MATTERS “NOT MENTIONED IN THE WITNESS STATEMENT”: ANOTHER EXAMPLE OF OMISSIONS GIIVING RISE TO ADVERSE CONCLUSIONS
We are looking again at the significance of matters not mentioned in a witness statement. This is another case where the judge found that there had been significant omissions in the claimant’s evidence. Again it is a case where these omissions…
KEY OMISSIONS AND WITNESS EVIDENCE: A FAILURE TO MENTION KEY POINTS IN THE STATEMENT DOES NOT HELP THE WITNESS: A WORKING EXAMPLE
The theme for several of the posts today is how important it is to put information, that could be viewed as adverse to the witness, into a witness statement. If such information is left out, but revealed in cross-examination this…
WHY IS THIS SOLICITOR GIVING EVIDENCE? NOT REALLY A QUESTION YOU WANT A JUDGE TO ASK: PARTICULARLY WHEN THE ANSWER IS “I DON’T KNOW” BUT “I WAS PAID TO DO SO”
An earlier post looked at a case where the court struck out large parts of a witness statement of a solicitor who was proposing to give evidence at trial. Here we look at what happened to the remaining parts of…
A DEFENDANTS’ FIRM OF SOLICITORS COULD LAWFULLY GIVE DETAILS OF CLAIMANTS IN SIMILAR CASES WHEN DEFENDING FUNDAMENTAL DISHONESTY CLAIMS
Here we are looking at a case where claimants brought an action claiming that their data protection rights had been breached by a defendant firm of solicitors. The defendant had collated a list of claimants who had relied on a…
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
USING THE CONTENTS OF A WITNESS STATEMENT FOR A COLLATERAL PURPOSE: CONTEMPT OF COURT AND COSTS: A HEADY MIXTURE HERE.
We are revisiting a case we looked at previously in relation to costs orders being made against a Litigant in Person. One specific aspect of that judgment considered the costs of an application for contempt of court that the claimant…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION 2025: WEBINAR 4th AUGUST 2025
One of the most aggravating things to read about in the legal press are those cases where people get into serious disciplinary trouble after having made a procedural or other mistake. It is not the mistake that has caused their…
CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
MEMBER NEWS:YOU CAN CHANGE THE FREQUENCY OF WHEN YOU RECEIVE EMAILS FROM THE SITE: LOOKING AT THE “BACK CATALOGUE” 1: THE “BACK TO BASICS” SERIES
There has been an increase in the frequency of posts since this site became a membership site. Obviously this increases the number of emails members receive. It is possible to change your subscription so that you receive the updates daily…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
HOW IS A VERY, VERY LATE APPLICATION TO RELY ON EXPERT EVIDENCE GOING TO FARE? THE CONSEQUENCES FOR THE DEFENDANT AREN’T GOOD…
We are considering here a very, very, late application by a defendant to call expert evidence. Unsurprisingly the application did not find favour with the court. The judge then went on to consider the consequences given that the claimant had…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
YOU ARE NOT GOING TO GET PAID FOR RECTIFYING YOUR OWN DEFECTIVE WITNESS STATEMENTS: WHY NON-COMPLIANCE WITH PD57AC CAN BE EXPENSIVE
Here we have a case where a claimant was seeking to recover the costs of preparing defective witness statements. The court had ordered that compliant witness statements be filed. Should the claimant be entitled to recover the costs of preparing…
PROVING THINGS 267: COURT OF APPEAL OVERTURNS FINDING THAT COUNCIL HAD ESTABLISHED ITS STATUTORY DEFENCE: SOME VERY IMPORTANT POINTS HERE ABOUT THE USE OF STATEMENTS PUT TO WITNESSES AND JUDICIAL FACT FINDING
