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…
PROVING THINGS 291: WHAT WEIGHT DOES A JUDGE GIVE TO WITNESS STATEMENTS WHEN THE WITNESSES DO NOT ATTEND TRIAL AND (THE JUDGE FINDS) THERE IS NO GOOD REASON FOR THIS?
We have looked many times at issues relating to the weight a judge gives to a witness statement when the witness does not, in fact, attend trial. We have an example here. The judge found that there was no good…
THE CURRENT IMPORTANCE OF PLEADINGS 81: IF YOU ARE RELYING ON A STATUTE THAT WASN’T ACTUALLY IN FORCE ON THE DATE IN QUESTION IT MAY HAVE BEEN BETTER FOR YOU TO HAVE PLEADED THIS…
Here we have an unusual case where the trial judge’s findings in favour of the defendant were overturned on appeal. One particular feature of this case is the fact that the claimant relied on a statute that was actually in…
FATAL ACCIDENT CLAIMS: ENSURING EVERYTHING GOES RIGHT: WEBINAR 17th JUNE 2026
Fatal accident litigation is fraught with procedural and evidential pitfalls. This webinar highlights the areas where cases most commonly go wrong and provides practical guidance on how to avoid costly mistakes. It provides a comprehensive series of checklists of the…
WHEN A LAWYER MAKES A WITNESS STATEMENT FOR THEIR CLIENT: THEY MAY BELIEVE IT TO BE TRUE, BUT IT IS A VERY DIFFERENT MATTER TO PROVIDING EVIDENCE FROM SOMEONE WITH DIRECT RELEVANT KNOWLEDGE
This is the second post on witness evidence and the preparation of witness statements today. It is in a very different context to the first. Here we look at a case in the Intellectual Property List where a judge considered…
WHEN A JUDGE DESCRIBES THE WAY IN WHICH A WITNESS STATEMENT WAS DRAFTED AS “ALARMING” IT IS CLEAR THAT THINGS ARE GOING WRONG
Here we have a case where the judge uses the word “alarmingly” to describe the way in which a witness prepared their witness statement. It transpired that only part of the statement was the witnesses’ evidence, the rest had been…
THROWBACK FRIDAY: WHEN A CLAIMANT FAILED TO PROVE ANY LOSS AND ATTEMPTED TO USE A LAY WITNESS AS AN EXPERT (JUNE 2018):”THERE IS NO ADMISSIBLE EVIDENCE OF ANY LOSS”
We have seen recent examples of cases where parties have failed to prove that they have suffered any loss. The attempts by lay witnesses to give “expert” evidence is also a recurrent theme in this blog. Here we go back…
WITNESS EVIDENCE WEDNESDAY: CLAIMANT’S EVIDENCE FAILS TO ESTABLISH THE FACTUAL CASE SET OUT IN THE PARTICULARS OF CLAIM
Here we have an example of another case which rested, more or less totally, on the claimant’s accuracy of recollection. I am grateful to Patrick Limb KC for drawing my attention to the judgment. The claimant (looking back to events…
WITNESS EVIDENCE WEDNESDAY: ANALYSIS OF THE ROLE OF WITNESS EVIDENCE IN A CLINICAL NEGLIGENCE TRIAL
Much of the discussion in relation to clinical negligence cases is based on expert evidence and the standard of care (and rightly so). However it is important that practitioners do not overlook the vital role played by witness evidence. Those…
THE APIL FATAL ACCIDENTS WEBINAR SERIES 2026: SEVEN WEBINARS TO HELP NEGOTIATE THIS DIFFICULT AREA OF LAW AND PRACTICE
Fatal accident claims are among the most complex and high-stakes cases a lawyer can handle. They are not simply personal injury claims in which the injured person has died. Fatal accident litigation is governed by a distinct legal framework, involves…
WITNESS EVIDENCE WEDNESDAY: TIPS FOR TESTIFYING IN COURT: FROM THE UNITED STATE’S ATTORNEY’S OFFICE (MIDDLE DISTRICT OF PENNSYLVANIA)
Earlier posts have written on the issue of how little guidance there is for those attending courts (civil courts in particular) to give evidence. An earlier post provided useful links. Here we look at the guidance given in one of…
COST BITES 391: TOO MUCH CORRESPONDENCE, GRADE C RATES NOT INCREASED AND “SO CALLED” SKELETON ARGUMENTS, WHICH REPEAT THE CONTENTS OF OVER-LENGTHY WITNESS STATEMENTS
There are some interesting observations in the short judgment on costs in this case. There was too much correspondence, “witness statements” were in reality skeleton arguments, with the contents then repeated in skeleton arguments. Furthermore a “good” Grade C is…
THE USE OF ARTIFICIAL INTELLIGENCE – LANDING SOLICITORS IN SERIOUS TROUBLE AGAIN (AND DON’T BLAME THE AI FOR EVERYTHING – IT ACTUALLY GAVE OUT WARNINGS TO CHECK…)
One day the incorrect use of AI to cite “hallucinated” authorities is going to ruin someone’s career. It may have done so already, there are a number of SRA investigations pending. The example we look at here is highly educational…
