THE APPROPRIATE STEPS WHEN A JUDGE HAS LIMITED THE SCOPE OF EXPERT EVIDENCE: COMPLY WITH COURT ORDERS IF YOU WANT TO KEEP A GOOD IMAGE
Another aspect of the judgement of Master Davison in Mustard v Flower & Ors [2021] EWHC 846 (QB) was a decision in relation to expert evidence. The Master refused the claimant’s application to rely on amended medical reports. Those reports…
HOW TO INSTRUCT COUNSEL: USEFUL GUIDES: “DO NOT MAKE YOUR INSTRUCTIONS FLUFFY”
The post yesterday covering a case where counsel’s advice was altered led to some interesting discussions on Twitter. This led to a thread where one lawyer said that they had not been taught how to instruct counsel at any time…
“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…
WHEN COUNSEL’S ADVICE WAS ALTERED (WITHOUT COUNSEL’S CONSENT): CAVEATS REMOVED BEFORE BEING SHOWN TO INTERESTED PARTIES
Someone reading counsel’s advice would normally assume that they were reading all of it. There is a danger (I have not seen before) of advices being altered before being passed on. In Equitable Law Capital, Re [2021] EWHC 763 (Ch)…
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…
PROVING THINGS 207: CORPORATE INSOLVENCY AND CORONAVIRUS: A COMPANY STILL HAS TO PROVE SOLVENCY PROBLEMS WERE DUE TO COVID
In PGH Investments Ltd v Ewing [2021] EWHC 533 (Ch) Deputy ICC Judge Passfield considered questions of evidence in relation to the provisions that prevent winding up of a company when it can establish that its financial state is due…
COURT CAN COMPEL SOLICITOR TO ATTEND COURT TO EXPLAIN THEMSELVES
The decision of Mr Justice Saini in Hunt Annolight Ltd & Ors [2020] EWHC 3744 (QB) has just arrived on BAILLI. It was decided that the court does have the power to order a solicitor to attend court to be cross-examined on…
“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 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…
MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”
In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation. “Parties must be…
![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://i2.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…
CIVIL PROCEDURE BACK TO BASICS 91: MAKE SURE YOUR CLIENT IS STILL ALIVE WHEN YOU ISSUE – AT CERTAINLY AT THE TIME OF TRIAL: A SITUATION THAT IS UTTERLY BIZARRE
The facts in Amirtharaja & Anor v White & Anor [2021] EWHC 330 (Ch) are unusual to say the least. Someone who had died two years prior to issue was included as a party in a claim form. The matter…
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…
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…
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…