EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY
It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott [2017] EWHC 294 (QB). A party failed to make an application to call oral…
EVIDENCE IN HOLIDAY ILLNESS CLAIMS: COURSE IN LIVERPOOL: 13th MARCH 2017: 2 – 4.30
I am presenting a course on behalf of Diversify Law Limited on “Evidence in Holiday Illness Claims”, in Liverpool on the 13th March 2017 2 – 4.30. VENUE (CLOSE TO THE CAVERN) It is at the “Hard Days Night” Hotel….
WITNESS STATEMENTS IN CLINICAL NEGLIGENCE CASES: IDENTICAL WITNESS STATEMENTS DID NOT DAMAGE CREDIBILITY (THIS TIME)
I spent a day this week giving a seminar to a specialist group of clinical negligence lawyers on the importance of witness statements. I mention this because, as always happens, there is a clear example of this in the judgment…
ALL THE WITNESSES SAY EXACTLY THE SAME THING 10 YEARS AFTER THE EVENT: DIFFICULT TO BELIEVE (AND NOT BELIEVED)
In Patel -v- Patel [2017] Andrew Simmonds QC (sitting as a judge of the High Court) was considering the credibility of witnesses. The case is an interesting read in that it sets out detail of some of the cross-examination. It…
PROVING THINGS 53: BECAUSE A SOLICITOR WAS DISHONEST SOME OF THE TIME IT DOESN’T MEAN THEY WERE DISHONEST ALL OF THE TIME
The case of Pemberton Greenish LLP -v- Henry [2017] EWHC 246 (QB) provides an interesting assessment of witness evidence and demonstrates the difficulty in proving dishonesty. Mr Justice Jeremy Baker held that the fact that a solicitor was negligent, breached…
ANODYNE WITNESS STATEMENTS: WHAT DOES IT TELL YOU WHEN A JUDGE PREFERS THE ORAL EVIDENCE OF A WITNESS- THAT CONTRADICTS THEIR WITNESS STATEMENT
There is an interesting observation in the judgment of Mrs Justice Rose in Singularis Holdings Ltd -v- Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch). It may well show much about the way in which witness statements are prepared. “……
THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION”
There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir…
PROVING THINGS 51: NO EVIDENCE OF LOSS – NO DAMAGES: A LESSON TO SHARE
For the second time today we are looking at the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch). This time in relation to the failure of the claimants to quantify or prove they had…
YOUR WITNESS STATEMENTS ARE IDENTICAL: NOW THAT IS A COINCIDENCE
There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case. Advocates of this approach may want to read the judgment of Mrs Justice Proudman in Abbott -v-…
THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY
In the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence. It provides…
BANKERS, WITNESS STATEMENTS AND CREDIBILITY: THE ENIGMATIC WITNESS
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) also contains an analysis of a witness who was “something of an enigma” “Although a witness statement should be…
WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice. Both posts will be about the judge’s assessment…
EXPERT EVIDENCE NOT NECESSARY ON AN QUESTION OF CONSTRUCTION: SNEAKING EXPERT EVIDENCE INTO WITNESS STATEMENTS: EVIDENCE IS STRUCK OUT
We have seen several examples of litigants attempting to give “expert” evidence in their witness statements. This practice was considered by Master Matthews in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch). The Master was considering whether…
BOOKS ABOUT ADVOCACY: MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is an advocate, whether they know it or not. Litigation is fundamentally about the art of persuasion. This is a litigator’s daily task: in correspondence, on the phone, with the court. This is best done by the careful…
PROVING THINGS 50: TO PROVE BREACH OF CONTRACT YOU FIRST HAVE TO PROVE THAT THERE WAS A CONTRACT
The judgment of Mr Justice Stuart-Smith in Secker -v-Fairhill Property Services Ltd [2017] EWHC 69 (QB) may contain an important lesson about pleading as well as evidence. The claimant’s claim could not be put in negligence and her case based…
JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in…
PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was…
ADVISING ABOUT THE RISKS OF LITIGATION: YOU DON’T PAY ME TO TELL YOU WHAT YOU WANT TO HEAR: PROFESSIONAL NEGLIGENCE ACTION AGAINST SOLICITORS DISMISSED
In Seery -v- Leathes Prior (a firm) [2016] EWHC80 (QB) Sir David Eady dismissed a claim for negligence against a firm of solicitors. One of the issues considered was whether the claimant should have been encouraged to litigate. The claim…
DISCLOSING DETAILS OF COSTS INFORMATION PROVIDED FOR MEDIATION : DISCLOSURE ALLOWED: HIGH COURT DECISION
In Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) Master Haworth had to consider the issue of admissibility of evidence relating to a mediation. KEY POINTS Information provided about costs in the run up of a mediation…
PROVING THINGS 47: FIRE IN THE LOFT: IT WASN’T THE MOUSE MAN AT ALL
The judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) is another example of a claimant failing to prove their case. More curiously, in some respects, the claimant’s own evidence contradicted their case. “In circumstances where there…
LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED
“This may be an interesting year for the consideration of issues relating to the accuracy of memory. An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic…
LAWYERS, LITIGATION & MEMORY II: HOW YOU ARE AFFECTING THE MEMORY OF WITNESSES (AND POSSIBLY SOWING THE SEEDS FOR DEFEAT)
The post on “Lawyers, litigation and memory”clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous…
LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION
A single moment of logical thought will lead to the conclusion that it is strange that lawyers don’t learn about memory. Much (indeed most) litigation relies on the memory of the parties. Judges are, more often than not, called upon…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
ADVERSE INFERENCES NOT DRAWN WHEN WITNESSES ARE ABSENT: ANOTHER EXAMPLE
There are several posts on the blog which deal with the approach the trial judge takes when certain witnesses are not present. In some cases it leads the judge to draw adverse inferences, in others it does not. In Welds…
PROVING THINGS 45: IF YOU CAN'T PROVE LOSS THE DEFENDANT IS GOING TO GET SUMMARY JUDGMENT
This series (and this blog) have looked at several cases where a party has asserted a loss but not been able to prove it. There are a large number of cases where a party fails to put the basic information…
TAKING WITNESS STATEMENTS AND FACT FINDING: VEHEMENT CRITICISM (OF A SURPRISING SOURCE)
The need to take care when drafting witness statements has been a regular theme of this blog. The delegating of witness statements to a party or client is an extremely dangerous (and foolish) practice. I have also examined, regularly,…
WITNESS STATEMENTS, STATEMENTS OF TRUTH AND CONTEMPT OF COURT
The judgment of Mrs Justice Slade in Aviva Insurance -v- Randive [2016] EWHC 3152 (QB) involves no findings of fact. However it does demonstrate the dangers inherent in being involved in the drafting of witness statements and replies to Part…
PROVING THINGS 44: FINDINGS OF FACT, WALTER MITTY AND WITNESS TRAINING
The judgment today of Mr Justice Coulson in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2016] 3188 EWHC (TCC) shows the importance of the judge’s assessment of witnesses. The judge made a clear and robust assessment of the witness evidence,…
PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER
The judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases. “…the decision of the court is not necessarily the objective truth…
PROVING THINGS 42: SILENCE DOES NOT PROVE INDUCEMENT
We are returning to the case of Francis -v- Knapper [2016] EWHC 3093 (QB). That case has been looked at in relation to a failure to prove damages. However the claimants also had major evidential problems in proving misrepresentation. KEY POINTS…
PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker…
PROVING THINGS 39: YOU CAN SPEND £10 MILLION IN COSTS AND STILL NOT PROVE YOUR CASE: DAMAGES CLAIM WAS A "NOTIONAL DESKTOP EXERCISE"
It is unusual to look at the substantive judgment in a case after examining the decision on costs. We have already looked at the cost judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496. However the substantive…
WITNESS STATEMENTS & DISCLOSURE: OMISSIONS MEAN THAT CASE FAILS AT SECOND HURDLE AND HAS TO GO BACK TO THE START
S When a proponent of proportionate litigation, such as Jackson L.J., orders a retrial in a case where the judgment was for £4,449 the case merits examination. In Knowles -v- Watson [2016] EWCA Civ 1122 a re-trial was ordered because…
PROVING THINGS 38: PROVING INABILITY TO PAY ON A SECURITY FOR COSTS APPLICATION
A party opposing an application for security costs sometimes has to argue that the ordering of security would “stifle” a genuine claim. This means giving evidence as to that party’s inability to pay. This test was considered by Mr Richard…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller [2016] EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in…
WITNESS CREDIBILITY, DELAY AND DENTON.
