ANOTHER CASE STRUCK OUT BECAUSE WITNESS STATEMENTS WERE SERVED LATE
I am grateful to Michael Ditchfield of Kings Chambers for his sending me details of a recent appeal where the Circuit Judge overturned a decision where, initially, relief from sanctions had been granted. This emphasises the point that, although the…
SURVIVING MITCHELL 14: LITIGATORS MUST KNOW ABOUT CREDIBILITY
I am picking up on a point in Kerry Underwood’s article on Rules of Survival. In that article he emphasised the need for a client to “pass a test” of being able to be “Mitchell compliant” before the client is…
RELIEF FROM SANCTIONS CONSIDERED IN THE HIGH COURT AGAIN: MCTEAR CONSIDERED IN DETAIL
The case of McTear -v- Englehard [2014] EWHC 722 (Ch) was looked at briefly in an earlier post in relation to the number of cases cited to the Court. Here we look at the substantive decision in relation to applications…
WAIVING PRIVILEGE BY MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT: A CASE IN POINT
A case reported on Lawtel this morning demonstrates the dangers of referring to legal advice in witness statements. The decision of Males J in Mid-East Sales -v- Engineering & Trading Co [2014] EWHC 892 (Comm) was made on 14/03/2004. THE…
TRIAL BUNDLES: ANOTHER VIEW FROM THE BENCH: WILL SEDLEY'S LAW BECOME BEHRENS' LAW?
There have been several posts about the proper preparation and collation of trial bundles. An interesting comment from HHJ Behrens in the case of Burnard -v- Burnard [2014] EWHC 340 (Ch) indicates that, bundles remain far from perfect. BURNARD Judgment…
EXCLUDING WITNESSES FROM COURT IN CIVIL AND FAMILY HEARINGS: THE APPROPRIATE APPROACH: LUCKWELL V LIMATA CONSIDERED
In civil proceedings witnesses are commonly present throughout the entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the…
LATE SERVICE OF WITNESS STATEMENTS: CHARTWELL -v- FERGIES CONSIDERED IN DETAIL
The case of Chartwell Estate Agents Ltd -v- Fergies Properties Ltd [2014] EWHC 438 (QB) has been dealt with in an earlier post. At that stage a Lawtel summary of the case was available. The full transcript is now released. CHARTWELL:…
RELIEF FROM SANCTIONS GRANTED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: CHARTWELL MAY BODE WELL IN SOME CASES
The case of Chartwell Estate Agents –v- Fergies Properties Ltd (QBD Globe J 18/02/2014) is reported in brief on Lawtel this morning. It is an example of the court granting relief from sanctions following late service of witness statements. This…
HISTORIC AGREEMENTS TO EXTEND TIME: WHAT IS THE APPROPRIATE APPROACH OF THE COURT? CAROLINE MAEVE MEEHAN -v- JOSEPH MANLEY & CHURCHILL INSURANCE COMPANY LIMITED
The decision in Lloyd that it was not open to the parties to agree to extend time can cause a problem in relation to cases where service of documents has taken place late by agreement. This was a common occurrence…
STRIKING OUT SPECIAL DAMAGES CLAIM BECAUSE OF ABSENCE OF EVIDENCE IN WITNESS STATEMENT: MORE DETAIL PROVIDED
I am grateful to Dave Toulson of Hill Dickinson for a more detailed explanation of the news that prompted the article on drafting witness statements and proving damages. The original tweet was that a claim for hire had been struck…
WITNESS STATEMENTS AND PROVING LOSS OF EARNINGS
The previous post dealt with the importance of witness statements in proving heads of loss. An example was given of a failure to prove loss of earnings through inadequate evidence. LOSS OF EARNINGS ON MY OTHER BLOG I maintain…
MAKE SURE YOUR WITNESS STATEMENT PROVES YOUR CASE
The genesis of this article is a tweet earlier today where a solicitor reported that a claim for the cost of hire and storage had been struck out because the witness statement was deficient. “C entire hire, storage & recovery…
SURVIVING MITCHELL 5: CAN YOU EVEN AGREE EXTENSIONS OF TIME?
