PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE
There has been much controversy recently about the need for cross-examination when allegations are made. I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
PROVING THINGS 134: WINNING A FEW BATTLES BUT LOSING THE WAR: ALL IS NOT ROSY IN THESE CLAIMANTS’ GARDEN
Law students have probably already been taught, and will be lectured for generations to come, about the implications of the Court of Appeal decision in Lejonvarn v Burgess & Anor [2017] EWCA Civ 254. If any of those law students plan…
CIVIL EVIDENCE AND LITIGANTS IN PERSON : THE DANGERS OF A JUDGE ASKING LEADING QUESTIONS
In Global Corporate Ltd v Hale [2018] EWCA Civ 2618 the Court of Appeal emphasised the dangers of a judge asking leading questions of a witness. It is a case that highlights the difficulties of trials involving litigants in person. THE…
A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…
a As a blogger feedback comes in many forms. Yesterday I had an email from a litigant in person. The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…
DOES WHAT YOU WEAR MATTER? GUIDANCE FOR ADVOCATES AND LITIGANTS
Does how you dress affect how you are perceived? A recent tweet (from the USA) contained a complaint from a lawyer that a judge had upbraided them in court for not wearing a tie. The lawyer asserted that there were…
LET US JUST IGNORE THE PLEADED CASE (MY PLEADED CASE ANYWAY): WHEN THE PARTIES COULDN’T EVEN AGREE ON A STATEMENT OF ISSUES
There is an interesting passage in the judgment of HHJ Klein (sitting as a judge of the High Court) in UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). It relates to the statements of…
SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY: A REMINDER OF PAST COMMENTS … SOME CHESTNUTS HERE
The Witness Evidence Working Group is carrying out a survey of the use of witness statements in the Business & Property Courts. Here I provide a link to the post and a reminder of the comments that some judges have…
PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…
THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
PROVING THINGS 132: BUNDLES, BURDENS OF PROOF AND GO-KARTS: CLAIMANT MANAGES TO CROSS THE WINNING LINE ON APPEAL
The judgment in Cowley Property Investment Ltd v Oxford Karting Ltd [2018] EWHC 2824 (Ch) contains a consideration of the rule that documents in an agreed trial bundle are admissible. It is a case all about proving things without calling evidence….
WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL [2018] EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often…
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
REVEALING THE TRUE IDENTITY OF A WITNESS IN CIVIL PROCEEDINGS: APPLICATION FOR ANONYMITY SCUTTLED
In the judgment today in Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2018] EWHC 2929 (Comm) Mr Justice Teare allowed an application by the defendants that the true identity of a witness be disclosed. The witness…
EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before…
UNDERSTANDING THE CODED LANGUAGE OF THE LEGAL DIRECTORIES: HUMBLEBRAGS AND BEYOND
This if the time of year that several legal directories are published. It leads to an inevitable pattern of behaviour. Thanks to law lecturer John Bates we can all now understand the coded language of the legal directory. THE PATTERN…
THE STATEMENT OF TRUTH: WHY YOU AND YOUR CLIENTS NEED REGULAR REMINDERS OF THE RULES & CASES
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill made some important observations that apply to every aspect of litigation. We looked at the case yesterday: a stark reminder was provided of the dangers…
THE STATEMENT OF TRUTH: THE COURTS SAY IT AGAIN – NOT TO BE TAKEN LIGHTLY
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill provides a clear and stark reminder of the significance of the statement of truth and need for all relevant parties to sign it….
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 6: SOMEWHAT DOWN AT HEEL: “BASICALLY – ITS JUST A LOT OF FANCY BOLLOCKS FOR SOME SHOES”
Our lawyers have yet to the decent thing and get fired. Both were in the losing team this week. Their entire team got called back in to get fired. Both survived. Their fancy high heeled shoe was beaten by a…
WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE
The post earlier today on the deficiencies in a witness statement that led to it being excluded provides a good opportunity to reprise certain key points. Not only was the excluded statement essentially “commentary” and “opinion” it also failed to…
WITNESS STATEMENT EXCLUDED BECAUSE IT WAS OF NO USE: THE DANGERS OF NOT KNOWING THE RULES RELATING TO WITNESS EVIDENCE
I have noted, many times, on this blog the dangerous tendency of some practitioners to conflate witness statements with submissions. Witness statements express opinions, comments on documents and the law and do not give the source of information and belief. …
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
PROVING THINGS 130: BY THE TIME OF TRIAL YOU SHOULD REALLY KNOW WHAT YOU HAVE LOST: SOME OF THESE CLAIMANTS MAY HAVE SUFFERED NO LOSS AT ALL
The final paragraphs of the judgment in Anderson & Ors v Sense Network Ltd [2018] EWHC 2834 shows that some of the claimants in that case were unable to establish their losses. Indeed two of the claimants may have suffered no…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
TRYING TO SNEAK EXPERT EVIDENCE INTO A WITNESS STATEMENT: PEOPLE MIGHT NOTICE: DEFENDANT’S ATTEMPT TO EXHIBIT EXPERTS STRUCK OUT
There have been numerous cases in which parties have attempted to give expert evidence in witness statements. Another example can be seen in the decision in New Media Distribution Company Sezc Ltd v Kagalovsky [2018] EWHC 2742 (Ch). An attempt to…
WITNESS STATEMENTS AND WITNESS EVIDENCE: DO YOU KNOW ABOUT CPR 32.5(4): “LATE EVIDENCE” SHOULD BE HARD TO ADDUCE
In the judgment today in The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD [2018] EWCA Civ 2342 the Court of Appeal allowed an appeal against a claimant being successful in a Section 33 application. There is an…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
AGGRESSIVE LITIGATION IS COUNTER-PRODUCTIVE: JUDGE REFUSES DEFENDANT’S APPLICATION TO STRIKE OUT WITNESS STATEMENTS (WITH A COMMENT, OR TWO, AMONG THE WAY)
I am grateful to barrister Adam Heppinstall for sending me a copy of the judgment of Mr Justice Fraser today in Bates -v- The Post Office [2018] EWHC 2968 (QB). This is a forceful judgment and what the judge had…
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…
You must be logged in to post a comment.