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…
MORE ABOUT WITNESS STATEMENTS AND CONTEMPORARY EVIDENCE: THE RULE OF RECENT FABRICATION
The post on the decision in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 led to an interesting comment. However that comment, in itself, leads to further interesting questions about the use of witness statements….
BOOK REVIEW: OCCUPIERS, HIGHWAYS AND DEFECTIVE PREMISES CLAIMS: WILL IT STOP YOUR CLAIMS SLIPPING UP?
Law books nowadays are not reviewed enough. Particularly practitioner’s texts. Given that there are precious few legal bookshops in which people can browse it is nice to see s a review now and again. I have been sent a copy…
WITNESS STATEMENTS: WITNESS EVIDENCE: LETTERS BEFORE ACTION: CREDIBILITY AND…. CRICKET
The judgment of His Honour Judge Lopez in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 has some interesting lessons in relation to the treatment of witness evidence. In particular what happens when the claimant’s…
THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the judge’s assessment of that witness and the case generally. Further problems occur when both parties are lying. Here we look at some of the important judgments…
ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
I am returning to the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB). Among other things this case emphasises the dangers of leading questions when interviewing witnesses. There are dangers…
THE STATEMENT OF TRUTH: DOES IT NEED "BEEFING UP": THE POLICE SAY WITNESSES DON'T UNDERSTAND IT'S SIGNIFICANCE!
The statement of truth is central to modern litigation, and at every stage of the litigation. However it is worthwhile considering whether, in its current form, it is effective. THE ACCIDENT EXCHANGE CASE It is worthwhile reading the judgment in…
A FAILURE TO DISCLOSE CAN BE JUST AS TELLING AS DISCLOSURE ITSELF: EVIDENCE, INFERENCES AND THE BLUE ANGEL CASE
The decision of Mr Robin Hollington QC (Sitting as a Deputy Judge of the Chancery Division) in Davy -v- Croxen [2015] EWHC 2372 (Ch) (“The Blue Angel case”) contains some illuminating observations about the practicalities and costs of disclosure and…
"AGGRESSIVE CORRESPONDENCE" AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED?
There is an interesting report by Chloe Smith in The Law Society Gazette “Solicitor reprimanded for email calling opponent a “plonker””. The comments that follow that article are equally interesting with the usual mix of wry and witty observations. The…
WITNESSES WHO DID NOT DRAFT (OR UNDERSTAND) THEIR STATEMENTS, WOULD BE "EXPERTS" AND OTHER WITNESS WOES.
Hot on the heels of my posing the question whether 278 years of judicial prompting on witness statements had led to any results comes the decision today of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos…
WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions. This…
PSYCHOBABBLE IN WITNESS STATEMENTS: STRONG VIEWS FROM THE FAMILY COURT
This blog has looked many times at the perils of giving “opinion” evidence in witness statements. A particularly stark example can by found in the judgment of Ms Justice Russell in re W [2015] EWHC 2039 (Fam). Another case that…
EXPERT EVIDENCE IN INSURANCE CASES 2: BRIT UW LIMITED: FAILURE TO DISCLOSE UNDERMINED DEFENDANT'S CASE
There are, coincidentally, two recent cases on the use of expert witnesses in insurance disputes. In Brit UW Limited -v- F & B Trenchless Solutions Limited [2015] EWHC 2237 (Comm) Mrs Justice Carr DBE considered the utility of expert evidence…
EXPERT WITNESSES IN INSURANCE CASES 1: INVOLNERT MANAGEMENT
In Involnert Management Inc -v- AIS Insurance Services Limited [2015] EWHC 2225 (Comm) Mr Justice Leggatt considered the evidence of experts in a case between insurer and insured and, more particularly,between the insured and insurance broker. THE CASE The defendants…
WITNESS CREDIBILITY: PROBLEM WITH DEFENDANTS' EVIDENCE
The recent posts on witness credibility have given rise to much attention. Matthew Stockwell, junior counsel for the claimant, has pointed out that the case of Pollock -v- Cahill [2015] EWHC 2260 (QB) also involves an assessment of witness evidence….
