DEFAULT JUDGMENT FOR SOLICITORS’ COSTS: COURT REFUSES TO SET ASIDE JUDGMENT: DEFENDANT FAILS ON BOTH THE DENTON CRITERIA AND THE MERITS
In Carpmaels & Ransford Llp & Anor v Regen Lab SA [2021] EWHC 845 (Comm) Mr Justice Waksman refused the defendant’s application to have judgment in default set aside. The claimants were solicitors bringing proceedings for their costs. The judge…
DEFENDANT FAILS TO BEAT CLAIMANT’S PART 36 OFFER: PART 36 CONSEQUENCES HELD NOT TO APPLY: THE CONSEQUENCES OF SERVING EVIDENCE LATE
The judgment of Mr Justice Johnson in Head v The Culver Heating Co Ltd [2021] EWHC 1235 (QB) is one that is of profound interest to those involved in fatal accident litigation. I will be writing about the damages aspect…
A FINDING OF FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND INACCURATE STATEMENTS LEAD TO CLAIMANT LOSING £44,890
I am grateful to Aled Morris from Horwich Farrely for sending me a copy of the decision of HHJ Beard in Anderson -v- Porch (14th January 2021), a copy of which is available here OT APPROVED HORWICH, F38YJ633, ANDERSON, PORCH,…
A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES
Returning to the judgment of Mr Justice Cavangh in TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
A LOT ABOUT LITIGATION CONDUCT HERE: SIGNATURE OF THE STATEMENT OF TRUTH: POOR BUNDLES: POOR WITNESS STATEMENTS AND THE TOTAL LACK OF WISDOM IN SENDING MATERIAL DIRECTLY TO THE JUDGE IN THE MIDDLE OF A TRIAL…
The judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) demonstrate some “unusual” conduct in litigation. Not least the claimant’s solicitors wrote to the judge, in the middle of…
WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS
Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….
LYING IN A WITNESS STATEMENTS PASSES THE CUSTODY THRESHOLD: WHEN A PARTY ASSERTED THEY DID NOT KNOW A WITNESS
In Axa Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB) Mrs Justice Eady found that telling lies in a witness statement in a personal injury case passed the custody threshold. A claimant in a personal injury, who…
THE DANGERS OF LEAVING SERVICE OF EVIDENCE UNTIL THE LAST MINUTE: DEFENDANT MISCALCULATED TIME WITNESS STATEMENTS DUE – REQUIRED RELIEF FROM SANCTIONS
In Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) Mr Justice Johnson granted relief from sanctions to a defendant who served witness evidence late. However the defendant’s failures were serious and significant and the defendant had no…
“VARIOUS WITNESSES CAN ALL GIVE HONEST BUT NEVERTHELESS CONFLICTING ACCOUNTS OF A GIVEN EVENT”: GESTMIN PRINCIPLES CONSIDERED IN THE CONTEXT OF A ROAD TRAFFIC ACCIDENT
In Barrow & Ors v Merret & Anor [2021] EWHC 792 (QB) Richard Hermer QC (sitting as a Deputy High Court Judge) considered the guidance given in Gestmin in the context of a road traffic accident. It is a reminder…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERT COURTS: GESTMIN PRINCIPLES NOW ENSHRINED IN THE RULES
From the 6th April this year some of the key principles from the judgment in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm) are effectively enshrined into the rules. Key parts of the Gestmin principles are included in the Appendix to…
WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: GET THE WORDING RIGHT (AND REMEMBER WHAT IT IS YOU ARE CERTIFYING)
A regular search term that leads people to this blog is “can a solicitor sign a statement of truth on behalf of a client?” The answer is yes, for some documents at least. The lawyer has to remember (i) what…
DRAFTING WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 5th APRIL: THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET
This blog has looked in detail at the rule changes coming into force early next month. In particular there is a need for the whole process of taking witness statements to be transparent. Lawyers are enjoined not to ask leading…
“POSSIBLE CRIMINAL ACTIONS THAT MAY HAVE TAKEN PLACE IN THIS CASE INCLUDE PERJURY, CONSPIRACY TO DEFRAUD AND CONSPIRACY TO PERVERT THE COURT OF JUSTICE”: THE NON-EXISTENT TRIP TO ILKLEY
The judgment of HH Judge Davis-White QC (sitting as a High Court Judge) in The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) contains clear findings of fact in relation to three witnesses. Among the matters of interest…
“WHAT’S THE DIFFERENCE BETWEEN A WITNESS STATEMENT AND SUBSTANTIVE SUBMISSIONS”
The title of this piece is a search term that led someone to this blog today. Again it caused me to repeat a point made several years ago on this blog. THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS In a…
WITNESS STATEMENTS THE TIMES WILL SOON BE CHANGING: “A SOMEWHAT OVERLAWYERED DOCUMENT”: “A LOT OF COMMENT THAT IS INADMISSIBLE”
The judgment of John Kimbell QC (sitting as a Deputy High Court Judge) in One Blackfriars Ltd, Re [2021] EWHC 684 (Ch) provides a reminder as to why the strictures as to witness statements are being tightened next month. “It…
