THROWBACK FRIDAY: WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE (OCTOBER 2018)
We are going back eight years and looking at another highly familiar theme – non-compliant witness statements. We have another example earlier today in the blog. . We are looking at a post from October 2018. This post pre-dated PD…
PROVING THINGS 298: CLAIMANT BANK FAILS TO PROVE ITS CASE EVEN THOUGH ONE DEFENDANT WAS DEBARRED FROM DEFENDING: VERIFIED PLEADINGS AND DOCUMENTARY COMMENTARY WERE NO SUBSTITUTE FOR PROOF
Here we have a case where the claimant failed to prove its case seeking approximately US$9.6 million.” even when one of the defendants was debarred from defending. Relying on signed statements of case, inferential evidence from witness statements and comments…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … PROVING DAMAGES: 10 KEY POINTS AND LOTS OF RELEVANT LINKS
The post earlier this morning identifying a case, from 2015, where a claimant failed to prove any damages, highlighted the need for a recap on this topic. There are a large number of posts on this very topic. In the…
MILLIONS OF DOCUMENTS, 27 FACTUAL WITNESSES AND THE ASSESSMENT OF CREDIBILITY: WITNESS EVIDENCE IN THE MANCHESTER CITY PROCEEDINGS
Yesterday we looked at an issue in the news to review questions of witness credibility. We do the same today in a wholly different context: football and the decision in the proceedings brought against Manchester City Football Club. However we…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES THE ABSENCE OF DOCUMENTS JUSTIFY AN ADVERSE INFERENCE ON SUMMARY JUDGMENT? IS THE WITNESS EVIDENCE DEFINITIVE?
The issue of how far a court can take witness statements at face value at an interlocutory hearing is always an interesting one. Similar issues arise in considering the question of the extent to which a court can take into…
WHAT HAS CIVIL LITIGATION BRIEF DONE… ABOUT WITNESSES GIVING EVIDENCE ABOUT THINGS SAID MANY YEARS AGO ? 10 KEY POINTS ON WITNESS EVIDENCE WITH USEFUL LINKS
There is a lot of controversy at present in relation to recollections about telephone conversations that took place three decades ago. We are staying away from that particular dispute. However it highlights a common issue in litigation. People can have…
COST BITES 457: COURT REFUSES APPLICATION TO MAKE LEGAL INSURERS SOLELY RESPONSIBLE FOR THE COSTS OF ASSESSMENT: (WHY COSTS LAWYERS HAVE TO KNOW THE LAW OF EVIDENCE – PARTICULARLY IF THEY ARE GOING TO MAKE ALLEGATIONS RELATING TO CONDUCT)
Here we look at a highly unusual allegation. Two of the claimants (the paying parties) and the defendants sought an order making their ATE insurer solely responsible for the costs of the assessment process. This application was supported by “evidence”…
WITNESS EVIDENCE WEDNESDAY: WAIVING LEGAL PROFESSIONAL PRIVILEGE BY MENTIONING IT IN A WITNESS STATEMENT
Issues of legal professional privilege have been in the news this week. This makes it an opportune time to revisit those cases where litigants have inadvertently waived privilege by mentioning legal advice in witness statements. “… there is a distinction…
A FITTING END TO THE BAYEUX THEMED WEEK: SHOULD FRANCE HAVE JURISDICTION IN THIS CASE? MORE ABOUT LAWYERS USING WITNESS STATEMENTS TO PUT FORWARD LEGAL ARGUMENTS (DO IT IF YOU WILL – BUT IT NEVER HELPS…)
Observant readers (and possibly the less observant ones) will have noticed that this week we have been paying homage to the arrival of the Bayeux Tapestry in the UK. It is fitting then that we end the week with a…
THROWBACK FRIDAY: “OFFICE GOSSIP PROVES NOTHING”: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF” (SEPTEMBER 2016)
This post written a decade ago deals with a recurring point in litigation as we have already seen this week. The tendency of witnesses, and lawyers to allow witnesses, to give “evidence” in witness statements of matters on which they…
WITNESS EVIDENCE WEDNESDAY: THOSE WHO DRAFTED THE WITNESS STATEMENTS “HAVE FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: A USEFUL CHECKLIST AND LINKS TO KEEP YOU ON THE STRAIGHT AND NARROW
Here we look at a case where the judge was extremely blunt in his critique of the way in which both parties had drafted the witness statements. The judgment was from a few years back. However we are looking at…
LOSS OF EARNINGS CLAIMS 2026: WEBINAR 16th SEPTEMBER 2026
This year has seen some important cases in relation to the way in which the courts approach claims for loss of earnings. This webinar provides a practical and comprehensive examination of claims for loss of earnings in personal injury litigation….
