PROVING THINGS 9: THE ROLE OF EXPERTS
Here I want to pick up on a few observations of Mr Justice Snowden in Grant -v-Ralls [2016] EWHC 243 (Ch) a case we looked at yesterday. That is the role of the experts. It is dangerous to defer the “proving”…
PROVING THINGS 8: DEFENDANT MUST PROVE THAT FAILURE TO WEAR A SEATBELT MADE A DIFFERENCE
The defendant bears the burden not only of proving contributory negligence but also establishing its causative relevance. The law in Syred -v- Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB) (Mr Justice Soole) was complex, however one key point…
PROVING THINGS 7: IF YOU DON'T PROVE A LOSS YOU DON'T GET AN ORDER: DIRECTORS DON'T HAVE TO CONTRIBUTE
This occasional series on the need to prove matters by evidence has covered a wide range of cases. Today we consider company law and insolvency. In Grant -v-Ralls [2016] EWHC 243 (Ch) Mr Justice Snowden rejected a claim by liquidators…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION
The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation. KEY POINTS The burden was on…
ORDERING A SPLIT TRIAL ON PRELIMINARY ISSUES: A CAUTIONARY TALE
In Larkfleet -v- Allison Homes Eastern Limited [2016] EWHC 195 (TCC) Mr Justice Fraser made some important observations about the need for total clarity when a court orders the trial of a preliminary issue of law. ‘Preliminary points of law…
PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya [2016] EWHC 150 (Ch) there is a whole section of the judgment devoted to…
PROVING THINGS 3: THE COMPLETE ABSENCE OF EVIDENCE MEANS THE COURT WILL NOT SPECULATE
Another example of a failure to prove damages can be found in the decision of His Honour Judge Stephen Davies (sitting as a High Court judge) in Fairhurst Developments Limited -v- Collins [2016] EWHC 199 (TCC). KEY POINTS This is…
PROVING THINGS 2: EVIDENCE TO SUPPORT A CLAIM FOR DAMAGES MUST BE PITCH PERFECT
Another example of the need to prove damages can be seen in the Court of Appeal decision in Gartell & Son (a firm) -v- Yeovil Town Football & Athletic Club Limited [2016] EWCA Civ 62. It is another case that…
PROVING THINGS 1: CIVIL EVIDENCE ACT NOTICES WILL NOT CUT IT
The really surprising thing about going to court (for some people) is that, you have to prove things. Judges work on the basis of evidence. On the whole judges prefer live evidence from witnesses who are cross-examined. I The case…
ALLEGATIONS OF DISHONESTY AGAINST SOLICITORS: CLEAR FINDINGS OF FACT MUST BE MADE
There have been two cases in the past few days where the Court of Appeal have overturned judgments because of a failure to give reasons for findings against solicitors. In Clydesdale Bank PLC -v- Workman [2016] EWCA Civ 73 findings…
EVIDENCE AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE IN THE HIGH COURT
The judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 121 (QB) is another example of a case resting on the accuracy of recollection of a witness. Further the judge rejected a “statistical”…
SERVICE OF PROCEEDINGS WHEN THEY ARE PUT IN THE BIN: A HIGH COURT DECISION
In Morby -v- Gate Gourmet Luxembourg IV SARL [2016] EWHC 74 (Ch) Edward Murray (sitting as a Deputy Judge of the Chancery Division) considered an issue relating to personal service. “If facts are in dispute, absent special situations, it would…
WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION
The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be…
KERRY UNDERWOOD ON QOCS: A REVIEW
A review of QOCS, Section 57 and Set off. Kerry Underwood. £25.00. Available online here Qualified one way costs shifting is here to stay. It may be extended to other areas. A detailed knowledge of the rules and regulations is…
COSTS AFTER A SPLIT TRIAL: PART 36; UNNECESSARY EXPERT REPORTS; PROPORTIONALITY AND USELESS BUNDLES: ALL LITIGATION LIFE IS HERE
The short judgment of Mr Justice Males in C&S Associates UK Limited -v- Enterprise Insurance Company PLC [2016] EWHC 67 (Comm) encapsulates many of the problems of contemporary litigation. “It is important that those litigating in this court are aware…
WITNESS CREDIBILITY, ATTENDANCE NOTES AND FINDINGS OF FACT
