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…
ARTIFICIAL INTELLIGENCE IN THE COURTS: SELECTED HIGHLIGHTS FROM THE JUDICIAL GUIDANCE
We have looked before at problems caused by Artificial Intelligence being used in court. It is worthwhile looking at the Courts and Tribunals Judiciary publication “Artificial Intelligence (AI) Guidance for Judicial Office Holders. It shows some of the dangers in…
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…
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…
COST BITES 138: IN THE ABSENCE OF A CHARGING CLAUSE THE SOLICITOR COULD NOT BE PAID FOR ACTING AS AN EXECUTOR (SEE ALSO “PROVING THINGS…)
In Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 the Court of Appeal upheld a decision that a solicitor Executor could not charge for legal work done in the absence of a charging clause in a will. Although…
COST BITES 137: WASTED COSTS ORDER WAS APPROPRIATE: APPEAL DISMISSED: SOME NOTES ON PROCEDURE
We are looking again (and not for the last time) at the judgment of Mr Justice Martin Spencer in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). The decision to make a wasted costs…
A SERIES OF FOUR WEBINARS TO TAKE YOU THROUGH LAW AND PRACTICE RELATING TO FATAL ACCIDENTS
In March and April 2024 I am presenting four webinars which take practitioners through the major issues relating to law and procedure in Fatal Accident Act claims. All of those who subscribe to the webinars will receive comprehensive questionnaires for…
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…
PROVING THINGS 237: CLAIMANT FAILS TO PROVE ITS CASE, FAILS TO PROVE IT HAD SUFFERED DAMAGES HAD IT SUCCEEDED (SOMETHING ABOUT EXPERT EVIDENCE TOO)
In Hamsard One Thousand And Forty-Three Ltd v AE Insurance Brokers Ltd [2024] EWHC 262 (Comm) the claimant failed to establish its case. The judgment shows many issues with the claimant’s evidence, in particular the problems that flowed from issues…
“TELL ME MORE, TELL ME MORE”: COURT OF APPEAL SENDS OUT CLEAR MESSAGE OF THE DANGERS OF SEEKING “CLARIFICATION” OF A JUDGMENT: IT MIGHT NOT GET YOU VERY FAR…
In YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 the Court of Appeal issued a clear warning about the misuse of the practice of “seeking clarification” from the judge following a judgment. The decision is aimed specifically at…
THIS WAS NOT AN APPROPRIATE CASE TO ADD A PENAL NOTICE TO AN ORDER: COURT WILL DETERMINE THE SUBSTANTIVE DISPUTE INSTEAD
In Wintermute Trading Ltd v Terraform Labs Pte Ltd [2024] EWHC 141 (KB) Mr Justice Lavender considered whether it was appropriate, on the facts of this case, to add a penal notice to an order for disclosure. He held that…
WHAT HAPPENS WHEN THE JUDGMENT WAS NOT RECORDED? APPEAL PROCEEDS BY WAY OF A REHEARING
There are interesting issues considered in the judgment of Mr Recorder Adrian Jack in AS v AB [2024] EWFC 24. A party was appealing. The recording (and backup recording) failed to record the judge’s judgment and there was no agreed…
ATTEMPTING TO GIVE NEW EVIDENCE WHEN THE ADVOCATE IS MAKING SUBMISSIONS: ANOTHER ISSUE IN THE POST OFFICE CASE
The recent post about the decision in Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin), caused me to review another earlier blog post about the Post Office case. It concerned an attempt to introduce new…
A DEFENDANT CANNOT SIMPLY SEEK TO SET ASIDE THE CONSEQUENCES OF A DEBARRING ORDER: AN APPLICATION SOUNDLY REFUSED
In Al Saud v Gibbs [2024] EWHC 123 (Comm) Mr Justice Calver refused a defendant’s application to set aside a debarring order so that they could be involved in the trial of the action. The judgment contains important observations on…
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…
EXPERTS NOT QUALIFIED TO COMMENT ON THE MATTERS THEY DID: ADMINISTRATIVE COURT DECISION
Another example of expert evidence going awry can be seen in the judgment of Mr Justice Ritchie in Balachandra v The General Dental Council [2024] EWHC 18 . The experts in question were giving evidence in relation to matters that…
“AN EXPERT WITNESS IS NOT HELPING THE COURT BY TRYING TO MAKE THE EVIDENCE FIT THEIR OWN CONCLUSIONS”: JUDGE FINDS EXPERT “UNPROFESSIONAL AND UNACCEPTABLE”
In LCC v V & B [2023] EWFC 268 HHJ Booth commented on one of the expert witnesses. He found that the evidence given involved conjecture. The criticism of the expert is robust. “An expert witness is not helping…
“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 5: ATTEMPTS TO PUT THE COURT “IN TERROREM” WERE NOT WELCOME
In March 2019 I wrote about the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB), the post noted that “parts of the judgment set out arguments and conduct of litigation that is, to say the…
DAMAGES FOR LOSS OF EARNINGS: WEBINAR 18th JANUARY 2024
An injured claimant is often most concerned about their ability to earn their living. This webinar looks at the essential elements of a claim for loss of earnings. It looks at recent cases to illustrate in a practical way how…
MR BATES AND THE POST OFFICE 3: THE POST OFFICE’S APPLICATION THAT THE JUDGE RECUSE THEMSELVES BECAUSE HE WAS “BIASED” AGAINST THEM
The Post Office was so convinced of the righteousness of its case that it determined that any findings against it must be due to judicial bias. Having lost some applications before the trial judge it attempted to have the judge…
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…
SERVICE OF THE CLAIM FORM: TWELVE THINGS YOU NEED TO KNOW TO AVOID “DICING WITH PROCEDURAL DEATH”