LAWYERS AND ARTIFICIAL INTELLIGENCE AVOIDING THE PITFALLS (3): AI AND WITNESS EVIDENCE: VERY DANGEROUS BEDFELLOWS: TWENTY KEY POINTS
We have looked several times at the dangers of using Artificial Intelligence to draft witness statements. It would be naive to believe that this issue is not going to arise again. Indeed it may well already be a common feature…
THROWBACK FRIDAY:”WITNESS STATEMENTS: WHEN THINGS GO WRONG BLAME THE SOLICITOR” (SEPTEMBER 2016)
Here we are looking at a post from September 2016 on an issue that remains extremely current. When a witness statement is found to be inaccurate that witness will often blame their solicitor, or the person responsible for drafting the…
WITNESS EVIDENCE WEDNESDAY: “BACKDATING LETTERS” TO DELIBERATELY MISLEAD COULD COST YOU: £4.58 MILLION IN THIS CASE: (METADATA COMES INTO PLAY NOW)
We are looking here at a judgment about witness credibility made by an Employment Tribunal several years ago. In particular the Tribunal found that the Defendants’ witnesses had deliberately backdated letters in an attempt to mislead. The reason we are…
THE CURRENT IMPORTANCE OF PLEADINGS 90: THE COURT OF APPEAL WAS WRONG TO HOLD ONE DEFENDANT TO HIS PLEADED CASE WHILST EXONERATING A CO-DEFENDANT: THIS LED TO A FINDING THAT WAS AN “ABSURDITY”
In this case the Judicial Committee of the Privy Council considered whether the Court of Appeal in Trinidad and Tobago was correct to hold one defendant in a clinical negligence case to their pleaded case whilst, effectively, exculpating a co-defendant. …
PROVING THINGS 295: HOW MUCH SHOULD A CARER BE PAID? INTERESTING READING FOR PERSONAL INJURY AND CLINICAL NEGLIGENCE LAWYERS (AMONG OTHERS…)
This is a case about the costs of providing care. It is unusual in that it does not arise in the context of a claim for damages for personal injury or clinical negligence. Nevertheless there are issues of general relevance…
WITNESS EVIDENCE WEDNESDAY: YOU CANNOT NECESSARILY RELY ON INTERLOCUTORY WITNESS STATEMENTS AT TRIAL
Here we have a case where the claimant, wrongfully, believed that she could rely on witness statements that had been served in the course of the proceedings in addition to the statement served for trial. She was given permission to…
THROWBACK FRIDAY: AVOIDING NEGLIGENCE CLAIMS IN LITIGATION AN 8 POINT SURVIVAL GUIDE (AUGUST 2019): AND LOOK AT THE LINKS…
This week we go back to August 2019 with a simple (but I hope effective) post on avoiding negligence claims in civil litigation. Eight of the major problem areas were identified and succinct solutions offered. (There have been hundreds of…
WITNESS EVIDENCE WEDNESDAY: RED FLAGS AND WITNESS STATEMENTS (1): THE WITNESS THAT GIVES THE COURT THEIR OPINION
We have below a series of posts about the dangers of putting “opinion” evidence into witness statements. It has been a constant theme on this site for, at least, 12 years. There is no sign of this abating. Attempts have…
ATTEMPTS TO “REVISIT” THE PRELIMINARY ISSUES REFUSED: ALSO THE JUDGE WOULD HAVE PREFERRED TO SEE WITNESS STATEMENTS NOT JUST DOCUMENTS…
This is another case where a party attempts to “revisit” preliminary issues/a statement of issues that have been agreed and approved by the court. That application did not get very far. Further the judge observed that, although the parties were…
WITNESS EVIDENCE WEDNESDAY: THE PAUCITY OF EVIDENCE PROVIDED BY THE DEFENDANTS: AN APPLICATION FOR SUMMARY JUDGMENT CANNOT BE DEFENDED BY “BARE ASSERTION”
The need to provide evidence and not simply make bare assertions is as important in applications as at trial. Here we see a case where the claimant obtained summary judgment in the face of a “paucity of evidence” from the…
FAILING TO GIVE THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: THE JUDGE MAY THINK THAT THERE IS SOMETHING FISHY GOING ON HERE…
There is, it appears, no end to the number of cases in which non-compliant witness statements are served. We have another example here. One major issue relates to the failure to give the source of information and belief for the…
CLAIMANT’S SUCCESSFUL APPEAL AGAINST THE STRIKING OUT OF A CASE BECAUSE A WITNESS STATEMENT HAD NOT BEEN PROVIDED: THE SMALL CLAIMS PROTOCOL IS (VERY) DIFFERENT…
I am grateful to barrister Simon Murray for sending me a copy of this decision that deals with some important procedural issues on the Small Claims Track. In particular it highlights the fact that witness statements are not mandatory on…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
A QUICK REMINDER OF THE CLB WEBINARS NOW AVAILABLE “ON DEMAND”: ALSO (AND UNRELATED) SAYING AU REVOIR TO THE LITTLE WHITE DOG
There are a number of CLB webinars that are available “on demand”. There is a reduction for CLB members. This is also an opportune time to say au revoir to the little white dog that has been gracing the pages…
THROWBACK FRIDAY: GESTMIN GUIDANCE IN THE CONTEXT OF CLINICAL NEGLIGENCE CASES (WITH A CHANCE TO REMEMBER HH ALAN GORE K.C.) : JULY 2019
Here we look at a post from July 2019. It gives me a chance to remember the judge in question HH Alan Gore who sadly died in December last year. This is one of his judgments about the Gestmin criteria…
WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
WITNESS EVIDENCE WEDNESDAY (2): WHEN A WITNESS GETS COACHING FROM ARTIFICIAL INTELLIGENCE – WHAT ARE THE IMPLICATIONS?
