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….
TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE'S LAMENT
The earlier post on the decision in Weathford -v- Hydropath concentrated upon the application for a non-party costs order. However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton…
ROBUST DECISIONS, CASE MANAGEMENT AND WITNESS EVIDENCE: AVOIDING REVERSE MACROCOSM
In Tindall Cobham 1 Ltd -v- Adda Hotel [2014] EWHC 2637 (Ch) Peter Smith J made robust orders to ensure that an application would be heard within days rather than months. He also made some telling observations in relation to…
THE CREDIBILITY OF WITNESSES; JOINT MEETINGS AND OVERREACHING EXPERTS: A CASE TO POINT
The judgment of Mr Justice Dingemans in Garcia -v- Associated Newspapers Ltd [2014] EWHC 3137 is a defamation action. It contains some interesting examples of evidential issues and problems. Firstly relating to the assessment of witnesses; secondly in relation to…
MORE ON WITNESS CREDIBILITY: McIntyre & HENNESSY -v- THE HOME OFFICE
We have looked at issues of witness credibility many times before. It is often the key issue when a matter reaches trial. A graphic example of credibility issues can be found in the judgment of Mr Justice Mostyn in McIntyre…
WITNESS STATEMENTS IN FOREIGN LANGUAGES: THE APPROPRIATE PROCEDURE
If a witness cannot speak English and a witness statement is required what needs to be done? Some guidance can be found in the rules and in a recent case in the Family Division. GUIDANCE IN PRACTICE DIRECTION 32 23.2…
THE WITNESSES SAY THE OTHER SIDE IS LYING: WHAT DOES THE JUDGE DO? A GORGEOUS BEAUTY CONSIDERED!
We have looked before at issues of witness credibility, particularly in relation to the drafting of witness statements. This was an issue considered by Arnold J in Gorgeous Beauty Ltd -v- Liu (and others) [2014] EWHC 2952 (Ch). It provides…
INDEMNITY COSTS, COSTS BUDGETING AND WITNESS STATEMENTS:INTERVIEW ON KELLIE -v- LLOYD
There is a feature on the Lexis Nexis Dispute Resolution Blog where I answer questions about the implications of the judgment in Kellie and another v Wheatley & Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 (Aug)…
TAKING EVIDENCE; WITNESS STATEMENTS AND NOT MISLEADING THE COURT: BRETT -v- THE SRA CONSIDERED
The question of the duties owed by a lawyer to not mislead the court was at the forefront of the decision yesterday in Brett -v- The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin). This case has obvious and very wide…
MATTERS LEADING UP TO THE MAKING OF A WITNESS STATEMENT MAY NOT NECESSARILY HAVE JUDICIAL PROCEEDINGS IMMUNITY: COULD YOU BE CROSS-EXAMINED ON THE WAY YOU TOOK A WITNESS STATEMENT?
Statements made in the course of proceedings are usually subject to judicial proceedings immunity. The scope and extent of this immunity was considered in detail by the Court of Appeal in Singh -v- Governing Body of Moorlands Primary School [2013]…
DURRANT CASE BACK IN THE REPORTS: WHAT PRESUMPTIONS SHOULD A JUDGE DRAW WHEN A PARTY IS DEBARRED FROM CALLING WITNESSES?
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1264 was well known as one of the first reports on sanctions. The defendant police authority was debarred from calling witness evidence as a result…
A WORKING EXAMPLE OF THE DANGERS OF NOT TAKING A FULL WITNESS STATEMENT: DISASTER CAN STRIKE
The decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC) gives a working example of the dangers of not taking a full witness statement and exploring issues of importance with a…
DRAFTING WITNESS STATEMENTS: GUIDANCE FROM DOWN UNDER
Recent posts have given rise to a international tour searching out guidance for the preparation and drafting of witness statements. We have been to Scotland, and to the East, and now we arrive in Australia where the Western Australian Bar…
WITNESS STATEMENTS AND COMPLYING WITH THE RULES: WHY WITNESS STATEMENTS CAN COME TO GRIEF
The case of Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm) contains yet another example of the very real dangers of using a witness statement to argue a case. It is usually unhelpful and often…
WITNESS STATEMENTS; WITNESSES; EVIDENCE AND PSYCHOLOGY: GUIDANCE FROM THE EAST
The post yesterday looked at guidance on taking witness statements from Scottish Judges. Here we look at a real gem of an article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and…
THE PROCESS OF TAKING WITNESS STATEMENTS: GUIDANCE FROM ACROSS THE BORDER
There is relatively little guidance to litigators on the process of taking witness statements. What are appropriate questions and, to what extent, can the witness be “guided” by the lawyer. These are difficult and sensitive topics which have been considered…
CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME
There have been several posts on this blog in relation to witness evidence and witness credibility. One important point to note is that a judge is entitled to find that a witness is correct on some matters and not on…
A 20 DAY TRIAL WHEN THE CASE WAS ALL ABOUT ONE WITNESS: WOULD THIS CASE BE ANY DIFFERENT TODAY?
Back in 2003 Chris Evans, the radio presenter, was involved in a lengthy contractual dispute with a number of defendants. There were 9 parties to the action and the trial went on for twenty days. The judge’s observations at the…
