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…
WITNESS CREDIBILITY WHEN BOTH SIDES ARE NOT WHOLLY TRUTHFUL: THE APPROPRIATE APPROACH
This blog has looked, many times, at the approach that the courts take in relation to conflicting witness evidence. Particular problems arise when both sides are being less than truthful. Many of these principles involved have developed out of hard…
SILENCE ON KEY ISSUES DOES NOT PROVE YOUR CASE: SQUARING UP TO WITNESS EVIDENCE
The judgment of Recorder Halpern QC in Canada Square Operations Ltd -v- Kinleigh Folkard & Hayward Limited (17/09/15)* is interesting for a number of reasons. Firstly on issues of limitation; secondly on the point that a court will not infer…
"DOCUMENTS WIN CASES"E-DISCLOSURE AND EVIDENCE FOR THE 21st CENTURY LITIGATOR: LEEDS 20th OCTOBER; LONDON 22nd OCTOBER
There is a panel session on e-disclosure and evidence in central Leeds on the 20th October and again in Lincoln’s Inn on the 22nd October. Both start at 4.00 pm and last two hours. LIVE AT LEEDS The session in…
THERE AREN'T EIGHT DAYS A WEEK: HIGH COURT'S CONCERNS ABOUT CASE MANAGEMENT AND TIMING ISSUES
It is rare for a judgment to begin with the judge setting out a series of concerns on the way that the case has been conducted. This is the situation in the judgment of HH Judge Saffman (sitting as a…
WHOSE WITNESS STATEMENT IS IT ANYWAY? WELL THE SOLICITOR DRAFTED IT FOR ME
The judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) deals with many complex issues of causation and law in a difficult clinical negligence case. However I want to deal…
ADVERSE INFERENCES FROM MISSING DOCUMENTS AND WITNESSES: ANOTHER CASE TO POINT
We have looked at the decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) several times, firstly in relation to witness evidence and then in relation to the use of social…
WHAT A DIFFERENCE A PAGE MAKES: COURT WOULD NOT RECONSIDER JUDGMENT BECAUSE TRIAL BUNDLE WAS MISSING A PAGE
In Absolute Lofts South West London Limited -v- Artisan Home Improvements [2015] EWHC 2632 (IPEC) the claimant had missed a crucial page from the trial bundle. His Honour Judge Hacon refused an application to reconsider his judgment on damages. If anything showed…
GUIDANCE TO EXPERTS: CORRESPONDENCE TO THE BRITISH DENTAL JOURNAL: WHO DOES AN EXPERT "REPRESENT"?
It is rare that lawyers can look to the British Dental Journal for advice on procedure and evidence. However there is a beautifully phrased letter in the British Dental Journal “reviewing a review”. THE LETTER The writer was commenting on…
EVIDENCE, THE INTERNET AND SOCIAL MEDIA: FACEBOOK AND YOUTUBE EXPOSE DEFENDANT
The judgment of Judge Seymour in Cirencester Friendly Society -v- Parkin [2015] EWHC 1750(QB) provides another example of how the social media and the internet provides ammunition in litigation. Here we have a case of a defendant helpfully providing telling…
"HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE": 22nd SEPTEMBER 2015: HARDWICKE BUILDING, LONDON: RAISING FUNDS FOR THE BILLABLE HOUR
LITIGATORS: HOW TO GET SUED: MAKE A LOSS AND BE MISERABLE RAISING MONEY FOR THE BILLABLE HOUR APPEAL (ALL PROCEEDS GO TO THE APPEAL) Gordon Exall and PJ Kirby QC. Hardwicke Building, Lincoln’s Inn. TUESDAY 22nd SEPTEMBER 2015 5.30 -…
DOCUMENTS WIN CASES: E-DISCLOSURE & EVIDENCE: LEEDS 20th OCTOBER 2015: SAVE THE DATE FOR YOUR DIARY
Huron Legal, in association with Zenith Chambers, are running an evening panel session on “E-Disclosure and Evidence for the 21st Century Litigator.” It features, Chris Dale from the eDisclosure Information Project, Jonathan Maas from Huron and me. It lasts for…
THE WITNESS WHO KNOWS NOTHING AND WANTS TO BE AN EXPERT: A REVIEW OF THE CASES
There are a surprising number of witness statements in which witnesses quite happy give “evidence” on matters on which they in fact know nothing. Some will even add to their “evidence” by assisting the court with matters of opinion. An…
You must be logged in to post a comment.