ADMISSIBILITY OF PREVIOUS JUDGMENT AS EVIDENCE OF FOREIGN LAW
In Joint Stock Company -v- Wood [2017] EWHC 150 (Ch) Mr Justice Warren considered whether a decision by judge in relation to foreign law was admissible as evidence. KEY POINTS A previous judgment where the judge considered and made findings…
BANKERS, WITNESS STATEMENTS AND CREDIBILITY: THE ENIGMATIC WITNESS
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) also contains an analysis of a witness who was “something of an enigma” “Although a witness statement should be…
WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice. Both posts will be about the judge’s assessment…
BOOKS ABOUT ADVOCACY: MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is an advocate, whether they know it or not. Litigation is fundamentally about the art of persuasion. This is a litigator’s daily task: in correspondence, on the phone, with the court. This is best done by the careful…
SOCIAL MEDIA: THE BLACK COUNTRY AND CRUISING FOR A FALL: DEFENDANT FILM THYSELF
It is easy to cause problems on social media. It is particularly easy to cause problems for yourself. We have looked several times at the role of social media in the courts. Another example can be found in the judgment…
PROVING THINGS 50: TO PROVE BREACH OF CONTRACT YOU FIRST HAVE TO PROVE THAT THERE WAS A CONTRACT
The judgment of Mr Justice Stuart-Smith in Secker -v-Fairhill Property Services Ltd [2017] EWHC 69 (QB) may contain an important lesson about pleading as well as evidence. The claimant’s claim could not be put in negligence and her case based…
JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in…
PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was…
THE FIRST BUNDLE CASE FOR 2017: A BUNDLE THAT WAS NEVER DISCLOSED AND HAS GONE MISSING
At some time during the year there is bound to be a judgment about bundles. However the judgment of the Court of Appeal today in Iqbal -v-Iqbal [2017] EWCA Civ 19 contains a great surprise. Amongst other problems with the…
THOSE LETTERS: DEAR JUDGE – YOU WERE WRONG – PLEASE CHANGE YOUR MIND: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES
There is an interesting postscript to the judgment of Mr Justice Mostyn in Goyal -v- Goyal [2017] EWFC 1. It relates to the practice of using letters to the judge in an attempt to alter the terms of a draft…
PROVING THINGS 48: VALVES, FLOODS, MODELS AND CAUSATION.
If ever there were an object lesson in the need to prove every element of an action it is the judgment of HH Judge McKenna (sitting as a High Court judge) in Oldcorn -v- Southern Water Services Ltd [2017] EWHC. The…
DISCLOSING DETAILS OF COSTS INFORMATION PROVIDED FOR MEDIATION : DISCLOSURE ALLOWED: HIGH COURT DECISION
In Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) Master Haworth had to consider the issue of admissibility of evidence relating to a mediation. KEY POINTS Information provided about costs in the run up of a mediation…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IX: IF THEY SAY IT’LL BE “GOOD EXPERIENCE FOR YOU” – WATCH OUT…
Here we have most (but I can’t guarantee all) of the tweets given on what they don’t teach you at law school. You will see it is an eclectic mix. The advice given can be world weary but, for the…
EXPERT WATCH II: ATTEMPTS TO SNEAK THE EVIDENCE IN
There are some examples of ingenious attempts to introduce expert evidence into cases. Mr Justice Arnold commented on this in his judgment in Teva UK Ltd -v- Gilead Sciences Inc [2017] EWHC 13 (Pat). A “factual” report from an expert is…
EXPERT WATCH: SOURCE OF INFORMATION CLARIFIED (AND OF CRUCIAL IMPORTANCE)
There are aspects of the judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) that justify closer examination. In particular the source of information of the expert’s information was illustrative. It highlights the importance of examining…
PROVING THINGS 47: FIRE IN THE LOFT: IT WASN’T THE MOUSE MAN AT ALL
The judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) is another example of a claimant failing to prove their case. More curiously, in some respects, the claimant’s own evidence contradicted their case. “In circumstances where there…
LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED
“This may be an interesting year for the consideration of issues relating to the accuracy of memory. An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic…