This is a periodic post (every 3 – 4 years or so) about issues relating to service of the claim form. It will be surprising if there are not cases (and subsequent blog posts) about service issues this year. There…
DAMAGES FOR PAIN AND SUFFERING: WEBINAR 11th JANUARY: PART OF THE DAMAGES SERIES 2024
On the 11th January 2024 I am presenting a webinar on Damages for pain and suffering. This is a part of a series of webinars looking at the basic elements of major heads of damages for personal injury, with a…
MR BATES AND THE POST OFFICE: LOOKING BACK TO THE CASE OF THE YEAR 2019
Yesterday I noticed that a post I had written in 2019 was suddenly gaining a lot of readers. I suspect that this was due to the power of television. Not that the blog was being advertised, but that the series…
CIVIL LITIGATION 2023: A BRIEF REVIEW
I am not sure whether the facts and figures from this site can show any major trends in civil litigation. Here is a quick look back at some numbers from 2023. MOST VIEWED POSTS: THE TOP 10 (to date)…
“SPEAKING NOTES” RARELY WELCOME BY THE COURTS: THE “SPECIAL CIRCLE OF HELL” RESERVED FOR SOME ADVOCATES…
There is an observation made in the final paragraph of the Privy Council judgment in Chang v The Hospital Administrator & Ors (Trinidad and Tobago) [2023] UKPC 44 that relates to “speaking notes”. They were, it seems, not altogether welcome. …
GRIFFITHS -v- TUI: SUPREME COURT FINDS FOR THE CLAIMANT: THE TRIAL WAS UNFAIR: POINTS SHOULD HAVE BEEN PUT TO THE EXPERT
In a judgment today TUI UK Ltd v Griffiths [2023] UKSC 48 the Supreme Court overturned the decision of the majority of the Court of Appeal. It is an important decision on procedural fairness. In particular the duty of a…
EXPERTS IN THE COURTS IN 2023: WEBINAR 24TH JANUARY 2024: ESSENTIAL ISSUES FOR ALL LITIGATORS AND EXPERTS
Over the course of 2023 we saw many cases in which the conduct of experts and those who instruct them came under close scrutiny and criticism in the courts. I am presenting a webinar on the 24th January 2024 reviewing…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL: A REPOST
The repost last week of a case where key facts came to light on the third day of a trial led me another post on the topic which is worth revisiting. After the first post was written I asked lawyers if…
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)…
COST BITES 117: THE COURT CAN ORDER A PAYMENT ON ACCOUNT OF COSTS WHERE THE SCHEDULE IS HIGH BUT NOT EXCESSIVE
In South Tees Development Corporation & Anor v PD Teesport Ltd & Anor (Re Costs) [2023] EWHC 2270 (Ch) Mr Justice Trower rejected an argument that a payment of account should not be made because the schedule in support was…
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…
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
WEBINARS ON DAMAGES IN 2024: SOMETHING TO WARM UP THE WINTER DAYS EARLY IN THE NEW YEAR…
Early next year I am presenting a series of eight webinars on personal injury damages. The series looks at the major heads of damages for personal injury and clinical negligence cases, with a particular emphasis on those claims in the…
CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)
In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert. The judge contains a detailed consideration of the law and authorities relating to the court’s discretion…
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…
PROVING THINGS 233: THE DEFENDANT WAS NEGLIGENT – BUT THE DAMAGES ARE NIL
In Hope Capital Ltd v Alexander Reece Thomson LLP [2023] EWHC 2389 (KB) Mr Justice Constable found that the claimant had suffered no loss. This could be an expensive loss for the claimant, after a seven day trial. “”For these…
PARTY NOT PERMITTED TO ADDUCE EXPERT EVIDENCE FROM OTHER CASES AS HEARSAY EVIDENCE
One of the issues decided by Mr Justice Mellor in Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch) related to the attempts by a party (COPA) to adduce expert evidence from other trials by way of hearsay evidence…
AN EXPERT SHOULD HAVE EXPERTISE IN THE ISSUE THEY ARE GIVING EVIDENCE ON: THEY CAN’T SIMPLY TEACH THEMSELVES FOR THE PURPOSE OF THE CASE
There are some important observations on expert evidence in the judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat). An expert must give evidence within the scope of their expertise. To assert…
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…
WHAT CAN A DEFENDANT ARGUE AFTER JUDGMENT ON LIABILITY: A REVIEW OF THE CASES
We are looking again at the judgment of Jason Beer KC (sitting as a High Court Judge) in Celebrity Speakers Ltd v Daniel & Ors [2023] EWHC 2158 (KB). The judge had to consider what a defendant could argue as…
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…
SOCIAL MEDIA AND LITIGATION: THE RETIRED JUDGE’S VIEW: “THE WORLD’S PRIVATE INVESTIGATOR – ON RETAINER FOR EVERYONE”
Over many years this blog has looked at several judgments and articles, by the Canadian judge, The Honourable Joseph Quinn. I refer people often to Things Lawyers do to Annoy Judges, and the judgment in Hearing Clinic (Niagara Falls) Inc…
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…
TRIAL JUDGE’S FINDING OF FUNDAMENTAL DISHONESTY OVERTURNED: BECAUSE THE DISHONESTY WAS NOT “FUNDAMENTAL”
In Denzil v Mohammed & Anor [2023] EWHC 2077 (KB) Mr Justice Freedman overturned a finding by a trial judge that a claimant had been fundamentally dishonest. The finding that a minor head injury which was not part of the…
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…
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