CLINICAL NEGLIGENCE, CONTRIBUTORY NEGLIGENCE AND PART 36: A USEFUL NOTE OF JUDGMENT
I am grateful to solicitor Bethan Parry from Browne Jacobson for sending me a note of the decision of HHJ Khan in Rix -v- Wall, the details of which are set out below. The note is interesting in that it…
BEWARE OF OVER-EAGER EXPERTS: AN EXPERT THAT SIMPLY ADDRESSES THE POINTS THAT SUPPORTS THEIR HYPOTHESIS IS HEADING FOR TROUBLE
In Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) HHL Sephton KC (sitting as a High Court Judge) was critical of the role of one of the experts in the case. “A second reason…
FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND A LONG WALK
I am grateful to Legal Executive Vanessa Brooks for sending me a copy of the judgment of HHJ Harrison in Thomas -v- Owen (21st March 2023, Cardiff County Court). It is another example of social media playing a part in…
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…
EXPERT WITNESS OBTAINS ANONYMITY: BUT THEIR TONE DEMONSTRATED DISRESPECT FOR THE COURT
An earlier post dealt with the judge’s decision in M v F & Anor [2022] EWFC. However there is a subsequent judgment that demonstrates an extraordinary response on the part of the expert involved. In a second judgment, M v F &…
PARTS OF THE EXPERT’S REPORT SHOULD HAVE BEEN A RED FLAG TO LAWYERS: JUDGE CONSIDERS WHETHER THE PARTIES HAD INSTRUCTED THE CORRECT EXPERT
In M v F & Anor [2022] EWFC 186 Recorder Reed set out the importance of an expert knowing, and complying with, the rules relating to the presentation of expert evidence. The judgment also emphasises the importance of the lawyers…
COURT GRANTS PERMISSION TO CLAIMANTS TO CHANGE EXPERTS: BUT WITH CONDITIONS
The principles relating to the court granting permission to a party to change expert were considered in detail by Mrs Justice O’Farrell in Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC). The…
PROVING THINGS 252: THE SOLICITORS WERE NEGLIGENT BUT THERE WAS NO LOSS: CLAIM DISMISSED
Many a salutary lesson can be learnt from the judgment of Mrs Justice Bacon in Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch). It was a case about negligence in the conduct of litigation….
HANDWRITING EXPERTS COME UNDER THE MICROSCOPE: CLAIMANT’S EVIDENCE NOT ACCEPTED
Issues relating to handwriting experts comprise a surprisingly large percentage of the search terms that lead to this blog. The question of the quality of such experts was considered by Master Clark in Watts v Watts [2023] EWHC 679 (Ch)….
PROVING THINGS 251: PROVING THAT YOU STOLE MY DRAGON IS NOT AN EASY TASK: FIRE BREATHING MONSTERS ARE A VERY OLD CONCEPT INDEED
In Evans v John Lewis Plc & Anor [2023] EWHC 766 (IPECP HHJ Melissa Clarke (sitting as a High Court Judge) had to compare and contrast two fictional dragons. The claimant failed to establish that the defendants’ dragon was so…
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…
CROWING OVER COSTS IS NOT A GOOD LOOK FOR A LITIGANT: A REMINDER OF THE IMPORTANCE OF SOCIAL MEDIA
We are looking again at the judgment of Lord Justice Underhill in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262. There is a very brief passage which serves as a reminder that clients can expect…
PROVING THINGS 250: FAILING TO PROVE IMPECUNIOSITY: A BARE ASSERTION IS NOT ADEQUATE
The judgment of Lord Justice Underhill (refusing permission to appeal) in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262 relates a party who failed to adduce sufficient evidence to show impecuniosity. “No evidence of Mr…
PROVING THINGS 249: APPELLANT FAILS TO PROVE LACK OF CAPACITY: SHORTFALLS WITH THE EXPERT EVIDENCE
In Cannon v Bar Standards Board [2023] EWCA Civ 278 the Court of Appeal held that expert evidence placed before it failed to establish that an appellant lacked capacity. The case provides importance guidance about the nature and quality of…
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…
PROVING THINGS 248: THERE WAS A BREACH BUT THE CLAIMANT PROVED NO LOSS: “BATTLE OF TRAFALGAR” DOES NOT LEAD TO VICTORY
In Jerroms Trafalgars Ltd & Anor v Tilson & Ors [2022] EWHC 1420 (ChD) HHJ Worster found that a claimant had failed to established that breaches by the Defendants led to any loss. It is a classic example of a…
COURT REFUSES CLAIMANT’S APPLICATION TO EXCLUDE DEFENDANT’S EXPERT EVIDENCE: A TRIAL JUDGE CAN HANDLE EXPERT WITNESSES AT EVERY POINT OF THE SPECTRUM
