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,…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
GLADWIN & SANCTIONS – AN ANALYSIS 2: WHY (IN THEORY) THE DEFAULTING CLAIMANT COULD STILL RELY ON THE LATE WITNESS EVIDENCE
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the second of the series looking at the case more closely we…
GLADWIN & SANCTIONS – AN ANALYSIS 1: WHAT WENT WRONG
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In a series looking at the case more closely we look at what…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO?
Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct. However in litigation, as in life, people do tell lies. Litigators need to know about lies, and…
PROVING THINGS 62: “TOTALLY UNSATISFACTORY” EVIDENCE AT TRIAL FAILS TO PROVE SPECIAL DAMAGES
I wrote about the judgment in Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB), yesterday. There is no harm in repeating one element of that post in this series. I am repeating it because…
LIES, DAMN LIES AND CAR HIRE QUOTES: COMPUTER RECORDS, AND INTERNAL DOCUMENTS PREFERRED TO WITNESS EVIDENCE
The judgment in Accident Exchange Limited -v- Broom [2017] EWHC 1096 (Admin) shows a deliberate, and concerted, effort to undermine the civil justice process. It also shows the importance of obtaining computer records, and internal documentation when preparing a trial….
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
TALES FROM THE APIL CONFERENCE 3: WITNESS STATEMENTS: LITIGANTS IN PERSON ARE BETTER THAN LAWYERS
I attended the APIL conference because I was asked to talk about “proving things”, that is the basic task of establishing a case by evidence. The fact that this blog has a long-running series on this issue may have played…
WHEN THE WITNESS EVIDENCE SIMPLY SAYS – “I AGREE WITH HIM”
There was a post on this blog earlier this week about the issues caused by similar witness statements. Another intriguing problems is what happens when the witness simply says “I agree with…” the other witness. This type of “evidence” is…
WITNESSES, MUSIC AND RECOLLECTION: WHEN RADIO INTERVIEWS COME BACK AND THINGS ARE NOT ALRIGHT
I am looking for an excuse to blog about the decision of Judge Hacon in Editions Musicales Alpha S.A.R.L -v- Universal Music Publishing Limited [2017] EWHC 1058 (IPEC). The case shows something about witness evidence (a composer “forgot” he had agreed…
WHEN THE WITNESSES ALL SAY THE SAME THING: A RECAP
There has been some discussion on Twitter this morning about the issues that arise when witnesses make statements that are, to all intents and purposes, identical. It provides an opportunity to look at some cases on this issue. They make…
“GOOD DAYS AND BAD DAYS”: THE ROLE OF VIDEO EVIDENCE IN THE ASSESSMENT OF CREDIBILITY AND DAMAGES
In Karapetianas -v- Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB) Mr Jonathan Swift QC considered the appropriate approach to damages when the claimant’s case as to ongoing symptoms was contradicted by video evidence. He found that the…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT & CONSIDERS THE IMPORTANT ROLE OF THE SINGLE JOINT EXPERT
We have already looked at the decision in Perry -v- Raleys Solicitors [2017] EWCA Civ 314 in the context of the award of interest. The decision also contains important observations about evidence and the way in which the courts approach…
PROVING THINGS 61: MORE ON SOCIAL MEDIA: FACEBOOK ENTRIES AND WITNESS CREDIBILITY
Facebook and social media play an increasingly important part in litigation. We have looked at several cases where social media has played a critical part in the assessment of witness credibility. Facebook played a part of the judgment today of…
CLINICAL NEGLIGENCE: CHANGING WITNESS STATEMENTS, DESTROYED DOCUMENTS AND THE DEFENDANT’S WITNESS WITH NO CREDIBILITY AT ALL
The judgment of Mr Justice Goss in RE -v- Calderdale & Huddersfield Foundation Trust [2017] EWHC 824 (QB) shows some concern about the nature of the evidence adduced by the defendant. Documents had been (inadvertently) destroyed and definitely altered. Witnesses…
BANKS, WITNESSES AND CREDIBILITY: AN INTERESTING JUDGMENT
There are many reasons why lawyers should read the decision in Thomas -v- Triodos Bank NV [2017] EWHC 314 (QB). There is an interesting consideration of the duty of care a bank owes a customer and the Hedley Byrne principles….
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
WHEN THE EVIDENCE OF THE “INDEPENDENT” WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?
In a case where there are disputed facts a party that has an independent witness usually holds a strong hand. However in Elson -v- Stilgoe [2017] EWCA Civ 193 today the Court of Appeal upheld a decision where the trial…
WHEN PUBLIC OFFICIALS MAKE WITNESS STATEMENTS: FAREPAK REVISITED
There was a post earlier this week where a public official faced contempt of court proceedings that was “false and tended to mislead”, and was acquitted because the statement was “careless” rather than criminal. This provides a good opportunity to…
WHEN A PUBLIC OFFICIAL SIGNS A “CARELESS” WITNESS STATEMENT THAT WAS “FALSE AND TENDED TO MISLEAD”: NOT IMPRESSIVE TO SAY THE LEAST
There are many cases that show a surprisingly insouciant approach to accuracy by those who draft, and those who sign, witness statements. This insouciance is even more surprising when the person who has signed the statement is a public official,…
“SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT”: A VERY FRIGHTENING SEARCH TERM
It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to…
PROVING THINGS 59: TO GET SPECIAL DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)
In Lisle-Mainwaring -v- Associated Newspapers Ltd [2017] EWHC 543 (QB) Judge Parkes QC (sitting as a Deputy Judge of the High Court) declined to award the claimant special damages for financial outlay on the grounds that they were never properly…
APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB
In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured. The judgment considers what inferences a…
THE PROCESS OF TAKING A STATEMENT: EXPLORED IN DETAIL IN OPEN COURT
The judgment of Master Bowles in Wilson -v- Lassman [2017] EWHC 85 (Ch) contains a detailed consideration of the way in which witness evidence was obtained. It highlights the importance of having a careful record of the way in which…
WHERE DOES THE TRUTH LIE? GESTMIN IN THE FAMILY COURTS
This blog has looked at the “Gestmin” guidance many times. I am grateful to Lucy Reed for pointing out that it has been considered in the context of family law. In Lachaux -v- Lachaux [2017] EWHC 385 (Fam) Mr Justice…
A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER
The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike. A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with…
THE SELF-CONFIDENT WITNESSES THAT CONVINCE THEMSELVES BUT NO-ONE CAN RELY ON
In Bhullar -v- Bhullar [2017] EWHC 407 (Ch) His Honour Judge Stephen Davies had the difficult task of ascertaining the truth in that most fraught and difficult of circumstances: a family that has been in business together and then fallen out….
PROVING THINGS 55: I’LL SAY IT AGAIN: NO EVIDENCE – NO DAMAGES
The judgment of Mrs Justice Jefford in Kingsgate Development Projects Lt -v- Jordan [2017]EWHC 343 (TCC) is (yet) another example of a claimant asserting damages but there being no evidence to prove them. The claimant ended up with a judgment…
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…
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