INFERENCES TO BE DRAWN FROM SILENCE: THE VIEWS OF THE SUPREME COURT
In the recent case of Gordon Ramsay -v- Gary Love [2015] EWHC 65 Mr Justice Morgan considered, among other things, the inferences that could properly be drawn from the absence or silence of a witness. He refers to the relevant…
THE RIHANNA CASE AND OPINION EVIDENCE IN WITNESS STATEMENTS: BEEN THERE, DONE THAT GOT THE TEE SHIRT
We should, perhaps, get used to celebrities dominating the law reports. After court fees are increased they will be the only people who will be able to afford litigation in any event. The case of Robyn Rihanna Fenty -v- Arcadia…
DOCUMENTS, CIVIL EVIDENCE AND WITNESS STATEMENTS: SERVE PROPER NOTICES OR YOU COULD BE ON YOUR BIKE
The judgment of His Honour Allan Gore QC (sitting as a High Court judge) in Edwards -v- London Borough of Sutton [2014] EWHC 4378 QB contains some important observations about documents, Civil Evidence Act notices and witness statements. THE CASE…
GORDON RAMSAY CASE AND WITNESS EVIDENCE: ABSENCE OF KEY WITNESSES DOES NOT LEAD TO TURNING UP OF THE HEAT
The case of Gordon Ramsay -v- Gary Love [2015] EWHC 65 (Ch) has had much attention in the media, primarily because of the identity of the claimant. However the judge made important observations as to the inferences that can be…
SERVICE OF THE CLAIM FORM: E-MAILING A COPY IS NOT GOOD SERVICE (AND WON'T BE EXCUSED)
Service of the claim form raises its head for the second time in two days. In Dunbar Assets Plc -v- BCP Premier Limited [2014] EWHC 10 (Ch) Mr John Baldwin QC (sitting as a Deputy Judge) overturned an order that…
WITNESS "PREPARATION" IN A CIVIL CONTEXT: HOW DO WE HELP THE UNDERDOG WHILST WORKING ON A SHOESTRING?
The controversy surrounding the new guidelines by the CPS for the preparation of witnesses in serious cases has led me to consider the rules and principles relating to witness preparation in the context of civil litigation. This is always a…
LATE SERVICE OF WITNESS STATEMENTS: ORAL APPLICATION TO EXTEND TIME GRANTED – BUT ON STRICT TERMS
In Rai -v- Jaskaran Singh Bholowasia Pardes Weekly (UK) Ltd [2014] EWHC 4501 (QB) Mrs Justice Simler granted what was effectively an oral application for relief from sanctions. THE CASE The claimant brought an action for defamation. There was an…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL
The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….
RELIEF FROM SANCTIONS AND THE LATE SERVICE OF WITNESS STATEMENTS (AGAIN)
The issue of serving witness statements late, with relief from sanctions being required, was considered by Mr Justice Warby in Hamdani -v- Khafaf & others [2015] EWHC 38 (QB). It contains some timely warnings. THE CASE The claimants were bringing…
ENTERPRISE, PROPORTIONALITY, WITNESS STATEMENTS AND UNNECESSARY COSTS: OBSERVATIONS FROM THE HIGH COURT
In Enterprise Holdings, Inc -v- Europcar Group UK Ltd [2015] EWHC 17 (Ch) Mr Justice Arnold made some telling remarks which bear on proportionality, witness evidence and costs. THE CASE The dispute related to the use of a “e” logo…
BEWARE THE EXPERT WHO "LECTURES" THE COURT (AND TELLS THE JUDGE WHO TO BELIEVE)
In Walls -v- London Eastern Railway Ltd (N Wilkinson QC) 05/12/2014* the judge found that the claimant’s continuing back pain was caused by a long-standing degenerative spinal condition rather than an accident. THE JUDGE’S COMMENTARY ON THE EXPERT EVIDENCE One…
DRAFTING WITNESS STATEMENTS: GUIDANCE FROM THE BAR COUNCIL THAT EVERY LITIGATOR SHOULD READ
The Bar Council has very useful guidance drafting witness statements in civil proceedings*. This deals with the practicalities of drafting statements and ethical issues that arise in the material that can properly be included (and omitted) from statement. It is, as…
CIVIL CASE OF THE YEAR: AA -v- LBS: DAVID -v- GOLIATH?