LAWYERS, LITIGATION & MEMORY II: HOW YOU ARE AFFECTING THE MEMORY OF WITNESSES (AND POSSIBLY SOWING THE SEEDS FOR DEFEAT)
The post on “Lawyers, litigation and memory”clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous…
IF YOU ARE BELIEVED YOU WILL WIN: THE NEED FOR A DEVIL'S ADVOCATE IN CIVIL LITIGATION
The post written yesterday on litigators and memory has already given rise to a large number of responses, particularly on Twitter. It is worthwhile taking the matter further by considering how and when a litigator should take stock of the quality…
LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION
A single moment of logical thought will lead to the conclusion that it is strange that lawyers don’t learn about memory. Much (indeed most) litigation relies on the memory of the parties. Judges are, more often than not, called upon…
CIVIL CASE OF THE YEAR 2016: THE CASE THAT ENCAPSULATES CIVIL EVIDENCE: HOW THE COURT DECIDES
There were many important cases on procedure and costs in 2016. Choosing a case of importance to litigators was not an easy task. However I kept coming back to the judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160…
A NEW YEAR'S RESOLUTION FOR 2017 : EX PARTE APPLICATIONS ARE NO PARTY (AND CAN LEAD TO CRYING)
Last year I had 10 new year’s resolutions for litigators. This year I have one. (The resolutions from last year remain current but one resolution is easier to keep) THINK VERY CAREFULLY BEFORE, DURING AND AFTER, MAKING AN EX-PARTE APPLICATION…
TOO LONG OR TOO SHORT: SCHEDULES and COUNTER-SCHEDULES: THE "CINDERELLAS" OF THE LITIGATION PROCESS
One important, but often overlooked, element of procedure and legal drafting is the preparation of the schedule of damages and the counter-schedule. The rules relating to these documents are sparse. However these are important documents, often impacting upon the credibility…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
ADVERSE INFERENCES NOT DRAWN WHEN WITNESSES ARE ABSENT: ANOTHER EXAMPLE
There are several posts on the blog which deal with the approach the trial judge takes when certain witnesses are not present. In some cases it leads the judge to draw adverse inferences, in others it does not. In Welds…
PROVING THINGS 45: IF YOU CAN'T PROVE LOSS THE DEFENDANT IS GOING TO GET SUMMARY JUDGMENT
This series (and this blog) have looked at several cases where a party has asserted a loss but not been able to prove it. There are a large number of cases where a party fails to put the basic information…
PROVING THINGS 42: SILENCE DOES NOT PROVE INDUCEMENT
We are returning to the case of Francis -v- Knapper [2016] EWHC 3093 (QB). That case has been looked at in relation to a failure to prove damages. However the claimants also had major evidential problems in proving misrepresentation. KEY POINTS…
PROVING THINGS 41: PROVING DAMAGES – YOU ARE NOT GETTING A SECOND BITE OF THE CHERRY
There was one part of the argument in Francis -v- Knapper [2016] EWHC 3093 (QB) that justifies closer examination. That is the claimant’s suggestion that the question of damages be put off. A party struggling to prove damages at trial is…
PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker…
WHY ALL LAWYERS HAVE TO KNOW ABOUT THE FALLIBILITY OF MEMORY (EVEN COMPANY LAWYERS)
I have written about the Gestmin principles many times on this blog. The importance of every litigator knowing about the fallibility of memory, and the way in which a trial judge is likely to approach these issues, is shown in the judgment…
PROVING THINGS 39: YOU CAN SPEND £10 MILLION IN COSTS AND STILL NOT PROVE YOUR CASE: DAMAGES CLAIM WAS A "NOTIONAL DESKTOP EXERCISE"
It is unusual to look at the substantive judgment in a case after examining the decision on costs. We have already looked at the cost judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496. However the substantive…
INTERPRETERS CANNOT (AND WOULD NOT) BE COMPELLED TO ATTEND TRIAL FOR CROSS-EXAMINATION
The case of Kimathi -v- The Foreign & Commonwealth Office [2016] EWHC 3004 (QB) has already featured several times on this blog. Here we look at the judgment made last week relating to the defendant’s application that interpreters attend trial…
CIVIL PROCEDURE: THE BEHRENS' EFFECT
His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure. JOHN BEHRENS AT THE BAR I could begin by telling of the meticulous neatness of…