WITNESS STATEMENTS: KEEPING DRAFTS AND “THE SHREWSBURY 24”: LESSONS FROM PAST MISTAKES
It may seem strange to link the highly important Court of Appeal decision in Warren & Ors v R. [2021] EWCA Crim 413 with modern civil litigation. However this is an important case and there are direct parallels to many…
WHY, IF YOU PRACTICE IN THE BUSINESS AND PROPERTY COURTS, YOU HAVE TO LEARN TO ASK NON-LEADING QUESTIONS…
It is difficult to understate the depth and breadth of the new rules coming into force on the 6th April in the BPC. One good example is the fact that the person taking a witness statement has got to learn…
DEFENDANT GIVEN PERMISSION TO RELY ON WITNESS STATEMENTS THAT THE CLAIMANT DISCLOSED BY MISTAKE: HIGH COURT RULING
In Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm) Sir Michael Burton (sitting as a High Court Judge) granted a defendants’ application to rely on witness statements mistakenly disclosed by the claimant. “The…
CLAIMANT WHO GAVE MISLEADING ACCOUNT OF HER INJURIES FOUND TO BE FUNDAMENTALLY DISHONEST
In Smith v London Borough of Haringey [2021] EWHC 615 (QB) Master David Cook found a claimant to be fundamentally dishonest. A failure to disclose previous back problems, coupled with an exaggeration of her medical condition was found to be…
SOLICITORS AND ATTENDANCE NOTES: JUDGES NEARLY ALWAYS PREFER THE CONTEMPORANEOUS NOTES
The judgment of HHK Keyser QC (sitting as a High Court judge) in Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch) serves as a reminder of the importance of contemporary attendance notes as a source of evidence. “the best…
THE NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: WHY THE IRON FIST? BASICALLY – THE PROFESSION HAD IT COMING
As anyone practising in the BPC is just about to discover the rules on witness statements coming into force next month are highly prescriptive, even covering the way in which questions are to be asked to witnesses. Further it has…
ALL YOU NEED TO KNOW ABOUT FUNDAMENTAL DISHONESTY: WEBINAR 11th MAY 2021
I am co-presenting a webinar with solicitor John McQuater on fundamental dishonesty in personal injury action on the 11th May 2021. HOW TO BOOK Details of how to book are available here. THE WEBINAR This webinar will bring you right…
WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING
The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement. The judge struck out an…
COURT CAN COMPEL SOLICITOR TO ATTEND COURT TO EXPLAIN THEMSELVES (THIS CASE WAS OVERTURNED ON APPEAL)
NB THIS CASE WAS OVERTURNED ON APPEAL, SEE THE DECISION AT Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 The decision of Mr Justice Saini in Hunt Annolight Ltd & Ors [2020] EWHC 3744 (QB) has just arrived on…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the…
CLEAR FINDINGS OF FUNDAMENTAL DISHONESTY: NO SUBSTANTIAL INJUSTICE IN APPLYING THE PRINCIPLE: CLAIMANT IN AT THE DEEP END
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of HHJ Sephton QC (sitting as a High Court judge) in Iddon -v- Warner, a judgment given on the 2nd March 2021. A copy of…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6th APRIL 2021: THE DECLARATION THAT THE SOLICITOR HAS TO SIGN
One of the many requirements that come into force on the 6th April is the requirement for the solicitor to sign a declaration that the witness statement complies with the rules. This is not an obligation that can be taken…
“WHAT’S THE DIFFERENCE BETWEEN KNOWLEDGE AND BELIEF?” WHY IS THIS IMPORTANT? 10 KEY POINTS RE-VISITED
The question “What’s the difference between knowledge and belief” was a search term that led to this blog yesterday. I mentioned this on Twitter and it has led to some interesting responses, ranging from the philosophical to the whimsical. You…
THE NEW WITNESS STATEMENT REQUIREMENTS AND ADMIRALTY CLAIMS: NEW RULES WILL APPLY
The new requirements for certification of witness statements in the Business and Property Courts come into force on the 6th April 2021. Initially it was thought that Admiralty claims may be excluded, because of the importance of contemporary statements in…
THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The number of people who had not read the judgement of Canadian judge J.W. Quinn looked at last Sunday made me think that this would be a good time to remind people of the judgment in Bruni -v- Bruni in 2010. The…
![WITNESS STATEMENTS IN THE DOCK AGAIN: "DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2021/02/balalaika_garmon_shepherds_horn.jpg?resize=150%2C150&ssl=1)
WITNESS STATEMENTS IN THE DOCK AGAIN: “DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE”
The judgment of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm) provides a further example of the contention that obtaining witness evidence is probably not part of the “stock in trade” of those who…
PROVING THINGS 204: WHY FIRST-HAND EVIDENCE IS IMPORTANT: “THE FIRST HAND EVIDENCE… IS TO BE PREFERRED OVER THOSE WHO GAVE EVIDENCE FOR THE BANK”
In Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Chief Insolvency Court Judge Briggs considered the Gestmin principles in a case where a bank failed to establish that a client had signed a guarantee. It is a good example…
“Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)”: A good time to repeat one of our favourite cases…
Periodically I feel bound to remind people of the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn. In the middle of “lockdown”, when we may well…
WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)
The judgment of Gavin Mansfield QC (sitting as a High Court judge) in Puharic v Silverbond Enterprises Ltd [2021] EWHC 351 (QB) highlights the difficulties that can occur if the pleaded case differs from the evidence. Put bluntly running a…
A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE
In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) HHJ Platts (sitting as a High Court Judge) rejected the defendant’s case that a witness who was “wholly unreliable” was also fundamentally dishonest. “Failing…
EVIDENCE AND WITNESS STATEMENTS: AVOIDING THE PITFALLS: WEBINAR 25th FEBRUARY 2021
I am giving a webinar on avoiding the pitfalls in evidence and witness statements on the 25th February 2021. Details are available here. “Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be…
NEW RULES COMING INTO FORCE IN APRIL 2021 4: NON-DISCLOSURE OF AFFIDAVITS
A new rule coming into force on the 6th April 2021 expressly extends the prohibition on the use of witness statements in proceedings to affidavits. THE ISSUE There is currently a lacuna in the rules. There is a prohibition on…
ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT
A common search term that leads to this blog is “opinion evidence in witness statements”, this remains a major issue in many areas of practice. It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
KIDS CLUB AND THE DANGERS OF SELECTIVE EVIDENCE: WITNESS STATEMENTS IN AN INSOLVENCY CONTEXT
The decision in the Official Receiver -v- Batmanghelidh and others [2021] EWHC 175 (Ch) involves some consideration of the way in which the claimant presented the evidence. Whilst the claimant was under a particular duty in this case this involves…
JUDGE REFUSES PERMISSION TO A DEFENDANT TO RELY ON A WITNESS STATEMENT SERVED LATE: THE APPLICATION DID NOT FLY…
In Manchester Airport PLC & Anor v Radisson Hotel Manchester Ltd & Anor [2020] EWHC 3739 (Ch) HHJ Halliwell refused a defendant’s application to serve witness evidence late. “There cannot be any reasonable justification for adjourning the trial to give the…
VULNERABLE WITNESSES IN CIVIL PROCEEDINGS: THE NEW RULES: WEBINAR 22nd MARCH 2021
I am presenting a webinar on the 22nd March 2021 dealing with the new rules relating to vulnerable witnesses in civil proceedings. The new rules are coming into force on the 6th April 2021. These change the rules so that…
RULE CHANGES COMING INTO FORCE IN APRIL 2021(1): VULNERABLE WITNESSES AND THE OVERRIDING OBJECTIVE
There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021. AMENDMENT TO THE OVERRIDING OBJECTIVE The new rules are referred to,…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: A MANDATORY OBLIGATION THAT IT IS DANGEROUS TO OVERLOOK
We have looked many times at cases where problems have occurred because someone making a witness statement fails to comply with the mandatory obligation to give the sources of their information and belief. The problems this can lead to are shown…
WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)
A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases. The dangers of asking leading…
THE MISUSE OF WITNESS STATEMENTS: 2021 SHOWS THAT THE TREND CONTINUES: THREE CASES THAT ARE PROBABLY THE TIP OF AN ICEBERG
A search term that led to this blog earlier this week was “witness of fact giving expert evidence”. This, and changes coming into force in the Business and Property Courts in March mean that this is a good time to…
PROVING THINGS 200: ALL THE SERIES IN ONE PLACE: THE (VERY) EXPENSIVE COSTS OF FAILING TO THINK FULLY ABOUT EVIDENCE
There are now 200 posts in the “Proving Things” Series. These centre, usually, on a failure to establish matters at trial. Sometimes the failures are dramatic. In Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) i the claimants had…
“HIS WITNESS STATEMENT … CONTAINED A GREAT DEAL OF ANALYSIS, SUBMISSION AND COMMENTARY ON DOCUMENTS”
Because of the imminent changes in the rules in the Business and Property courts it is an opportune time to see how often the basic principles of witness evidence are not being observed. We see this in the judgment in YJB…
A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER
In Ceviz v Frawley & Anor [2021] EWHC 8 (Ch) HHJ Keyser QC made observations about a witness statement. This case highlights the need for practitioners to be aware of the limitations of witness statement. If this kind of statement…
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