There were only a few comments when I asked, on twitter, for recommendations for the civil case of the year. I have overlooked the obvious candidate (Denton)and gone for a case that can, and should, reinvigorate belief in the civil…
THE ADVOCATE AS WITNESS: PROCEDURE WHEN A REPRESENTATIVE HAS TO GIVE EVIDENCE
Previous posts have dealt with the problem of defining the line between submissions and evidence – with the dangers that an advocate could be “giving evidence”. However there are circumstances in which an advocate may have to give evidence as…
CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE
It is coming to that time of the year where everyone does an annual review. We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in…
WITNESS STATEMENTS GIVING THE SOURCE OF INFORMATION AND BELIEF: A RULE OVERLOOKED AT YOUR PERIL
In JSC Mezhdunarodniy Promyshlenniy Bank -v- Sergi Viktorovich Pugachev [2014] EWHC 4336 (Ch) Mr Justice Mann made some important observations in relation to the need for a witness statement to identify the sources upon which it is based. THE CASE…
"THE LEAST MANAGEABLE CASE I HAVE EVER TRIED TO MANAGE": CASE MANAGEMENT UPHELD BY THE COURT OF APPEAL
This was the description given by His Honour Judge Mackie QC when he was considering, and refusing, an application by the defendant to strike the action out. The decisions he made were upheld by the Court of Appeal In Walsham…
LIMITATION, PROFESSIONAL NEGLIGENCE AND SUMMARY JUDGMENT: AN IMPORTANT LESSON
The case of Seton House Group -v- Mercer Ltd [2014] EWHC 4234 (Ch) shows the importance of being certain of a limitation period and issuing well before that date. In this case, however, the limitation period had passed well before the…
EVIDENCE AND CAUSATION: COMMON SENSE CAN BE APPLIED
In Soboleska -v- Threlfall [2014] EWHC 4219 (QB) Mr Justice Foskett made some important observations about the use of commonsense in assessing the likely cause of serious injuries suffered in a road traffic accident. THE FACTS The claimant suffered physical…
ASSESSING WITNESSES: A UNIVERSAL ISSUE IN LITIGATION
The judge’s assessment of witnesses is often the crucial element in most cases that go to trial. This applies at every level, from the small claims arbitration to the most complex commercial dispute (and, of course, high profile defamation actions)….
THE MITCHELL JUDGMENT 3: WHY MR MITCHELL WASN'T TELLING LIES AND P.C. ROWLAND WAS TELLING THE TRUTH
This blog has looked at the fact finding process in the Mitchell judgment several times already. Here I want to look at the issue of the “truth”. This is an issue that has wider implications for those involved in the…
THE MITCHELL JUDGMENT 2: THE ROLE OF DOCUMENTARY EVIDENCE
The judgment in the substantive Mitchell case has been examined several times on this blog. Not in relation to political and other ramifications but instead considering the judge’s analysis of the evidence. The previous post looked at the difficulties posed…
IF YOU CAN'T PROVE YOU HAVE A PROPER RETAINER YOU WON'T GET PAID: SHIPPING IN FROM HULL
In Scott -v- Hull & East Yorkshire Hospitals NHS Trust [2014] Ew Misc B53(CC) the claimant failed to recover any costs against the defendant because he failed to prove that there was a valid CFA. THE FACTS A detailed assessment was…
THE MITCHELL JUDGMENT AGAIN: PREVIOUS INCONSISTENT STATEMENTS
The issue of witness credibility in the Mitchell case has already been considered on this blog. However reading the transcript gives rise to more issues. Here we look at one – the significance of the previous statements made by…
GETTING EVIDENCE TO TRIAL TO PROVE YOUR CASE: BE CAREFUL OF "MISSING" WITNESSES?
