DRAFTING WITNESS STATEMENTS: THE FINER DETAIL: NO ROOM FOR A MARGIN OF ERROR
A search led to this blog today “witness statement margin” which led me to look this issue up and realise that, despite the dozens of posts on witness statements on this blog, the important issue of margin size has never…
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
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…
SIXTH ANNIVERSARY OF CIVIL LITIGATION BRIEF (AS A BLOG): A REVIEW OF ADVICE RECEIVED FROM ACROSS THE PROFESSION AND ACROSS THE WORLD
Today marks the 6th anniversary of the blog. Last year I did a detailed review of many of the series and key points over the previous years. To celebrate this year I am concentrating on the contributions made by others….
PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
WITHOUT NOTICE INJUNCTIONS 1: CLAIMANT’S APPLICATION FOR AN INJUNCTION GOES DOWN THE PAN
The judgment in Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) has only recently arrived on BAILLI. However it is a case that shows the importance of disclosure in relation to without notice injunctions. What…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
A REFRESHER COURSE (1): THE STATEMENT OF TRUTH : “NOT AN IRRELEVANT MANTRA OR MERE VERBIAGE”
The previous post on this blog was about the importance of giving the source of information or belief and first hand witness evidence. However whenever a lawyer signs a document with a statement of truth they are taking their career…
THE DANGERS OF A LAWYER GIVING EVIDENCE: A “SOMEWHAT STRANGLED VERSION” OF THE SOURCE OF INFORMATION & BELIEF: SUMMARY JUDGMENT APPLICATION DISMISSED BECAUSE OF PAUCITY OF FIRST-HAND EVIDENCE
There are numerous posts on the blog about the need for first-hand evidence to be given, and the dangers of a lawyer making witness statements. These risks are exemplified in the judgment of Chief Master Marsh today in The David…
PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”
Most cases are lost not on issues of law but on issues of evidence. In Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the applicants’ evidence. The judgment contains…
CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST
Another short post caused by a discussion on Twitter about the number of witness statements that fail to comply with the most basic, mandatory, obligations in the Rules. The formal requirements of a witness statement are overlooked at the litigator’s…
PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…
Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence. “He is giving evidence about events…
SIGNATURES, ELECTRONIC SIGNATURES AND STATEMENTS OF TRUTH: A BRIEF REFRESHER
One aspect of the decision in Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 that may be unique is the fact that the court will be considering the statement of truth certified by an electronic signature. That case emphasises, if…
CIVIL PROCEDURE BACK TO BASICS 45: THE COURT CAN REDUCE THE NUMBER OF WITNESSES AND EVIDENCE BEFORE TRIAL
We are looking at CPR 33.2(3) in relation to the reducing of witnesses or identifying issues prior to trial. THE RULE CPR 32.2(3) “(3) The court may give directions – (a) identifying or limiting the issues to which factual…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR
I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner…
PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of…
WHEN THINGS GO WRONG FOR A DEFENDANT AT TRIAL: FOUR LESSONS FROM ONE CASE: WHEN YOU HAVE AN EXPERT WHO STATES THEY ARE “BIASED”…
In Hanbury & Anor v Hugh James Solicitors (a firm) [2019] EWHC 1074 (QB) Mrs Justice Yip found that a firm of solicitors had been negligent in its conduct of a fatal accident case. There are a number of lessons…
ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH
In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case…
CIVIL PROCEDURE BACK TO BASICS 40: HOW CIVIL JUDGES DECIDE CASES
In Knight & Anor v Knight & Ors [2019] EWHC 915 (Ch) HHJ Matthews (sitting as a High Court Judge) set out a summary of how civil judges decide cases. It is a useful reminder to all of those involved…
DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL
The Immigration Upper Tribunal does not appear to recognise some of the basic principles of civil evidence and appellate jurisdiction. Certainly this is the impression you get when reading the judgment of Lord Justice Davis in Palash v Secretary of…
PROVING THINGS 147: CLAIM FOR NOT PURSUING NEGLIGENT SOLICITORS LEADS TO NOMINAL DAMAGES ONLY: NO DAMAGES FOR “LOSS OF CHANCE”
The judgment in Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce also contains yet another example of claimants failing to prove any loss at trial. There was no evidence to support any claim for…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT READ ENGLISH: NOT GROUNDS FOR STRIKING OUT, RELIEF FROM SANCTIONS MAY NOT BE REQUIRED
In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce (sitting as a High Court Judge) considered the issues that arose when a point arose at the beginning of a trial in relation to signature…
CIVIL PROCEDURE BACK TO BASICS 36A: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
CIVIL PROCEDURE BACK TO BASICS 35: WITNESS CREDIBILITY: MORE THAN MEMORY OR HONESTY
