MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)
The post on the Canadian case of The Hearing Clinic (Niagara Falls) -v- Ontario 2014 ONAC 5831 attracted a lot of views and a lot of comments. I am grateful to Chris Rees for pointing out the judgment of Mr…
A TRIAL WITHOUT WITNESSES: THE PRACTICAL CONSEQUENCES: DUNNAGE -v- RANDALL
The Court of Appeal decision today in Dunnage -v- Randall [2015] EWCA Civ 673 is one of those seminal cases that every tort law student will have to read. Here we look at the case and the procedure. In particular…
ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION
The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*). THE CASE The…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
HOW THE COURT ASSESSES WITNESSES: NOT A NUMBERS GAME
In TM -v- St George’s Healthcare NHS Trust [2015] EWHC 1866 (QB) Sir David Eady considered the judicial approach to witnesses and the burden of proof, stressing that the assessment of evidence is not a “numbers game”, THE CASE The…
SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES
In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting…
MAKING FINDINGS OF FRAUD WITHOUT A PARTY BEING REPRESENTED 2: A HEARING IN THE ADMINISTRATIVE COURT
In MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) the Administrative Court, in essence, overturned findings of fraud against solicitors who had not been notified of the allegations and not given any opportunity to respond….
APPEAL COURT CAN DECIDE ISSUES BETWEEN EXPERTS ON FOREIGN LAW: AND ANOTHER LOOK AT WITNESS STATEMENTS
The issue of when an appeal can court take its own view on expert evidence was considered in Group Seven Limited -v- Allied Investment Corporation Limited [2015] EWCA Civ 631. The judgment at first instance also makes for informative reading…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and…
INCREASED COSTS AND "MYSTIFYING" PLEADINGS: A WARNING TO THOSE DRAFTING DEFENCES: IT'S GOING TO COST YOU
The judgment of Mr Justice Edis in Davies -v- Forrett [2015] EWHC 1761 QB is an object lesson on the dangers of lax pleading. Denying the relevance of a conviction in a pleading led to the joinder of a number…
CAUSATION AND EVIDENCE – A BURNING PROBLEM? IMPORTANT ISSUES FROM A BIZARRE SET OF FACTS
In Graves -v- Brouwer [2015] EWCA Civ 595 the Court of Appeal carried out an extensive review of the principles and authorities relating to evidence and causation. There is a useful discussion on the role and questioning of experts at…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
LATE WITNESS STATEMENTS IN JUDICIAL REVIEW PROCEEDINGS: DON'T GO TO COLLEGE – JUST READ THE RULES
In R (on the application of the London College of Finance & Accounting) -v- Secretary of State for the Home Department [2015] EWHC 1688 (Admin) Mr Justice Cobb made some important observations in relation to the late service of evidence…
OPINION EVIDENCE IN WITNESS STATEMENTS AND THE CASE THAT MAY HAVE SPARKED OFF THE JACKSON REFORMS: Multiplex -v- Cleveland Bridge
Whilst doing some work on the problems caused when lay witnesses attempt to give expert evidence I came across the case of Multiplex Constructions (UK) LImited -v- Cleveland Bridge UK Limited [2008] EWHC 2220(TCC). It makes interesting reading for a…
EXPERT REPORTS: TOO LONG AND NOT MUCH USE: CARE EXPERTS MUST TAKE MORE CARE
In the case of Harman -v- East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB) Mr Justice Turner had some very clear criticisms of the expert reports. Some of the comments are of general importance. “Against the background of…
WITNESS EVIDENCE, CLINICAL NEGLIGENCE AND CLINICAL NOTES: A CASE IN POINT
The judgment of Mr Justice Jay in FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536 contains another interesting consideration of the value of witness evidence and contemporary records in a clinical negligence case. I was recently…
OVERTURNING FINDINGS OF FACTS AND "INFERENCES" ON APPEAL
In Vann -v-Ocidental [2015] EWCA Civ 572 the Court of Appeal overturned a finding that there was no contributory negligence. There is an interesting discussion about appeals on findings of fact and the inferences that the judge draws from those…
ASSESSING THE CREDIBILITY OF A WITNESS: IT IS A MATTER OF COMMUNICATIONS
The judgment of HH Judge Brown QC in Mainline Digital Communications Ltd -v- Chaddah [2015] EWHC 1580 (QB) is an important illustration of the manner in which a judge assesses the credibility of a witness. “In my judgment, contemporaneous written…
EXPERTS GOING ON A FROLIC: A FAMILY LAW CASE WHERE THE EXPERT WITNESS WAS "THOROUGHLY UNHELPFUL"
The conduct of experts has been considered many times on this blog. There is an interesting example of problems caused in the context of family law in M -v- M [2015] EWFC B63. Here we have an expert going well…
PHONE HACKING, MISSING DOCUMENTS AND THE ABSENT WITNESS: IMPORTANT ISSUES OF CIVIL EVIDENCE
The issues raised in the “phone hacking” trial are well known. However Mr Justice Mann also made some important observations about civil evidence. In particular the inferences to be drawn when witnesses are not called or evidence not available. These…
LATE APPLICATION FOR DISCLOSURE AND EXPERT EVIDENCE REFUSED: STOPPED AT THE DOCK
The judgment of His Honour Judge Stephen Davies in (sitting as a judge of the High Court) in William Clark Partnership Limited -v- Dock St PCT Limited [2015] EWHC B5 (TCC) illustrates the problems caused when applications are made late….