This has been, it has to be said, an interesting week for considering evidence in civil cases. Another interesting example can be found in the decision in Howmet Ltd -v- Economy Services Limited [2014] EWHC 3933 (TCC), a decision by…
WITNESS STATEMENTS AND WITNESS CREDIBILITY: GETTING BACK TO BASICS
If a litigant takes a matter to trial and the result rests, ultimately, on witness evidence, then those advising must (or at least should) have a clear and certain grasp of the factors governing witness credibility. This issue is almost…
THE MITCHELL CASE AND WITNESS EVIDENCE: CREDIBILITY, STRONG VIEWS AND RELIABILITY
The Mitchell case was at the forefront of attention a year ago when the Court of Appeal set out its (apparently widely misunderstood) views on relief from sanctions. It is even more in the headlines today. The case has been…
LITIGATION IN THE INTELLECTUAL PROPERTY ENTERPRISE COURT: A TALE OF TWO DRESSES
The transcripts of cases in the Intellectual Property Enterprise Courts are often challenging reading. They regularly contain technical material which is difficult for the non-specialist to follow. However the case of John Kaldor Fabricmaker UK Ltd -v- Lee Ann Fashions…
WITNESS STATEMENTS THAT HARM RATHER THAN HELP AND A FAILURE TO PROVE DAMAGES: A HIGH COURT CASE EXAMINED
In Re-Use Collections Limited -v- Sendall & May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses…
STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me…
WITNESS CREDIBILITY, BOLAM AND CLINICAL NEGLIGENCE: A HIGH COURT DECISION
The judgment of Stephens J in McGovern -v- Sharkey [2014] NIQB 117 contains some important observations in relation to the Bolam test and the role of evidence and experts in this context. It demonstrates that the credibility of a lay…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
"WITNESS TRAINING" DOES IT DO ANY GOOD? THE ROLE OF THE SOLICITOR IN DRAFTING WITNESS STATEMENTS
In Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd [2014] EWHC 3718 QB HH Judge Mackie QC considered witness evidence of routine business transactions that took place over a decade before. He…
EVIDENCE, EXPERTS & ARSON: ANALYSING THE EVIDENCE WHEN SERIOUS ALLEGATIONS ARE MADE IN A CIVIL CASE
The decision of H.H. Judge Mackie Q.C. in Geneisuj.Net Limited -v- Allianz Insurance Limited [2014] EWHC 3676 (QB) provides an object lesson in the analysis of evidence in a case where serious allegations were being made. THE ISSUES The claimant…
APPEALING ON THE FACTS AND WITNESS CREDIBILITY: THE DEMEANOUR OF THE WITNESS
Earlier posts have considered issues relating to witness statements and witness credibility. In particular the difficulties of appealing findings of fact. A helpful summary of the principles relating to appealing when a judge has made a finding in relation to…
WITNESSES: YOU ARE IN REAL TROUBLE IF YOU SAY ONE THING IN ONE WITNESS STATEMENT AND A DIFFERENT THING IN ANOTHER
We have looked at issues relating to witness credibility several times recently. However further apposite examples arise in the decision of Sales J in Avonwick Holdings Ltd -v- Webinvest & Shlosberg [2014] EWHC 3661 (Ch). In particular the major (and obvious) difficulties…
WITNESS CREDIBILITY; DOCUMENTS; RECOLLECTION AND PLAYING AWAY FROM HOME WHEN THERE ARE MILLIONS AT STAKE
Earlier posts have looked at the issue of witness credibility in the context of civil trials. Here we look at the issue of witness evidence in the context of a multi million pound dispute between corporations. The judgment, given earlier…
WHICH WITNESS IS GOING TO BE BELIEVED? A HIGH COURT DECISION ASSESSING THE CREDIBILITY OF WITNESSES
