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…
CIVIL EVIDENCE: WITNESS STATEMENTS: PROVING THE EXISTENCE OF AN ORAL CONTRACT
I have written before about witness evidence and the difficulties in establishing matters without the benefit of corroboration. The case of Brogden & Reid -v- Investec Bank Ltd [2014] EWHC 2785 (Comm) reported today illustrates this problem. THE ISSUES: WAS THERE AN…
DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES
I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
POST DENTON RELIEF FROM SANCTIONS APPEAL IN THE HIGH COURT: RELIEF FROM SANCTIONS GRANTED: "UNREASONABLE" DEFENDANT ORDERED TO PAY COSTS
I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"
Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell. However the Court of Appeal made it clear that part of the focus of case management should be to…
WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY?
The post yesterday on the length of “skeleton” arguments and trial bundles was an appeal from a first instance decision where the judge had to decide which witnesses were credible. First instance decisions on the credibility of witnesses are difficult…
WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)
The recent Leeds Law Society Civil Litigation event reminded me of a similar meeting with judges over 25 years ago. The Registrars (District Judges) gave a talk to local articled clerks (trainee solicitors). There was a basic message delivered in…
WITNESS STATEMENTS CANNOT BE RELIED ON AT TRIAL IF SERVED LATE AND RELIEF FROM SANCTIONS NOT GIVEN
Lawtel today reported the case of Davies -v- Liberty Place [2014] EWHC 2034 (Admin). In that case Leggatt J stated that a party who served a witness statement late was not automatically precluded from relying on that statement at trial….
GIVING EVIDENCE CAN BE A GRIZZLY BUSINESS: HOW DO THE COURTS ASSESS WHOSE ACCOUNT IS CORRECT?
In Grizzly Business Ltd -v- Stena Drilling Ltd [2014] EWHC 1920 (Comm) a judge had to decide between two competing versions of what was said in a telephone call three years earlier in a case when $2.5 million was at…
ANOTHER CASE WHERE PARTY REFUSED RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENT
The case of Swinden -v- Grima (Nicol J) 18/06/2014 is briefly reported on Lawtel (20th June). It is another example of the court refusing permission to serve witness statements late. THE FACTS The defendant served a witness statement on the…
RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF WITNESS SUMMARY: HIGH COURT CASE CONSIDERED
Whilst the Court of Appeal ruminates over the problems caused by Mitchell life goes on at the procedural coalface. Attached to this post is a decision of Mr. N. Strauss Q.C. sitting as a Deputy High Court Judge on the…
AVOIDING UNDER SETTLEMENT 1: CLAIMS FOR LOSS OF EARNINGS (1)
The curious thing about writing about avoiding under settlement is that there is very little material on the subject, particularly in the U.K. There are now plenty of websites which offer to sue your previous lawyer if you are not…
WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS "UNABLE" TO OBTAIN A WITNESS STATEMENT
The case of Scarlett -v- Grace (4/6/2014) QBD Phillips J was reported briefly on Lawtel yesterday. It provides an example of the difficulties when a party proposes to serve witness summaries rather than witness statements. THE RULES: CPR 32.9 CPR…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
WITNESS STATEMENTS: NOT ONE BUT TWO "ESSENTIAL CHECKLISTS"
Earlier posts have documented how these checklists were made. The prequel to the essential checklist sets out matters that practitioners have to watch. Here I set out the checklist prepared by the group “Stating the Obvious”. It is no…
WITNESS STATEMENTS: THE PREQUEL TO THE "ESSENTIAL CHECKLIST"
As part of the “Essential Checklist” series a group considered the issues relating to witness statements. Prior to the checklist it is worth reviewing some of the essential issues relating to the service and preparation of witness statements. THE ISSUES…
WITNESS STATEMENTS AND WITNESS EVIDENCE: MORE ABOUT CREDIBILITY
A recent post dealt with issues relating to credibility in witness statements. Continuing with that theme it helps to look at the discussion of how witness recollection should be treated in Gestmin -v- Credit Suisse [2013] EWHC 3560 (Comm) and…
A DELIBERATE DECISION NOT TO FILE A WITNESS STATEMENT AND YET RELIEF FROM SANCTIONS GRANTED: MONDE PETROLEUM SA-V- WESTERNAZAGROS LTD CONSIDERED
In Monde Petroleum SA –v- Westernzagros Ltd (2014) QBD (Comm) (Hamblen J) 19/05/2014 a party intentionally failed to file a witness statement on time, yet relief from sanctions was granted. (The following is based on the Lawtel summary) THE FACTS…
SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is…
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