RE-VISITING WHITEHOUSE -v- JORDAN 1: THESE APPEALS WERE NOT ABOUT CLINICAL NEGLIGENCE AT ALL: IT’S ALL ABOUT THE FACTS
The decisions of the Court of Appeal and House of Lords in Whitehouse -v- Jordan are often put forward as seminal cases in the law of clinical negligence. However these appeals, in reality, were not about issues relating to clinical…
THE ARROYO JUDGMENT 4: DON'T MAKE ALLEGATIONS OF LYING IF YOU HAVEN'T PUT THEM TO THE WITNESS
The previous posts* on the Arroyo judgment have concentrated, for the most part, on the judge’s criticisms of the evidence of the claimant. However there is one short passage which illustrates an important principle of litigation – a party cannot…
PROVING THINGS 28: MAKE UNWARRANTED PERSONAL ATTACKS AND USE A "MUD-SLINGING" EXPERT: THAT ALWAYS ENDS WELL
The judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd [2016] 1949 (TCC) contains some surprising observations. It also contains important lessons in relation to “conspiracy” theories in litigation and the role of the…
PROVING THINGS 27: BURDENS OF PROOF, HEARSAY EVIDENCE AND…. ATTEMPTED MURDER
In Daley -v- Bakiyev [2016] EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations. The fact that a central witness for the claimant did not attend court, and his…
THE ARROYO JUDGMENT 3: WITNESSES AND CREDIBILITY
This is the third in the series of posts on the judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages; the second at the…
THE ARROYO JUDGMENT 2: EXPERTS, OH EXPERTS.
This is the second in the series of posts on the judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages. Here we look…
THE ARROYO CASE WAS A BIG & COMPLEX ACTION: THE PROBLEMS WERE SIMPLE (AND COMMON) 1: UNCHECKED SCHEDULES OF DAMAGES
The judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC is 1885 paragraphs long. The trial lasted from the 15th October 2014 to the 5th March 2015, that is 62 court days. The judgment actually…
UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD: ANOTHER JUDGE'S LAMENT
The observations of Mr Justice Kerr at the end of his judgment in Kimmance -v- General Medical Council [2016] EWHC 1808 (Admin) contains some familiar themes in relation to the preparation of cases: bundles, citations and skeletons. “The parties should…
"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS
In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an…
PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims….
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz [2016] EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias….
MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited…
CONTEMPT PROCEEDINGS AND FUNDING: THE OUTCOME OF A LONG STRUGGLE
I have received an email informing me that, thanks to the help received from a post on this blog they – eventually – obtained legal aid and successfully defended committal proceedings. Although the thanks are addressed to me it is…
PROVING THINGS 21: WHEN THE WHOLE PROCESS OF INVESTIGATION IS FLAWED
I have looked at family cases before on this blog, usually in the context of witness evidence and issues relating to the burden of proof. Many of the decisions of family judges have to be taken on the basis of…
ADVOCACY – THE JUDGE’S VIEW III: MORE GUIDANCE FROM CANADA
As part of the series looking at the advice that judges give to advocates (and how this relates to civil litigators in particular) we return to Canada. Judge Carol Baird Ellan collected the views of 12 of her colleagues in…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
PROPORTIONALITY CONQUERS ALL? PROFIT COSTS (AND COUNSEL'S FEES) HALVED
The decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) has already received widespread publicity. The principle of proportionality was used to halve profit costs and counsel’s fees and make a substantial reduction on the insurance premium….
THINGS LAWYERS DO TO ANNOY JUDGES: EDITED HIGHLIGHTS
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn in the case of The Hearing Clinic (Niagara Falls) -v- Ontario Ltd, 2014 ONAC 5831 where he was more than blunt in his…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
PROVING THINGS 20: ALLEGATIONS OF IMPROPER CONDUCT HAVE TO BE PROVEN: INDEMNITY COSTS ORDERED
In Collins -v- Thanet District Council Collins anor v Thanet DC anor (19 4 16)(Jud) 2 [2016] EWHC 1008 (QB) His Honour Judge Yelton (sitting as a Judge of the High Court) considered the evidence available to support allegations of misfeasance…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
SOCIAL MEDIA AND CIVIL EVIDENCE: WHAT DID YOU SAY ON LINKEDIN?
Social media played a part in the decision of Registrar Derrett in Green -v- Marston [2016] EWHC B11 (Ch). It illustrates the importance of social media across many fields of litigation. THE CASE The claimant was the liquidator of a…
I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME
One of aspects of the judgment in McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the correspondence between the parties. “It would seem…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
PROVING THINGS 19: PROVE SERVICE OR YOU COULD BE CAUGHT OUT
A regular theme of this series has been to examine how cases fail, in full or partially, because of the absence of evidence. This can be seen in a decision of the First-Tier Tribunal Tax Chamber in England and Wales…
EXPERTS:YOU'RE NOT RIGHT JUST BECAUSE YOU'RE FAMOUS: A DECISION NOT WRITTEN ON THE BACK OF A FAG PACKET
The judgment of Mr Justice Green in British American Tobacco (UK) Limited -v- Secretary of State for Health [2016] EWHC 1169 is 1,000 paragraphs long. It covers many aspects of law and procedure. I want to concentrate upon one issue….
