EXPERT WATCH 25: EXPERT IN ELECTION CASE FAILS TO GET THE JUDGES’ VOTE: THE EXPERT SHOULD BE SENT (AND CONSIDER) CONTRADICTING EVIDENCE
There are not many cases where issues relating to expert evidence are considered in an Election Court. We have such a case here. The Court allowed expert evidence to be admitted. However it was unable to give any weight to…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
FUNDAMENTAL DISHONESTY AND CONTEMPT OF COURT: CLAIMANT BROUGHT A FRAUDULENT £3 MILLION CLAIM: SENTENCE OF IMPRISONMENT IMPOSED
This blog has looked at cases of fundamental dishonesty many times. It has to be remembered that, more often than not, bringing dishonest claims is also contempt of court. This case deals with the appropriate sentence that should be passed…
CONTRIBUTORY NEGLIGENCE IN ROAD TRAFFIC CASES: DO ALL ROADS LEAD TO FROOM? WEBINAR 19th NOVEMBER 2025
Issues relating to contributory negligence often play a large part in road traffic cases. This webinar looks at the case law and guidance in relation to the key issues that often arise. Booking details are available here. (A failure to wear…
THE DEFENDANTS’ SOLICITOR HAS BEEN “SET UP”, SECRETLY RECORDED AND TOLD US THINGS HE SHOULD NOT: NOW WE WANT SUMMARY JUDGMENT BASED ON THOSE RECORDINGS: QUITE A CASE THIS…
Here we have an extraordinary case. The claimants’ employed a private enquiry agent to meet, on a pretence, with the defendants’ solicitor. That meeting was used by the enquiry agent to obtain information about the defendants’ case. It was videoed…
CONTEMPT OF COURT (1) CONTEMPT NEED NOT BE “CONTUMELIOUS” (WHATEVER THAT MEANS): WHY CHIEF CONSTABLES, CHIEF EXECUTIVES, MINISTERS OF STATE AND BOSSES EVERYWHERE NEED TO PAY CLOSE ATTENTION TO LITIGATION
I am breaking down this important Court of Appeal decision into a number of parts. We have already looked at the judgment as to the numerous “misleading” witness statements that were filed. The Court of Appeal also makes important observations…
WITNESS EVIDENCE WEDNESDAY: “MISLEADING AND UNTRUE STATEMENTS… HAVE BEEN MADE TO THE COURT ON BEHALF OF THE CHIEF CONSTABLE” (COURT OF APPEAL ARE NOT HAPPY…)
This week we are looking at a remarkable case. Shortly before a matter was due to be heard in the Court of Appeal the respondent (the Chief Constable of a police force) filed documents which showed that numerous witness statements…
PROVING THINGS 273: COURT OF APPEAL OVERTURNS FINDINGS OF FACT: IT “BEGGARS BELIEF” THAT THE DEFENDANT DID NOT KNOW OF THE RELEVANT MATTERS
Here we look at a case where the Court of Appeal overturned the trial judge’s findings of fact at trial. Usually this is difficult, or the court acts with some reticence, here the Court uses the phrase “it beggars belief”…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
COST BITES 304: “NEGLIGENCE” HAS A PARTICULAR MEANING IN A WASTED COSTS APPLICATION: THERE MUST BE “SOMETHING AKIN TO AN ABUSE OF PROCESS”.
The judgment here considers what is meant by “negligent” when wasted costs are sought against a legal representative. The review of the authorities makes it clear that it has a specific meaning. (There is a Lord Denning judgment where he…
WITNESS EVIDENCE WEDNESDAY: HOW JUDGES DECIDE CIVIL CASES: “JUDGES ARE HUMAN. THEY DO NOT POSSESS SUPERNATURAL POWERS”
This week we are looking at a judgment that sets out in detail the process by which judges determine issues in a civil case. Ranging from the burden and standard of proof , the role of judges, the fallibility of…
EXPERT WATCH 22: JUST WHEN YOU THINK YOU MAY HAVE SEEN IT ALL: THE CLIENT (BASICALLY) DRAFTS THE JOINT STATEMENT: THE JUDGE THINKS THEY MAY HAVE PLAYED A LARGE PART IN THE DRAFTING OF THE REPORT ITSELF…
No matter how long, and how much, you write about civil procedure cases can still come along which surprise – if not astonish. We have such a case here. The judge found that, essentially, it was the client who played…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
OCCUPIER’S LIABILITY CASES IN THE COURTS: A PRACTICAL APPROACH: WEBINAR 29th OCTOBER 2025
This webinar looks at how the courts are dealing with occupiers liability cases and the duty of care. It takes a practical look at they way in which cases are decided and the factors which determine whether liability is established…
SHOULD THE COURT GIVE ADEFENDANT PERMISSION TO RELY ON WITNESS STATEMENT THAT WAS SENT “EARLY” BUT NOT SERVED AS A TRIAL WITNESS STATEMENT?
