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…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
CHILD CLAIMANTS AND LOSS OF EARNINGS CLAIMS: WEBINAR 20th APRIL 2026: NOW WITH GREATLY EXPANDED QUESTIONNAIRE
A post yesterday highlighted both the significance of a claim for loss of earnings for a child claimant, but also the difficulty. In that case the award for disability in the labour market of £50,000 was higher than the award…
“GUIDE, MENTOR AND FRIEND”: REVIEW OF THE APIL GUIDE TO CATASTROPHIC INJURY CLAIMS 4th EDITION: STUART McKECHNIE KC (AND A FORMIDABLE TEAM): THE “LITTLE GEM” THAT KEEPS ON GIVING
The fundamental question for a reviewer of a legal text is – is this book worthwhile? Here there is only one answer. A book of considerable importance, assistance and utility is a “must buy”. HOW DO I SUMMARISE THIS? Sir…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
AN “EXTERNAL” REPORT IS RELEVANT TO THE ISSUES IN THE CASE BUT THE JUDGE WILL DETERMINE ALL KEY MATTERS THEMSELVES..
We have, for many years now, been looking at the way in which the courts consider the admissibility of reports prepared for related purposes. We have that issue considered in this case. A report was obtained in relation to allegations…
THERE WAS NO AGREEMENT TO EXTEND TIME FOR SERVICE AS THE DEFENDANT ASSERTED: THE SCCO REFUSES TO SET ASIDE A DEFAULT COSTS CERTIFICATE
This is an interesting judgement on two levels. Firstly the judge did not accept the defendant’s contention that there had been an agreement to extend time for service of Points of Dispute to a bill of costs. Secondly, applying the…
THE JUDGE FOUND AGAINST ME BECAUSE THEY GAVE TOO MUCH LEEWAY TO A LITIGANT IN PERSON : ALLEGATIONS OF THIS KIND SHOULD BE PARTICULARISED (AND CAREFULLY THOUGHT OUT)
Here we consider some unusual grounds of appeal. An unsuccessful claimant appealed on the grounds, inter alia, that the judge had erred in giving leeway to the defendant who was a litigant in person. What is important here is that…
WITNESS EVIDENCE WEDNESDAY: BOTH WITNESSES ARE HONEST AND BELIEVE THEY ARE TELLING THE TRUTH – BUT ONE IS WRONG…
It is often the case that the most difficult cases are those that depend almost wholly on witness recollection. This is made far more difficult in a case such as a motor accident where the incident happened in a matter…
MAZUR MATTERS 55: THINGS WE DON’T KNOW THE ANSWER TO (2): WHAT DEGREE OF SUPERVISION IS REQUIRED: THIS “WILL ALWAYS DEPEND ON THE CIRCUMSTANCES”
It is important to note that the Court of Appeal decision yesterday did not create a “free for all” for unauthorised persons to undertake the conduct of litigation. Far from it. A central part of the judgment was the need…
MAZUR MATTERS 54: THINGS WE STILL DON’T KNOW THE ANSWER TO (1) WHAT IS MEANT BY “THE CONDUCT OF LITIGATION”? THE COURT DID NOT SUPPLY AN “EXHAUSTIVE DEFINITION”
The judgment given yesterday still leaves us with many uncertainties and litigators still need to tread with some care. Here we look at one of the matters that the Court of Appeal was not able to give a definitive answer…
WITNESS EVIDENCE WEDNESDAY 2: WHAT HAPPENED TO COSTS WHEN PARTS OF THE DEFENDANT’S STATEMENT WERE STRUCK OUT?