There is an interesting discussion of the credibility of witnesses in the judgment of Mr Registrar Briggs in Preston -v- Green (Liquidator of Cre8atsea Limited) [2016] EWHC 25222 (Ch). The Registrar also had to consider whether to exercise his discretion…
"DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT…"
There are several high profile cases in which judges have expressed scepticism (sometimes profound scepticism) about whether a witness statement really reflects the knowledge of a witness. A short, but telling, passage in the judgment of Mr Justice Mitting in…
EVIDENCE, RETAINERS, ATTENDANCE NOTES AND WITNESS CREDIBILITY
There have been a number of recent cases where disgruntled clients have attempted to sue their lawyers. The judgments highlight the difficulties for trial judges who have to assess evidence after some lapse of time. They also highlight the importance…
SURVEILLANCE EVIDENCE A BREACH OF ARTICLE 8 RIGHTS: ECHR DECISION
In Vukota-Bojic -v- Switzerland the European Court held that the surveillance of an insurance claimant represented a breach of Article 8 rights (but use of that evidence at a hearing was not a breach of Article 6 rights). It could…
PROVING THINGS 35: RECONSTRUCTION, DOCUMENTS AND MEMORY
Most law reports will look at the findings of law made in a judgment. In this blog we are interested in findings of fact and the way in which a judge goes about making those findings. A good example can…
PROVING THINGS 34 : THERE IS NO PRIMER FOR SCUTTLERS: WHEN YOUR SHIP DOESN'T COME IN
We have looked at many different types of case during this series. However this is the first time we have looked at an Admiralty case and at case about the “scuttling” of a ship. The judgment of Mr Justice…
ALLEGATIONS AGAINST SOLICITORS THAT PROBABLY SHOULD NEVER HAVE BEEN MADE: CONSPIRACY, DISHONESTY AND DECEIT – ASSERTIONS THAT WERE JUST UNTRUE
There have been a number of recent cases of property companies, who have lost heavily in the property market, seeking to recover from solicitors (not necessarily always their own solicitors) for those losses. This trend can be seen -…
THE MALLEABLE WITNESS: ANOTHER EXAMPLE WHERE LAWYERS WERE BLAMED FOR INCONSISTENT STATEMENTS
We have looked before at cases where witnesses point to their lawyers when discrepancies appear in their witness statements. This can occur in every type of case as can be seen by the judgment of Mr Justice Edwards-Stuart in Fluor…
ADVOCACY THE JUDGE’S VIEW VII: WITNESS STATEMENTS – SHORT AND SWEET IS BEST
We have already looked once this week at a judge’s viewpoint on the drafting of witness statements. In terms of advocacy they are crucial. The rules only allow the witness to give additional evidence in exceptional circumstances. Many cases that…
WITNESS STATEMENTS, THE WEATHER AND THE DISTRICT JUDGE…
The observations by District Judge Etherington reported by John Hyde in the Law Society Gazette deserve repetition and the widest audience possible. (The Readers’ comments on the article also make for interesting reading). THE GAZETTE REPORT The District Judge was speaking…
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