NOT HAVING A CREDIBLE “FALL BACK” POSITION
In Moore & Anor v National Westminster Bank [2018] EWHC 1805 (TCC) Mr Justice Birss dismissed an appeal by the defendant against an award of £115,000 in damages. It is a case about the appropriate assessment of damages when the defendant…
PROVING THINGS 119: WITNESSES & EXPERTS : “IN A CASE OF FAIRLY REMARKABLE REPORTS, THIS WAS THE MOST EXTRAORDINARY”
If you want to see an example of problematic witness statements, and even more problematic expert witnesses, then read the judgment of Mrs Justice Jefford DBE in Castle Trustee Ltd & Ors v Bombay Palace Restaurant Ltd [2018] EWHC 1602 (TCC). …
PROVING THINGS 118: IT SEEMS THAT EVEN THE LORD CHANCELLOR DOESN’T KNOW HOW TO PROVE THINGS: “THAT FINAL SENTENCE WAS BOTH INACCURATE AND MISLEADING”
A body charged with the delivery of legal services to some of the most vulnerable people in our society (and which, incidentally, is in charge of the justice system) should be making decisions that are logical and justifiable – you…
ADVOCACY: THE JUDGE’S VIEW SERIES 3 PART 6: MAY IT PLEASE YOU, MADAM: STORIES THAT EVERY LITIGATOR NEEDS TO KNOW…
In the sixth in this series we a looking at “May it please you Madam” by retired District Judge Neil Hickman. This is not designed as a guide for advocates, indeed the subtitle is “A little book of legal whimsy”. …
THE “TRUE VOICE OF THE WITNESSES ARE NOTABLY LACKING FROM THEIR WITNESS STATEMENTS”: INORDINATE AMOUNT OF TIME & COSTS SPENT FOR NO GOOD REASON
In Estera Trust (Jersey) Ltd & Anor v Singh & Ors [2018] EWHC 1715 (Ch) Mr Justice Fancourt made some telling observations about the usefulness of witness statements prepared for the case. This is a common observation in relation to witness…
PROVING THINGS 117: A DISHONEST POLICE OFFICER IS “MALICIOUS”: PROVING A CASE FOR MALICIOUS PROSECUTION AND MISFEASANCE IN PUBLIC OFFICE
In the judgment in Rees & Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 the Court of Appeal overturned a finding that a police force was not liable for malicious prosecution and misfeasance in public office because…
COURTESY, CONDUCT AND LITIGATION: A ROUND UP OF THE POSTS
Last week I set out the responses on Twitter about professional courtesy and conduct. This is a good opportunity to recap on the four posts on this subject. “AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED…
PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”
The judgment in Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong. “I am sure she is an honest person, but…
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