PROVING THINGS 67: THE DIFFICULTIES WHEN WITNESSES DEPARTS FROM THEIR WITNESS STATEMENT: MULTIPLE INCONSISTENCIES DAMAGE CREDIBILITY
I am grateful to my colleague Colm Nugent for sending me a copy of the decision in Baker -v- British Gas Services (Commercial) Limited [2017] EWHC 2302. Amanda Yip QC (sitting as a Deputy Judge of the High Court*), considered…
WHEN ONE EXPERT TELLS THE OTHER EXPERT TO “GO BACK TO SCHOOL”: CASES ON CONDUCT AND THE MEETING OF EXPERTS
The case of Hatfield -v- Drax Power Ltd (18/08/2017)* highlights some of the issues that arise in the meeting of experts. The meeting is an important stage in many types of action, however the case law and rules relating to it…
AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”: THIS DOESN’T END WELL
Problems caused by expert witnesses feature heavily on this blog. I am grateful to barrister Brian McCluggage for sending me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which contains robust…
ASKED TO SIGN A GUARANTEE: WORDS OF WISDOM
It is rare for a judgment to include clear guidance to the public on how to avoid problems. However this can be found in the judgment of Mr Justice Max Barrett in AIB Plc. -v- Rostaff Property Development Limited & ors…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
THE DUTIES OF A SOLICITOR IN LITIGATION: NO DUTY TO TEMPT THE CLIENT TO PURSUE LARGE SUMS: ADVERTISING “TURNED THE CLIENT’S HEAD” AND LED TO INCORRECT ASSERTIONS
In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 the Court of Appeal considered the extent of a solicitor’s duty and retainer. It is significant in that it: States that the courts should approach the issue of fixed…
NO SPECIAL FORM OF “MEDIATION PRIVILEGE”: MEDIATION AGREEMENT DID NOT OVERRIDE GENERAL PRINCIPLES PREVENTING WITHOUT PREJUDICE COMMUNICATION BEING USED A A FORM OF BLACKMAIL
The decision of Mrs Justice Rose in Interactive Technology Corporation Ltd v Ferster & Ors [2015] EWHC 3895 (Ch) considers the issue of “mediation privilege”. This is not a new case (the judgment was dated 21st December 2015) however it has…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
EXPERT WITNESS GIVEN “NO WEIGHT AT ALL”: FAILURE TO DISCLOSE A CONFLICT OF INTEREST
There are some interesting passages in the judgment of David Stone (sitting as a Deputy High Court Judge) in Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor [2017] EWHC 2142 (Ch). Here we look at the judgment…
SOMETIMES YOU DON’T HAVE TO SIGN STATEMENTS OF CASE WITH A STATEMENT OF TRUTH: HIGH COURT DECISION ON AMENDING PARTICULARS OF CLAIM
The case of Kimathi v Foreign and Commonwealth Office [2017] EWHC 2145 (QB) promises to be a legal epic. As I understand it the trial is not even half way through. It was opened in April 2017. It is unlikely…
PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor…
WITNESS STATEMENTS “INADMISSIBLE”: CONTAINED “SUBJECTIVE INTENTION”, “OPINION” AND “LEGAL ARGUMENT”: ANOTHER EXAMPLE
A brief passage under the judgment of Mr Justice Arnold in Takeda Pharmaceutical Company Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch) serves to show how much “witness evidence” served by a litigant can, in fact, be inadmissible….