Here we are looking at an important decision of the Court of Appeal. On the face of it it is about a defendant’s failure to prove a statutory defence. However, perhaps more significantly, it is about evidence, the impact of…
BANK’S CLAIM AGAINST SOLICITORS FOR “CAUSING LOSS BY UNLAWFUL MEANS” IS NOT STRUCK OUT, NOR ARE THE SOLICITORS GRANTED SUMMARY JUDGMENT: A LOT TO THINK ABOUT HERE
We are looking at a judgment from today where a bank has brought a claim against a firm of solicitors arguing that they have caused the bank loss because of the number and nature of complaints made by the solicitors’…
FATAL CLAIMS: ENSURING EVERYTHING GOES RIGHT: WEBINAR 27th JUNE 2025
We have had an example earlier this month of things going badly wrong in a fatal claim, that led to a wasted costs order against the solicitors. This webinar looks at the potential problem areas of fatal accident litigation and…
PROVING THINGS 266: THE BURDEN OF PROOF, HEARSAY EVIDENCE AND WHEN EVIDENCE IS NOT “EXPERT EVIDENCE”: ALSO THE IMPORTANCE OF SERVING A NOTICE OF NON-AUTHENTICITY
We are looking, again, at a case where there were issues as to evidence. Part of the defendant’s case was that the evidence was not admissible or was hearsay. The defendant’s arguments did not prosper. Hearsay is admissible, the real…
“THE COURT’S CONSCIENCE IS SHOCKED” BY THE CLAIMANT’S ADMITTED BEHAVIOUR: USE OF A RECORDING OF MATTERS THAT WERE CONFIDENTIAL: STRONG WORDS WHEN A JUDGE OVERTURNS AN INJUNCTION GRANTED WITHOUT NOTICE
There have been some strong judicial criticisms recorded on this site over the years. I cannot recall much stronger than this case where the judge stated that “the court’s conscience was shocked” at the conduct of the claimant, both in…
WHAT ARE THE CONSEQUENCES WHEN A WITNESS BREAKS THE “PURDAH” RULES? THE ISSUES CONSIDERED IN THE HIGH COURT
The “purdah” rule – that a witness cannot discuss the case and their evidence with others, including their legal team, once they have started giving evidence is of utmost significance. Here we are looking at a case where a witness…
WASTED COSTS ORDER MADE AGAINST SOLICITORS WHO HAD PURSUED A “HOPELESS” CASE: ATTEMPTS TO RELY ON PRIVILEGE WERE A RESORT TO A MERE “FIG LEAF”
It is rare for a wasted costs order to be made against a solicitor for pursuing what is seen as a “hopeless” case. However we have such an order in the case we are considering here. The Master found the…
THE RULES OF COURT DO NOT ALLOW A PARTY TO COMPEL ITS OPPONENT TO EXPLAIN HOW ERRORS WERE MADE IN WITNESS STATEMENTS:
Can the court compel a party to file a witness statement explaining, in detail, why mistakes were made in earlier witness statements? That was the issue considered in the case we are looking at today. The judge considered the provisions…
SHOULD THIS CASE HAVE BEEN STARTED IN THE LOW VALUE PERSONAL INJURY PROTOCOL? DID IT FALL OUTSIDE IT? THESE ISSUES CONSIDERED
The question of whether a case should have been started using the Low Value Protocol is often a difficult one. The lawyer for the claimant has to make a decision on this important issue without the benefit of any medical…
PROVING THINGS 262: CLAIMANTS DID NOT HAVE THE EVIDENCE AT TRIAL TO PROVE THE DAMAGES SOUGHT: AN EXHAUSTING JOB
This series may well be misnamed. A more apt description may well be “not proving things”. That is what we are considering in looking at the case today. There was a lengthy trial with a substantial claim for damages. The…
PARTS OF WITNESS STATEMENT STRUCK OUT – THIS “CARRIES NO WEIGHT AS EVIDENCE”:DOORS FIRMLY SHUT IN RELATION TO INADMISSIBLE COMMENTARY
If we had a pound for every word in witness statements served in just one single month that was irrelevant or inadmissible we could probably go a long way to paying off the national debt. The costs, however, are probably…
