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…
PSYCHOBABBLE IN WITNESS STATEMENTS: STRONG VIEWS FROM THE FAMILY COURT
This blog has looked many times at the perils of giving “opinion” evidence in witness statements. A particularly stark example can by found in the judgment of Ms Justice Russell in re W [2015] EWHC 2039 (Fam). Another case that…
EXPERT EVIDENCE IN INSURANCE CASES 2: BRIT UW LIMITED: FAILURE TO DISCLOSE UNDERMINED DEFENDANT'S CASE
There are, coincidentally, two recent cases on the use of expert witnesses in insurance disputes. In Brit UW Limited -v- F & B Trenchless Solutions Limited [2015] EWHC 2237 (Comm) Mrs Justice Carr DBE considered the utility of expert evidence…
WITNESS CREDIBILITY: PROBLEM WITH DEFENDANTS' EVIDENCE
The recent posts on witness credibility have given rise to much attention. Matthew Stockwell, junior counsel for the claimant, has pointed out that the case of Pollock -v- Cahill [2015] EWHC 2260 (QB) also involves an assessment of witness evidence….
WITNESS CREDIBILITY AGAIN: THE HIDDEN VICTIMS OF PERSONAL INJURY FRAUD: HONEST CLAIMANTS
This post should serve as a necessary balance/counterblast to the earlier post on the Sonae Industria case. In that case some of the witnesses were found to be honest and some patently dishonest. It was a feature of that case…
WITNESS EVIDENCE: CREDIBILITY;FACEBOOK;TWITTER AND THE CLAIMS GO UP IN SMOKE…
This blog has looked at issues relating to witness credibility many times. It is one of the most under-examined aspects of the civil litigation process. The decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK)…
THE PRIMACY OF ORAL TESTIMONY: ABSENT WITNESSES ORDERED TO ATTEND AND LATE AMENDMENTS REFUSED: ALL IN ONE CASE
There is an interesting report of two separate decisions of Mr Justice Peter Smith in Harb -v- HRH Price Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWHC 2195 (Ch). This relates to two decisions made on the first day…
THIS "PROBLEM" WITH WITNESSES: IT IS NOT A ONE WAY STREET: DEFENDANT'S EVIDENCE NOT BELIEVED
Much attention is, rightly, paid to the actions of evidence of claimants who bring fraudulent claims or give untrue evidence. However it is important to remember that this issue with evidence is not a one way street. There are plenty…
STRIKING OUT WITNESS STATEMENTS BECAUSE OF IRRELEVANT MATERIAL AND "SIGNIFICANT DEVELOPMENTS" IN RELATION TO CHANGES OF COSTS BUDGETS
The Mitchell libel case led to a number of interlocutory hearings and applications, some of which had a profound effect on civil procedure (for a while at least). The case of Yeo -v- Times Newspapers Ltd is also leading to…
THE IMPORTANCE OF THE STATEMENT OF TRUTH: COMMENTS IN THE ADMINISTRATIVE COURT: THE SIGNATORY CANNOT HIDE BEHIND THE DRAFTSMAN
The signing of a statement of truth is now an everyday event in litigation. With documents signed by clients, or by lawyers on behalf of their clients. Recent cases highlight the significance of the statement of truth. It is important…
IS A FALSE AFFIDAVIT WORSE THAN A FALSE WITNESS STATEMENT? THE HIGH COURT CONSIDERS THE POINT
In International Sports Tours -v- Shorey [2015] EWHC 2040 (QB) Mr Justice Green considered some interesting issues relating to committal for contempt, witness statements and affidavits. THE ACTION The claimant brought an action against a former employee and others claiming breach…
OVERTURNING FINDING OF FACTS ON APPEAL: FINDINGS OF ABSENCE OF DISHONESTY OVERTURNED BY THE PRIVY COUNCIL
The judgment of the Privy Council in Central Bank of Ecuador and others v Conticorp SA and others [2015] UKPC 11; [2015] WLR (D) 150 is quite extraordinary. It involved the Privy Council overturning a finding of fact of the judge at first instance that…
RECONSTRUCTION AND RECOLLECTION: HONEST WITNESSES GET THINGS WRONG: WHICH WITNESS WILL BE BELIEVED
The case of Wright -v- Lewis Silkin LLP [2015] EWHC 1897 (QB) has been widely reported. Some report it as a case where a solicitor’s evidence was not believed. This is grossly unfair. This case is another example of the…
APPEALS ON ISSUES OF FACT: SPECULATION AND "OPINION" EVIDENCE FROM WITNESSES IS TO NO AVAIL
In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688 the Court of Appeal set out the criteria for appealing findings of fact. Further the case highlights the important distinction between what witnesses saw and what…
JUDGES AND WITNESSES 1: IT WAS A LONG TIME AGO