WITNESS CREDIBILITY AGAIN: THE HIDDEN VICTIMS OF PERSONAL INJURY FRAUD: HONEST CLAIMANTS
This post should serve as a necessary balance/counterblast to the earlier post on the Sonae Industria case. In that case some of the witnesses were found to be honest and some patently dishonest. It was a feature of that case…
WITNESS EVIDENCE: CREDIBILITY;FACEBOOK;TWITTER AND THE CLAIMS GO UP IN SMOKE…
This blog has looked at issues relating to witness credibility many times. It is one of the most under-examined aspects of the civil litigation process. The decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK)…
THE CHIPS ARE DOWN FOR EXPERT WHO FAILED TO DECLARE AN INTEREST
In The Ritz Hotel Casino Ltd -v- Al Geabury [2015] EWHC 2294(QB) Mrs Justice Simler DBE was critical of an expert who failed to declare an interest in a case. The expert had become a treating doctor. “It was no…
ASSESSING WITNESS CREDIBILITY: THE CENTRAL BANK OF ECUADOR CASE REVISITED: THE OCEAN FROST APPROACH
I have already posted an article on the Privy Council decision in Central Bank of Ecuador -v- Conticort CA [2015] UKPC 11. It was a remarkable case in that the Privy Council overturned findings of fact of the trial judge. In…
THIS "PROBLEM" WITH WITNESSES: IT IS NOT A ONE WAY STREET: DEFENDANT'S EVIDENCE NOT BELIEVED
Much attention is, rightly, paid to the actions of evidence of claimants who bring fraudulent claims or give untrue evidence. However it is important to remember that this issue with evidence is not a one way street. There are plenty…
ADVISING ON THE "RISKS OF LITIGATION": A HIGH COURT DECISION
In Thomas -v- Albutt [2015] EWHC Mr Justice Morgan considered, among other things, the duty owed by a barrister (and lawyers generally) to warn about the risks of litigation. “Clients, I know, want two inconsistent things. They want confident advice…
THINKING OF ALLEGING OR PLEADING FRAUD: BETTER READ THIS FIRST
In NGM Sustainable Developments Ltd -v- Wallis [2015] EWHC 2089 (Ch) Mr Justice Peter Smith highlighted the importance of full and accurate pleading of a case alleging fraud. “…in commercial matters the parties and their lawyers tend to work long…
THE IMPORTANCE OF THE STATEMENT OF TRUTH: COMMENTS IN THE ADMINISTRATIVE COURT: THE SIGNATORY CANNOT HIDE BEHIND THE DRAFTSMAN
The signing of a statement of truth is now an everyday event in litigation. With documents signed by clients, or by lawyers on behalf of their clients. Recent cases highlight the significance of the statement of truth. It is important…
IS A FALSE AFFIDAVIT WORSE THAN A FALSE WITNESS STATEMENT? THE HIGH COURT CONSIDERS THE POINT
In International Sports Tours -v- Shorey [2015] EWHC 2040 (QB) Mr Justice Green considered some interesting issues relating to committal for contempt, witness statements and affidavits. THE ACTION The claimant brought an action against a former employee and others claiming breach…
OVERTURNING FINDING OF FACTS ON APPEAL: FINDINGS OF ABSENCE OF DISHONESTY OVERTURNED BY THE PRIVY COUNCIL
The judgment of the Privy Council in Central Bank of Ecuador and others v Conticorp SA and others [2015] UKPC 11; [2015] WLR (D) 150 is quite extraordinary. It involved the Privy Council overturning a finding of fact of the judge at first instance that…
RECONSTRUCTION AND RECOLLECTION: HONEST WITNESSES GET THINGS WRONG: WHICH WITNESS WILL BE BELIEVED
The case of Wright -v- Lewis Silkin LLP [2015] EWHC 1897 (QB) has been widely reported. Some report it as a case where a solicitor’s evidence was not believed. This is grossly unfair. This case is another example of the…
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