AVOIDING UNDERSETTLEMENT: WEBINAR 26th MAY 2026: NOW WITH ADDED CHECKLISTS
Allegations of undersettlement of personal injury actions are not uncommon. There is an entire industry specialising in looking at solicitor’s files. This webinar aims to help practitioners avoid such assertions and be able to provide clear and robust replies if…
THE COURT OF APPEAL ALLOWED DEFENDANT TO RELY ON WITNESS STATEMENTS SERVED “LATE”: THE CRUCIAL DISTINCTION BETWEEN “IN TIME” AND “OUT OF TIME” APPLICATIONS TO EXTEND TIME
I am grateful to Barrister Simon Brindle for sending me a copy of the judgment of this Court of Appeal judgment given yesterday. It relates primarily to the major distinction between an application made “ahead” of time and one made…
WEBINARS AVAILABLE ON DEMAND: WITNESS STATEMENTS; MAZUR; INFORMING THE CLIENT ABOUT THE COSTS OF LITIGATION AND PART 36: A HEADY BREW TO LIGHTEN UP ANY LITIGATOR’S DAY…
Four webinars are now available “on demand” from Civil Litigation Brief: PD57AC; Mazur in the Court of Appeal; Informing the Client about the Costs of Litigation; Part 36 recent developments. THE COSTS (The costs are £75.00 plus VAT if you…
WITNESS EVIDENCE WEDNESDAY: WITNESS EVIDENCE, A LATE APPLICATION FOR SUMMARY JUDGMENT AND THE LAW OF UNINTENDED CONSEQUENCES…
Here we have an example of a litigation strategy backfiring. The applicant made a (late) application for summary judgment to be heard on the first day of the trial. The respondents filed evidence in response to the application. Much of…
AVOIDING THE PITFALLS IN CLAIMS FOR LOSS OF EARNINGS: WEBINAR 19th MAY 2026: USEFUL QUESTIONNAIRES AND CHECKLISTS INCLUDED
Claims for loss of earnings are a critical component of many personal injury and civil litigation cases, yet they are also among the most vulnerable to failure. Poorly evidenced claims, misunderstanding of legal principles, or flawed calculations can lead not…
SERVICE POINTS 40: SERVICE BY EMAIL WAS NOT VALID NEITHER WAS SERVICE AT THE “LAST KNOWN ADDRESS”: THE CLAIMANT HAD TO ADDUCE EVIDENCE AS TO HIS STATE OF KNOWLEDGE
We are looking at a case that bristles with procedural points, including several issues relating to valid service. Here we look at just one of those issues – whether proceedings had been validly served when sent by email or to…
WITNESS EVIDENCE WEDNESDAY: A USEFUL ENCAPSULATION OF THE COURT’S APPROACH TO DISPUTED WITNESS EVIDENCE: WITNESSES CAN LIE FOR VARIOUS REASONS
This judgment contains a neat summary of the approach that the court takes when it is faced with a case that rests primarily on witness evidence. The judge reviewed the case law and it was very relevant to the task…
WHEN A CASE – WEEKS AWAY FROM TRIAL WAS “UNTENABLE”: HOW DID WE GET HERE?
We don’t normally look at the same case twice in the same day. However this particular judgment needs looking at from different angles. The previous post looked at the case from the point of view of the pleadings. However the…
PROVING THINGS 289: CLAIMANT FAILS TO ESTABLISH BASIC FACT OF ASBESTOS EXPOSURE
This is another case that highlights the evidential difficulties of establishing exposure in asbestos cases. The principal victim is often dead, the claimant (usually a widow) cannot give direct evidence of the facts of exposure and the case is reliant…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
ARTIFICIAL INTELLIGENCE IN THE PREPARATION OF WITNESS STATEMENTS: THERE IS NO SATISFACTORY EXPLANATION FOR THIS: HOW DOES THE JUDGE KNOW IT IS THE WITNESS’S OWN WORDS?
We have another case where the judge considers the use of Artificial Intelligence in the preparation of witness statements. It was held that there was no good reason for this. He was concerned that ChatGPT had contributed to the witness…
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
PROVING THINGS 288: HOW SHOULD A COURT CONSIDER A CLAIM FOR LOSS OF EARNINGS WHEN THE CLAIMANT IS STILL IN EMPLOYMENT? SMITH -v- MANCHESTER APPROACH PREVAILS
No sooner was the (metaphorical) ink dry on the previous post about loss of earnings when I received a useful case from David Platt KC. It is a judgment that contains much of interest to litigators (that we will return…
CLAIMS FOR LOSS OF EARNINGS: AVOIDING THE PITFALLS: WEBINAR 19th JUNE 2026 (TOGETHER WITH A USEFUL QUESTIONNAIRE AND SERIES OF CHECKLISTS)
It is surprising how many allegations of negligence are made against lawyers because of a failure to consider and obtain damages for loss of earnings. In addition there are a growing number of cases where claimants have come to grief…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
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