The question of witness credibility is often the central issue of most cases that get to trial. Surprisingly it is a matter that barely features in legal education. A knowledge of the factors that a judge will take into account…
PRELIMINARY ISSUES, WITNESS CREDIBILITY AND SUMMARY JUDGMENT: WHEN THE DEFENDANTS’ CHICKENS COME HOME TO ROOST…
The judgment of Mr Justice Lane in Antuzis & Ors v DJ Houghton Catching Services Ltd & Ors [2019] EWHC 843 (QB) is interesting for many reasons. It concerns a claim for damages for exploited labour. It confirms that directors…
CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS
The maker of a witness statement must given the source of their information or belief. This obligation is often overlooked, or simply paid lip service to. However the careful following of this rule could prevent many of the common problems we…
APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS
In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements…
GIVING EVIDENCE AT TRIAL: JUST BECAUSE THE COURT HAS SAID YOU MAY – IT DOESN’T MEAN YOU WILL: HOW TO FAIL OF YOUR OWN ACCORD
Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying…
WITNESS STATEMENTS: THE IMPORTANCE OF THAT “FIRST DRAFT”
If you think “first drafts” of witness statements are not that important it is worthwhile having a look at the judgment of Mrs Justice Whipple in PPX v Aulakh [2019] EWHC 717 (QB). It is also an example of a…
“BE KIND TO PEOPLE”: THE (ALMOST) COMPLETE GUIDE FOR ASPIRANT AND NEW LAWYERS FROM TWITTER
Yesterday I set out some of the Advice given on Twitter to those making a start in the legal profession. Here I have most of the posts. The discussion is still going on. There has been a particularly long chain…
A WITNESS STATEMENT IS NOT A PLACE TO VENT YOUR SPLEEN: “DEPLORABLE PERSONAL ATTACKS” COULD HAVE AN EFFECT ON COSTS
There is a short closing remark in Mr Justice Mostyn’s judgment in Rothschild v Charmaine De Souza [2018] EWHC 1855 (Fam) that shows the danger of including personal attacks in witness statements. It is comforting to see how often this type…
JUDICIAL FOOTNOTES: I’LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The previous post on the judgment of Canadian judge J.W. Quinn. J. led (believe it or not) to a heated – and I hope not entirely serious – discussion between some of hte lawyers on which was the best footnote…
“LEAVE AN UNTRUTHFUL MAN IN THE WITNESS BOX LONG ENOUGH AND HE WILL REVEAL HIMSELF TO THE WORLD”: WHEN A WITNESS FALLS..
I have lost count of the number of times people have asked me where they can find that “Canadian” case “you know, the one with the judge”. It is a case about witness credibility, in a blunt style. The Hearing Clinic…
WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…
WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL
The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered by the entire profession. Particularly those who draft statements, and those…
THE POST OFFICE CASE (AGAIN): STRIKING OUT PASSAGES IN WITNESS STATEMENTS: THE DEFENDANT WITH SUPERNATURAL POWERS
For the third time today I am writing about the case of Bates & Ors v Post Office Ltd [2018] EWHC 2698 (QB). However we are now looking at the earlier interlocutory application by the defendant to strike out large parts…
ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER
The judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) is 1122 paragraphs long, following a two week long trial. There are aspects of this case I will look at again. However, it is interesting…
WHEN ENFORCEMENT PROCEEDINGS GO WRONG: IF YOU CAN’T OPERATE BY THE RULES THEY MAY TAKE YOUR LICENCE AWAY…
The enforcement of judgments is an aspect of civil procedure that rarely makes the law reports. In Rooftops South West Ltd & Ors v Ash Interiors (UK) Ltd & Ors [2018] EWHC 2799 (QB) Master Davison was highly critical of the…
ALLEGED “MISCONDUCT” DURING ASSESSMENT PROCESS DID NOT LEAD TO COSTS BEING DISALLOWED OR REDUCED: ATE PREMIUM WAS REASONABLE
In Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539 (QB) Mr Justice Stewart rejected an argument that mistakes made by a claimant during the assessment of costs process should have led to costs being disallowed or reduced. The…
PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
“OUTSIDE THE REALMS OF FICTION”, NOT NECESSARILY A PRUDENT WAY TO CONDUCT LITIGATION: WITNESS STATEMENTS, WITNESS SUMMARIES AND RELIEF FROM SANCTIONS:
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) [2019] EWHC 346 (QB) Mr Justice Warby granted limited relief from sanctions to a litigant in person who had served “witness summaries” rather than witness…
PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)
In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
WHEN WITNESSES GO “UP HILL AND DOWN DALE” IN AN ATTEMPT TO JUSTIFY THE UNJUSTIFIABLE: TIME TO LOOK AT THE WAY STATEMENTS ARE PREPARED
The judgment of HHJ Stephen Davies (sitting as a judge of the High Court) in Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC) shows why witness statements should be considered carefully prior to…
KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS
In Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…
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