EVIDENCE AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE IN THE HIGH COURT
The judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 121 (QB) is another example of a case resting on the accuracy of recollection of a witness. Further the judge rejected a “statistical”…
EVIDENCE, DAMAGES AND A SOLICITOR'S GOODWILL
The Court of Appeal decision in Karim -v- Wemyss [2016] EWCA Civ 27 has already received some publicity, involving as it does litigation following the sale of a solicitor’s practice. However the decision also shows the dangers of not bringing…
WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION
The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be…
WITNESS CREDIBILITY, ATTENDANCE NOTES AND FINDINGS OF FACT
In Mansion Estates Ltd -v- Hayre & Co (A Firm) [2016] EWHC 96 (Ch) His Honour Judge Saffman (sitting as a judge of the High Court) went, carefully, through the principles relating to witness credibility and findings of fact. Given…
RELIEF FROM SANCTIONS APPLICATIONS: 10 POINTS TO IMPROVE THE ODDS
It is now just over 18 months since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. It is clear that default remains a problem and an issue within the civil courts. Further it…
EVIDENCE, PROOF AND DOCUMENTS: MEDICAL RECORDS NOT DEFINITIVE OF CONDITION
The judgment of Mrs Justice Patterson DBE in Hunt -v- Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB) is one where the claimant succeeded in establishing negligence on the part of the defendant Trust. However there is an interesting…
DECISION NOT TO ADMIT LATE WITNESS EVIDENCE UPHELD BY THE COURT OF APPEAL
There is a brief report on Lawtel of the decision in Judges Sykes Frixous -v- Bhabra (CA 14/010/2016).* This provides another example of a party (unsuccessfully) trying to serve witness evidence late in the day. There are numerous posts on…
WITNESSES: PERSONAL ATTENDANCE, VIDEO LINKS AND DEPOSITIONS
In another decision in the Kimathi -v- Foreign and Commonwealth Office [2015] EWHC 3684 (QB) case Mr Justice Stewart considered the question of whether witnesses should attend court, use video link or whether depositions should be taken. “the general rule…
RELIEF FROM SANCTIONS, FRAUD AND THE CHANGING SITUATION
I must preface this post with the warning that it is not possible to cite decisions relating to permission to appeal. However the decision in Bawden -v- WM Morrison Supermarkets PLC [2015] EWCA Civ 957 is interesting in itself. The…
INADEQUATE WITNESS STATEMENTS, A "CULTURE OF NON-COMPLIANCE" AND THE SECRETARY OF STATE FOR JUSTICE
The decision of District Judge Hickman in the small claims case of Thakar -v- The Secretary of State for Justice [2015] EW Misc B44 is one that is likely to attract a lot of attention given that it was a…
USING WITNESS STATEMENTS PREPARED IN ANOTHER ACTION: WHEN IS A "HEARING HELD IN PUBLIC"
CPR 32.12 prevents witness statements served in an action being used for any other purpose. However there is an exception when a statement is “put in evidence at a hearing held in public”. This issue was considered in Kimathi -v- Foreign…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS 2: A USEFUL COUNTERBALANCE
A post earlier this month looked at a case where the judge favoured the witness evidence over a written medical record. The decision in Grimstone -v- Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB) is a…
CORROBORATIVE WITNESSES : "SIMILAR FACT EVIDENCE" ALLOWED IN TEST CASE
We have already looked at the decision in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) in relation to the issue of historians being called as witnesses. Here we look at the judgment in relation to corroborative/”similar fact” evidence. KEY…
SOME WITNESSES MAY NOT BE GOOD HISTORIANS BUT GOOD HISTORIANS CANNOT BE WITNESSES
In Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) Mr Justice Stewart considered a number of issues relating to witness statements. Here we consider whether the evidence of historians is admissible. Other aspects of this case will be examined…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS: THE RECORDS MAY NOT BE RIGHT
This blog has looked, many times, at the issue of witness credibility and the various criteria that judges use when assessing evidence. This issue was to the fore in the Court of Appeal judgment yesterday in Synclair -v- East Lancashire…
LATE AMENDMENT TO PLEADINGS SHOULD NOT HAVE BEEN ALLOWED: CLAIMANT COMES TO GRIEF ON APPEAL