THE CURRENT IMPORTANCE OF PLEADINGS 14: THE DEFENDANT COULD GIVE EVIDENCE OF MATTERS THAT WERE NOT PLEADED
Today we are looking at a case where the judge rejected an argument that evidence could not be given because the particular issue had not been pleaded. The judge held that, on the facts of this case, the evidence was…
THE JUDGE WAS WRONG TO GRANT THE DEFENDANT SUMMARY JUDGMENT IN A PERSONAL INJURY CASE: THIS SHOULD NOT BE A “MINI TRIAL”
Today we are looking at a case where the claimants were successful on appeal in overturning an order granting the defendant summary judgment. The case shows the limits of applications for summary judgment, in particular arguments that evidence was not…
THE WITNESS STATEMENT “IS IN LARGE PART UNRELIABLE AND ALSO LACKS CREDIBILITY”: THE ENDURING PROBLEM OF “RETROSPECTIVE RECONSTRUCTION”
We have looked many times at the problems caused by witness statements, including when a witness “tries” to remember matters they really cannot, or reconstructs what they feel did happen (or should have happened). This is a feature of all…
COST BITES 238: WHEN A CLIENT DISPUTES THE SOLICITOR’S COSTS: THE JUDGE’S VIEW ON MEMORY, WITNESSES AND STATEMENTS DRAFTED “WITH THE GUIDING HAND OF THE CLAIMANTS’ SOLICITOR”
Today we are looking at part of a judgment about costs. Ten claimants had been selected (out of 223) to give evidence challenging a solicitor’s deduction of success fees. In fact only four of the claimants attended court to give…
PARTS OF A SOLICITORS’ WITNESS STATEMENT ARE STRUCK OUT: A REMINDER – A WITNESS STATEMENT IS A PLACE FOR FACTS, NOT OPINION, LEGAL ARGUMENTS OR ATTEMPTS TO GIVE EXPERT EVIDENCE: IT IS REALLY THAT SIMPLE
There are countless posts on this blog where judges have criticised the contents of witness statements. Here we are looking at a case where the judge struck out parts of a witness statement signed by a solicitor. Parts of the…
WITNESS STATEMENTS AND FINDINGS OF DISHONESTY BY AN EMPLOYMENT TRIBUNAL: EDMUND BURKE CITED “YOUR REPRESENTATIVE OWES YOU, NOT HIS INDUSTRY ONLY, BUT HIS JUDGEMENT: AND HE BETRAYS YOU INSTEAD OF SERVING YOU IF HE SACRIFIES IT TO YOUR OPINION”
It is rare for this blog to look at Employment Tribunal decisions. However examining the drafting of witness statements is part of its everyday fare. Here we look at a decision where the Tribunal was certain that witness statements had…
WITNESS STATEMENTS: WHEN THE JUDGE REFERS TO MONKEYS WRITING SHAKESPEARE AND THE CHANCES OF SIMILARITIES BEING AKIN TO THE HEAT DEATH OF THE UNIVERSE – YOU ARE PROBABLY IN TROUBLE
There are countless posts about witness statements on this blog. Most of them reflect judicial commentary that is far from favourable in relation to the way that the statements have been drafted. We see considerable criticism in this case where…
“ARGUMENT SHOULD BE LEFT TO THE SKELETON ARGUMENTS”: GUIDANCE ON WITNESS STATEMENTS IN THE COMMERCIAL COURT REPORT
The Commercial Court report for 2023 – 2024 shows that there have been some changes to the Commercial Court Guide. The Guide has removed the requirement to obtain permission for a witness statement to exceed 30 pages. It is hoped…
APPLICATION TO ADDUCE “EXPERT EVIDENCE” FROM THE CLAIMANT’S SON WAS REFUSED: THIS IS NOT AN EXPERT REPORT, IT IS NOT COMPLIANT, NOT IMPARTIAL AND NOT ADMISSIBLE…
We are returning to the judgment of Jason Beer KC Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC and staying with the issue of “expert” evidence. This time looking at the attempt of…
PROVING THINGS 258: GENERIC WITNESS STATEMENTS RARELY IMPRESS A COURT: CLAIM FOR £50,190.24 REDUCED TO £1,197: A CAR CRASH OF A CASE