It is essential that litigators have a keen understanding of how witness evidence is likely to be assessed at trial. Many trials take place precisely because there is a conflict of evidence between the witnesses. An example of a close…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
THAT WITNESS STATEMENT I SIGNED: IT'S JUST NOT TRUE
There is an interesting discussion of witness evidence in the judgment of Mr Justice Eder in Austen -v- Pearl Motor Yachts Ltd [2014] EWHC 3544 (Comm). The case was opened on the basis that certain key facts in a witness…
ADJOURNMENT OF SUMMARY JUDGMENT HEARING TO ARGUE NOVATION? NO VAY
In A.T. Stannard Ltd -v- James Tobutt and Thomas Tobutt [2014] EWHC 3491 (TCC) Mr Justice Akenhead refused an application for the adjournment of a hearing for summary judgment to allow the defendants to, belatedly, argue novation of a contract. THE…
ASSESSING THE RELIABILITY OF WITNESSES: HOW DOES THE JUDGE DECIDE? ANOTHER EXAMPLE
There have been several posts on this blog about the way in which a civil judge assesses the reliability of witnesses. A further example can be seen in the judgement of Stephen Smith Q.C., sitting as a High Court judge,…
IRRELEVANT EVIDENCE, INFERENCES AND "FORGERY": EVIDENTIAL ISSUES IN A HIGH COURT CASE
The decision of Mr Justice Norris in Redstone Mortgages Ltd -v- B Legal Ltd [2014]EWHC 3390 (Ch) deals with several important issues relating to evidence in civil cases. In particular the relevance and admissibility of “quasi expert” evidence and the…
WHY A SOLICITOR SHOULD NOT MAKE STATEMENTS ON CONTENTIOUS MATTERS
When is it appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners -v- Gutteridge [2001] EWHC 568 (Ch) THE CASE The…
FINDINGS OF FACT AND CREDIBILITY: THE COURT OF APPEAL WILL RARELY INTERFERE
The decision of the Court of Appeal today in Exsus Travel Ltd -v- James Turner [2014] EWCA Civ 1331 reinforces the points made in earlier posts about the reluctance of the Court of Appeal to interfere with findings of fact…
THE ROLE OF THE APPELLATE COURT IN CONSIDERING FINDINGS OF FACT
In Clydesdale Bank -v- Duffy [2014] EWCA Civ 1260 the Court of Appeal set out a clear statement of the limited role of the appeal court in considering appeals in relation to findings of fact by the trial judge. THE…
LIES, EVIDENCE, DISCLOSURE AND PROCEDURE : AA -v- LONDON BOROUGH OF SOUTHWARK CONSIDERED
It is certain that the decision in AA -v- London Borough of Southwark [2014] EWHC 500 QB will receive considerable coverage. It is a remarkable case. There are enormous implications for local authorities. Here we look at the procedural issues in…
THE DUTIES OWED TO THE COURT ON A WITHOUT NOTICE APPLICATION: A VERY HIGH STANDARD
In Standard Bank -v- Just Oil LLC [2014] EWHC 2687 (Comm) the Hon Mr Justice Walker considered the duties owed when a party makes an without notice application to the court. Strong words are said. THE FACTS The claimant had…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -v- WEBINVEST CONSIDERED
Putting “without prejudice” on inter partes correspondence does not mean that the court will not look at them. This issue was considered by Mr Justice David Richards in Avonwick -v-Webinvest [2014] EWHC 3322 (Ch). The case also contains a short…
RELIEF FROM SANCTIONS, VERY LATE SERVICE OF WITNESS STATEMENTS AND DOCUMENTS: A DECISION TODAY
The judgment of the Hon Mrs Justice Asplin DBE given today in Lictor Anstalt -v- MIR Steel UK Ltd [2014] EWHC 3316 (Ch) contained a consideration of the Denton criteria in relation to late service of witness evidence and documents….