In Ali -v- Siddique [2015] EWCA Civ 1258 the Court of Appeal overturned a decision granting permission to amend the Particulars of Claim. Consequently the defendant’s appeal was allowed and the claimant’s action failed. KEY POINTS There is a heavy…
"TOTALLY HOPELESS" APPLICATION FOR DISCLOSURE;INADEQUATE WITNESS STATEMENTS;APPLICATION FOR EXTENSION REFUSED:ALL LEGAL LIFE IS HERE
The judgment of Mr Justice Edwards-Stuart in London Borough of Bromley -v- Heckel [2015] EWHC encompasses many of the themes regularly discussed in this blog. Proceedings were issued late;there was an inappropriate application for disclosure;the witness evidence was inadequate. Finally…
WHEN THE CREDIBILITY OF THE LAY AND EXPERT WITNESSES LIES IN SHREDS
The previous post in relation to Part 36 led me to examine the substantive judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC). It contains as damning an assessment of witness…
IS THIS A CLAIMANT'S OR DEFENDANT'S OFFER? ANOTHER IMPORTANT HIGH COURT DECISION ON PART 36
In Van Orrd Uk Limited -v- Allseas UK Limited [2015] EWHC 3385 (TCC) Mr Justice Coulson considered the appropriate consequences when the defendant had beaten its own Part 36 offer. These were unusual circumstances in that the court had to…
PERSONAL INJURY LITIGANTS, LAWYERS & SOCIAL MEDIA
Social media is coming to play an increasingly important part in personal injury litigation. It is worthwhile taking a look at developments and the lawyer’s duties. There is no doubt at all that the close scrutiny of social media accounts…
COMMENT POSING AS CROSS-EXAMINATION: "INAPPROPRIATE AND IMPROPER"
When does cross-examination turn to comment? That is a question all working advocates have to consider, both in relation to their own cross-examination of witnesses, and responding to their opponents. There are some important observations by Mr Justice McCloskey in…
THE YEO CASE: WITNESS EVIDENCE & CREDIBILITY: THERE'S A HOOK HERE SOMEWHERE
The decision of Mr Justice Warby in Yeo -v- Times Newspapers Limited [2015] EWHC 3375 (QB) is one of those cases that, obviously, will be of wider interest. It contains much of interest in relation to an analysis of the…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
GOOD BUNDLES, GOOD ADVOCACY, POOR WITNESS STATEMENTS
The final paragraph of the judgment of HH Judge Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch speaks volumes. I will allow it to speak for itself. “I cannot leave this case without…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…
PROVING THINGS BY EVIDENCE: ANOTHER EXAMPLE OF AN ABSENCE OF EVIDENCE LEADING TO A CASE FAILING
The case of Goldsmith Williams -v- E.Surv Limited [2015] EWCA Civ 1147 will, no doubt, be discussed as a professional negligence case and it may have some impact on the duties of conveyancing solicitors. However the appeal, at heart, relates…
WITNESS EVIDENCE & THE BURDEN OF PROOF: A CIVIL TRIAL IS NOT A SEARCH FOR THE ABSOLUTE TRUTH: FOOTBALLERS ON TRIAL
Anyone looking for a detailed consideration of the law relating to witness evidence and the burden of proof can find it in the judgment of His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City…
LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND
Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY
Issues relating to “witness training” are bound to be controversial. The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing. However it is clear that trial judges often have their reservations as…
WITNESS STATEMENTS & SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS
We looked in an earlier post at the case of Ali -v- CIS General Insurance (29/7/2015) where a claimant’s action was struck out because of failure to give disclosure. However there was a passing comment in the judgment which demonstrated…
WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC [2015] EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to…
THE CIVIL EVIDENCE ACT, THE ABSENT WITNESS AND WITNESS CREDIBILITY: A CASE IN POINT
This blog has already looked at the decision in Mohidin -v- Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) in the context of the contents of witness statements and the length of the trial bundles. That judgment also…
MUDSLINGING IN WITNESS STATEMENTS CAN BACKFIRE: BUNDLES OF IRRELEVANT DOCUMENTS COUPLED WITH IRRELEVANT AND INADMISSIBLE WITNESS STATEMENTS: A FAMILIAR TALE?