In Fawcett & Ors v TUI UK Ltd [2023] EWHC 400 (KB) Mr Dexter Dias KC (setting as a Deputy High Court Judge) refused the claimant’s application to exclude the defendant’s expert evidence. The matters to which the claimant objected…
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…
SPORTING INJURIES AND CIVIL EVIDENCE: WHEN THE DEFENDANT’S EXPERT CONCEDES THE CLAIMANT’S CASE IN CROSS-EXAMINATION
The judgment of Mr Justice Martin Spencer in Czernuszka v King [2023] EWHC 380 (KB) contains important observations in relation to the duty of care owed to those taking place in sporting activities. It also shows the important role of…
JUDGMENT OF A FINDING OF FUNDAMENTAL DISHONESTY – BUT THIS CASE GOES MUCH FURTHER: COLLUSION IS FOUND
Here we are looking at a case where District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to…
YOU’VE INSTRUCTED THE WRONG EXPERT: AND THIS HAS MAJOR CONSEQUENCES
We are returning to the judgment of Mr Justice Ritchie in GKE v Gunning [2023] EWHC 332 (KB). This time to look at the judge’s observations on the claimant’s expert on liability. The judge observed that the claimant had instructed the…
VULNERABLE WITNESSES IN THE CIVIL COURTS: THE VULNERABLE WITNESS SHOULD NOT HAVE BEEN SHOWN CROSS EXAMINATION QUESTIONS IN ADVANCE:
There are relatively few cases relating to vulnerable witnesses in civil courts. In GKE v Gunning [2023] EWHC 332 (KB) Mr Justice Ritchie considered the terms of an order made to protect a vulnerable witness. Although the wording of the…
“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…
THE JUDGE INTERRUPTED A BIT TOO MUCH… COURT OF APPEAL JUDGMENT
In Keane v Sargen & Ors [2023] EWCA Civ 141 the Court of Appeal commented that interruptions of the cross examination of a witness by the trial judge had not been helpful and, indeed, inappropriate. “I add a few words…
“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY
We have seen many cases relating to issues arising following the sending out of draft judgments. Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38…
“HYPERBOLIC COMMENT” NOT WELCOME IN LITIGATION: HIGH COURT JUDGE SENDS OUT A WARNING: PLANE LANGUAGE IS BEST…
In Peregrine Aviation Bravo Ltd & Ors v Laudamotion GmbH & Anor [2023] EWHC 48 (Comm) Mr Justice Henshaw was critical of “hyperbolic comment” in relation to the witness evidence. This is not the first time that a judge has…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
PROVING THINGS 236: THE DANGERS OF ADOPTING A FORMULAIC, TICK BOX APPROACH TO EVIDENCE
The decision in Camfield & Ors v Uyiekpen & Anor (HOUSING – RENT REPAYMENT ORDER – evidence – pro forma witness statements) [2022] UKUT 234 (LC) is a working example of the dangers of “tick box” evidence. “This case…
THE ROLE OF THE EXPERT WITNESS IN FINDING FACTS AND ASSESSING CREDIBILITY
The recent posts on the assessment of witness credibility led an expert witness to enquire whether it was the function of an expert to comment on issues relating to credibility. There have been a number of cases where judges have…
MORE ON WITNESS EVIDENCE: CREDIBILITY IS MORE THAN DEMEANOUR: PLAUSABILITY “IS ALSO THE HALLMARK OF THE CONFIDENCE TRICKSTER DOWN THE AGES”
The previous post looked at witness credibility and the Gestmin principles. Litigators will also benefit enormously from reading the talk given at Bristol University Law School in December 2014 by Mr Justice Mostyn “The Craft of Judging and Legal Reasoning”. …
THE SOURCE OF INFORMATION AND BELIEF: AN ESSENTIAL ELEMENT OF ANY WITNESS STATEMENT: 10 KEY POINTS
This week the blog looks at some basic procedural issues. Today we are looking at witness statements, in particular the mandatory requirement that a witness give the source of their information or belief. There are many cases where this basic…
WITNESS CREDIBILITY IN CIVIL LITIGATION: A REMINDER OF SOME KEY POINTS
Many, if not most, civil cases that get to trial rest on issues of witness credibility rather than issues of law. These are the cases and decisions that rarely make the law reports, but do reflect the underlying reality of…
AN APPLICATION FOR COMMITTAL THAT WAS “WHOLLY FRIVOLOUS” AND “BORDERS ON VEXATIOUS”: CLAIMANT NOW REQUIRES PERMISSION TO BRING SIMILAR COMMITTAL PROCEEDINGS…
For the second time today I am writing about an injunction case which failed because the claimant had failed to prove compliance with an order for service. However this particular case has more sinister overtones. The claimant attempted to bring…
“MISSING” WHATSAPP POSTS AND A PHONE LOST AT SEA: WHAT INFERENCES WOULD THE COURT DRAW?