We are looking at an application to rely on a witness statement that was served “late”. The statement had, in fact, been served on the claimants ahead of the deadline but not served as a witness statement for trial. When…
WHEN A SOLICITOR SIGNS THE STATEMENT OF TRUTH FOR A COMPANY: THE COURT CAN ORDER THAT THE COMPANY DELIVERS UP DETAILS OF WHICH INDIVIDUAL GAVE INFORMATION
It is not uncommon for the solicitor to sign a statement of truth on behalf of a company or corporation. This case considers the question of whether the company can be compelled to give details of the individuals who gave…
WITNESS EVIDENCE WEDNESDAY: THE DUTY TO PUT YOUR CASE TO A WITNESS: THE PRINCIPLES SUMMARISED IN THE HIGH COURT
Earlier this week we looked at a case where difficulties occurred because the claimant’s case was not put to a witness for the defendant. Here I want to highlight the key parts of that judgment relating to the need…
THE REQUIREMENT TO PUT YOUR CASE TO YOUR OPPONENT’S WITNESS (AND THE POTENTIAL DIRE CONSEQUENCES IF THIS IS NOT DONE): SOME UNUSUAL PROCEDURAL TANGLES IN THE THE HIGH COURT
We are looking at a case where, for reasons that are unclear, the claimants failed to challenge a key part of the evidence of the defendant’s witness. That evidence was central to the claimants’ case. The claimants’ attempts to rectify…
(NOT) PROVING THINGS 272: AN ABSENT WITNESS LEADS TO ADVERSE INFERENCES BEING DRAWN: PROBLEM OCCUR WHEN YOUR CASE AT TRIAL IS WHOLLY DIFFERENT TO THE PLEADED CASE
Many people have noted that the argument that the court should draw adverse inferences from the absence of key witnesses is often bypassed by the courts, with judges preferring to base their decisions on the evidence of witnesses that are…
FACT FINDING FOR CIVIL LAWYERS: WEBINAR 22nd OCTOBER 2025: SOME IMPORTANT ISSUES OF INTEREST TO ALL LITIGATORS
There is surprisingly little guidance for lawyers on the process by which judges approach the issue of fact finding and witness credibility. However a detailed working knowledge of this is essential for every working litigator. Most cases are won or…
WITNESS STATEMENTS: GUIDANCE FOR THOSE WHO TAKE THEM AND THOSE WHO SUPERVISE THEM: WEBINAR 15th OCTOBER 2025
On a regular basis on this blog we see cases where judges have been highly critical of the witness statements used at trials or hearings. This criticism is not a rare event and is usually justified. Many witness statements are…
PROVING THINGS 270: DEFENDANT FAILS TO PROVE A FAILURE TO MITIGATE LOSS: NO MARKET FOR REJECTED HOSPITAL GOWNS
The burden of proving a failure to mitigate loss lies on the party alleging it. It is a case that has to be pleaded. Once pleaded then the case has to be proven. Here we look at a case where…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
WITNESS EVIDENCE WEDNESDAY: WHEN PEOPLE ARE GIVING EVIDENCE OF SOMETHING THAT HAPPENED 12 1/2 YEARS PREVIOUSLY (AND SOME OF THEM WERE CHILDREN)
Here we are looking at judicial fact finding when a judge was considering witness evidence as to an accident that had happened some 12 1/2 years before the date of the trial. Like many such accidents it happened in a…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
NEW RULES COMING INTO FORCE ON THE 12TH SEPTEMBER 2025 AND THE 1ST OCTOBER 2025 (2): DISPUTING EVIDENCE AND FILING EVIDENCE IN PART 8 PROCEEDINGS
Here we look at the latest statutory instrument which makes changes to the rules. This time a highly specific rule making amendments to Part 8 to deal with the filing of evidence where the defendant states it intends to dispute…
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS: THE CODE
As promised in the previous post, here is the discount code for the Civil Litigation Brief series of webinars. The webinars include topics such as cost effective delegation, attendance notes, the liability of insurers to pay judgments, the joint expert…
MEMBER NEWS: DISCOUNTS FOR MEMBERS ON THE CIVIL LITIGATION BRIEF SERIES OF WEBINARS