CROSS-EXAMINATION OF EXPERTS IN PATENT CASES: SHOULD BE SHORT AND FAIR
In his judgment today in Merck Sharp and Dhome Limited -v- Shionig & Co Limited [2016] EWHC 2989 (Pat) Mr Justice Arnold made some observations about the cross-examination of expert witnesses. These related to experts in patent cases, they are…
PROVING THINGS 38: PROVING INABILITY TO PAY ON A SECURITY FOR COSTS APPLICATION
A party opposing an application for security costs sometimes has to argue that the ordering of security would “stifle” a genuine claim. This means giving evidence as to that party’s inability to pay. This test was considered by Mr Richard…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
LEGAL REPRESENTATIVE SIGNING THE DISCLOSURE STATEMENT II: SEE WHAT THE COMMERCIAL COURTS GUIDE SAYS: BUT…
The post on legal representatives signing the disclosure statement written earlier in the week had a lot of response. My attention has been drawn to the Admiralty & Commercial Courts Guide which suggests (in certain undefined circumstances) a legal representative…
THE DANGERS OF RELYING ON EXPERT EVIDENCE: BEWARE YE THE PARTISAN EXPERT: "UNBALANCED AND HIGHLY MISLEADING"
Some types of litigation are heavily reliant upon expert evidence. Clinical negligence cases are often determined by the judge’s assessment of the experts involved. It is disturbing to see the matters raised in judgment today of His Honour Peter Hughes…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller [2016] EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in…
WHAT IS MEANT BY AN "INDEPENDENT" EXPERT? CASES ON EXPERTS THIS WEEK III
In Hopkinson -v- Hickton [2016] EWCA Civ 1057 the Court of Appeal considered what was meant by an “independent” expert. KEY POINTS The fact that a valuer, appointed to value a property by the parties under the terms of a…
EXPERT EVIDENCE NOT NECESSARY: CASES ON EXPERTS THIS WEEK 1
In Daniel Alfredo Condori Vilca -v- Xstrate Limited [2016] EWHC 2757 (QB) Mr Justice Foskett refused an application to rely on an expert witness. The case was unusual, however the principles are universal. The questions were whether there was an…
THE PARTIES CANNOT CONTRACT OUT OF COSTS BUDGETING (& A LITTLE BIT ABOUT WITHOUT PREJUDICE CORRESPONDENCE)
An earlier post dealt with the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21. However an earlier ruling in the same case contains a consideration of whether the parties can agree to sidestep budgeting….
FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL
The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016) is now available on Bailli. It contains some important observations about findings of fundamental dishonesty. “In my judgment,…
"DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT…"
There are several high profile cases in which judges have expressed scepticism (sometimes profound scepticism) about whether a witness statement really reflects the knowledge of a witness. A short, but telling, passage in the judgment of Mr Justice Mitting in…
EVIDENCE, RETAINERS, ATTENDANCE NOTES AND WITNESS CREDIBILITY
There have been a number of recent cases where disgruntled clients have attempted to sue their lawyers. The judgments highlight the difficulties for trial judges who have to assess evidence after some lapse of time. They also highlight the importance…
WHEN IS EXPERT EVIDENCE ADMISSIBLE: A MASTERLY EXPOSITION
The judgment of Master Matthews in Darby Properties Ltd -v- Lloyds Bank Plc [2016] 2494 (Ch) contains an important consideration of the rules relating to the admissibility of expert evidence. In particular when is expert evidence “necessary”? “… although I…
SURVEILLANCE EVIDENCE A BREACH OF ARTICLE 8 RIGHTS: ECHR DECISION
In Vukota-Bojic -v- Switzerland the European Court held that the surveillance of an insurance claimant represented a breach of Article 8 rights (but use of that evidence at a hearing was not a breach of Article 6 rights). It could…
PROVING THINGS 34 : THERE IS NO PRIMER FOR SCUTTLERS: WHEN YOUR SHIP DOESN'T COME IN
We have looked at many different types of case during this series. However this is the first time we have looked at an Admiralty case and at case about the “scuttling” of a ship. The judgment of Mr Justice…
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