ANOTHER BLOG FROM THE PAST: THE DIFFERENCE BETWEEN “EVIDENCE” AND “SUBMISSIONS”: A PROBLEM THAT PERSISTS TODAY
As part of the 11th anniversary process I am looking at a blog that was written in June 2014. “WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)”. It is very interesting to…
WITNESS STATEMENTS THAT BREACH THE PRACTICE DIRECTION: WHAT IS THE APPROPRIATE APPROACH? HIGH COURT DECISION
In Vainker & Anor v Marbank Construction Ltd & Ors [2022] EWHC 2785 (TCC) Mrs Justice Jefford considered the appropriate approach where a party objected to the contents of witness statements that did not comply with Practice Direction 57AC. She…
CIVIL EVIDENCE: WHEN YOU TELL A WHOPPER THE FIRST TIME AROUND – IT COMES BACK TO BITE YOU IN A SECOND TRIAL
In McDonald’s Restaurants Ltd v Shirayama Shokusan Company Ltd [2024] EWHC 1133 (Ch) Mr Justice Edwin Johnson found that a company had misrepresented its intention at a trial which involved, essentially, the claimant’s right to a new tenancy of business…
“LITIGATION WISHFUL THINKING”: A REPEAT, BUT AN IMPORTANT ONE
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
AVOIDING MISTAKES WHEN DRAFTING WITNESS STATEMENTS: WEBINAR 9th MAY 2024
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 looks at how practitioners can avoid basic errors…
THE DANGERS OF RUNNING UP TO DEADLINES AND LEAVING MATTERS LATE FOR COMPLIANCE: DEFENDANT HAD FAILED TO FILE WITH COURT ORDERS: REFUSAL TO GRANT RELIEF FROM SANCTIONS UPHELD ON APPEAL
The judgment of Mr Justice Ritchie in Jaiyesimi v Kukoyi [2024] EWHC 164 (KB) has many important lessons for litigators. Firstly the need for the fee to be paid in order that an application is properly made. Secondly the dangers…
PROCEDURE, DAMAGES, LIABILITY, COSTS AND LIMITATION: A SERIES OF WEBINARS THIS YEAR AIMING TO HELP AVOID OR DEAL WITH PROBLEMS IN LITIGATION
The issues arising from many of the cases looked at on this blog are being considered in a series of webinars starting later this month. The webinars cover many of the problem areas of litigation: what to do when things…
WITNESS STATEMENTS AND WITNESS EVIDENCE: WHEN LAWYERS CAN BE THEIR OWN WORSE ENEMIES: “THE ABSENCE OF SUCH EVIDENCE IS IN THE NATURE OF A DEAFENING SILENCE”
There are numerous, indeed hundreds, of posts on this blog that deal with the difficulties that can arise in relation to witness statements and witness evidence. Often it is a failure to address basic and fundamental points in relation to…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT: A REPEAT
The post earlier this morning about witness evidence in a case where the Particulars of Claim had been signed by a solicitor has raised some interesting observations. Not least commentators have observed that it is, to say the least, profoundly…
WHEN WITNESSES TOTALLY CHANGE THEIR EVIDENCE AT TRIAL: A CASE IN POINT
In Advantage Insurance Company Ltd v Harris [2024] EWHC 626 (KB) HHJ Russen KC (sitting as a High Court Judge) found that a claimant in a personal injury action had been in contempt of court for making false statements. It…
THE VEXED QUESTION OF WITNESS STATEMENTS WHEN THE MAKER CANNOT SPEAK ENGLISH: LEADS TO MAJOR PROBLEMS AND A WASTED COSTS ORDER
We are going to be looking twice at the decision of Mr Justice Martin Spencer in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). The next post will look at procedure in…
BOOKS ABOUT ADVOCACY: MUNKMAN ON THE TECHNIQUE OF ADVOCACY (A REPEAT)
Every litigator is an advocate, whether they know it or not. Litigation is fundamentally about the art of persuasion. This is a litigator’s daily task: in correspondence, on the phone, with the court. This is best done by the careful…
THE WITNESS EVIDENCE AT TRIAL WAS DIFFERENT TO THE PLEADED CASE AND THE WITNESS STATEMENTS: ANOTHER EXAMPLE OF WHY CARE IS NEEDED
Earlier this month I posted an article on the need for “self protection” by lawyers when drafting witness statements. An example of why care is needed can be seen in the judgment of HHJ Stephen Davies, sitting as a High…
“MY LAWYER DRAFTED MY STATEMENT”: A REMINDER OF THE NEED FOR SELF-PROTECTION
We have seen a high profile example recently of a witness stating that their statement had been drafted by the lawyers involved. This is not a rare occurrence. Here is a recap of some of the issues that litigators need…
MR BATES AND THE POST OFFICE 4: THE POST OFFICE’S ATTEMPT TO STRIKE OUT THE CLAIMANT’S EVIDENCE AND ITS CLAIM TO HAVE “SUPERNATURAL POWERS”
On March 16 2019 this blog had three separate posts on the Post Office case. The post repeated here gives an example of the Post Office’s extremely “robust” strategy. It attempted to strike out a large part of the claimants’…