WITNESS EVIDENCE: THE DANGERS OF OPINION EVIDENCE AND TRYING TO USURP THE ROLE OF THE JUDGE : BACK TO MARSH -v- MINISTRY OF DEFENCE
Anyone considering matters relating to witness evidence and the drafting of statements will be drawn like a moth to the fire to the decision of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040. Once again I am returning…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009. In 2013 the Court of Appeal overturned a judge’s decision to grant…
WRITING TO THE COURT UNILATERALLY (AGAIN) – PROCEDURAL FAIRNESS AND WHY JUDGES NEED THE PATIENCE OF A SAINT
I have no plans to expand this blog to cover issues relating to procedure in Employment Tribunals. However there are certain passages of the judgment of Mr Justice Kerr in Jones v The Secretary of State for Business Innovation &…
PROVING THINGS 65: : ASSUMPTIONS ARE NOT EVIDENCE: (IF THE COURT OF APPEAL HAVE TO ASK FOR THE MATTER TO BE MADE SIMPLE YOU ARE IN SERIOUS TROUBLE)
The case of Ted Baker Plc & Anor v Axa Insurance UK Plc & Ors [2017] EWCA Civ 4097 could serve as a parable of modern litigation. The claimant won the first trial on this matter, establishing the defendant insurers were…
WHAT DO YOU DO WHEN IT ALL GETS TOO MUCH (OR IT IS YOU THAT HAS TO PICK UP THE PIECES): A RECAP
I am repeating, in large part, an earlier post. I do so without apology. Part of my job involves, periodically, dealing with cases (sometimes multiple cases) where someone has “gone off the rails” leaving numerous practical and procedural problems…
PROVING HANDWRITING IN CIVIL CASES: EXPERT EVIDENCE NOT ALWAYS NECESSARY
I am returning to the decision of Chief Master Marsh in 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch). We have already looked at that case in relation to false emails and the significance of CPR 32.19 ….
THE STRENGTH OF ENGLISH LAW: GUIDANCE WHICH NEEDS TO BE GIVEN AT HOME NOT JUST ABROAD
The Courts and Tribunals service have today produced a short guide – essentially selling the English courts* and the UK Jurisdiction. In essence it is a marketing booklet to persuade foreign litigants to use court in the UK and to…
THE JOB OF THE COURT IN CIVIL CASES: A USEFUL PRIMER: ADJUDICATION, THE BURDEN OF PROOF: THE JUDGE DOES NOT DECIDE WHO HAS THE MORAL HIGH GROUND
In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) set out clearly and succinctly the principles by which the civil courts determine cases. They serve as a…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
FALSE EMAILS, METADATA AND CPR 32.19: A “PROCESS OF FALSIFICATION AND KNOWINGLY PUTTING FORWARD EVIDENCE THAT IS FALSE”
The case of 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch) was described by Chris Dale as being “like one a much-expanded version of those old-style Finals questions with kitchen sink thrown in”. The judgment of Chief…
MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts…
WITNESS STATEMENTS DIRECT: MEMORY, GESTMIN £15 MILLION AND QUITE A LOT OF ALCOHOL: A HEADY BREW
There is a certain appropriateness in one of the last major first-instance judgments of Mr Justice Leggatt being about witness credibility and the Gestmin criteria. In Blue -v- Ashley [2017] EWHC 1928 (Comm) Gestmin figured heavily. Everyone believed they were…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT
I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with…
ERRANT EVIDENCE AND PHYSICAL EVIDENCE THAT GOES MISSING: CLAIMANT’S EXPERTS FEEL THE HEAT
I am returning for the fifth time to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have seen the judge’s views on the witnesses, the claimant’s disclosure and arguments that…
COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel…
THE DANGERS OF SELECTIVE WITNESS EVIDENCE: WITNESS EVIDENCE THAT WAS “UNSATISFACTORY” AND “SIMPLY NOT RELIABLE”
I am returning for the third time (and not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have already looked at the (relatively mild) criticisms of…
DEFICIENCIES IN DISCLOSURE: READING THIS JUDGMENT IS NOT LIKE WATCHING PAINT DRY
A case that concerns the fitting of specialist piping at a paint factory may seem an unlikely starting point for procedural controversy. However I am looking again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit…
BUNDLES WERE A DOG’S DINNER: MISSING WITNESSES AND AN EXPERT WITH NO CONCEPT OF HIS DUTY TO THE COURT