Artificial Intelligence continues to give rise to novel legal issues. In this case the courts had to consider the impact of clear evidence that the complainant in a criminal case had received detailed “coaching” by the use of A.I. …
WITNESS EVIDENCE WEDNESDAY: A JUDGE IS NOT BOUND TO ACCEPT ALL DOCUMENTARY EVIDENCE: THE CLAIMANT “HONESTLY BELIEVED” THE CASE BUT THIS DID NOT PROVE IT…
We are looking at a case where an unsuccessful claimant attempted to argue that the trial judge had got the facts wrong, in particular there was a failure to take account of documentary evidence. This judgment highlights the difficulties of…
COST BITES 413: GET YOUR FUNDING IN PLACE AND TELL EVERYONE IF THE MUSIC HAS STOPPED: CAT AWARDS COSTS ON THE INDEMNITY BASIS DUE TO CONDUCT
It goes without saying that this is a decision that must be music to the defendants’ ears. Not only was the claim dismissed the claimant was ordered to pay costs on an indemnity basis for a large part of the…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES A WITNESS BECOMES A “HOSTILE WITNESS”? WHAT ARE THE CONSEQUENCES?
Earlier this week we looked at a case where a judge allowed the claimants’ application for an order that one of the witnesses they had called be declared a “hostile witness”. This meant that the claimants could then cross-examine their…
WHY PRINCE HARRY (AND OTHER PROMINENT CLAIMANTS) LOST WHEN THE JUDGE FOUND THAT THEY WERE ALL HONEST WITNESSES – BUT OTHER WITNESSES THEY CALLED PROVED TO BE “HOSTILE”
We are looking at a judgment that has already received major attention from the media. A number of prominent people brought a civil action against Associated Newspapers. The judge found that they were all honest witnesses. However honesty did not…
PERSONAL INJURY MATTERS 17(2): LIABILITY CATCHUP (2): A SUCCESSFUL STRESS AT WORK CLAIM CONSIDERED
We are continuing with our brief look at cases relating to liability. This case is a stress at work action where the claimant was successful. There are a considerable number of hurdles for claimants to deal with in this category…
WITNESS EVIDENCE WEDNESDAY: WHEN A LITIGATOR MAKES A STATEMENT ON BEHALF OF THEIR CLIENT: A USEFUL CHECKLIST ON THE SOURCE OF INFORMATION AND BELIEF
We have looked several times recently at the problems caused when a litigator serves their own witness evidence on behalf of a client, particularly a “corporate” client. It often turns out that large parts of this statement are inadmissible, consisting…
BACK TO BASICS MONDAY (2): A SERIES OF CHECKLISTS TO HELP YOU WITH DRAFTING STATEMENTS FOR “CORPORATE” CLIENTS: THE SOURCE OF INFORMATION AND BELIEF
The normal post on back to basics came out a day early (due to an “administrative” error). However it does give us a chance to revisit the practical implications when a litigator has to draft a witness statement on behalf…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION IN A WITNESS STATEMENT WHEN THERE IS A CORPORATE CLIENT: PROBLEMS KEEP OCCURRING
Today we are looking at what is a common issue, and common mistake, when someone makes a witness statement for, or on behalf of a corporate client. The CPR expressly provides that a witness must state the source of “information…
THROWBACK FRIDAY: “WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY? (JULY 2014): ISSUES OF WITNESS CREDIBILITY CONSIDERED
This week we go back 12 years to look at one of the recurring themes of this blog: witness credibility. We looked at a judgment which was all about the judge’s assessment of the witnesses. This was made more difficult…
A SOLICITOR SHOULD JUST NOT BE SAYING THIS IN A WITNESS STATEMENT: IT “STRAYED WELL BEYOND WHAT SHE COULD LEGALLY GIVE EVIDENCE ABOUT FROM HER OWN KNOWLEDGE INCLUDED HEARSAY FROM AN UNNAMED SOURCE AND INCLUDED STATEMENTS OF OPINION WHICH SHE DID NOT HAVE THE EXPERTISE TO GIVE…”
There are numerous cases reported on this blog where judges have been critical of the “evidence” given by solicitors in witness statements. In many cases, even on cursory examination, it transpires that the lawyer is not in a position to…