There have been a number of cases recently where the courts have considered, expressly, how they should approach witness evidence. The first, Axa -v- Arab Insurance Group [2015] EWHC 1939 (Comm) related to witnesses who had to consider matters after…
MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)
The post on the Canadian case of The Hearing Clinic (Niagara Falls) -v- Ontario 2014 ONAC 5831 attracted a lot of views and a lot of comments. I am grateful to Chris Rees for pointing out the judgment of Mr…
ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION
The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*). THE CASE The…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
HOW THE COURT ASSESSES WITNESSES: NOT A NUMBERS GAME
In TM -v- St George’s Healthcare NHS Trust [2015] EWHC 1866 (QB) Sir David Eady considered the judicial approach to witnesses and the burden of proof, stressing that the assessment of evidence is not a “numbers game”, THE CASE The…
SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES
In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
LATE WITNESS STATEMENTS IN JUDICIAL REVIEW PROCEEDINGS: DON'T GO TO COLLEGE – JUST READ THE RULES
In R (on the application of the London College of Finance & Accounting) -v- Secretary of State for the Home Department [2015] EWHC 1688 (Admin) Mr Justice Cobb made some important observations in relation to the late service of evidence…
RELIEF FROM SANCTIONS, LATE WITNESS STATEMENTS AND LITIGANTS IN PERSON
The judgment of Mr Justice Warren in Chadwick -v- Burling [2015] EWHC 1610 (Ch) highlights some important issues in relation to relief from sanctions in general, and the position of litigants in person in particular. THE CASE The applicant in…
WITNESS EVIDENCE, CLINICAL NEGLIGENCE AND CLINICAL NOTES: A CASE IN POINT
The judgment of Mr Justice Jay in FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536 contains another interesting consideration of the value of witness evidence and contemporary records in a clinical negligence case. I was recently…
OVERTURNING FINDINGS OF FACTS AND "INFERENCES" ON APPEAL
In Vann -v-Ocidental [2015] EWCA Civ 572 the Court of Appeal overturned a finding that there was no contributory negligence. There is an interesting discussion about appeals on findings of fact and the inferences that the judge draws from those…
ASSESSING THE CREDIBILITY OF A WITNESS: IT IS A MATTER OF COMMUNICATIONS
The judgment of HH Judge Brown QC in Mainline Digital Communications Ltd -v- Chaddah [2015] EWHC 1580 (QB) is an important illustration of the manner in which a judge assesses the credibility of a witness. “In my judgment, contemporaneous written…
LATE WITNESS EVIDENCE AND WITNESS CREDIBILITY IN THE INTELLECTUAL PROPERTY & ENTERPRISE COURT: HANDED OVER ON A PLATE?
The Intellectual Property Enterprise Court is likely to be a model of good practice. Basically designed to ensure the SMEs can protect their intellectual property rights without going broke in the process it has a fairly robust approach to procedure…
WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
JUDGES MUST "CONTEND WITH THE CHANGING FASHIONS OF APPELLATE COURTS": ANOTHER LATE WITNESS STATEMENT; ANOTHER CASE WHERE RELIEF FROM SANCTIONS REFUSED
“This is yet another appeal concerning the proper application of CPR 3.9 as to relief from sanctions.” The opening words of the judgment of Mr Justice Cranston in Fouda -v- The Mayor & Burgesses of the London Borough of Southwark…
ASSESSING THE EVIDENCE ON A SUMMARY JUDGMENT APPLICATION: CRITICAL EXAMINATION OF THE RAW MATERIAL IS NECESSARY
In Calland -v- Financial Conduct Authority [2015] EWCA Civ 192 the Court of Appeal set out important principles to be considered when the court is considering an application for summary judgment. THE CASE The claimant brought an action under the…
RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: ANOTHER EXAMPLE
In Sloutsker -v- Romanova [2015] EWHC 545 (QB) Warby J granted the claimant relief from sanctions after it failed to serve witness statements in time. THE CASE The claimants brought an action for libel. The defendant applied for orders setting…
THE LADD -v- MARSHALL TEST: WHAT IS MEANT BY "REASONABLE DILIGENCE": A TALE OF COMPUTERS IN COURT
An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall [1954] 1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for…
Y0UR OPPONENT'S WITNESS STATEMENT CANNOT BE DISCLOSED UNTIL AFTER IT IS USED AT A HEARING IN PUBLIC: A USEFUL REMINDER
The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing…
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