LITIGATION FRIEND GAVE FALSE EVIDENCE AND WAS IN CONTEMPT OF COURT: “GOOD DAYS” DOES NOT EXPLAIN CLAIMANT’S LEADING THEATRICAL ROLES
In Hull University Teaching Hospitals NHS Trust v Colley [2022] EWHC 854 (QB) Mr Justice Bourne sentenced a litigation friend to six months in prison (suspended for two years) for giving false evidence in support of her daughter’s claim for…
ASSESSING WITNESS CREDIBILITY: CREDIBILITY IS NOT NECESSARILY THE SAME THING AS HONESTY
Here I want to discuss the issue of witness (and client) credibility. Many cases will turn on credibility and any litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings and…
“LEGAL PROCEEDINGS DO NOT EXIST FOR THE PURPOSE OF PERMITTING PARTIES TO PUT IRRELEVANT MATTERS INTO THE PUBLIC DOMAIN”: EVIDENCE ON BEHALF OF THE DUKE OF SUSSEX IS CURTAILED
In The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 682 (Admin) Mr Justice Swift excluded irrelevant material in witness statements and other documents. He also refused the claimant’s request…
TEXTING WHILE DRIVING AND CIVIL LIABILITY: JUDGES KNOW, YOU KNOW: “A CONCLUSION I REACH WITHOUT ENTHUSIASM BUT THE EVIDENCE IS COMPELLING”
In HRA v KGC [2022] EWHC 650 (QB) Mr Justice Turner considered the question of liability. It is an example of a phone record playing a part in the decision that the defendant was negligent. The judge found that the…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: WEBINAR 22nd MARCH 2022
Over the past few months this blog has covered several cases where clinical negligence cases have been determined, ultimately, on the accuracy of witness recollection. For example the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS…
JUDGE CALLS A FOUL: CLAIMANT NOT ALLOWED TO RELY ON WITNESS STATEMENTS THAT BREACHED THE RULES: IF YOU ARE GOING TO CERTIFY COMPLIANCE WITH A PRACTICE DIRECTION IT MAY HELP TO READ IT BEFOREHAND…
In Greencastle MM LLP v Payne & Ors [2022] EWHC 438 (IPEC) Mr Justice Fancourt was highly critical of the way in which witness statements on behalf of a claimant had been drafted. The statements involved wholesale breaches of the…
WHEN A DEFENDANT FAILS TO PRESERVE DATA ON SURVILLANCE EVIDENCE IT IS IN BREACH AND THE COURT REQUIRES AN EXPLANATION
An earlier post looked at the judgment of HHJ Walden-Smith in Stannard -v- Euro Garages Ltd [2022] EW Misc 3 (CC). There is another aspect of that judgment which is of interest. The defendant were relying on surveillance evidence. However the…
WITNESS STATEMENTS, CPR 32 AND … SPIES: GOVERNMENT MUST GIVE SOURCE OF INFORMATION OR BELIEF
The judgment in HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) [2022] EWHC 380 (QB) relates to confidentiality and spies. It also contains some important observations on the information needed, and formal requirements, when a witness…
COURT OF APPEAL ALLOWED APPEAL BECAUSE OF PROCEDURAL UNFAIRNESS: INADEQUATE WITNESS STATEMENTS SHOULD NOT BE SUPPLEMENTED BY ADDITIONAL QUESTIONING: THE RIGHT TO CROSS-EXAMINE IS FUNDAMENTAL TO A FAIR HEARING
In Rea & Ors v Rea [2022] EWCA Civ 195 the Court of Appeal (hearing a 2nd tier appeal) overturned a decision of the trial judge and ordered a re-trial when the appellants had not been given an opportunity to…
NEW RULES COMING INTO FORCE ON THE 6th APRIL 2022 (5): THE “PERSON” WHO MAY NOT BE NAMED…
A minor amendment is being made to CPR Part 39. The amendment enables any person not to be named if the court thinks this necessary. The rule is no longer confined to a party or witness. Amendment of Part 39…
OH WHY ED SHEERAN CAN’T USE A STAND IN: DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS
In Sheeran & Ors v Chokri & Ors [2021] EWHC 3553 (Ch) Mr Justice Meade set out some of the duties owed by a litigant in relation to the disclosure process. “… Mr Sheeran’s manager undertook the disclosure exercise on…
SEEKING TO ADDUCE NEW EVIDENCE AFTER THE TRIAL HAS ENDED: DENTON PRINCIPLES APPLY, A FORMAL APPLICATION IS REQUIRED: OVERIDING OBJECTIVE LEADS TO REFUSAL