In Mansion Estates Ltd -v- Hayre & Co (A Firm) [2016] EWHC 96 (Ch) His Honour Judge Saffman (sitting as a judge of the High Court) went, carefully, through the principles relating to witness credibility and findings of fact. Given…
EVIDENCE, PROOF AND DOCUMENTS: MEDICAL RECORDS NOT DEFINITIVE OF CONDITION
The judgment of Mrs Justice Patterson DBE in Hunt -v- Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB) is one where the claimant succeeded in establishing negligence on the part of the defendant Trust. However there is an interesting…
JUDGMENT IN OTHER PROCEEDINGS ARE NOT EVIDENCE
A short passage in the judgment of Mrs Justice Lang DBE in Daniel -v- St George’s Healthcare NHS Trust [2016] EWHC 23 (QB) highlights the point that the conclusions in other proceedings are not evidence in a civil trial. KEY…
NEW EVIDENCE ALLOWED AFTER HEARING: A HIGH COURT DECISION
In Swift Advances PLc -v- Ahmed [2015] EWHC 3265 (Ch) Mr Justice Norris permitted new evidence to be adduced after evidence and submissions had been completed. “..it may be expected that courts will allow fresh evidence when to refuse it…
INADEQUATE WITNESS STATEMENTS, A "CULTURE OF NON-COMPLIANCE" AND THE SECRETARY OF STATE FOR JUSTICE
The decision of District Judge Hickman in the small claims case of Thakar -v- The Secretary of State for Justice [2015] EW Misc B44 is one that is likely to attract a lot of attention given that it was a…
USING WITNESS STATEMENTS PREPARED IN ANOTHER ACTION: WHEN IS A "HEARING HELD IN PUBLIC"
CPR 32.12 prevents witness statements served in an action being used for any other purpose. However there is an exception when a statement is “put in evidence at a hearing held in public”. This issue was considered in Kimathi -v- Foreign…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS 2: A USEFUL COUNTERBALANCE
A post earlier this month looked at a case where the judge favoured the witness evidence over a written medical record. The decision in Grimstone -v- Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB) is a…
CORROBORATIVE WITNESSES : "SIMILAR FACT EVIDENCE" ALLOWED IN TEST CASE
We have already looked at the decision in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) in relation to the issue of historians being called as witnesses. Here we look at the judgment in relation to corroborative/”similar fact” evidence. KEY…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS: THE RECORDS MAY NOT BE RIGHT
This blog has looked, many times, at the issue of witness credibility and the various criteria that judges use when assessing evidence. This issue was to the fore in the Court of Appeal judgment yesterday in Synclair -v- East Lancashire…
GOING ON A FISHING EXPEDITION? DON'T BANK ON AN ORDER FOR SIMILAR FACT EVIDENCE
In Claverton Holdings Ltd -v- Barclays Bank PLC [2015] EWHC 3603 (Comm) Mr Justice Phillips was highly critical of the claimant’s application for similar fact evidence. “The application has, at this point, in my judgment, become a fishing expedition, hoping…
"TOTALLY HOPELESS" APPLICATION FOR DISCLOSURE;INADEQUATE WITNESS STATEMENTS;APPLICATION FOR EXTENSION REFUSED:ALL LEGAL LIFE IS HERE
The judgment of Mr Justice Edwards-Stuart in London Borough of Bromley -v- Heckel [2015] EWHC encompasses many of the themes regularly discussed in this blog. Proceedings were issued late;there was an inappropriate application for disclosure;the witness evidence was inadequate. Finally…
IS AN EXPERT REALLY NECESSARY? TWO RECENT CASES
The determination of the courts to restrict the use of expert evidence can be seen by the fact that the text of CPR 35.1 appears under the heading “duty to restrict expert evidence”. The rule itself states “Expert evidence shall be…
WHEN AN EXPERT FAILS TO DISCLOSE THAT THEY KNOW THE PARTIES
A recent high profile criminal case has identified the major problems that can arise when an expert called to give evidence has failed to disclose that they have had previous dealings with the parties. Here we look at how the…
LATE EXPERT EVIDENCE, DENTON AND WAVING A FINGER IN THE AIR
The decision of the Court of Appeal in O’Connor -v- The Pennine Hospitals NHS Trust [2015] EWCA 1244 will receive much attention for the important observations made as to evidence, proof and “res ipsa loquitur”. However here I want…
