WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)
The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on…
STARTING PUPILLAGE OR A TRAINING CONTRACT – WHAT DO YOU PUT IN YOUR BAG? ADVICE FROM THE LAWYERS OF TWITTER
Many people are starting their pupillages and training contracts tomorrow. When pupil-to-be Chloe Branton asked for some advice as to what to take in her bag to court the legal twiterrati were, as ever, generous in their advice. THE QUESTION…
PROVING THINGS 161: DOCUMENTS BEING DELIBERATELY DESTROYED AND EXPERTS WHO WERE OF VERY LIMITED ASSISTANCE
The judgment in Bajaj Healthcare Ltd v Fine Organics Ltd [2019] EWHC 2316 (Ch) is in what could appear to be a fairly dry dispute about the supply of goods. As the judge observed this was not a simple sale…
THE EXPERT AS ADVOCATE AND PROVIDING “CRITICAL COMMENTARY”: IMPORTANT POINTS ON THE ROLE OF THE EXPERT WITNESS TO TAKE AWAY
There are some interesting comments on experts in the judgment of Matthew Gullick (sitting as a High Court Judge) in Pepe’s Piri Piri Ltd & Anor v Junaid & Ors [2019] EWHC 2097. “It is not part of the duty…
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY
Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case. However, as we have seen so often on this…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENCE EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
WHEN THE EXPERT WITNESS ACTUALLY SAYS THEY ARE AN “ADVOCATE”: WHAT IS GOING TO HAPPEN?
In LIC Telecommunications SARL & Anor v VTB Capital Plc & Ors [2019] EWHC 1747 (Comm) Mrs Justice Moulder made some telling observations in relation to the expert evidence. THE CASE The application concerned whether certain proceedings were duly authorised….
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
DEFENDANT REFUSED PERMISSION TO RELY ON “SPECIALIST” EVIDENCE AS TO LIFE EXPECTANCY: THE CIRCUMSTANCES IN WHICH SUCH EVIDENCE IS ALLOWED AND CONSIDERED
In Dodds v Arif & Anor [2019] EWHC 1512 (QB) Master Davison refused the defendant’s application to rely on a specialist report in relation to the claimant’s life expectancy. The judgment also contains an important summary of the circumstances in…
PROVING THINGS 154: CLOSE CONNECTION IN TIME DOES NOT ESTABLISH CAUSATION IN A CLINICAL NEGLIGENCE CASE: EXPERTS STRAYING BEYOND THEIR AREA OF EXPERTISE
In AXO v Salisbury NHS Foundation Trust [2019] EWHC 1454 (QB) Mrs Justice YIP considered the issue of causation in a clinical negligence case. Liability was admitted but the claimant failed to establish causation. THE CASE The claimant child was…
EXPERT WITNESSES: A CRISIS IN THE CRIMINAL COURTS – RECOMMENDED READING FOR ALL LITIGATORS
Matthew Scott’s “Barrister Blogger” blog is always an interesting read. His latest post Expert witnesses: a crisis in the criminal courts is essential reading for everyone involved in any type of litigation – and also for anyone who is an…
THE EXPERT WITNESS AND THE “HIRED GUN”: THE FACT THAT EXPERTS WERE VERY EXPENSIVE (AND FEES WERE FIXED IN RETROSPECT) DID NOT MAKE THEM UNRELIABLE
In O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48 the Supreme Court of Ireland made some telling observations on the role of the expert witness. Problems with experts are clearly not confined to one jurisdiction. OPENING OBSERVATIONS OF…
GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M [2019] EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains…
THE APPOINTMENT OF A SINGLE JOINT EXPERT DOES NOT DISPLACE THE TRIAL JUDGE: EXPERTS SHOULD NOT “OVERREACH”
In O v B-M [2019] EWFC B23 Mr Recorder Allen QC noted that a Single Joint Expert had gone beyond their remit in making findings of “fact”. The parties do not “abdicate” findings to a single joint experts and the…
GUIDANCE ON INSTRUCTING EXPERTS (3): THE INSTRUCTION OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
We are returning to the Civil Justice Council “Guidance for the instruction of experts in civil claims”. This time the guidance on the instruction of experts. Remember this guidance is incorporated into the rules. It provides a essential information as…
GUIDANCE ON INSTRUCTING EXPERTS (2): THE APPOINTMENT OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
The importance of the guidance given by the Civil Justice Council “Guidance for the instruction of experts in civil claims” is often overlooked. Not only are few people aware of exist of the guidance, fewer still are aware that it…
GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: “MUCH LIKE A COWBOY HERDING CATTLE”
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known and widely reported recently. This is one of the matters that crosses boundaries and gives rise to common problems across…
WHO IS AN EXPERT? NOW THERE’S A QUESTION: DEFINITIONS OF “EXPERT” CONSIDERED
The collapse of the “carbon credit fraud” prosecution today because an “expert” was found out to have no actual expertise leads to consideration of how exactly the courts define an “expert” . This does not give rise to a straightforward…