ARTIFICIAL INTELLIGENCE AND LITIGATION: AN UPDATE ON CONSULTATION FINDINGS FROM THE CIVIL JUSTICE COUNCIL
The Civil Justice Council is carrying out a Consultation on the Use of AI for the preparation of court documents. It published an update on its consultation findings yesterday. The preliminary view appears to be that the use of AI…
WITNESS EVIDENCE WEDNESDAY 2: A CHECKLIST FOR THOSE CALLED UP TO PREPARE WITNESS STATEMENTS IN A “FAREPAK” TYPE SCENARIO
The previous post contained a review of the judge’s comments in the Farepak case. The judicial observations that witness statements are often misused and misunderstood is one of an extremely large number of such observations. (The “Related Posts” section below…
WITNESS EVIDENCE WEDNESDAY: THE CASE WHERE THE GOVERNMENT’S WITNESS EVIDENCE WAS SO BAD THAT IT WITHDREW THE CASE BEFORE THE RESPONDENTS GAVE EVIDENCE: WHY THE PRINCIPLES RELATING TO WITNESS EVIDENCE NEED TO BE UNDERSTOOD
Recent posts have revisited the age-old problem of witness statements being misused. They often contain argument and comment. For that reason we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson…
PROVING THINGS 293: THE CLAIMANT ESTABLISHES CAUSATION IN A CLINICAL NEGLIGENCE CASE: THE JUDGE DID NOT DRAW ADVERSE INFERENCES -AND THIS WAS A SUBMISSION THAT PUT THE DEFENDANT IN SOME JEOPARDY…
This is an interesting case on clinical negligence where judgment was given today. It warrants (and will receive) several posts. Here we look at the trial judge’s rejection of the argument that adverse inferences should be drawn when the claimant…
BACK TO BASICS MONDAY: WHEN A RULE OR AN ORDER PRESCRIBES A PAGE LIMIT TO A WITNESS STATEMENT – THEN YOU’D BETTER STICK TO IT: THE COURT IS UNLIKELY TO CONDONE “FORENSIC CHEATING”
Here we are, with no apology, looking at the same case in the earlier post again. The earlier post dealt with the issue of relief from sanction. Here I want to concentrate on the litigant’s deliberate decision to breach the…
RELIEF FROM SANCTIONS: AS STRONGLY WORDED A REFUSAL AS I HAVE SEEN: THE CONCEPT “DOES NOT EMBODY A PRINCIPLE OF “BREACH NOW REPENT LATER”
Here we look at a strongly worded judgment where relief from sanctions was refused. A party had exceeded the page limit set by court directions and also served the statement late. The judge dismissed the arguments that the other side…
DEEPFAKES AND THE LAWYER: SOME USEFUL CHECKLISTS AND LINKS: “VERIFICATION SHOULD OCCUR BEFORE EVIDENCE IS DEPLOYED, NOT AFTER AUTHENTICITY IS CHALLENGED…”
The previous post dealt with a case where a participant in a relatively small dispute about shared childcare was found guilty of putting “deepfake” evidence before the courts. This provides a wake up call to us all that our clients,…
“DEEPFAKE” EVIDENCE POSSIBLY COMING TO A COURT NEAR YOU SOON: LESSONS FROM AMERICA…
We have looked at the problems caused by Artificial Intelligence many times on this blog. Practitioners also have to be aware of the possibility that the evidence they are given by their own clients, or used by the other side,…
WHEN A LOCAL AUTHORITY REQUIRES RELIEF FROM SANCTIONS: “IT IS PARTICULARLY IMPORTANT THAT THE PUBLIC BODY FILES ITS PAPERS IN A TIMELY FASHION AND CO-OPERATES WITH THE CLAIMANT”
Here we look at a case where a defendant local authority had to apply for relief from sanctions in relation to breaches of court orders and directions. The judge was critical of the defendant’s conduct, pointing out that there was…
PROVING THINGS 292: CLAIMANT ORDERED TO PROVIDE SECURITY FOR COSTS: NO “HUMAN SOURCE” FOR THE MATERIAL PROVIDED: THE IMPORTANCE OF GIVING THE SOURCE OF INFORMATION AND BELIEF
Here we are looking at another case where the court considered the burden of proof in an application for security for costs. In this case the claimant was ordered to provide security. An interesting feature is the identified failure of…
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