WHEN THE CREDIBILITY OF THE LAY AND EXPERT WITNESSES LIES IN SHREDS
The previous post in relation to Part 36 led me to examine the substantive judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC). It contains as damning an assessment of witness…
IS THIS A CLAIMANT'S OR DEFENDANT'S OFFER? ANOTHER IMPORTANT HIGH COURT DECISION ON PART 36
In Van Orrd Uk Limited -v- Allseas UK Limited [2015] EWHC 3385 (TCC) Mr Justice Coulson considered the appropriate consequences when the defendant had beaten its own Part 36 offer. These were unusual circumstances in that the court had to…
PERSONAL INJURY LITIGANTS, LAWYERS & SOCIAL MEDIA
Social media is coming to play an increasingly important part in personal injury litigation. It is worthwhile taking a look at developments and the lawyer’s duties. There is no doubt at all that the close scrutiny of social media accounts…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
PROVING THINGS BY EVIDENCE: ANOTHER EXAMPLE OF AN ABSENCE OF EVIDENCE LEADING TO A CASE FAILING
The case of Goldsmith Williams -v- E.Surv Limited [2015] EWCA Civ 1147 will, no doubt, be discussed as a professional negligence case and it may have some impact on the duties of conveyancing solicitors. However the appeal, at heart, relates…
WITNESS EVIDENCE & THE BURDEN OF PROOF: A CIVIL TRIAL IS NOT A SEARCH FOR THE ABSOLUTE TRUTH: FOOTBALLERS ON TRIAL
Anyone looking for a detailed consideration of the law relating to witness evidence and the burden of proof can find it in the judgment of His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City…
PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT
The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence…
LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND
Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a…
BUDGETS , PROPORTIONALITY AND DISCLOSURE: THE RELEVANT TEST APPLIED WHEN A PARTY "GOES AWRY"
The judgment of Mr Justice Coulson in The Dorchester Group Ltd -v- Kier Construction Limited [2015] EWHC 3051 (TCC) contains much of interest in relation to admissions and procedure. However there are also interesting observations in relation to the way…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY
Issues relating to “witness training” are bound to be controversial. The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing. However it is clear that trial judges often have their reservations as…
WITNESS STATEMENTS & SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS
We looked in an earlier post at the case of Ali -v- CIS General Insurance (29/7/2015) where a claimant’s action was struck out because of failure to give disclosure. However there was a passing comment in the judgment which demonstrated…
WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC [2015] EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to…
DISPUTES OF FACT IN SUMMARY JUDGMENT APPLICATIONS: THE APPROPRIATE TEST
In Optaglio Limited -v- Tethal [2015] EWCA Civ 1002 the Court of Appeal considered the issue of how far a judge can determine disputed issues of fact in a summary judgment application. THE CASE The claimant was appealing an order…
THE EXPERT WITNESS THAT TELLS THE JUDGE THE "FACTS": A REVIEW OF RECENT CASES
There have been a number of recent cases where judges have considered the effect of expert witnesses commenting on primary facts. The judiciary have traditionally, and rightly, guarded their role as primary fact finder. However this does not appear to…
THE CIVIL EVIDENCE ACT, THE ABSENT WITNESS AND WITNESS CREDIBILITY: A CASE IN POINT
This blog has already looked at the decision in Mohidin -v- Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) in the context of the contents of witness statements and the length of the trial bundles. That judgment also…
MUDSLINGING IN WITNESS STATEMENTS CAN BACKFIRE: BUNDLES OF IRRELEVANT DOCUMENTS COUPLED WITH IRRELEVANT AND INADMISSIBLE WITNESS STATEMENTS: A FAMILIAR TALE?
The case of Mohidin -v- The Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) will, no doubt, be looked at in detail for its implications for claims against the police. The case also contains interesting observations about similar…
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