PROVING THINGS 18: DAMAGES; CAR HIRE; PROOF AND SUMMARY JUDGMENT
The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was…
CIVIL EVIDENCE: IS EVIDENCE OBTAINED BY TORTURE ADMISSIBLE?
The question of whether evidence obtained by torture in civil proceedings is one I never envisaged having address. However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v- HNA Group…
WITNESS STATEMENTS: ALTERATIONS AND THE FALLIBLE MEMORY: A SCIENTIFIC STUDY
It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the…
LEARNING HOW TO PROVE THINGS: A BASIC SKILL THAT NEEDS HONING
As part of the occasional series which jogs peoples memories about New Year’s resolutions for 2016 I am revisiting resolution number 6: “learn how to prove things”. A very basic skill in the litigator’s armoury, but one which is barely…
THE SUPREME COURT CONSIDERS THE QUESTION OF EXPENSIVE BUNDLES: COULD IT BE CHEAPER ELECTRONICALLY?
Since Supreme Court decisions on trial bundles are few and far between I am compelled to write about the judgment in Eclipse Film Partners -v- Commissioners for Her Majesty’s Revenue & Customs [2016] UKSC 24. Here the Court considered bundles…
CIVIL EVIDENCE: ABSENT DOCTOR DOES NOT LEAD TO AN ADVERSE INFERENCE
CIVIL In Manzi -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB) Mr Justice Nicol considered the question of whether it was appropriate for a court to draw adverse inferences when a witness is not called. “… in…
PROVING THINGS 17: HEADS OF DAMAGE THAT WERE "ENTIRELY BOGUS"
The case of Perma-Soil UK Limited -v- Williams & Flintshire County Council [2016] EWHC 1087 (QB) was an unusual one. The claimant (unsuccessfully) brought a claim for damages for misfeasance in public office. However I want to look at the…
WITNESS STATEMENTS & HILLSBOROUGH 3: CONFIRMATION BIAS AT ITS WORST
Much has been written and broadcast about Hillsborough. I am here concentrating on one small part of the process: the initial gathering of evidence. It was the flawed nature of this process that led to problems for the next two…
FUNDAMENTAL DISHONESTY: THE PAST 12 MONTHS: A ROUND UP
On May 10th last year I did a round up of cases and commentary on the issue of fundamental dishonesty. Here we look at cases and commentary in the past 12 months. CASES Most of the cases are inevitably first…
HILLSBOROUGH AND WITNESS STATEMENTS 2: THE EARLY MIXING OF FACT AND OPINION
The previous post in this series looked at the issues that arose when the solicitors for the police force sent out a missive asking the police officers on the ground for their “comment and impression”. There was an immediate mixing…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT BY THE TRIAL JUDGE
In Elliston -v- Glencore Services (UK) Ltd [2016] EWCA Civ 407 the Court of Appeal took the unusual step of overturning findings of fact by the trial judge. (It is perhaps important that I emphasise how rare this is. There…
HILLSBOROUGH AND WITNESS STATEMENTS 1: THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The recent inquest has put the evidence gathering that took…
PROVING THINGS 16: IF YOU DON'T PROVE IT YOU DON'T GET IT
In Undre & Down to Earth (London) Limited -v- the London Barrow of Harrow [2016] EWHC 931 a claimant failed, totally, to prove any loss. The judge found that there was a total failure by the claimant to prove…
A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION
This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff…
PROVING THINGS 15: DAMAGES & EVIDENCE: GOING BACK TO COLLEGE
One harsh shock for many litigants occurs when they are asked to prove their damages at trial. We have looked several times when a litigant has come to grief at this stage, largely because there is no evidential support for…
ANOTHER CASE OF TWITTER PROVIDING EVIDENCE: CLAIMANT CAUGHT OFFSIDE
There is a report in the Solicitors Journal of a sentence passed today for contempt of court. It is another example of the evidence coming from twitter and shows the growing importance of social media in many types of litigation….
PROVING THINGS 14: PROVING MITIGATION OF LOSS
The previous post in this series looked at the Court of Appeal decision in Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 where the court upheld an award of £250 in damages because of issues relating to mitigation of loss….
MORE ABOUT SERVICE OF THE CLAIM FORM: GOOD REASONS, DELAY AND A FAILURE TO PAY THE PROPER COURT FEES
In TMT Asia LImited -v- BHP Billiton Marketing AG [2016] EWHC 287 (Ch) Mr Justice Burton considered several issues relating to late service of the claim form and failure to pay the correct court fee. KEY POINTS The defendant’s application…
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