ADVOCACY THE JUDGE’S VIEW VII: WITNESS STATEMENTS – SHORT AND SWEET IS BEST
We have already looked once this week at a judge’s viewpoint on the drafting of witness statements. In terms of advocacy they are crucial. The rules only allow the witness to give additional evidence in exceptional circumstances. Many cases that…
PROVING THINGS 33: CAUSATION AND THE BURDEN OF PROOF IN CLAIMS AGAINST SOLICITORS
We have looked before at the decision in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors [2016] EWHC 2286 (Ch). The previous post was in connection with witness evidence. However the judgment on the burden of proof is significant in terms…
DESTINATION OF APPEALS: THE NEW RULES
The Access to Justice Act 1999 (Destination of Appeals) Order 2016 makes some important changes to the destination of appeals. It “simplifies” the appeals process so that, as far as possible, an appeal lies to the next level of judge….
JUDICIAL ASSESSMENT OF EXPERT EVIDENCE: NOT SIMPLY A CASE OF WHICH EXPERT IS PREFERRED
There is a short passage in the judgment in Barclays Bank PLC -v- Christie Owen & Davies Limited [2016] EWHC 2351 (Ch) which considers the appropriate approach of the court when considering expert evidence. “To consider simply whether to prefer…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
LITIGANTS IN PERSON AND CASE MANAGEMENT: TIMELY SERVICE OF DOCUMENTS – DRAWING FROM THE FAMILY DIVISION
Recent cases have made it clear that litigants in person do not have any special status during the conduct of litigation. However it is equally clear that, when making case management decisions, the court has to have regard to the…
WITNESS STATEMENTS, THE WEATHER AND THE DISTRICT JUDGE…
The observations by District Judge Etherington reported by John Hyde in the Law Society Gazette deserve repetition and the widest audience possible. (The Readers’ comments on the article also make for interesting reading). THE GAZETTE REPORT The District Judge was speaking…
THIS COSTS BUDGETING THING – IT IS NOT THAT IMPORTANT: WELL THINK AGAIN
There are some important observations made by Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman Limited [2016] EWHC 2315 (Ch) in relation to both costs budgeting and security for costs. KEY POINTS There is no duty on a…
RECOVERING LITIGATION FUNDING COSTS: A HIGH COURT CASE -BUT ABOUT ARBITRATION PROCEEDINGS
I am grateful to Professor Dominic Regan and Nicholas Bacon QC for sending me a copy of the decision in Essar Oilfields -v- Norscot [2016] EWHC 2361 (Comm).A decision of His Honour Judge Waksman QC sitting as a Judge of…
WITNESS STATEMENTS: WHEN THINGS GO WRONG – BLAME THE SOLICITOR
This blog has noted before that a witness whose evidence is not accepted often attempts to renege on their witness statement and blame their solicitor for the errors. Another example can be found in the recent decision of Mr Recorder…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
TWO PROCEDURAL POINTS: A SECOND ACTION IS NOT ALWAYS AN ABUSE OF PROCESS & A BANKRUPT CANNOT BRING PROCEEDINGS
The judgment of Master Bowles in Khan -v- Khan & Ambala Foods Limited [2015] EWHC 2625 (Ch) contains a reminder of two important procedural points. KEY POINTS (1) The issue of a second set of proceedings is potentially an abuse…
PROVING THINGS 31: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO REMEMBER
How do judges decide whether a witness is accurate in their recollection? This issue has been a common theme on this blog. This was an issue considered by Mark Cawson QC (sitting as a Deputy High Court Judge) in The Connaught…
THE INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: EVIDENCE BEFORE THE COURT OVERRIDES HEARSAY
This blog has looked many times at cases which consider the practical implication of the test in Central Manchester Health Authority v W (A minor) [1998] PIQR P324: the inferences a trial judge should infer when witnesses are noted called at…
SOLICITOR'S AGENT HAS NO RIGHT OF AUDIENCE AT STAGE 3 HEARING: COUNTY COURT DECISION CONSIDERED
Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake…
INVALID SERVICE OF CLAIM ON SOLICITORS: ANOTHER CLAIM FORM INCORRECTLY SERVED
Problems with service of the claim form are a regular feature of this blog. I have written, many times, about the dangers of leaving service of the claim form until the last minute. I have also written, many times, about…
ADVOCACY THE JUDGE’S VIEW VI: HOW A JUDGE ASSESSES WITNESS EVIDENCE
We have covered many countries so far in this series which looks at the advice that judges give on advocacy. For the next few posts I have decided to stay closer to home. I want to look at the…
CANAL TRUST’S ATTEMPTS TO BARGE OVER WITHOUT PREJUDICE RULE IS SUNK WITHOUT TRACE: NO WATERING DOWN OF THE PRINCIPLES
Can a party refer to without prejudice correspondence at interlocutory hearings? The previous post looked at the judgment of Chief Master Marsh in Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) in relation to the issue of McKenzie friends….