The judgment of Mr Justice Coulson in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) exemplifies many of the issues in litigation that are regularly covered in this blog: bundles, missing witnesses and errant experts. In particular…
ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE
In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC) the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial. THE CASE The action was a for breach of trademark…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
EVIDENCE OF PREVIOUS EXPERT DOES NOT HAVE TO BE DISCLOSED: THE IMPORTANCE OF THE REASON FOR THE CHANGE OF EXPERT
In Condor Vilca & ors -v- Xstrata Limited [2017] EWHC 582 (QB) Mr Justice Stuart-Smith rejected an application that a party disclose its previous expert evidence when it needed to change its choice of expert. The reason for the change…
DOCUMENTS, AUTHENTICITY AND ADMISSIONS: A TIMELY REMINDER OF THE PROVISIONS OF CPR 32.19
I said in the previous post that there are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). One of those reasons is that it contains…
PROVING THINGS 64 : ABSENCE OF STRONG AND STABLE EVIDENCE LEADS TO DAMAGES AWARD OF £2.00
There are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). However this is another case where a claim for damages failed because the…
EXPERTS NOT WELLCOME HERE (NOT YET ANYWAY): PARTIES NEED TO ESTABLISH NEED FOR EXPERT EVIDENCE
In Glaxo Wellcome Uk Limited -v- Sandoz Limited [2017] EWHC 1524 (Ch) Chief Master Marsh refused the defendants’ application to rely on three expert witnesses. The judgment contains interesting observations on the nature of the information that needs to be…
TOO MANY DOCUMENTS SPOIL THE CASE: APPLICATIONS SHOULD BE CONDUCTED PROPORTIONALLY
In Alsaifi -v- Amunwa [2017] EWHC 1443 QB Mr Justice Warby reminded parties of the need for bundles and documents to be relevant and proportional. “I make these points to emphasise the importance of parties to litigation of this kind…
EVIDENCE GIVEN WITH THE BENEFIT OF HINDSIGHT: MEDICAL NEGLIGENCE AND CAUSATION
In the judgment today in Diamond -v- Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) His Honour Judge Freedman (sitting as a High Court Judge) found that a totally honest witness was not correct in her assessment…
WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up…
INSTRUCTING EXPERTS: FAILURE TO HAVE CLEAR IDENTIFICATION OF ISSUES COMPOUNDS THE PROBLEMS
In Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) Mr Justice Arnold considered lengthy and complex issues in relation to compounds. However even in a case of such complexity the evidence of the experts should have been more…
ABSENT WITNESSES DO NOT LEAD TO ADVERSE INFERENCES: ARGUMENT WOULD LEAD TO NEW “COSTS AND TERROR” IN LITIGATION
In Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) Mr Justice Arnold considered, and robustly dismissed, an argument that the court should draw adverse inferences from absent witnesses. “I find it extraordinary that it can be suggested that…
ADVERSE INFERENCES FROM ABSENT WITNESSES: ANOTHER EXAMPLE IN THE HIGH COURT
In NRC Holding Limited -v- Danilitskiy [2017] EWHC 1431 (Ch) Robin Dicker QC, sitting as a High Court judge, considered the inferences that should be drawn when a key individual did not give evidence. THE CASE The claimant had a…
LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO?
Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct. However in litigation, as in life, people do tell lies. Litigators need to know about lies, and…
PROVING THINGS 63: LAW SOCIETY FAILS TO PROVE IT MAKES A LOSS: “DISAPPOINTING, TO SAY THE LEAST”
The Law Society put forward a budget of £637,000* to defend the action in Socrates Training Limited -v- The Law Society of England and Wales [2017] CAT 10. The Law Society, however suffered from a basic failure to prove one…
PROVING THINGS 62: “TOTALLY UNSATISFACTORY” EVIDENCE AT TRIAL FAILS TO PROVE SPECIAL DAMAGES
I wrote about the judgment in Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB), yesterday. There is no harm in repeating one element of that post in this series. I am repeating it because…
COSTS AT THE END OF THE CASE – WHO IS THE REAL WINNER? (AND MORE ABOUT FAILING TO PROVE DAMAGES)
It is uncertain how much a three week jury trial in the High Court will cost. It is certain that it costs a great deal more than the awards of £5,400 and £5,700 Mrs Justice McGowan awarded to the claimants…
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