WITNESS EVIDENCE WEDNESDAY: HOW DOES THE COURT APPROACH EVIDENCE OF SOMETHING THAT HAPPENED OVER FOUR YEARS BEFORE AND TOOK PLACE WITHIN TWO MINUTES?
This series enables us to look at witness evidence in many different contexts. Here we look at evidence relating to an arrest and events that took place within two minutes. The judge was well aware of the issues that could…
EXPERT WATCH 31: A PARTY WAS NOT ALLOWED TO RELY ON THE EXPERT EVIDENCE OF SOMEONE WHO WAS CONFLICTED: THE EXPERT CANNOT “MARK THEIR OWN HOMEWORK”
This is an interesting example of a judge refusing a party permission to rely on an expert witness because they were conflicted. They had been involved in the issues previously and could not give independent or disinterested advice. “Ms…
COST BITES 338: COURT AWARDS THE DEFENDANT INDEMNITY COSTS: THE CLAIMANT’S HAD AN “ENTIRELY, UNREASONABLE AND ALMOST IRRATIONAL APPROACH TO THIS LITIGATION”
We have looked many times at cases where the courts have considered whether or not costs should be awarded on an indemnity basis. I do not recall a judgment where the judge has decided this issue so emphatically. There were…
PROVING THINGS 276: APPEAL JUDGE OVERTURNS TRIAL JUDGE’S “INFERENCES” OF LOSS: DAMAGES AWARD OF £347,285 REPLACED WITH £NIL
This is a classic “Proving Things” case, the only surprise being that it reached the appeal stage. On appeal the the judge overturned the trial judge’s findings in favour of the defendant’s counterclaim and reduced a damages award of £347,285…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
THROWBACK FRIDAY: WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY GIVING THE SOURCE OF INFORMATION IS IMPORTANT (FROM JANUARY 2018)
Today we go back to a post from January 2018 on a point that remains just as relevant today. There is a mandatory requirement that a witness give the source of their information and belief. A surprising number of witness…
WHEN DOCUMENTS WERE CHANGED AFTER THE EVENT: “THEY ARE FALSE AND WERE INTENDED TO DEFLECT BLAME”: SOME POINTS FOR LITIGATORS TO REMEMBER IF THEY WANT TO KEEP THEIR CASES ON AN EVEN KEEL…
Many the cases which consider and give guidance on witness credibility stress the importance of contemporary documents. However what happens when the “contemporary” documents have been re-written after the event? Litigations should be alive to that possibility. Here we look…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
COST BITES 331: SOLICITOR FAILS TO SHOW THEY WERE OWED £573,529 IN COSTS: NEITHER A LIEN OR THE LEGAL AID CHARGE NECESSARILY GIVES RISE TO A DEBT FROM THE CLIENT
This is an unusual case where a third party challenged a solicitor’s right to be a creditor in an insolvency arrangement. The third party argued that the sums claimed by the solicitors were not in fact recoverable from the respondent. …
WITNESS EVIDENCE WEDNESDAY: WHEN WITNESS STATEMENTS SHOULD BE AVAILABLE FOR THIRD PARTIES AT COURT: NO NOTICE NECESSARY…
Is a third party, with no relationship to the case, entitled to see the witness statements being used in the hearing? That is the issue considered in this case which, unusually, was an application for judicial review of a County…