The case of Mohidin -v- The Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) will, no doubt, be looked at in detail for its implications for claims against the police. The case also contains interesting observations about similar…
WITNESS CREDIBILITY WHEN BOTH SIDES ARE NOT WHOLLY TRUTHFUL: THE APPROPRIATE APPROACH
This blog has looked, many times, at the approach that the courts take in relation to conflicting witness evidence. Particular problems arise when both sides are being less than truthful. Many of these principles involved have developed out of hard…
SILENCE ON KEY ISSUES DOES NOT PROVE YOUR CASE: SQUARING UP TO WITNESS EVIDENCE
The judgment of Recorder Halpern QC in Canada Square Operations Ltd -v- Kinleigh Folkard & Hayward Limited (17/09/15)* is interesting for a number of reasons. Firstly on issues of limitation; secondly on the point that a court will not infer…
"DOCUMENTS WIN CASES"E-DISCLOSURE AND EVIDENCE FOR THE 21st CENTURY LITIGATOR: LEEDS 20th OCTOBER; LONDON 22nd OCTOBER
There is a panel session on e-disclosure and evidence in central Leeds on the 20th October and again in Lincoln’s Inn on the 22nd October. Both start at 4.00 pm and last two hours. LIVE AT LEEDS The session in…
WHOSE WITNESS STATEMENT IS IT ANYWAY? WELL THE SOLICITOR DRAFTED IT FOR ME
The judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) deals with many complex issues of causation and law in a difficult clinical negligence case. However I want to deal…
EVIDENCE, THE INTERNET AND SOCIAL MEDIA: FACEBOOK AND YOUTUBE EXPOSE DEFENDANT
The judgment of Judge Seymour in Cirencester Friendly Society -v- Parkin [2015] EWHC 1750(QB) provides another example of how the social media and the internet provides ammunition in litigation. Here we have a case of a defendant helpfully providing telling…
"HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE": 22nd SEPTEMBER 2015: HARDWICKE BUILDING, LONDON: RAISING FUNDS FOR THE BILLABLE HOUR
LITIGATORS: HOW TO GET SUED: MAKE A LOSS AND BE MISERABLE RAISING MONEY FOR THE BILLABLE HOUR APPEAL (ALL PROCEEDS GO TO THE APPEAL) Gordon Exall and PJ Kirby QC. Hardwicke Building, Lincoln’s Inn. TUESDAY 22nd SEPTEMBER 2015 5.30 -…
THE WITNESS WHO KNOWS NOTHING AND WANTS TO BE AN EXPERT: A REVIEW OF THE CASES
There are a surprising number of witness statements in which witnesses quite happy give “evidence” on matters on which they in fact know nothing. Some will even add to their “evidence” by assisting the court with matters of opinion. An…
MORE ABOUT WITNESS STATEMENTS AND CONTEMPORARY EVIDENCE: THE RULE OF RECENT FABRICATION
The post on the decision in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 led to an interesting comment. However that comment, in itself, leads to further interesting questions about the use of witness statements….
WITNESS STATEMENTS: WITNESS EVIDENCE: LETTERS BEFORE ACTION: CREDIBILITY AND…. CRICKET
The judgment of His Honour Judge Lopez in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 has some interesting lessons in relation to the treatment of witness evidence. In particular what happens when the claimant’s…
THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the judge’s assessment of that witness and the case generally. Further problems occur when both parties are lying. Here we look at some of the important judgments…
ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
I am returning to the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB). Among other things this case emphasises the dangers of leading questions when interviewing witnesses. There are dangers…
THE EFFECT OF QOCS ON LITIGATION: HERE'S THE THING: CASES WILL BE FOUGHT ON THEIR MERITS
There has been much debate about the impact of QOCS on litigation. To date much of this has, inevitably, been speculative. However it is worthwhile reading George Riley’s article, Fundamental dishonesty and litigation in the post-Jackson landscape. This shows, honestly…
WITNESSES WHO DID NOT DRAFT (OR UNDERSTAND) THEIR STATEMENTS, WOULD BE "EXPERTS" AND OTHER WITNESS WOES.
Hot on the heels of my posing the question whether 278 years of judicial prompting on witness statements had led to any results comes the decision today of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos…
WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions. This…