"TOUCH SENSITIVE" WITNESS STATEMENTS AND OTHER FORMS OF EVIDENCE: WHEN THE CLAIMANTS COLLECT THE EVIDENCE THEMSELVES
The decision of Recorder Amanda Michaels (sitting as a Deputy Enterprise Judge) in Minder Music Ltd -v- Sharples [2015] EWHC 1454 (IPEC) raises some interesting issues in relation to witness statements and evidence. In particular the problems when a party…
"TAKING THE STATEMENT OF TRUTH LIGHTLY": CONTEMPT OF COURT WHEN DOCUMENTS WERE "CREATED" LONG AFTER THE EVENT
In GB Holdings Ltd -v- Short [2015] EWHC 1378 (TCC) Mr Justice Coulson reviewed the authorities and principles relating to applications for contempt of court when it is alleged that a witness has forged documents in relation to the action….
GET AN INJUNCTION – PAY £27 MILLION IN DAMAGES: A POINT WORTH REMEMBERING
The judgment in AstraZeneca AB -v- KRKA dd Novo Mesto [2015] EWCA Civ 484 is one that should be read by anyone thinking of applying for an injunction and giving an undertaking in damages. The claimant obtained an injunction and…
PERMISSION TO CALL EXPERT WITNESS OVERTURNED ON APPEAL
I cannot recall the last time an appeal took place in relation to the question of permission to call an expert witness. The post yesterday discussed a case where permission to call an expert was upheld. Hot on its heels…
APPEALS AGAINST DECISION TO ALLOW EXPERT EVIDENCE: DEFENDANTS TOLD TO GET ON THEIR BIKE
Appeals against orders granting permission for parties to call expert witnesses are rare. It is worthwhile, therefore, reading the judgment of Mr Justice Green in Allen -v- Cornwall Council [2015] EWCA Civ 1461 (QB) with some care. THE CASE The…
FAILURE TO COMPLETE PRE-TRIAL REVIEW QUESTIONNAIRE FULLY LEADS TO DEFENCE AND COUNTERCLAIM BEING STRUCK OUT
In Waterman Transport Ltd -v- Torchwood Properties Ltd [2015] EWHC 1446 (TCC) Mr Justice Akenhead entered judgment for a claimant and struck out a counterclaim after the defendant failed to file a completed pre-trial review questionnaire properly. THE CASE The…
I DIDN'T MEAN IT WHEN I SIGNED THE JOINT REPORT: WHAT HAPPENS WHEN EXPERTS CHANGE THEIR MINDS?
The judgment of Mr Justice Leggatt in Iraqi Civilians -v- Ministry of Defence [2015] EWHC 1254 (QB) contains some interesting passages in relation to an expert reneging from the contents of a joint report. In particular what is the appropriate…
PROOF OF FACTS: THE BASIC PRINCIPLES SUMMARISED (BORROWING FROM THE FAMILY COURTS)
In a short judgment BR (Proof of Facts) [2015] EWFC 41 Mr Justice Peter Jackson provides a summary of key issues in relation to evidence. The judgment is specifically in relation fact finding in children cases. However part of the…
MORE ON "CHANGING" WITNESS STATEMENTS AND CREDIBILITY: A CLINICAL NEGLIGENCE CASE
A post yesterday commented upon the difficulties caused when a witness produces two (sometimes contradictory) witness statements. Another example of witness evidence leading to problems at trial can be seen in the judgment of HH Judge Collender QC (sitting as…
THAT "DIFFICULT SECOND STATEMENT": IT IS HARDLY EVER GOING TO BE A HIT
The judgment in Buswell -v- Symes [2015] EWHC 1379 (QB) illustrates the dangers of “supplementary “witness statements. Real problems can occur for the party putting in the new evidence. THE CASE The claimant was seriously injured when his motorcycle was…
CIVIL COMMITTAL PROCEEDINGS IN THE COUNTY COURT: THE RISK OF INJUSTICE RUNNING RIFE
Committal proceedings in the civil courts are a serious business. Respondents can, and often do, go to prison. The legal costs incurred by the applicant are often extremely high. However those responding have real and fundamental difficulties in obtaining representation….
LATE WITNESS EVIDENCE AND WITNESS CREDIBILITY IN THE INTELLECTUAL PROPERTY & ENTERPRISE COURT: HANDED OVER ON A PLATE?