The earlier post on extensions of time gained a lot of attention and numerous issues were raised at twitter. This is such a fast moving area that a case, reported yesterday, deals with some of the issues raised. I wanted…
DRAFTING WITNESS STATEMENTS : THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET: EIGHT CRUCIAL POINTS ON EVIDENCE
Earlier posts on witness statements have dealt with the manner of drafting and presentation. However one overlooked aspect is the way that witnesses are questioned. The questions asked, and the way questions are asked, will determine the evidence that goes…
THE IMPORTANCE OF TRIAL BUNDLES AGAIN: READ LEGAL ORANGE
The earlier post on trial bundles received several comments. It is clearly a matter of interest, and some controversy. Legal Orange has written a post on Trial Bundles from the point of view of a litigator. LEGAL ORANGE The post…
DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES: A CHECKLIST TOO IMPORTANT TO IGNORE
The earlier post on witness statements had a large number of hits. That post set out the basic techniques when drafting witness statements. However it just as important is that you ensure that the statements you draft comply with the…
DRAFTING WITNESS STATEMENTS AND THE GENIUS OF JOHN MUNKMAN
The skill and effort involved in drafting a proper and appropriate witness statement are often overlooked. Mistakes are often made. Witness statements are either to cursory and brief; too opinionated and argumentative or over-elaborate and lacking credibility. Curiously enough most…
CAN THE COURT CUT DOWN THE NUMBER OF WITNESS STATEMENTS? MACLENNAN –v- MORGAN SINDALL CONSIDERED.
One little noticed part of the Jackson reforms was the introduction of a new to CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now…
DRAFTING WITNESS STATEMENTS AND THE LAWYER AS WITNESS
There have been several posts about drafting witness statements on this blog. Here I am referring readers to comments made by Richard Moorhead in his blog “Lawyer Watch”. The first refers to a case where the solicitor for a party…
KARBHARI: THE MITCHELL CRITERIA AND THE LATE SERVICE OF WITNESS STATEMENTS
KARBHARI -v- AHMED http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html 2013] EWHC 4042 (QB) This was a High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary…
ANOTHER COURT OF APPEAL CASE ON RELIEF FROM SANCTIONS : DURRANT –V- CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY
In the first relief from sanctions case to reach the Court of Appeal since Mitchell, the Court of Appeal reiterated the tough new approach which courts should taken when considering relief applications. The Claimant brought a claim against the Defendant…
TRIAL BUNDLES: TIMING, CONTENTS AND PRESENTATION : AND DO YOU KNOW SEDLEY’S LAWS?
Amidst the Mitchell Mayhem and the high glamour and glitz of Civil Litigation at the moment I am writing a post on the mundane subject of trial bundles. Mundane but important. The significance of bundles was highlighted in the recent…
AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
Procter -v- Raleys Previous posts in this series have concentrated upon limitation issues. This post looks at the recent decision of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to…
DRAFTING WITNESS STATEMENTS: ESSENTIAL GUIDANCE FROM AN AUTHORITATIVE SOURCE THAT EVERY LITIGATOR SHOULD READ
The dangers of drafting argumentative and adversarial witness statements have been discussed several times on this blog. A working example of the dangers of this, together with commentary on the results, can be found in the statement of Peter Smith…
WITNESS STATEMENTS & COMPLYING WITH THE RULES 2: THE GROUNDS FOR THE WITNESSES’ KNOWLEDGE OR BELIEF
The previous post at http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ discussed a case where the problems about the witnesses giving information as to source of belief and hearsay evidence. The problems were avoi… Enjoying this post? Become a Civil Litigation Brief member to read…
THE IMPORTANCE OF DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES
The Civil Procedure Rules set out rigorous requirements for the structure and layout of witness statements. The editors of the White Book note (at 32.4.5 of the latest supplement that) “Unfortunately, rules, practice directions and guidance as to the contents…
WITNESS STATEMENTS IN A SPECIFIC CONTEXT: ACCIDENTS AT WORK AFTER 1st OCTOBER 2013
A fundamental change in the law relating to breach of statutory duties and civil liability means that greater consideration will need to be given to drafting witness statements. I have prepared an article on this at http://accidentsatworkaftertheerra.wordpress.com/2013/09/30/witness-statements-and… Enjoying this post?…
LITIGATION AFTER JACKSON: A 10 POINT SURVIVAL GUIDE
There has been a tremendous change in policy in relation to case management after 1st April 2013. This has already led to major difficulties for some litigators. This post is the first (of what may be many) survival guides for…
WHAT ARE WITNESS STATEMENTS FOR?
I have written an article for the Local Government Lawyer on drafting witness statements dealing with recent cases and guidance on the topic, see What are witness statements for For other articles in the series on drafting witness statements see…
SERVING WITNESS STATEMENTS LATE: AN EXTREMELY DANGEROUS PRACTICE
The recent decision in Fons HF –v- Corporal Ltd & Pillar Securitisation [2013] EWHC 1278 (Ch) provides an object lesson on the difficulties that can arise when both parties fail to file witness statements in accordance with directions. The facts…
CIVIL EVIDENCE AND WITNESS STATEMENTS
I have written two articles on witness statements and civil evidence for Local Government Lawyer One on the inferences a court can draw when a litigant elects to call no evidence on an issue http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=13497%3Asilence-… Enjoying this post? Become a…
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