CLAIMS AGAINST THE SECRETARY OF STATE FOR DEATHS ARISING FROM COVID WERE STRUCK OUT: CAUSATION COULD NOT BE ESTABLISHED
In this case, decided yesterday, the court struck out the claimants’ case alleging that deaths were caused by, or materially contributed to, by the negligence of the defendant. The court had the important caveats in relation to the striking out…
ASKING THE JUDGE TO DETERMINE ISSUES OF OWNERSHIP WAS NOT AN ABUSE OF PROCESS: THE SAME ARGUMENT RAN TWICE (UNSUCCESSFULLY ON BOTH OCCASIONS…)
Here we consider an argument that it was an abuse of process for a litigant to argue issues that were directly related to another action between the parties that had been stayed. The judge held that this was not an…
THE CURRENT IMPORTANCE OF PLEADINGS 47: YOU CAN’T CRITICISE A JUDGE FOR NOT FINDING ON A CASE THAT WAS NOT PLEADED (AND ON ANOTHER ISSUE WHERE THE CLAIMANT EXPRESSLY DISAVOWED THE CLAIM NOW BEING MADE ON APPEAL)
Here we are looking at an unusual appeal. The appellant argued firstly that the judge should have found for them on a point that was not pleaded. A second argument was that the judge should have assessed loss on a…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
EXPERT WATCH 30 : WHEN THE EXPERTS REPORT ON THE BASIS OF DIFFERENT INFORMATION AND DOCUMENTS: IT WAS APPARENT THAT SOMETHING HADE WRONG WITH THE PROCESS OF OBTAINING EXPERT OPINION EVIDENCE
Here we have problems with the way in which handwriting experts were instructed. The difficulty being that different experts were given different documents. This led to difficulties at trial. However, ultimately, it did not favour the defendants. The judge was…
EXPERT WATCH 29: THE JUDGE IS WARY OF A CLINICAL EXPERT WHO IS “HEAVILY INVOLVED IN THE BUSINESS OF LITIGATION”
There have been a number of cases in recent years where judges have been wary (sometimes highly sceptical) of expert witnesses who make their living solely from being involved in litigation. We have another example here. There is no indication…
PROVING THINGS 275: IF YOU CAN’T PROVE YOU SUFFERED A LOSS THEN YOU HAVE NO CLAIM: ACTION AGAINST SOLICITORS DISMISSED: THE PARABLE OF THE MOUNTAINEER’S KNEE
Here we have an interesting case about the alleged professional negligence of solicitors. The case did not get very far, being struck out at first instance and with that decision upheld by the Court of Appeal. Put simply the claimants…
COURT OF APPEAL REFUSES PERMISSION FOR APPELLANT TO AMEND PLEADINGS OR RELY ON NEW EVIDENCE: GET YOUR CASE TOGETHER BEFORE AN APPLICATION NOT AFTER IT…
In this judgment today the Court of Appeal refused an application by an appellant to rely on amended Particulars of Claim or adduce new evidence in a case where the claim was struck out. The Court made the point that…
CLINICAL NEGLIGENCE CORNER 6 : CAUSATION WHEN THE INJURIES OCCURRED BEFORE THE NEGLIGENCE: THE BREACHES MADE NO DIFFERENCE TO THE OUTCOME
Practitioners in every field of litigation need to be aware of the need to prove causation in addition to breach. This requirement can sound particularly harshly in clinical negligence. We see an example here. There were some breaches of the…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
REVIEW OF THE YEAR 13: WHAT ARE PEOPLE READING?