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
PROVING THINGS 30: OFFICE GOSSIP PROVES NOTHING: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF
There is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information and belief. This requirement is often ignored, or there is some vague and general wording of knowledge. Ignoring, and respecting,…
WITNESS STATEMENTS THAT ARE LARGELY DISREGARDED: A CASE IN POINT
Witness statements are often too long, contain inadmissible evidence and tendentious comments. An example can be see in the judgment in Moore -v- Moore [2016] EWHC 2202 (Ch) Mr S Monty QC (sitting as a Deputy Judge of the Chancery…
FAILURE TO PROVIDE INFORMATION IN WITNESS STATEMENT LEADS TO APPLICATION BEING STRUCK OUT: HIGH COURT DECISION TODAY
Chief Master Marsh has had a busy day. This is the second decision today I am writing about. In Wave Lending Ltd -v- Batra and SFM Legal Services Ltd [2016] EWHC 2238 (Ch) he considered whether a witness statement complied…
COSTS BUDGETING AND LITIGANTS IN PERSON: BUDGETING THE COSTS OF ASSISTANCE AND COUNSEL
The decision today of Chief Master Marsh in Campbell -v- Campbell [2016] EWHC 2237 (Ch) deals with some important issues in relation to costs budgeting, the costs of litigants in person, instructing counsel and the nature of costs budgeting generally. “……
WITNESS STATEMENTS: WHEN CAN A LAY WITNESS GIVE OPINION EVIDENCE?THE STATUTE, THE CASES & SOME GUIDANCE
I have written, many times, about the dangers of putting opinion evidence into witness statements. The attempts of witnesses to be experts, or to tell the judge what the outcome of the case should be, can lead to robust adverse…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 2: THE STRESS OF LITIGATION: GUIDANCE AND LINKS
The earlier post on looking at litigation from the litigant’s viewpoint led to some interesting comments, on the blog itself; on LinkedIn and on twitter. It was particularly interesting to hear from lawyers who had been involved in litigation…
WITNESS STATEMENTS: THE LAWYER'S DUTIES: A FAMILY CASE
There are some observations in the judgment in Hampshire County Council -v- O [2016] EW B22 (CC) that are of general importance. It relates to the duty of lawyers to ensure that witness statements are full and adequate. “It is…
I'VE LOST £5 MILLION AND ITS ALL MY SOLICITOR'S FAULT: WHEN THE CLIENT BLAMES YOU FOR THEIR OWN BAD DECISIONS
This post is unusual in that it deals with a case from a different jurisdiction (Northern Ireland) and a professional negligence action against a conveyancer not a litigator. However the decision of Deeny J in Eden (NI) Limited -v- Mills,…
BANQUO’S GHOST NOT AT THE FEAST: WHEN A KEY WITNESS IS NOT CALLED – THE INFERENCES A COURT WILL DRAW
There is an interesting discussion of the role of the “absent witness” in the judgment today of Mr Justice Kerr in O’Hare -v-Coutts & Co [2016] EWHC 2224 (QB). There are dangers in a party not calling someone who is…
YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I…
IF THE DEFENCE IS FILED LATE THE CLAIMANT IS STILL ENTITLED TO DEFAULT JUDGMENT: TWO POINTS TO WATCH
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE. The decision of Deputy Master Pickering in Billington -v- Davies [2016] EWHC 1919 (Ch) illustrates two important principles that are often overlooked. A…
PROPORTIONATE COSTS IN A FAMILY CASE: £33,813 REDUCED TO £3,737.50
In K -v- K [2016] EWHC 2002 (Fam) Mr Justice Macdonald reduced the costs of a successful party to an appeal in a family case. “The stringent test of proportionality in relation to costs incurred applies with equal force in…
PROVING THINGS 29: MAKE SURE THE WITNESS EVIDENCE DEALS WITH THE RELEVANT ISSUES
In Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam) Mr Justice Hayden had some important observations on the preparation of witness evidence. Although made in a family case the comments are of general observation: those who take witness…
YOUR WITNESSES ARE LINED UP ALL IN A ROW: THEN YOU MAY BE IN TROUBLE
Many cases have many witnesses saying, essentially, the same thing. Inconsistencies between witnesses are (often subconsciously) ironed out by lawyers during the statement stage. However consistency is not always a good thing. WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG This…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 1: A BOOK WORTH READING