In David Wiltshire v Aioi Nissay Dowa Insurance Company of Europe [2025] EWCC 13 District Judge Lumb rejected most of the claimant’s claim for damages following damage to his car. The claimant’s oral evidence differed greatly from his witness statement. These differences…
JUDGE DOES NOT ALLOW A WITNESS TO GIVE EVIDENCE IN A PROFESSIONAL NEGLIGENCE CASE: IT CONTAINED “INADMISSIBLE AND IRRELEVANT EVIDENCE” THAT “ATTEMPTS TO USURP MY ROLE IN A CASE”
In Russell v Coulter (Rev1) [2025] EWHC 493 (KB) Mr Justice Saini disallowed the calling of a witness that the claimant planned to call in an action for professional negligence. The witness statement relied upon contained opinion and inadmissible commentary. …
A WITNESS STATEMENT IS FOR EVIDENCE AND NOT SUBMISSIONS (SOMETHING THIS BLOG HAS OBSERVED MANY TIMES IN THE PAST…)
We are returning to the judgment of Senior Master Cook in Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust [2025] EWHC 337 (KB). The Master observed that the witness evidence served in support of the claimant’s application went…
AVOIDING PITFALLS WITH WITNESS STATEMENTS – HOW TO DRAFT AN EFFECTIVE WITNESS STATEMENT: WEBINAR 26th FEBRUARY 2025
Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give. This webinar is designed to help practitioners avoid the major…
CONTENTS OF WITNESS STATEMENTS AND DOCUMENTS IN EMPLOYMENT TRIBUNAL GIVE RISE TO A PRIMA FACIE CASE OF CONTEMPT OF COURT
In Commerzbank Ag v Ajao [2024] EWHC 3168 (KB) Ms Justice Eady gave permission to bring committal proceedings on the basis of evidence that had been used before the Employment Tribunal. The case is a reminder that making witness statements,…
AVOIDING PROCEDURAL ERRORS IN CIVIL LITIGATION (AND WHAT TO DO IF THINGS GO AWRY) : WEBINAR 17th FEBRUARY 2025
This webinar looks at common mistakes in personal injury litigation and recent cases where things have gone wrong. It then looks at how mistakes can be rectified and how to make an application for relief from sanctions. Booking details are…
SUMMARY JUDGMENT, PART 8 PROCEEDINGS AND THE FILING OF WITNESS EVIDENCE
In Director of Public Prosecutions v Surin [2025] EWHC 10 (KB) Mr Justice Mould considered issues relating to the service of witness evidence by the defendant in the claimant’s application for summary judgment. The unusual element of this action was…
“CUT AND PASTE” PARAGRAPHS UNDERMINE THE COGENCY OF THE EVIDENCE IN WITNESS STATEMENTS
We are returning to the judgment of HHJ Kelly (sitting as a High Court Judge) in MJF v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 3156 (KB). This time we are looking at the judge’s observations about the preparation…
WITNESS STATEMENTS: REASONS TO BE WARY OF ELECTRONIC SIGNATURES (2): A SOLICITORS DISCIPLINARY TRIBUNAL DECISION
We are returning to the issue of the difficulties that can be caused by the use of electronic signatures on witness statements. The dangers involved can be seen clearly in the decision of the Solicitors Disciplinary Tribunal in SRA -v-…
WITNESS STATEMENTS: REASONS TO BE WARY OF ELECTRONIC SIGNATURES (1)
In Waterrower (UK) Limited v Liking Ltd (t/a Topiom) [2024] EWHC 3049 (IPEC) Campbell Forsyth (sitting as a High Court Judge) observed that there were a number of issues with a witness statement served on behalf of the defendant. There…
THE WITNESS SUMMARY AT TRIAL: THE OLD FASHIONED APPROACH MAY WELL BE BEST
In Waite v Skilton & Ors [2024] EWHC 3153 (Ch) Mr Recorder Adrian Jack (sitting as a High Court Judge) considered the practical problems that can arise where a witness gives evidence at trial following service of a witness summary….
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