ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice) [2017] EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course…
HOT TUBBING OF EXPERTS: NEW PRACTICE DIRECTION
The 93rd Update on Practice Direction Amendments also introduced a change in the rules as to concurrent evidence from experts. This gives the trial judge a considerable degree of flexibility about the way in which expert evidence is heard. These rules came…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE
We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence. “I start by asking myself this question:…
PROVING THINGS 78: AN ABSENT WITNESS IS NEVER GOING TO HELP: DEFENDANT’S FAILURE TO TAKE CONTEMPORARY STATEMENTS LEADS TO ADVERSE INFERENCES
In a talk today to a group of clinical negligence lawyers I discussed the issue of evidence, and “missing” documents and witnesses. In particular the relevance of Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 on the…
PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 5: REMEMBER JUDGES MAY BE TALKING ABOUT YOU: ADVICE FROM THE STREETS OF SAN FRANCISCO
Here we look at an interview with San Francisco Superior Court Judge, Curtis Karnow. The interview was about a book the judge had written “Litigation in Practice”, which is available in the UK. The original interview by is Ros Todd….
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
PROVING THINGS 76: A RECAP – I DIDN’T EXPECT TO GET THIS FAR…
Today saw the 75th in the series “proving things”. I never anticipated that the series would run so long, I initially planned around 10 posts. Now we have reached 75 (and with no plans to stop) this is an appropriate…
Proving things 74: WHEN YOUR EVIDENCE IS FAR FROM FABULOUS AND COMES WITH A “HEALTH WARNING”: APPLICANT’S CASE PUT BACK IN THE BOX
There is an interesting discussion of the evidence in the Upper Tribunal decision in Fabulous Collections Ltd v Smith (Valuation Officer), Re: 3 Poplar Arcade [2017] UKUT 452. A central part of an applicant’s case essentially disappeared on the morning of…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 4: THREATENING YOUR OPPONENT WITH A “PROCTOLOGY EXAMINATION” AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
This series is about learning from judges. Here I advocate (hopefully in a civil way) learning from one judgment. That is the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC….
PROVING THINGS 73: FORESEEABILITY: NOT A TEST SET IN STONE BUT A MATTER OF COMMONSENSE
Foreseeability of damages is one of those topics that takes up a lot of space in text books but is rarely an issue in practice. The question of foreseeability of damages did, however, form a part of the judgment we…
FINDINGS OF FACT AND EXPERT EVIDENCE: A JUDGE MAKES THE FINDINGS FIRST AND CONSIDERS THE EXPERT EVIDENCE NEXT
In Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch) Mr Justice Birss made some important observations about findings of fact and expert evidence. It shows the importance of primary findings of fact and the limitations of expert evidence. …
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
PROVING THINGS 72: THE BARRISTER’S LAMENT: BUNDLES WHEN THE CLAIMANT DOES THE DEFENDANT’S JOB FOR THEM
Much has been written on this blog about the preparation of bundles. Some bundles are prepared on the basis that every single disclosed document should be included. In doing so many claimants are causing harm to their own case. Disclosed…
SOCIAL MEDIA, DOCTOR FREUD AND “MARINATING IN A MUTUAL HATRED”: THE JUDICIAL USE OF FOOTNOTES
Regular readers of this blog will need little introduction to the work of Canadian judge J.W. Quinn. J. Here I look at the use of footnotes in his judgment in a family case of Bruni -v- Bruni in 2010 (this…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors [2017] EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of…
ADVOCACY – THE JUDGE’S VIEW: SERIES 2, PART 2: BEING PERSUASIVE: “CONVOLUTED ARGUMENTS ARE SLEEPING PILLS ON PAPER”
The second post in this series takes us to Washington. A detailed article by Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBridet called “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two…
BLACKPOOL CASE SHOWS THAT MEMORY IS NOT A ROCK – IT DEGRADES OVER TIME: “EMBELLISHMENT” OF A WITNESS STATEMENT RARELY HELPS
There have been 398 people who have looked at this blog directly from a link at Fansonline.net. This has little to do with the intrinsic fascination that football fans obviously have for civil procedure. It is more do do with…
WIKIPEDIA IN THE COURTS (SO FAR): MUSIC, BREWERIES, CANALS, DOG WHISTLE POLITICS AND GETTING TO THE HEART OF THE MATTER: SOME QUESTIONS TO BE ASKED
I have had to apologise in the past for taking small parts of a judicial judgment and scrutinising them closely in relation to matters of procedure or evidence. This apology is particularly apposite in relation to the judgment in Oldham Metropolitan…
PROVING THINGS 71: NO EVIDENCE AT ALL: NO DAMAGES AT ALL
In Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) we see another examples of a total failure to prove damages. I include it as another example of a party attending a hearing with no evidence at all to prove a…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
BUNDLES – AGAIN: BORROWING FROM THE COMMERCIAL COURT GUIDE
For many years a post on preparing a trial bundle was, by far, the most read post on this blog. I have re-visited the issue recently. It is worthwhile all practitioners having a look at the specific guidance on bundles…
BUNDLES: A QUICK REMINDER: SEDLEY’S LAW OF DOCUMENTS STILL APPLIES WITH SURPRISING REGULARITY
Over the past fortnight I have seen every one of Sedley’s Laws of Documents in action. This has prompted me to set out a quick reminder. Firstly of the Practice Direction and secondly of Sedley’s laws themselves. The “Laws” were…
ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying….
