PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS…
LEGAL QUACKERY & AN “OVERWHELMING MIASMA OF FAKE LAW” : OBSTRUCTING JUSTICE AND OBSTRUCTING THE COURT SYSTEM
I usually confine this blog to cases relating to the law in England and Wales. However the judgment of Noonan J in Bank of Ireland Mortgage Bank -v- Martin & anor [2017] IEHC 707 was brought to my attention by an…
FABRICATING DOCUMENTS AND MISLEADING THE JUDGES: WHEN KEY DOCUMENTS ARE HIDDEN BEHIND THE CURTAINS IN COURT
The judgment of Mr Justice Henry Carr in Ghassemian v Chatsworth Court Freehold Company Ltd & Ors [2016] EWHC 872 (Ch) illustrates the lengths to which some litigants will go. The judge found that the applicant had forged documents, backdated applications…
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors [2017] EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of…
BLACKPOOL CASE SHOWS THAT MEMORY IS NOT A ROCK – IT DEGRADES OVER TIME: “EMBELLISHMENT” OF A WITNESS STATEMENT RARELY HELPS
There have been 398 people who have looked at this blog directly from a link at Fansonline.net. This has little to do with the intrinsic fascination that football fans obviously have for civil procedure. It is more do do with…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
APPEALING FINDINGS OF FACT: AN UNUSUAL ARGUMENT – TO NO AVAIL
In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the appellant attempted to argue that the trial judge had erred on the facts. The arguments were given fairly short shrift. THE CASE After a hearing in the Court of…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying….
BEING A WITNESS IN COURT: “AVOIDING HUMILIATION”: USEFUL LINKS (VIDEOS TOO)
This idea for this post comes from another blog. Pink Tape has a recent post giving parents tips on giving evidence in court. This caused me to look at the assistance available generally. This is one part of the legal…
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
ATTACKING THE OTHER SIDE’S CREDIBILITY: DEFENDANTS ARE THE ARCHITECTS OF THEIR OWN DOWNFALL: SELF-SERVING STATEMENTS ARE TO NO AVAIL
There are a lot of reasons why litigators should read the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Not least is the judge’s assessment of the witness evidence…
THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT
In Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 (Ch) Mr Justice Morgan considered issues relating to the standard of proof when there are allegations of dishonesty and fraud. Part of the judgment also deals with the…
WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME
We have already looked at judge’s observations as to the amount of material before the court in the case of Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and…
SOME WARNINGS AS TO EVIDENCE: A SYMPHONY REVIVED: HOW THE JUDGE CONDUCTS AN ASSESSMENT OF CREDIBILITY
The post yesterday on witness credibility in the case of Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) referred to a passage in the earlier case of EPI Environmental Technologies Inc v Symphony Plastic Technologies plc (Practice Note) [2005] 1 WLR 3456. This…
ASSESSING THE CREDIBILITY OF WITNESSES: PROBLEMS WITH INDEPENDENCE WHEN THE WITNESS REQUIRES A TRANSLATOR
Who is going to be believed? This is the central question in many (if not most) cases that go to trial. The judgment of Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) shows many of…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION
I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client. These issues are shown in stark terms in the Practice Direction 51S – The County Court Online…
PROVING THINGS 67: THE DIFFICULTIES WHEN WITNESSES DEPARTS FROM THEIR WITNESS STATEMENT: MULTIPLE INCONSISTENCIES DAMAGE CREDIBILITY
I am grateful to my colleague Colm Nugent for sending me a copy of the decision in Baker -v- British Gas Services (Commercial) Limited [2017] EWHC 2302. Amanda Yip QC (sitting as a Deputy Judge of the High Court*), considered…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor…
WITNESS STATEMENTS “INADMISSIBLE”: CONTAINED “SUBJECTIVE INTENTION”, “OPINION” AND “LEGAL ARGUMENT”: ANOTHER EXAMPLE
A brief passage under the judgment of Mr Justice Arnold in Takeda Pharmaceutical Company Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch) serves to show how much “witness evidence” served by a litigant can, in fact, be inadmissible….