We are looking separately at the order for costs made in the case considered in the previous post. This emphasises the point that non-compliance with the rules can be costly. The defendant was ordered to pay the costs of the…
WITNESS EVIDENCE WEDNESDAY: COURT STRIKES OUT PARTS OF DEFENDANT’S WITNESS STATEMENT AS NON COMPLIANT WITH PD57AC (AND THE DEFENDANT IS A BARRISTER…)
This case adds to the growing number of cases where the courts have considered whether a witness statement breaches PD 57AC and the consequences for breach. The defendant’s initial statement contained numerous breaches of PD57. A revised statement was more…
THE CURRENT IMPORTANCE OF PLEADINGS 64: THE DEFENDANT TRIES – AGAIN – TO RELY ON EXTERNAL REPORTS AS FACTUAL PARTS OF ITS DEFENCE…
We continue our examination of this judgment where the judge considered the factors relating to amending pleadings in detail. In this case the defendant attempted (for the second time) to rely on the contents of an external report. The judge…
MASTERING PD57AC – GETTING WITNESS STATEMENTS RIGHT IN THE COMMERCIAL COURTS (AND THE CONSEQUENCES IF YOU DON’T): WEBINAR 30th APRIL 2026
Witness statements can make—or break—your case in the Commercial Courts. Since the introduction of Practice Direction 57AC in April 2021, the courts have repeatedly emphasised that compliance is not optional. Yet many practitioners continue to fall into the same costly…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: A MANDATORY OBLIGATION OFTEN IGNORED
It is surprisingly common to see witness statements that fail to comply with the basic – and mandatory – requirement that the maker of the statement gives the source of any matters of information or belief they are giving evidence…
HOW A FIRM OF SOLICITORS SHOULD NOT CONDUCT THEMSELVES IN LITIGATION: A WORKING EXAMPLE: EVIDENCE THAT WAS “GENERALLY UNRRELIABLE” AND “LACKING IN CREDIBILITY”
Here we are looking at a judgment that contains some remarkable observations and findings about the conduct of a solicitor. The judge was concerned not only about the failure to comply with directions, the inadequate nature of the statement of…
PROVING THINGS 284: APPLICANT FOR INJUNCTION FAILS ON JUST ABOUT EVERY POINT: THE CASE WAS DIFFICULT TO UNDERSTAND; NO EVIDENCE OF A RISK OF DISSIPATION; MATTERS THAT LEAVE THE JUDGE “BAFFLED” AND UNCOMFORTABLE
The applicant in this case sought an injunction. The application was (unusually) made on notice. The respondent did not have the opportunity to put in evidence. The applicant failed on just about every point. It was unclear what the applicant’s…
EXPERT WATCH 42: THIS IS NOT EXPERT EVIDENCE – BUT A SIMPLE STEP UP FROM “NUMBER CRUNCHING” : ALSO OPINION EVIDENCE SHOULD BE DISTINGUISHED FROM FACTUAL EVIDENCE
Here we have a case where the judge found evidence provided by experts to be of “assistance” but where he was clear in his view that the information put forward was not expert evidence. The evidence was “simply a kind…
WITNESS EVIDENCE WEDNESDAY: MAKING ASSERTIONS WITH NO CORROBORATIVE EVIDENCE LEADS TO APPLICATION BEING REJECTED: THE EVIDENCE WAS SO “UNSPECIFIC” THAT IT FAILED TO PROVE THE APPLICANT’S CONCERNS
Here we look at the judge’s assessment of the evidence produced in support of an application that details of the applicant should not be disclosed. The judge held that the evidence was “unspecific” and was not corroborated. There was a…
WITNESS EVIDENCE WEDNESDAY II: A STATEMENT THAT WAS “BASED ON A COMBINATION OF SPECULATION AND DOUBLE, TRIPLE OR EVEN MORE REMOTE HEARSAY”
We have looked at many cases in which judges have been critical of the way in which witness statements are drafted. This case is one of the most clear and extreme examples. The defendant (a firm of solicitors) failed to…
WITNESS EVIDENCE WEDNESDAY: YOU ARE DEFINITELY NOT TELLING LIES – BUT I STILL DON’T BELIEVE YOU: CREDIBILITY IS NOT NECESSARILY THE SAME AS HONESTY…
One of the most difficult things to explain to clients and witnesses is that they may well believe they are telling the truth. They may well not be liars. However this does not mean that the court will accept their…
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