In JD Group Ltd, Re [2022] EWHC 202 (Ch) Deputy Insolvency and Companies Court Judge Agnello QC refused an application to adduce new evidence after a trial had ended, and judgment was pending. A formal application was required, Denton principles…
PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED
In Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2021] EWFC B96 HHJ Moradifar found that a signature on an acknowledgment of service had been forged. Consequently the decree of divorce that followed was set aside. THE CASE The…
DEFENDANT’S EXPERTS, STRIDENT LANGUAGE AND THE PART 35 DUTY OWED TO THE COURT: JUDGE ISSUES REMINDER
The previous post looked at the rejection of allegations of fundamental dishonesty in Palmer v Mantas & Anor [2022] EWHC 90 (QB). That judgment also contains some observations in relation to several of the medical experts called on behalf of the…
PROVING THINGS 222: SPENDING £200,000 IN COSTS OVER 9 INCHES OF LAND: BEYOND THE JUDGE’S COMPREHENSION AS TO HOW THIS GOT SO EXPENSIVE
In Davis & Anor v Winner [2021] EW Misc 23 (CC) the parties between them appear to have spent over £200,000 in costs. This is a dispute over inches of land. It is not surprising that HHJ Mithani QC expressed…
FAILING TO TAKE STEPS IN RELATION TO A VULNERABLE WITNESS RENDERED THE TRIAL UNFAIR: COURT OF APPEAL DECISION
In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 the Court of Appeal set aside a judgment when the court had not appreciated that a key witness was a vulnerable witness and that steps needed to be taken…
WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE…
In the judgment today in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response to a witness statement that failed…
PLEADING OF SIMILAR FACT EVIDENCE STRUCK OUT: YOU CAN’T MILK OTHER CASES…
In Peter Sharp & Son (a Firm) v GEA Farm Technologies (UK) Ltd [2022] EWHC 64 (Ch) Deputy Master Raeburn considered issues relating to “similar fact” evidence and made an order preventing a claimant from adducing evidence in relation to other…
“EACH OF THE CLAIMANTS’ STATEMENTS TENDED TO TAKE THE FORM OF A STANDARD TEMPLATE”: THE PERILS OF IDENTICAL EVIDENCE
It may say a lot about contemporary litigation that the practice of numerous witnesses producing near identical witness statements is so common that I almost decided not to write about it. The practice was considered by HHJ Judge Hodge QC…
CIVIL EVIDENCE AND THE RULE IN HOLLINGTON -v- HEWTHORN: FACTUAL FINDINGS BY ONE JUDGE CANNOT BIND ANOTHER JUDGE IN DIFFERENT PROCEEDINGS
The judgment of HHJ Paul Matthews in Crypto Open Patent Alliance v Wright [2021] EWHC 3440 (Ch) provides enough material for half a dozen seminars on civil evidence. Here we look at one aspect of it, the rule in Hollington -v-…
REVIEW OF 2021 (2): CIVIL LITIGATION CASE OF THE YEAR: MOTHER AND CHILD DO NOT BECOME HOMELESS AFTER SUCCESSFUL APPEAL
In Williams v Nilsson & Anor [2021] EWHC 3184 (Ch) HHJ Richard Williams (sitting as a High Court judge) allowed an appeal in a case relating to ownership of property. There is plenty about procedure and evidence in this case,…
WHEN A CLAIMANT APPEARS AS THEIR OWN EXPERT WITNESS: IT RARELY ENDS WELL
In Tehrani v Hamilton Bonaduz AG & Ors [2021] EWHC 3457 (IPEC) HHJ Hacon considered a case where a claimant appeared as their own expert witness. THE CASE The claimant, a professor, brought an action asserting that the defendant…
COVERT RECORDINGS AND EVIDENCE: AN ISSUE FROM A FAMILY CASE
An issue relating to the covert recording of conversations arose in the decision of Recorder Briggs in Children (Private Law: Covert Recordings: Adjournment of Final Hearing), Re [2021] EWFC B82. A party wanted to rely on a “transcript” of secret…
WHEN A CLAIMANT RELIES ON EXPERT EVIDENCE TO PROVE LIABILITY: THE (NOT SO) SLIPPERY SLOPE TO FAILURE
I am grateful to barrister Frederick Simpson for sending me his note of a decision where the claimant relied heavily on expert evidence in order to establish their claim. There were weaknesses in the report which contributed to the claimant’s…
WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…
WITNESSES AND REMOTE HEARINGS: HOW IS IT GOING? IT IS WORTHWHILE AS LONG AS THE TECHNOLOGY WORKS
I am grateful to John De Bono QC for sending me a copy of the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without…
PROVING THINGS 220: ANOTHER CASE WHERE FUNDAMENTAL DISHONESTY NOT ESTABLISHED
In Long v Elegant Resorts Ltd [2021] EWHC 1330 (QB) HHJ Pearce, sitting as a judge of the High Court, did not accept the defendant’s contention that the claimant had been fundamentally dishonest. The defendant was relying on a factor…
PRISING LAWYERS AWAY FROM THEIR COMFORT BLANKET WHEN DRAFTING WITNESS STATEMENTS: A DETAILED CONSIDERATION OF THE REQUIREMENTS FOR WITNESS STATEMENTS AND PD57AC
In the judgment this morning in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) HHJ Stephen Davies (sitting as a High Court Judge) carried out a detailed consideration of the rules relating to witness statements…
COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL
In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not…
WHEN THE DEFENDANT DESTROYS DOCUMENTS AFTER BEING NOTIFIED OF A CLAIM: A “BOMBSHELL” FOLLOWED BY “RADIO SILENCE”: HIGH COURT DECISION
I am grateful to solicitor Thomas Jervis from Leigh Day for bringing my attention to the judgment of Mr Justice Martin Spencer in Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB). The judge was considering the…
WITNESS STATEMENT IN RESPONSE TO EVIDENCE GIVEN IN TRIAL NOT PERMITTED: COURT ANXIOUS TO AVOID A NEVER ENDING SPIRAL
In Brake & Ors v The Chedington Court Estate Ltd (New Witness Statement) [2021] EWHC 2882 (Ch) HHJ Paul Matthews refused an application for permission to adduce an additional witness statement. “Of course, it is natural for litigants to…
CIVIL EVIDENCE AND SOCIAL MEDIA: WEBINAR 28th OCTOBER 2021: GET LINKED IN TO RECENT DEVELOPMENTS…
On the 28th October 2021 I am giving a webinar on Civil Evidence and Social Media. I will be looking at some recent cases where social media has played a part in the outcome of cases. Booking details are available…
STATEMENTS OF OPINION AND COMMENT WILL BE REDACTED: WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: THE NEW RULES CONSIDERED
The judgment of Mrs Justice O’Farrell in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 is one of the first times the new provisions on witness statements in the Business and Property Courts have been considered by…
CAN ONE WITNESS STATEMENT SIMPLY SAY “I AGREE WITH THEM” ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED
I gave a webinar earlier today where an interesting question was asked. If a husband and wife are giving evidence and they agree with each other, can one statement simply say “I agree with them”? This “agreement” of witness statements…
PROVING THINGS 217: WHEN AN ACCIDENT IS UNEXPLAINED: RES IPSA LOQUITUR CANNOT ASSIST
The problems of establishing liability when its cause is not certain are set out in the judgment of Mr Justice Robin Knowles in Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB). THE CASE The claimant suffered serious…
THE DANGEROUS USE OF PRECEDENTS 2: CIVIL LAWYERS – THE PROBLEMS OCCUR HERE TOO
The previous post on the use of “precedents” in divorce petitions could lead civil lawyers to think that “this couldn’t happen here”. There are numerous examples in civil cases of witness statements being drafted to a plan. PRECEDENT WITNESS…
DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES: WEBINAR 14th OCTOBER 2021
As part of a series of webinars on Civil Evidence I am presenting a webinar on witness statements on the 14th October 2021. Looking at rules and guidance relating to witness evidence and the importance of complying with them. Booking…
SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON
Now that the nights are drawing in people’s thoughts will, almost invariably, be drawn towards matters of civil evidence and the need to prove things. To cater for this I am presenting six webinars , covering key aspects of civil…
CHILD PEDESTRIAN WAS NOT CONTRIBUTORY NEGLIGENT: HIGH COURT DECISION
In A (a minor) by her litigation friend FA -v- Akram [2021] EWHC 2467 (QB), 2021 WL 04111024 HHJ Bird (sitting as a High Court judge) rejected an argument that a nine year old child had been contributory negligent. It…
CIVIL EVIDENCE: MISSING WITNESSES, HAMLET: “THE REST IS SILENCE…”: OH, AND IT IS THE JUDGE THAT IS ON TRIAL
The judgment of HHJ Hodge (sitting as a High Court judge) in Ahuja Investments Ltd v Victorygame Ltd & Anor (CONTRACT – Purchase of commercial investment property) [2021] EWHC 2382 (Ch) is one of interest to anyone involved in litigation…
PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY’LL TAKE A MILE
An interesting issue as to proof and evidence arose in the decision of Mr Justice Zacaroli in Smith v Dryden & Ors [2021] EWHC 2277 (IPEC). The claimant failed to establish that a song had been “copied”. There are also…
WITNESS STATEMENTS AND HILLSBOROUGH: AN ACADEMIC ANALYSIS OF HOW THE EVIDENCE WAS GATHERED
I have written several times about the major difficulties caused by the process of taking witness statements following the Hillsborough disaster. The process of taking statements is analysed by an academic in Hillsborough disaster: a revealing analysis of the language…
WHEN CAN A LAY WITNESS GIVE THEIR “OPINION”? SOMETHING YOU NEED TO KNOW
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) shows that it is essential for civil litigators to have detailed knowledge of what is “opinion” evidence and when it is allowed in a…
DEFENDANT UNSUCCESSFUL IN APPLICATION TO STRIKE OUT PART OF CLAIMANT’S WITNESS EVIDENCE: WHEN “HYPOTHETICAL” EVIDENCE MAY BE ADMISSIBLE
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) is possibly the first time that Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts has been considered by the…
“CARE MUST BE TAKEN IN ASSESSING A WITNESS WHO IS REPLYING TO QUESTIONS ASKED THROUGH AN INTERPRETER”: SOME PROBLEMS EXEMPLIFIED
Some of the difficulties a court has when considering witness evidence through a translator are set out in the judgment of Deputy Judge Agnello QC in Jackson v Song [2021] EWHC 1636 (Ch). “I have considered the evidence of…
COURT REFUSES PERMISSION TO ADDUCE NEW EVIDENCE AFTER DRAFT JUDGMENT WAS CIRCULATED
In Karunia Holdings Ltd v Creativityetc Ltd [2021] EWHC 1864 (Ch) HHJ Halliwell considered, and refused, a claimant’s application to adduce new evidence after a draft judgment had been handed down in an application for summary judgment. ” The…
TRANSCRIBERS, LIVE RECORDING AND COURT HEARINGS: COURT SENDS OUT A WARNING: FOLLOW THE RULES AND GET PERMISSION IN ADVANCE
In JR & B Farming Limited v Hewitt [2021] EWHC 1704 (Comm) HH- Davis-White QC (sitting as a High Court judge) issued a clear warning to parties and transcription services that they must follow the correct procedure if a record…
IF YOU HAVE GOT ISSUES WITH DISCLOSURE YOU SHOULD HAVE SORTED THESE OUT WELL BEFORE TRIAL: HIGH COURT JUDGMENT
The judgment of Mr Justice Martin Spencer in Chouza v Martins & Ors [2021] EWHC 1669 (QB) contains much of interest and importance to anyone involved in fatal accident litigation. Indeed I will be writing a series of posts on…
WITNESS STATEMENTS & HILLSBOROUGH (A REPEAT II): CONFIRMATION BIAS AT ITS WORST
The tragic events of Hillsborough are in the news again. I am here repeating a post first written in 2016. The post is on one small part of the process: the initial gathering of evidence. It was the flawed nature…
CLAIMANTS WIDE RANGING EVIDENCE EXCLUDED: HIGH COURT DECISION TODAY
In BB & Ors v Al Khayyat & Ors [2021] EWHC 1499 (QB) Mr Justice Chamberlain allowed, in part, an application by a defendant that certain evidence put forward by the claimants in relation to an application be excluded. THE…
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