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…
MAKING AN APPLICATION BEFORE THE DATE OF DEFAULT SAVES THE DAY: KANERIA -v- KANERIA CONSIDERED
The Mitchell principles govern what happens when a party requires relief from sanctions. An open question remained as to the principles that apply when a party applies for an extension of time before the expiry of the date for compliance….
THE CONSEQUENCES OF CHARTWELL 1: JUST DON'T EVER SERVE WITNESS STATEMENTS LATE
It is highly dangerous for litigators to view the decision of the Court of Appeal in Chartwell -v- Fergies as any kind of step away from the Mitchell principles. The case has already been outlined in detail in an earlier post….
CHARTWELL ESTATE AGENTS LIMITED V FERGIES PROPERTIES : CONSIDERED IN FULL
The decision of the Court of Appeal in Chartwell Estate Agents Limited –v- Fergies Properties [2014] is now available on Bailli. This is the first case in which the Court of Appeal have upheld a decision of a judge to…
TWO CASES WHERE RELIEF FROM SANCTIONS REFUSED: (I) LATE WITNESS STATEMENTS (II) NO SCHEDULE OF COSTS
There are two cases reported on Lawtel this morning which exemplify problems of modern litigation and relief from sanctions. The first involves late service of a witness statement in a fatal accident case; the second the failure to file a…
THE DANGERS OF LETTING WITNESSES GIVE THEIR OPINIONS: IT HINDERS RATHER THAN HELPS YOUR CASE
A post yesterday reviewed the comments on witness statements made in the Jackson Report. One major criticism was that witness statements were being used to advance matters of opinion and not fact. A case decided yesterday exemplifies that problem. It…
WHAT THE JACKSON REPORT SAID 4: PROBLEMS WITH WITNESS STATEMENTS: LENGTHY, IRRELEVANT AND RAMBLING
The Jackson Reforms made only minor amendments to the rules relating to witness statements. However the Reports, particularly the Preliminary Report, disclosed a real issue in relation to over-extensive report. THE “TWO NATIONS” OF WITNESS STATEMENTS The preliminary report demonstrated…
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…
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