The facts in Vardy v Rooney [2022] EWHC 2017 (QB) are well known and have received wide publicity. Here we look solely at the evidential issues relating to the “missing” evidence. In particular the amount of WhatsApp material that went…
YOU CAN’T RAISE A NEW CLAIM IN A RESPONSE TO A PART 18 REQUEST: THE PLEADED CASE REMAINS IMPORTANT
In Costa v DissociaDID Ltd & Anor [2022] EWHC 1934 (IPEC) HHJ Hacon rejected the defendants’ attempt to argue points that were not pleaded. The only time an issue had been raised was in response to Part 18 requests. This…
APPLICATION TO RELY ON EXPERT EVIDENCE REFUSED: THE RULES WERE NOT FOLLOWED AND THE REPORT WAS “FAR BELOW THE STANDARD OF ANALYSIS THAT THIS COURT IS ENTITLED TO EXPECT FROM AN EXPERT WITNESS”
In North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) (Rev1) [2022] EWCOP 15 Mr Justice Poole disallowed an application by a respondent in relation to expert evidence. The expert had been instructed without compliance with the procedural rules in…
WITNESS STATEMENTS: A FAILURE TO FOLLOW THE BASIC RULES IS OFTEN A SIGN OF MORE FUNDAMENTAL PROBLEMS…
We are looking at another aspect of the judgment of HHJ Pearce in Pitalia & Anor v NHS Commissioning Board [2022] EWHC 1636_2 (QB). The judge took the time to note that none of the claimant’s witness statements complied with…
THE PRACTICE DIRECTION SHOULD NOT BE TAKEN AS A WEAPON IN WHICH TO FILLET TWO OR THREE WORDS FROM A WITNESS STATEMENT: CLAIMANTS FAIL IN THEIR PITCH TO EXCLUDE EVIDENCE
In Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors [2022] EWHC 1244 (Ch) Mr Justice Mellor refused the claimants’ application to exclude or edit the defendants’ witness statements. “… in my view PD57AC…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT SPEAK ENGLISH: “IT IS DOUBTFUL THAT HE IN FACT SIGNED THE STATEMENT”
In Borra v Commissioners for Her Majesty’s Revenue and Customs & Anor [2022] EWHC 1195 (Ch) ICC Judge Mullen considered the requirements of the Practice Direction in relation to a witness giving evidence in a foreign language. None of the…
INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE
In Sinha v Taylor & Ors [2022] EWHC 1096 (Comm) Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure. THE CASE The…
AN EXPERT REPORT THAT DID NOT COMPLY WITH PRACTICALLY EVERY REQUIREMENT OF CPR 35: IT FAILS TO PERSUADE THE COURT
An example of the importance of the format of an expert report can be found in the judgment of Master David Cook in Pal -v- Damen [2022] EWHC 004697 (QB). It is a decision that shows that the courts will…
COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE
In Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action. The court was fairly critical about the evidence that had been placed before it…
STRIKING OUT PART OF A WITNESS STATEMENTS: SOME PART OF THESE HAVE TO GO: HIGH COURT DECISION
The judgment of Mrs Justice Steyn in Vardy -v- Rooney & News Group Newspapers Ltd [2022] EWHC 946 (QB) also contains a consideration of an application to strike out part of the witness statement. There is a review of the…
JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL
In Coote -v- Ullstein [2022] EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them. The judge…
PROVING THINGS 229: WHO BEARS THE BURDEN OF PROOF WHEN A CLAIMANT SEEKS DAMAGES GROSS OF TAXATION
We are returning for the second, but not the last, time to the judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB). The judge awarded an injured claimant damages for loss of earnings gross of tax. …
WITNESS STATEMENTS AND LANGUAGE DIFFICULTIES: JUDGE EXAMINES THE “MINEFIELD” FOR THE LITIGANT
In Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) Mrs Justice Joanna Smith considered the problems that arose when a witness provided a statement in English but was not totally proficient in that language. The decision to provide the…
“IT SHOULD BE UNDERSTOOD THAT DELIBERATE FLOUTING OF ORDERS, GUIDANCE AND PROCEDURE IS A FORM OF FORENSIC CHEATING AND SHOULD BE TREATED AS SUCH”
In Xanthopoulos v Rakshina [2022] EWFC 30 Mr Justice Mostyn considered some key aspects of procedure, including costs and transparency. Here we look at that part of the judgment that deals with compliance with the rules. “This utter disregard…
WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”
In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case. The defendant’s different accounts on different occasions did not help his cause. The judge…
COURT REFUSES DEFENDANT’S APPLICATION THAT DEFENDANT’S KENYAN WITNESSES SHOULD APPEAR BY VIDEO LINK:
In Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) Mrs Justice Eady refused the defendant’s application that its witnesses give evidence by video link from Kenya. “I am left with, on the one hand, an absence of…
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