WITNESS EVIDENCE: THE DANGERS OF OPINION EVIDENCE AND TRYING TO USURP THE ROLE OF THE JUDGE : BACK TO MARSH -v- MINISTRY OF DEFENCE
Anyone considering matters relating to witness evidence and the drafting of statements will be drawn like a moth to the fire to the decision of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040. Once again I am returning…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009. In 2013 the Court of Appeal overturned a judge’s decision to grant…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts…
WITNESS STATEMENTS DIRECT: MEMORY, GESTMIN £15 MILLION AND QUITE A LOT OF ALCOHOL: A HEADY BREW
There is a certain appropriateness in one of the last major first-instance judgments of Mr Justice Leggatt being about witness credibility and the Gestmin criteria. In Blue -v- Ashley [2017] EWHC 1928 (Comm) Gestmin figured heavily. Everyone believed they were…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT
I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with…
INTERLOCUTORY APPEALS AND THE TIME FACTOR: DENTON, WITNESS STATEMENTS AND AMENDMENT: A HEARING WHEN SEVEN TIMES MORE TIME WAS NEEDED
The judgment of Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 (QB) emphasises the point that many interlocutory appeals come about not so much because of judicial error but because of the lack of time…
THE DANGERS OF SELECTIVE WITNESS EVIDENCE: WITNESS EVIDENCE THAT WAS “UNSATISFACTORY” AND “SIMPLY NOT RELIABLE”
I am returning for the third time (and not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have already looked at the (relatively mild) criticisms of…
BUNDLES WERE A DOG’S DINNER: MISSING WITNESSES AND AN EXPERT WITH NO CONCEPT OF HIS DUTY TO THE COURT
The judgment of Mr Justice Coulson in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) exemplifies many of the issues in litigation that are regularly covered in this blog: bundles, missing witnesses and errant experts. In particular…
ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE
In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC) the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial. THE CASE The action was a for breach of trademark…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
“LATE” SERVICE OF WITNESS STATEMENTS WHEN THERE IS NEW EVIDENCE: SOME ISSUES CONSIDERED
The third reason litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch) is the brief discussion in relation to the service of witness evidence outside deadline allowed by…
NOT ALL WITNESS STATEMENTS SHOULD BE MADE PUBLIC AHEAD OF A TRIAL: THE TIMES HAS TO WAIT
In Blue -v- Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm) Mr Justice Leggatt considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing. The application was…
EVIDENCE GIVEN WITH THE BENEFIT OF HINDSIGHT: MEDICAL NEGLIGENCE AND CAUSATION
In the judgment today in Diamond -v- Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) His Honour Judge Freedman (sitting as a High Court Judge) found that a totally honest witness was not correct in her assessment…
WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up…
ABSENT WITNESSES DO NOT LEAD TO ADVERSE INFERENCES: ARGUMENT WOULD LEAD TO NEW “COSTS AND TERROR” IN LITIGATION
In Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) Mr Justice Arnold considered, and robustly dismissed, an argument that the court should draw adverse inferences from absent witnesses. “I find it extraordinary that it can be suggested that…
ADVERSE INFERENCES FROM ABSENT WITNESSES: ANOTHER EXAMPLE IN THE HIGH COURT
In NRC Holding Limited -v- Danilitskiy [2017] EWHC 1431 (Ch) Robin Dicker QC, sitting as a High Court judge, considered the inferences that should be drawn when a key individual did not give evidence. THE CASE The claimant had a…
WITNESS SUMMONS AGAINST SOLICITOR NOT SET ASIDE: BUT BE THERE AT 2.00 pm (AND BRING YOUR FILES)
In Morris -v- Hatch [2017] EWHC 1448 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) refused to set aside a witness summons issued against a solicitor. “… it is the civic duty of each of us,…
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