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…
CIVIL PROCEDURE BACK TO BASICS 26: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the discretion…
THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor [2019] EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an…
UNDERSTANDING LEGAL TERMINOLOGY: USEFUL GUIDANCE: IT DOESN’T ALL RES IPSA LOQUITUR YOU KNOW
The Radio 4 programme “Word of Mouth” had a programme last week on “legal language”: “demystifying the language of the court room”. This led one of the participants, barrister, author and blogger Lucy Reed to write a post “Why do…
ASSESSING WITNESS CREDIBILITY: EX-FOOTBALL CLUB DIRECTORS’ EVIDENCE: ITS ALL A LOAD OF COBBLERS
This blog has looked at issues of witness credibility many times. There is a useful summary in the judgment of HHJ Simon Barker QC in Northampton Borough Council v Cardoza & Ors [2019] EWHC 26 (Ch) contains a review of the…
LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
ELECTRONIC BUNDLES, WITNESSES AND THE TRIAL PROCESS: A WARNING FROM THE COURTS: SORT THIS OUT OR THE COURT WILL GO BACK TO PAPER BUNDLES
There is a warning to anyone considering the use of electronic bundles at trial contained in the judgment of Mr Justice Birss in Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch). THE CASE The judge…
INTRANSIGENT EXPERT’S APPROACH LEADS TO “SIGNIFICANT PART OF CLAIMANT’S CASE BEING STRUCK OUT”: A CASE FOR EVERY EXPERT AND LITIGATOR TO READ – NOW
The judgment of Mr Justice Males in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) is one of the most robust I have seen in relation to expert evidence. An expert’s failure to properly engage…
PROVING THINGS 138 : A WHOPPER OF AN OMISSION: McDONALD’S FAILS TO PROVE TRADEMARK RIGHTS TO “BIG MAC”: ADEQUATE EVIDENCE WAS NOT ON THE MENU
I am grateful to Yisroel for pointing out the decision of the European Union Intellectual Property Office in the “Big Mac” case. It is not my usual reading. However Yisroel points out that McDonald’s failed because of a basic failure…
EXPERTS IN THE FAMILY COURT: PERMISSION TO ADDUCE EXPERT EVIDENCE REFUSED
I usually look at cases in the family courts when there are judgments that may be of some interest to civil litigators. The judgment of Mr Justice Keehan in M v Derbyshire County Council & Ors [2018] EWHC 3734 (Fam) …
FATAL ACCIDENTS: AVOIDING THE PITFALLS: WEBINAR 29th MARCH 2019
I am presenting a webinar on avoiding the pitfalls in fatal accident claims on the 29th March 2019, 1 – 2 pm. The idea came about from of a number of search terms that led to this blog, including “fatal…
PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU
The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00. …
BREXIT AND CIVIL PROCEDURE: EXPERTS ARE NOT BE CROSS EXAMINED ON FORESEEABILITY OF UK LEAVING THE EU
This is a far less exciting case than the headline suggests, however it is the first case I have seen about the impact of Brexit on civil procedure (albeit indirectly). In Canary Wharf (Bp4) T1 Ltd & Ors v European Medicines…
WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS
This is the third post on this subject in one day. Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could be…
THE STATEMENT OF TRUTH AND WITNESSES WITH POOR ENGLISH: PRACTICE DIRECTION 22
The post earlier today about witness statements in a foreign language led (almost immediately) to a telephone enquiry as to what happens when a party cannot read or understand the statement of truth in a statement of case. The answer…
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