BEING A WITNESS IN COURT: “AVOIDING HUMILIATION”: USEFUL LINKS (VIDEOS TOO)
This idea for this post comes from another blog. Pink Tape has a recent post giving parents tips on giving evidence in court. This caused me to look at the assistance available generally. This is one part of the legal…
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
ATTACKING THE OTHER SIDE’S CREDIBILITY: DEFENDANTS ARE THE ARCHITECTS OF THEIR OWN DOWNFALL: SELF-SERVING STATEMENTS ARE TO NO AVAIL
There are a lot of reasons why litigators should read the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Not least is the judge’s assessment of the witness evidence…
HALLOWEEN FOR LITIGATORS: WHAT KEEPS LAWYERS AWAKE AT NIGHT? DEADLINES, SKELETONS, IMPOSTER SYNDROME & DEFENDANTS RISING FROM THE DEAD
I am not a great fan of Halloween. However when Jenna Kisala suggested there should be a post on “Halloween for Litigators”. I couldn’t resist the challenge. I then promptly delegated the task to Twitter. Here are the tweets so…
PROVING THINGS 68: CLAIM £4,177,782 RECEIVE £46,815: LEASE SAID SOONEST MENDED
If you are looking for a graphic example of a failure to prove damages you may well find it in the decision of Martin Rodgers QC in the Upper Tribunal (Lands) Chamber today in Bishop v Transport for London [2017] UKUT…
WHEN THE PLEADINGS SHOULD NOT NAME SOMEONE: HIGH COURT OBSERVATIONS
In Huda v Wells & Ors [2017] EWHC 2553 (QB) Mr Justice Nicklin made some observations that make it clear that it may be prudent for statements of case not to name vulnerable individuals. THE CASE The defendants set aside an…
BEHAVIOUR IN THE COURTROOM – IT GOES FURTHER THAN YOU THINK: SOME CASES AND SOME GUIDANCE
The vast majority of studies on behaviour in the courtroom concentrate on the interaction between the judge, the advocates and the witnesses. However the courtroom is a big place. Twice in recent weeks we have seen judges refer to the…
THE ASSESSMENT OF EXPERT EVIDENCE: HANDWRITING EVIDENCE ADMISSIBLE : THE JUDGE FELT HE WAS IN SAFE HANDS
The judgment of Mr Justice Jay in ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) is one that has already made headlines. There is much of interest. However, that part of the judgment that deals with the analysis of…
THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT
In Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 (Ch) Mr Justice Morgan considered issues relating to the standard of proof when there are allegations of dishonesty and fraud. Part of the judgment also deals with the…
WHEN THE CLAIMANT WAS REFUSED PERMISSION TO ACCEPT £300,000: WHAT HAPPENED NEXT? (THIS DOESN’T END WELL FOR SOMEONE)
Earlier this week there was a post on the case of Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) [2017] EWHC 1738 (Ch) in which a claimant was refused permission to accept an offer of £300,000 after…
EVIDENCE IN A CLINICAL NEGLIGENCE CASE: MISSING WITNESSES AND ERRANT EXPERTS: LIABILITY SHOULD HAVE BEEN ADMITTED EARLIER: ATTEMPT TO BACKTRACK FROM JOINT REPORT NOT SUCCESSFUL
The case of Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) is one where the defendant was, ultimately, successful on the issue of causation. However the judge had some interesting observations as to the expert evidence called by both…
WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME
We have already looked at judge’s observations as to the amount of material before the court in the case of Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and…
THIS IS A LOT OF MATERIAL FOLKS: ALL THIS INDUSTRY MAY NOT BE TO POINT: SEEING THE WOOD FOR THE TREES
In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) Mr Justice Turner made some observations in relation to the volume of documentation and the subsequent judgment. It is important, he said, for a judge to keep sight of the wood…
SOME WARNINGS AS TO EVIDENCE: A SYMPHONY REVIVED: HOW THE JUDGE CONDUCTS AN ASSESSMENT OF CREDIBILITY
The post yesterday on witness credibility in the case of Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) referred to a passage in the earlier case of EPI Environmental Technologies Inc v Symphony Plastic Technologies plc (Practice Note) [2005] 1 WLR 3456. This…
ASSESSING THE CREDIBILITY OF WITNESSES: PROBLEMS WITH INDEPENDENCE WHEN THE WITNESS REQUIRES A TRANSLATOR
Who is going to be believed? This is the central question in many (if not most) cases that go to trial. The judgment of Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) shows many of…
EXPERT REPORTS: “CONTENTIONS THAT SHOULD NEVER HAVE BEEN PURSUED AT ALL”
In Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” [2017] EWHC 1911 (Comm) Sir Michael Burton (sitting as a High Court Judge) commented on the expert evidence in relation to Russian law. The fact that an expert made concessions…
“MULTIPLE SERIOUS ERRORS” IN JUDICIAL DECISION MAKING : THE UPPER TRIBUNAL DECISION IN FULL
The case of AA069062014 & Ors. [2017] UKAITUR AA069062014 has already attracted considerable attention on social media and beyond. The Upper Tribunal (Immigration & Asylum Chamber) considered appeals in 14 cases. The major issue was the tribunal judge. Here are the…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION
I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client. These issues are shown in stark terms in the Practice Direction 51S – The County Court Online…
WHEN A JUDGMENT STARTS “OH DEAR, OH DEAR, OH DEAR”: CAR CRASHES AND MOTORWAY PILE UPS IN THE UPPER TRIBUNAL: UPPER TRIBUNAL JUDGE RENDERED SPEECHLESS
This blog sometimes looks at tribunal decisions, primarily in the context of procedural issues. These issues abound in the decision of Upper Tribunal judge Nicholas Wikeley in AF v Secretary of State for Work and Pensions (DLA) (No2) (Tribunal procedure and…
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