It is always interesting to look back and see what are the most popular posts each year. Sometimes this contains surprises, sometimes it says something about the state (or at least the interests) of the legal profession. Here are…
REVIEW OF THE YEAR 12: MAZUR AND THE CONDUCT OF LITIGATION: 48 POSTS TO DATE…
I have saved this topic from being the 13th in the series. However it may be fitting if it was. From the moment I read the the Mazur judgment for the first time it was clear that it was going…
REVIEW OF THE YEAR 11: OPENING LINES OF JUDGMENTS 2025: “FOR MILLIONS OF YEARS MEN LIVED JUST LIKE ANIMALS”: ST PAUL’S CATHEDRAL, SHERLOCK HOLMES AND FINDING INGENIOUS WAYS NOT TO PAY TAX: ALL LITIGATION LIFE IS HERE…
Consideration of the opening lines of judgments has been a feature of this blog for some years now. It has sometimes been a way of providing a little light relief towards the end of what is often a 12 month…
REVIEW OF THE YEAR 8: PROVING THINGS – OR NOT PROVING THINGS, AS THE CASE MAY BE…
The “Proving things” series is the longest running feature of this blog. Initially I thought it would be a series of then posts. I was planning to end it at a hundred when a chance conversation on the Leeds Legal…
WHEN THE WITNESS STATEMENT OF THE DEFENDANT CONTAINS PASSAGES THAT ARE CUT AND PASTED FROM AN EXPERT’S REPORT: SOMEONE MAY NOTICE THIS…
It is clear that many judge’s approach witness statements with a degree of scepticism, regarding them more as a lawyer’s construct than the actual recollection of the witness. In this case the defendant’s own witness statement included passages that were…
REVIEW OF THE YEAR 7: STATEMENTS OF CASE ON THIS BLOG: MATTERS OF THE PLEADING OBVIOUS
The “Current importance of Pleadings” series started in March of this year. It is another one of those issues that has featured heavily throughout. Being able to focus on “pleading” issues in a particular series has been useful. The problems…
REVIEW OF THE YEAR 6: EXPERTS IN THE COURTS IN 2025: CASES ON THIS BLOG
I am surprised (but perhaps shouldn’t be) at the sheer number of cases involving experts that the blog has covered this year. In July I started the “Expert Watch” series to focus on cases about the conduct of experts and…
WITNESS EVIDENCE WEDNESDAY: JUDGE CONSIDERS ADMISSIBILITY OF WITNESS EVIDENCE ON THE FIRST DAY OF TRIAL: “ARE YOU EXPERIENCED”?
It is unusual for a judge to consider the admissibility of witness evidence on the first day of a trial. However, in some ways, this is an unusual case. The judge found that the statement was relevant to the pleaded…
USING WHATSAPP AND OTHER MEANS OF COMMUNICATION WITH CLIENTS: THE RISKS CONSIDERED
The previous post looked in detail at the issues in a solicitor and own client assessment caused by the solicitor’s use of WhatsApp. That judgment gives rise to much wider issues in relation to how solicitors communicate with clients. In…
“HALLUCINATIONS” IS NOT A GOOD WORD FOR FALSE CASES GENERATED BY AI: THIS JEOPARDISES THE RULE OF LAW: LESSONS FROM THE COURTS OF OREGON
The issue of the citation of false cases generated by Artificial Intelligence is, it is clear, an international one. Here we have a decision from the Court of Appeals in the State of Oregon. Among other things it challenges the…
COURT REFUSES CLAIMANTS’ APPLICATION THAT WITNESS BE ANONYMOUS
In this case the judge considered in detail the principles relating to a witness in a civil trial being granted anonymity. The evidence in support of the application was found to be somewhat speculative. There is, it was held, a…
EXPERT WATCH 28: I CAN’T GIVE PERMISSION FOR AN EXPERT BECAUSE THIS IS SIMPLY NOT EXPERT EVIDENCE: FORENSIC ACCOUNTANT’S REPORT DOESN’T GET THE CREDIT IT DESERVES…
The judge here held that the report prepared by a forensic accountant was not, in fact, an expert’s report. The report well be helpful, but its contents did not come within the meaning of “expert evidence”. Further insofar as the…
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
CONSTRUING A COURT ORDER: WHAT DOES THE WORD “IMPECUNIOSITY” MEAN? “IT DEPENDS” – THE ISSUE CONSIDERED ON APPEAL IN THE HIGH COURT
In this case the court made a court order which meant that the claimant was debarred from relying on issues relating to “impecuniosity” at trial. The appeal was, in part, about what “impecuniosity” meant in that context. (It was reasonable…
WHEN CAN ADVERSE FINDINGS ABOUT A WITNESS IN A CASE BE APPEALED? THE COURT OF APPEAL CONSIDERS THE ISSUES
It is not unusual for trial judges to be critical of the conduct or evidence of a witness in a case. What should a witness do if the judgment is critical of them? Do they have a right of anonymity? …
THE HILLSBOROUGH REPORT AND THE AMENDMENT OF WITNESS STATEMENTS: NEW INFORMATION IN THE IPOC REPORT PUBLISHED YESTERDAY
This blog has looked at the issues relating to evidence gathering and the Hillsborough tragedy several times, in particular the way that witness statements were gathered, and the reports amended. The issues were considered again in the Independent Office for…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
CLINICAL NEGLIGENCE CORNER 5: ANOTHER CASE OF “WHAT WAS SAID?” AND “WHY WASN’T THAT PARTICULAR POINT IN THE MEDICAL NOTES?”
