FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started…
WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”
Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…
FIFTH BIRTHDAY REVIEW 7: THE “BACK TO BASICS” SERIES
I am looking back at the posts that have been part of a series over the past five years. The “Back to Basics” posts are part of a series that is very much ongoing. The aim of each post is…
MORE ABOUT WITNESS STATEMENTS AND THE ICI CASE: WHEN EVIDENCE IS NOT ADMISSIBLE AND (WHEN IT IS) IT IS NOT RELIABLE
We are looking again at aspects of the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).The previous post in this case looked at the “duplicate” witness statements of the defendant. Here…
FIFTH BIRTHDAY REVIEW 5: THE JUDGE’S GUIDE TO ADVOCACY SERIES: TWO AND A HALF DONE
There are two completed series on judge’s guide to advocacy – and we are part way through the third. There is still plenty of material available and I wouldn’t be surprised if there is a fourth series. Advice has been…
WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
5th BIRTHDAY REVIEW 4: AVOIDING PROBLEMS AFTER MITCHELL: LIVING IN THE SHADOW OF THE BIKE
It is universally recognised that the Court of Appeal judgment in Mitchell was a mistake. The Master of the Rolls stated that the decision in Mitchell decision led to a “febrile atmosphere” leading to “unreasonable decision making”. There were 219…
5th BIRTHDAY REVIEW 3: AVOIDING NEGLIGENCE CLAIMS
This is the third post that looks back at series of posts over the past five years. The series on avoiding negligence claims was written at the end of 2013. The emphasis was on avoiding negligence claims, particularly for personal injury…
CIVIL LITIGATION BRIEF FIFTH BIRTHDAY CELEBRATIONS 1: POSTS ABOUT STRESS AND WORKLOAD FOR LITIGATORS AND LITIGANTS
This week sees the 5th anniversary of the start of Civil Litigation Brief as a blog. I am marking this by going over some of the key series of posts over the five year period. Here I recap on those…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
PROVING THINGS 114: A WITNESS OF FACT CANNOT GIVE EXPERT EVIDENCE: NO ADMISSIBLE EVIDENCE OF ANY LOSS
There are several elements worth looking at in the judgment in Wessely & Anor (Liquidators of Laishley Ltd) v White [2018] EWHC 1499 (Ch). However it is a prime example of a simple failure to prove things. If the applicants had…
PROVING THINGS 113: POOR EVIDENCE COLLECTION: EXPERTS STRAYING WELL BEYOND THEIR REMIT AND WHO ARE “NOT ENTITLED TO REACH THAT CONCLUSION”
Family cases, however, often come up with interesting observations in relation to the judge’s role as a fact finder. Similarly much can be gained by looking at the judge’s observations on experts. We see a critique of the process of…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
THE NATURE OF EXPERT EVIDENCE: THIS IS NOT EXPERT EVIDENCE AT ALL – AND OF NO HELP TO ME: JUDGE NOT IMPRESSED BY “ATTACHMENT THEORY”
It is rare for the court to reject “expert” evidence placed before it on the grounds that it is not expert evidence at all. This is rarer still now that permission is normally required before expert evidence can be adduced. It…
PROVING THINGS 112: ITS NO USE JUST WAVING ACCOUNTANT’S REPORTS AROUND
In Berkshire Homes (Northern) Ltd v Newbury Venture Capital Ltd [2018] EWHC 938 (Ch) the respondent relied on accountant’s reports in an attempt to prove its case. The case shows that it is insufficient just to produce accounts. Evidence has to…
APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED
In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence. It is a a case that highlights the difficulties of…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
RISK ASSESSMENTS AND THE PERSONAL INJURY LAWYER: IF YOU COULDN’T MAKE THE LECTURE – SEE THE WEBINAR: 10th JULY 2018
I am giving a webinar on the 10th July 2018 at 1.00 pm “Risk Assessments and Personal injury Claims : A Blueprint for action”. “Risk assessments are meant to be an exercise by which the employer examines and…
PROVING THINGS 108: PROVING PROFESSIONAL NEGLIGENCE WITHOUT EXPERT EVIDENCE
In Avondale Exhibitions Ltd v Arthur J. Gallagher Insurance Brokers Ltd [2018] EWHC 1311 (QB) His Honour Judge Keyser QC (sitting as a Judge of the High Court) considered the issue of whether it was necessary to adduce expert evidence to…
PROVING THINGS 107: PROVING A “STAGED CRASH” TO THE CRIMINAL STANDARD: CCTV EVIDENCE PROVIDES CONVINCING EVIDENCE
In Aviva Insurance Ltd v Nazir & Anor [2018] EWHC 1296 (QB) His Honour Judge Gosnell (sitting as a Deputy High Court Judge) found the two defendants in contempt of court when they had taken part in a staged crash and…
WITNESS STATEMENTS AND COST BUDGETS: “THEY WILL HAVE BECOME AN ARTIFICIAL CONSTRUCT OF THE LAWYERS”
There are some interesting observations in the judgment of Chief Master Marsh in Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch). The way in which a witness statement is likely to be drafted can be considered at the cost budget…
PROVING THINGS 106: YOU DIDN’T COMPLY WITH YOUR OWN RISK ASSESSMENT AND YOU WANT TO APPEAL: COURT REJECTS DEFENDANT’S ARGUMENT THAT CLAIMANT FAILED TO PROVE CAUSATION
In CC v Leeds City Council [2018] EWHC 1312 (QB) Mr Justice Turner reiterates the importance of the risk assessment in personal injury litigation. On appeal the judge rejected an argument that a claimant had failed to prove causation. The defendant’s…
PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 104: “THERE IS NO EVIDENCE BEFORE ME AS TO HOW THE PLAINTIFF WOULD PROVE THE EXISTENCE OF A GHOST”
I don’t normally travel too far from England and Wales in the Proving Things series. However a kind reader sent me an article on the Canadian decision in Ont. Inc. v K-W Labour Association et al, 2013 ONSC 5401 (CanLII). It…
PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS
There is an interesting consideration of causation in the Court of Appeal judgment today in Clay v TUI UK Ltd [2018] EWCA Civ 1177. This has the flavour of a case that may go further. There is an interesting dissenting judgment…
PROVING THINGS 1O2: FAILING TO PROVE CHANCE OF RECONCILIATION
A claimant in a fatal accident claim does not have to prove an entitlement to a dependency claim on the balance of probabilities. The court can, in appropriate cases, look at the case on the basis of loss of chance,…
PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since…
EXPERTS AS ADVOCATES FOR THE CLAIMANTS’ CAUSE: WITNESSES WHOSE EVIDENCE WAS VERY DIFFERENT TO THEIR WITNESS STATEMENTS
I am grateful to Dominic Regan for sending me a copy of the judgment of Mrs Justice Andrews today in Gee -v- Depuy International Ltd [2018] EWHC 1208. The judgment is 762 paragraphs long and will be widely read by…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have…
BUNDLES: CREDIT WHERE CREDIT IS DUE: CORE BUNDLE OF EVIDENCE DRAWS THANKS FROM THE TRIAL JUDGE
Most of the posts on bundles on this blog have been judges complaining about their quality or quantity. It is worthwhile looking at the observations of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB) (of which…
PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT
In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 4: A VIEW FROM THE CLERK’S BENCH: MANNERS MAKETH THE ADVOCATE
In this post I am recommending you read “The Art of Advocacy: Twenty Tips for your First Court Appearance” a post on the “Survive Law” blog. Unlike the other posts in these series this is written by Jennifer who was a…
PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT
One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness. Litigants can (and often do) have strong views about the case and what they said and did. The fact that…
I’M NOT TAKING A PLEADING POINT – BUT: FAILURE TO PUT A POINT IN CROSS-EXAMINATION NOT FATAL TO CLAIMANT’S CASE
The judgment in Auckland v Khan & Anor [2018] EWCA Civ 1148 is in short form. However it does illustrate the difficulties of appealing on “pleading points” and findings of fact. “There are certainly cases in which the failure to put…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
PROVING THINGS 95: OH… WHY A COMBATIVE EXPERT WITNESS NEVER HELPS: LEAVE ADVOCACY TO THE ADVOCATES…
Crown Office Chambers have a short post on their website that deals with the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. The post provides a link to the judgment itself. The judgment is another example of a…
PROVING THINGS 94: : THE DEFENDANT WANTS TO CHOOSE BOTH THE CLAIMANT’S LITIGATION FRIEND AND SOLICITOR: EVIDENCE IN SUPPORT FAR FROM COMPELLING
There are some audacious applications. However an application by defendants that attempts to dictate who the claimant’s litigation friend should be, and who their solicitor should be, should – at the very least – be backed up by firm evidence. …
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
CIVIL PROCEDURE – BACK TO BASICS 7: BUNDLES: A CHANCE TO REVISIT “SEDLEY’S LAWS”
If there is a league for blogs with the most number of posts about bundles then Civil Litigation Brief may well be in the top 10 (sadly I suspect even in the top place). There is a reason for this….
PROVING THINGS 92: WHERE THE CLAIM FOR DAMAGES WAS LARGELY “WISHFUL THINKING”: £1 MILLION CLAIM REDUCED TO £25,104 (OH & THROW IN A ERRANT EXPERT AS WELL)
The judgment of John Martin QC (sitting as a High Court judge) in London College of Business Ltd v Tareem Ltd & Anor [2018] EWHC 437 (Ch) is a prime example of a failure to prove damages. The claim was…
WHAT IS THE DIFFERENCE BETWEEN “KNOWLEDGE” AND “BELIEF”? A CASE AND A REVIEW OF 10 KEY POINTS
This blog has looked, many times, at the importance of giving the source of information and belief when a party (and particularly when a legal representative) makes a witness statement. It is sometimes possible for you opponent to attempt to…
PROVING THINGS 91: HOW TELLING IS A “FIST BUMP”? A JUDGE NOTICES THINGS THAT GO ON OUTSIDE THE WITNESS BOX
There are a number of issues that arise in the judgment of Mrs Justice Yip in the judgment today Clark v Farley & Anor [2018] EWHC 1007 (QB). It shows how how a defendant failed to prove its case and the…
NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT
In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002]…
LATE SKELETON ARGUMENTS AND LATE EVIDENCE: THE GOVERNMENT SHOULD DO BETTER: DIVISIONAL COURT DECISION: A TEXTBOOK EXAMPLE OF WHAT NOT TO SAY AND DO
In The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Procedural Matters) [2018] HC 976 (Admin) the Divisional Court took care to file a supplemental judgment that dealt…
VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS
The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses. There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here…
CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial…
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