The Intellectual Property Enterprise Court is likely to be a model of good practice. Basically designed to ensure the SMEs can protect their intellectual property rights without going broke in the process it has a fairly robust approach to procedure…
WITNESS STATEMENTS AND FUNDAMENTAL DISHONESTY: NOW THERE REALLY IS ONE LAW FOR THE RICH: THE PRACTICAL IMPLICATIONS FOR CLAIMANT LAWYERS
There has been much debate about the impact of the “fundamental dishonesty” law. One practical effect it must have, however, is to ensure that claimant lawyers consider and explain the importance of the witness statement. THE ISSUE The problem with…
WASTED COSTS HEARING: NOT JUSTIFIED BECAUSE OF LIKELY COSTS INVOLVED: CAVEAT LITIGATOR
In Kagalovsky -v- Balmore Invest Limited [2015] EWEHC 1337 (QB) Mr Justice Turner turned down a wasted costs application at the first stage. “A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should…
CASE PROJECT MANAGEMENT: PRESENTATION BY H.H. JUDGE SIMON BROWN QC.
Attached to this post – Case Project Management (1) – are the slides that HH Judge Brown used in his recent address on Case Project Management to the Association of Cost Lawyers. Reproduced with his permission. KEY POINTS The slides take…
APPEALING ON THE JUDGE'S FINDINGS OF FACTS: A TRIAL IS NOT A DRESS REHEARSAL BUT "THE FIRST AND LAST NIGHT OF THE SHOW"
In the decision in Watson Farley and Williams -v- Ostrovizky today [2015] EWCA Civ 457 the Court of Appeal emphasised the difficulties of a party appealing findings of facts by the trial judge. “The aptness of the metaphor relating to…
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
"FUNDAMENTAL DISHONESTY" AND STRIKING OUT IN PERSONAL INJURY CASES: TEN KEY PROCEDURAL POINTS
The rule as to “fundamental” dishonesty has attracted a lot of attraction (and a lot of heated debate). However there has been very little examination of the details of the Act and the consequent procedural implications. There are 10 key…
AN EXPERT MUST DISCLOSE DETAILS OF PROFESSIONAL RELATIONSHIP WITH A PARTY OTHERWISE THE CONSEQUENCES CAN BE DIRE: EXP -v- BARKER
The facts in relation to the Defendant’s expert witness in the case of EXP -v- Barker [2015] EWHC 1289 (QB) are quite remarkable. The case shows the importance of an expert disclosing their history of dealing with the person on…
TRIAL BUNDLES, SEDLEY'S LAWS AND DOCUMENTARY CARPET BOMBING
“Sedley’s Laws” of trial bundles were mentioned by Mr Justice Turner in Griffiths -v- The Secretary of State for Health [2015]. Another example of over-sized trial bundles. “CPR 1.3 imposes a duty upon the parties to help the court to…
APPLICATION TO SET ASIDE JUDGMENT MADE LATE IN THE DAY: APPEAL AGAINST REFUSAL TO SET JUDGMENT ASIDE ALLOWED
In Priestley -v- Dunbar [2015] EWHC 987 (Ch) H.H.Judge Behrens (sitting as a judge of the High Court) overturned an earlier decision refusing to set judgment aside on the grounds of delay. THE CASE The claimant had obtained default judgment…
WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
YET MORE ON BUNDLES : BREACH OF ORDER MADE ON "MITCHELL" GROUNDS UPHELD ON "DENTON" GROUNDS
The case of Patel -v- Mussa [2015] EWCA Civ 434 is, in essence, another sorry story about bundles. It is also an example of the Court of Appeal upholding a case management decision made by a judge who applied “Mitchell”…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
ADJOURNMENTS ON THE GROUNDS OF ILL HEALTH: A DETAILED CONSIDERATION
In Decker -v- Hopcraft [2015] EWHC 1170(QB)Mr Justice Warby set out the principles to be considered when a litigant seeks an adjournment of a hearing on the grounds of ill health. The judge held that there were five main factors…
COMMUNICATIONS WITH THE CLIENT AFTER PROCTOR: A NEW TYPE OF LEGAL DRAFTING REQUIRING PARTICULAR SKILLS
In the Proctor -v- Raleys case the standard forms and letters written by the insurers came under close scrutiny at the trial and in the Court of Appeal. Professor Richard Moorhead provides an interesting angle on this issue in his…
JUDGES MUST "CONTEND WITH THE CHANGING FASHIONS OF APPELLATE COURTS": ANOTHER LATE WITNESS STATEMENT; ANOTHER CASE WHERE RELIEF FROM SANCTIONS REFUSED
“This is yet another appeal concerning the proper application of CPR 3.9 as to relief from sanctions.” The opening words of the judgment of Mr Justice Cranston in Fouda -v- The Mayor & Burgesses of the London Borough of Southwark…
LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR'S NEGLIGENCE
In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent. The solicitors could not simply rely on standard…
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