WITNESS EVIDENCE AND WITNESS DEMEANOUR: A GEM OF A CASE: A WITNESS SUMMONS CAN LEAD TO UNWELCOME SURPRISES
Issues of witness demeanour and credibility figured highly in the judgment of District Judge Dinan-Hayward in TM v AM [2023] EWFC 247. It is an interesting story which shows the risks of compelling a witness to attend court and of…
MR BATES AND THE POST OFFICE 2: THE JUDGE’S VIEW ON WITNESS CREDIBILITY
I am repeating a post first written in 2019. Matters that are in the public consciousness now were very much in the consciousness of the legal profession then. This post dealt with the trial judge’s view of the credibility of…
DRAFTING WITNESS STATEMENTS: WHEN THE CLAIMANT’S STATEMENT IS SIMPLY A REHASH OF THE PARTICULARS OF CLAIM
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Recorder Sheehan KC in the case of Ball -v- The Wolverhampton NHS Trust. It is a working example of the difficulties that flow when…
COURT REFUSES (VERY) LATE APPLICATION TO RELY ON A WITNESS STATEMENT
In Johnstone v Fawcett’s Garage (Newbury) Ltd [2023] EWHC 3010 (KB) HHJ Simon rejected the claimant’s application, to rely on a new witness. The application was made as a preliminary issue at trial, there was no formal application, there was…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT: A REPOST
As part of the process of re-blogging posts that remain of general interest we are looking again at the case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin)…
PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG
The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts. It is also an example of the importance…
CIVIL PROCEDURE BACK TO BASICS 100: WITNESS CREDIBILITY: A REMINDER OF THE KEY POINTS IN GESTMIN
Now that we have reached 100 it is a good time to revisit the basic issue of how the court assesses witness credibility. We are therefore looking at the basic guidance given in Gestmin SGPS SA v Credit Suisse (UK) Limited…
PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM
The judgment of Deputy District Judge Batstone in Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely…
“A COMPLETELY UNACCEPTABLE WAY OF PREPARING FOR AN IMPORTANT HEARING”: NON-COMPLIANT AND INCOMPLETE BUNDLES: WITNESS STATEMENTS IMPROPERLY PREPARED
The judgment of HHJ Pearce in Shobeiry v Patel [2023] EWHC 2549 (KB) shows how failing to comply with the rules can lead to major problems in relation to hearings. Here there was non-compliance with the rules relating to bundles,…
THE 10TH ANNIVERSARY OF THE HANDBOOK FOR LITIGANTS IN PERSON: A REMINDER OF THE FOUR GOLDEN RULES FOR DRAFTING WITNESS STATEMENTS
It is ten years since the publication of the Handbook for Litigants in Person. It can be found here. I wrote about it, briefly, when it was first published. Although there have been some procedural changes since the section on…
CIVIL PROCEDURE BACK TO BASICS 99: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF A WITNESS STATEMENT AND AFFIDAVIT
The purpose of this series is to look at the most basic elements of civil procedure. One, very common, omission practitioners make is to fail to follow the mandatory requirements of Practice Direction 32 in relation to the information on…
WITNESS STATEMENTS: THE FRAGILITY OF MEMORY AND THE DANGERS THIS POSES
A major issue at most trials is the question of what a witness can actual “remember”. How much of a witness statement is genuine recollection and how much is implanted? Much judicial time is spent in considering this question. There…
WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL
We are looking back at a post in 2019. Primarily because the issues the case raises in relation to lawyers making witness statements are prevalent. There are numerous examples on this blog of the difficulties that can occur when a…
WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST
It has taken to the third time of writing about the decision in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB) to get to the detail of what the appeal was actually about. This part of the judgment is important…
THE IMPORTANCE OF TAKING FULL WITNESS STATEMENTS: A RECAP: IF A FULLER WITNESS STATEMENT HAD BEEN TAKEN THE LOSS AT TRIAL COULD HAVE BEEN AVOIDED
As part of the series looking back at previous posts we are revisiting a case first looked at in 2014. It provides a good example of the very real dangers of not taking a comprehensive statement. A witness was interviewed…
PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT
In Cheshire Estate and legal Limited -v- Blanchfield & Others* HHJ Bever, sitting as a Judge of the High Court, considered witness statements served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing…
“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE
Many witnesses give inaccurate evidence. Sometimes this is due to dishonesty, others are mistaken. Many, it is to be suspected, fall foul of “litigation wishful thinking”. This concept was explored by Mr Justice Richards in Old Park Capital Maestro Fund…
WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS
There is a short passage in the judgment of Costs Judge Leonard in Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement. THE CASE The judge was considering issues of…
A MULTI-LINGUAL WITNESS IS NOT COMPELLED TO GIVE EVIDENCE IN THEIR “FIRST LANGUAGE”: DECISION PREVENTING CLAIMANT GIVING EVIDENCE OVERTURNED ON APPEAL TO THE HIGH COURT
I am grateful to Ten Legal Associates Ltd for sending me a copy of the judgment of Mr Justice Freedman in Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB), a copy of that judgment is available here. AFZALJUDGMENT TRANSCRIPT …
PERMISSION GIVEN FOR “UPDATING” WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE
The judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is an example of how consideration needs to be given to “updated” witness statements in a case where there situation is…
ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS, WITNESS CREDIBILITY AND WITNESS SUMMARIES
Continuing with the series looking a posts from this blog from the past, here we look at posts from June 2014. This was an interesting month, the blog set out all the arguments that took place in the Denton decision. There…
PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS “IN ALMOST IDENTICAL FORMAT” FAIL TO BRING HOME THE DOUGH
The judgment of Lionel Persey KC (sitting as a Judge of the High Court) in Finsbury Food Group Plc v Axis Corporate Capital UK Ltd [2023] EWHC 1559 (Comm) shows some significant issues in relation to the evidence presented in…
USING TRANSLATORS: COURT HEARINGS AND WITNESS STATEMENTS: WHERE CAN IT ALL GO WRONG
In Alam v Alam & Anor [2023] EWHC 1460 (Ch) the Court had to deal with issues relating to translators and witness statements. There were several issues in relation to the use of translators. The evidence of one witness was…
CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS
This is not the first time that this series has dealt with this issue. The post earlier this week on the judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) shows that it is a regular issue….
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
Drafting witness statements the rules, the guidance and the cases: Webinar 18th APRIL 2023
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 looks in detail at the rules and practice…
DEFENDANT GRANTED RELIEF FROM SANCTIONS WHEN WITNESS EVIDENCE SERVED ONE YEAR LATE: WIDER INTERESTS OF JUSTICE CONSIDERED
I am grateful to barrister Andrew McLaughlin for drawing my attention to the judgment of Mr Justice Freedman in Tiernan-Spratt & Anor v City Of Wolverhampton Council [2023] EWHC 811 (KB). It concerns a successful appeal. The judge at first…
WITNESS CREDIBILITY, MEMORY AND ACCURACY: REVISITING GESTMIN
This is another opportune time to re-visit the principles in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm). This is case that is now mentioned regularly in cases involving witness recollection and dispute of facts. WHY LOOK AT GESTMIN?…
THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY
It is quite possible that both parties in an action could be in default. One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…
PERSONAL PEJORATIVE REMARKS IN WITNESS STATEMENTS DO NOT HELP: RECENT DECISIONS AND A REVIEW OF THE CASES
Some recent comments by HHJ Edward Hess in TM -V- KM [2022] EWFC 155 as to the language used in witness statements gives me a chance to reprise the guidance as to the lack of wisdom of using intemperate language…
WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”
In Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements. We…
“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL
There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
RESPONDENT SIX MONTHS LATE IN SERVING WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED
In Davidson & Ors v Looney (Re Kieran Looney & Co Ltd) [2023] EWHC 197 (Ch) Deputy ICC Judge Kyriakides granted a respondent relief from sanctions when a witness statement was served six months late. THE CASE The applicant liquidators…
You must be logged in to post a comment.