There is surprisingly little written about the actual experience of being a litigant, particularly a litigant in the civil courts. What is more the “experience”, or viewpoint of the client does not figure greatly (if at all) in legal training. Doctors have…
CHALLENGING VIDEO SURVEILLANCE BY THE USE OF EXPERT EVIDENCE: THE PREQUEL
Last month I wrote about the decision of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB). One of the many issues the judge considered in that case was the admissibility of expert evidence to…
THAT JUDGE IS BIASED AGAINST ME, WE CAN'T GO ON: THE APPROPRIATE RESPONSE
As we have seen many times in this blog trial judges sometimes have to make robust findings of fact about the credibility of witnesses. In Howe -v- Gossop [2016] EWHC 2169 (Ch) His Honour Judge Behrens (sitting as a High…
QOCS & DISCONTINUANCE: ANOTHER CASE (WHERE THE CLAIMANT WAS SUCCESSFUL)
I am grateful to barrister James Bentley for drawing my attention to the judgment of Mr Recorder Berkley in Magon -v- Royal & Sun Alliance Insurance PLC (26th February 2016). Another decision in relation to QOCS and discontinuance. The District Judge…
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
OBTAIN AN INJUNCTION: PAY TENS OF MILLIONS IN COMPENSATION: ANOTHER WARNING LESSON
This blog has looked several times at the dangers of obtaining injunctions. A particular danger is the undertaking in damages that has to be given when obtaining an injunction to freeze assets. The judgment of Mr Justice Males in Fiona…
NON-SOLICITOR LITIGATION ENTITIES AND WASTED COSTS: WANT TO BE £102,000 OUT OF POCKET?
An earlier post looked at the issues relating to litigation being conducted by an non-authorised entity. In M A Lloyd & Son Ltd -v- PPC International Limited [2016] EWHC 2162 (QB) issues of wasted costs arose in relation to a…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
A BLUEPRINT FOR TROUBLE? A CAUTIONARY TALE FOR ANYONE CONSIDERING "ALTERNATIVES" TO SOLICITORS IN LITIGATION
The judgment of Master Matthews in Lyons -v-Kerr-Robinson [2016] EWHC 2137 (Ch) contains a cautionary tale for anyone proposing to use an alternative to solicitors to conduct their litigation. The defendant in this case used licensed conveyancers. Their charges were…
THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED
The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change. There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…
ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED
In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…
AN EXPERT DISPLAYING ZEALOTRY IS NO HELP AT ALL (AND USUALLY HARMFUL)
In the Matter of F (a Minor) EWHC 2149 (Fam)Mr Justice Hayden had to consider whether an expert report should be admitted in a family case. The comments on the expert evidence are of general relevance. “The overall impression is…
PAYING THE CORRECT COURT FEE: ACTION STAYED: SANITY IS BREAKING OUT
There are several interesting issues arising out of the judgment of Master Clark in Lifestyles Equities C.V. -v- Sportsdirect.Com Retail Limited [2016] EWHC 2092. In particular the fact that the decision in Richard Lewis & Others -v- Ward Hadaway [2015]…
COSTS BUDGETING IS APPROPRIATE AND NECESSARY IN A HIGH VALUE CASE : BUT IT WAS NOT APPROPRIATE TO ORDER A SPLIT TRIAL
In Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) Chief Master Marsh considered two issues relating to case management: whether costs budgeting should apply and whether a split trial was appropriate. KEY POINTS Costs budgeting A…
REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS' REPORTS
The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords looked at the point that, at the appeal stage, the courts were only concerned with whether they could…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 3: A NUANCED APPROACH
We have looked several times before at the question of what a defendant can argue in relation to damages after judgment has been entered*. The recent decision of Master Matthews in Merito Financial Services Limited -v- David Yelloly [2016] EWHC…
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