There are a series of webinars coming up which cover many of the key aspects we look at on this site. Members who subscribe to the site can now obtain a discount on each of the webinars, with further discounts…
MY WITNESSES HAVE MADE STATEMENTS BUT WILL NOT ATTEND THE TRIAL: WHAT IS THE JUDGE GOING TO INFER? SECTION 2(4) OF THE CIVIL EVIDENCE ACT 1995 CONSIDERED
Here we are looking at a case where the claimant served witness statements that he said he was going to rely on. It only became apparent part way through the trial that the claimant was not, in fact, going to…
PROVING THINGS 268: LAW FIRM DEFENDANT FAILS TO ADDUCE EVIDENCE TO PROVE ITS ASSERTIONS – IT WAS BOUND BY ITS OWN “BAD BARGAIN”
Here we have an interesting dispute between two firms of lawyers. The claimant sued the defendant under a contractual agreement following the transfer of files. What is particularly interesting here is the judge’s observations on the lack of evidence brought…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
THE CURRENT IMPORTANCE OF PLEADINGS 29: THE DUTIES INVOLVED WHEN PLEADING FRAUD: CLAIMANT’S ALLEGATIONS THAT WERE “MORE CONSISTENT WITH HONESTY” ON THE PART OF THE DEFENDANT
Here we are looking at a case where the claimant applied for permission to amend its Particulars so it could plead fraud. The application was refused. It is a reminder of the onerous duties on a party when proposing to…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
APPLICANT REFUSED PERMISSION TO RELY UPON A WITNESS STATEMENT THAT WAS SERVED LATE: NON-COMPLIANCE WITH THE RULES IS EFFECTIVELY A FORM OF CHEATING
Here we are looking at a case from the family jurisdiction. Slightly different rules apply, however the overall principles are the same as in the CPR. The judge had to consider whether to grant permission to an applicant to rely…
HOW NOT TO APPLY TO SET ASIDE A JUDGMENT WHICH IS ALLEGED TO HAVE BEEN OBTAINED BY FRAUD: THE JUDGE MARKED THE “ILL CONSIDERED AND POOR MANNER IN WHICH THE APPLICATION HAS BEEN PREPARED AND PROSECUTED”
It is possible to apply to set aside a previous judgment when the applicant’s case is that that judgment was obtained by fraud. However here we look at an almost textbook example of how not to go about this. The court…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
This webinar looks at what to do when things go wrong in civil litigation. There is a continual flow of reports that deal with errors made in relation to limitation, service or someone falling foul of the rules or court…
EXPERT WATCH 2: THE EXPERT WHO REPORTED WITHOUT ALL THE RELEVANT EVIDENCE TO HAND AND THEN WOULD NOT RECOGNISE HE HAD MADE A MISTAKE
Here we look at a case where an expert reported without having all the relevant evidence to hand. In fact he only saw the claimant’s witness statements a few days before the trial. This, added to other issues, led to…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
COST BITES 260: THE “CLIENT” WAS NOT LIABLE TO PAY THE SOLICITORS BILLS : EACH ENTITY PUT IN ITS TIME AND EFFORT AT ITS OWN RISK
Today we are looking at a highly unusual solicitor and own client costs assessment. After hearing evidence over five days the judge decided that there was no retainer between the “client”and the solicitor. The client was not liable to pay…
MATTERS “NOT MENTIONED IN THE WITNESS STATEMENT”: ANOTHER EXAMPLE OF OMISSIONS GIIVING RISE TO ADVERSE CONCLUSIONS
We are looking again at the significance of matters not mentioned in a witness statement. This is another case where the judge found that there had been significant omissions in the claimant’s evidence. Again it is a case where these omissions…
KEY OMISSIONS AND WITNESS EVIDENCE: A FAILURE TO MENTION KEY POINTS IN THE STATEMENT DOES NOT HELP THE WITNESS: A WORKING EXAMPLE
The theme for several of the posts today is how important it is to put information, that could be viewed as adverse to the witness, into a witness statement. If such information is left out, but revealed in cross-examination this…
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