Here we have a clinical negligence case with a familiar issue. The trial depended on whose account the judge accepted of what was said in a particular medical consultation several years earlier. The treating doctor can, in reality, remember little…
INDEMNITY COSTS ORDERED IN CASE WHERE CLAIMANTS OBTAINED INFORMATION FROM DEFENDANTS’ SOLICITOR IN A “STING” OPERATION: “THE CLAIMANTS SOUGHT TO JUSTIFY THE UNJUSTIFIABLE”
This is a case worth reading if you want to see strong judicial commentary on litigation conduct. The judge was clear in his view of the conduct that the claimants had engaged in and surprised by its lack of self…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
WHAT IS THE COURT TO DO WHEN A PARTY ALLEGES THAT A DOCUMENT IS A FORGERY BUT HAS NOT SERVED NOTICE UNDER CPR 32.19?
Here we look at very useful observations as to the approach of the court when at trial it becomes clear that a party is alleging a document is forged, or not authentic, but that party has not served a notice…
EXPERT WATCH 26: JUDGE’S DECISION NOT TO ADMIT EXPERT EVIDENCE UPHELD BY THE COURT OF APPEAL: “IT IS NOT CLEAR TO ME WHAT VALUE IT WOULD ADD TO THE CASE”
It is rare to see an appeal where a decision about whether to admit expert evidence is considered. In this case the Court of Appeal considered the judge’s decision not to admit a report. Both parties agreed that the report…
COMPLIANCE WITH COURT ORDERS, CONTINUING BREACHES AND CONTEMPT OF COURT: AN INDIVIDUAL RESPONDENT WOULD HAVE GONE TO JAIL
This is a judgment which anyone with responsibility for running a legal department, or in a position where “the buck stops here” should read. The Court of Appeal judgment is clear, and damning, in relation to the conduct involved, albeit…
CONTRIBUTORY NEGLIGENCE AND ACCIDENTS AT WORK: WEBINAR 1ST DECEMBER 2025: CRITICISM USING HINDSIGHT IS EASY BUT DOES NOT NECESSARILY LEAD TO FINDINGS AGAINST A CLAIMANT
This webinar explores the complex area of contributory negligence in employer’s liability cases. It examines how courts approach allegations that an employee’s actions contributed to their own injury, drawing on key case law to illustrate judicial reasoning. Delegates will gain…
AND THEY KEEP ON COMING… ANOTHER FALSE CITATIONS CASE: “I RELIED ON THE AI OVERVIEW” FROM GOOGLE
The cases continue to come. Some lawyers are continuing to rely upon artificial intelligence to produce false authorities. Here was a firm of solicitors (defending themselves) who relied on the AI contents of a Google search. Such searches are never…
EXPERT WATCH 25: EXPERT IN ELECTION CASE FAILS TO GET THE JUDGES’ VOTE: THE EXPERT SHOULD BE SENT (AND CONSIDER) CONTRADICTING EVIDENCE
There are not many cases where issues relating to expert evidence are considered in an Election Court. We have such a case here. The Court allowed expert evidence to be admitted. However it was unable to give any weight to…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
FUNDAMENTAL DISHONESTY AND CONTEMPT OF COURT: CLAIMANT BROUGHT A FRAUDULENT £3 MILLION CLAIM: SENTENCE OF IMPRISONMENT IMPOSED
This blog has looked at cases of fundamental dishonesty many times. It has to be remembered that, more often than not, bringing dishonest claims is also contempt of court. This case deals with the appropriate sentence that should be passed…
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