THE IMPORTANCE OF TAKING FULL WITNESS STATEMENTS: A RECAP: IF A FULLER WITNESS STATEMENT HAD BEEN TAKEN THE LOSS AT TRIAL COULD HAVE BEEN AVOIDED
As part of the series looking back at previous posts we are revisiting a case first looked at in 2014. It provides a good example of the very real dangers of not taking a comprehensive statement. A witness was interviewed…
PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT
In Cheshire Estate and legal Limited -v- Blanchfield & Others* HHJ Bever, sitting as a Judge of the High Court, considered witness statements served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing…
“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE
Many witnesses give inaccurate evidence. Sometimes this is due to dishonesty, others are mistaken. Many, it is to be suspected, fall foul of “litigation wishful thinking”. This concept was explored by Mr Justice Richards in Old Park Capital Maestro Fund…
EXPERTS AND THE COURTS: THE DUTY TO INFORM EXPERTS OF CHANGE OF CIRCUMSTANCES: THE EXPERT’S DUTY TO INFORM THE COURT AND PARTIES OF A CHANGE OF VIEWS
We are looking again at the judgment of Mr Justice Cotter in Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) (A copy of the judgment, on Old Square Chambers website, is available here.) Again we are looking at the judge’s comments…
ADVISING ON THE RISKS OF LITIGATION: A RECAP: “CLIENTS WANT TWO INCONSISTENT THINGS”
Continuing with the look back at previous years we are looking at a post written in July 2019 about advising on the risks of litigation. “The difficulties facing those giving advice about litigation is summed up in a…
WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS
There is a short passage in the judgment of Costs Judge Leonard in Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement. THE CASE The judge was considering issues of…
A MULTI-LINGUAL WITNESS IS NOT COMPELLED TO GIVE EVIDENCE IN THEIR “FIRST LANGUAGE”: DECISION PREVENTING CLAIMANT GIVING EVIDENCE OVERTURNED ON APPEAL TO THE HIGH COURT
I am grateful to Ten Legal Associates Ltd for sending me a copy of the judgment of Mr Justice Freedman in Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB), a copy of that judgment is available here. AFZALJUDGMENT TRANSCRIPT …
A LICENCE TO THRILL: JAMES BOND, THE MOVIES AND THE COURTS: LEGAL TALES THAT WON’T SCARE THE LIVING DAYLIGHTS OUT OF YOU
This morning I am encouraging you to read ‘James Bond and the Law’ : A talk to the Manchester Business and Property Courts Forum [2023] UKSpeech 7REH2, given by Mr Justice Foxton. A look through at the James Bond franchise…
PERMISSION GIVEN FOR “UPDATING” WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE
The judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is an example of how consideration needs to be given to “updated” witness statements in a case where there situation is…
“E-MAIL EXCHANGES COULD BE 2,000 OR 4,000 PAGES APART”: A JUDGMENT ABOUT BUNDLES (WHERE YOU CAN SEE SOME FAIRLY GRUMPY CORRESPONDENCE)
In Bailey -v- Stonewall Equality Ltd, Garden Court Chambers & others the Employment Tribunal awarded £20,000 costs against the respondents (in what is normally a no- costs regime) because of the chaotic way that the application bundle had been presented. …
A THUMBS UP EMOJI LED TO A BINDING CONTRACT: LESSONS FROM CANADA
In South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII) Keene J. decided that a thumbs up emoji “👍” led to a binding contract being created. The case is mentioned in Legal Cheek here and has led to…
REDACTION OF DOCUMENTS SHOULD NOT BE ROUTINE: ADMINISTRATIVE COURT DECISION
In FMA & Ors v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) Mr Justice Swift made the point the redaction of documents in judicial review proceedings should not be routine. THE CASE The judge was…
UNSUCCESSFUL RESPONDENT CANNOT INTRODUCE NEW EVIDENCE AFTER DRAFT JUDGMENT HANDED DOWN
In Manolete Partners Plc v White [2023] EWHC 1644 (Ch) HHJ Hodge KC (sitting as a High Court judge) considered an application to adduce further evidence after a draft judgment had been circulated. The application was refused. The respondent was…
PROVING THINGS 230: WATCH THE METADATA: IF THERE ARE DIFFERENT DATES THEN THIS REQUIRES AN EXPLANATION
In Adams & Ors v FS Capital Ltd & Ors [2023] EWHC 1649 (Ch) Mr Justice Edwin Johnson commented on the difficulties caused by the defendants’ failure to establish why the metadata for documents was different to the dates shown…
AVOIDING NEGLIGENCE CLAIMS IN PERSONAL INJURY LITIGATION: A RECAP OF THE FIRST SERIES
As part of the scroll through the “back catalogue” on this blog we are looking at the series from 2013 on avoiding negligence. Remember that this series was written 10 years ago. There may have been some changes since then,…
PROVING THINGS 229: CLAIMANT FAILS TO PROVE CERTAIN HEADS OF DAMAGES: DECISION UPHELD ON APPEAL
The judgment of Mr Justice Ritchie in Lal v Reeder [2023] EWHC 1437 (KB) is a classic example of a failure to prove things. The trial judge found that the claimant had failed to establish certain heads of damage. That…
ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS, WITNESS CREDIBILITY AND WITNESS SUMMARIES
Continuing with the series looking a posts from this blog from the past, here we look at posts from June 2014. This was an interesting month, the blog set out all the arguments that took place in the Denton decision. There…
PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS “IN ALMOST IDENTICAL FORMAT” FAIL TO BRING HOME THE DOUGH
The judgment of Lionel Persey KC (sitting as a Judge of the High Court) in Finsbury Food Group Plc v Axis Corporate Capital UK Ltd [2023] EWHC 1559 (Comm) shows some significant issues in relation to the evidence presented in…
USING TRANSLATORS: COURT HEARINGS AND WITNESS STATEMENTS: WHERE CAN IT ALL GO WRONG
In Alam v Alam & Anor [2023] EWHC 1460 (Ch) the Court had to deal with issues relating to translators and witness statements. There were several issues in relation to the use of translators. The evidence of one witness was…
THE DANGERS OF ACCIDENTALLY DISCLOSING WITHOUT PREJUDICE OFFERS: THE TRIAL JUDGE WAS “HANDED A BOOBY-TRAPPED BUNDLE”
The judgment of Sir Jonathan Cohen in Koukash v Koukash [2022] EWHC 1001 (Fam) underlines the importance of keeping without prejudice offers out of the sight of the trial judge. A finding in a family case was overturned because one…
BE CAREFUL WHEN INSTRUCTING AN EXPERT: TEST THEIR EVIDENCE BEFORE TRIAL: THE CONSEQUENCES FOR YOUR CLIENTS COULD BE PROFOUND
We have looked at the decision in relation to costs in the case of ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) in an earlier post. The decision on costs, and the primary judgment on…
CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS
This is not the first time that this series has dealt with this issue. The post earlier this week on the judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) shows that it is a regular issue….
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
PROVING THINGS 226: PROVING CONTRIBUTORY NEGLIGENCE (AND A WEBINAR ON THAT VERY SUBJECT…)
There is often very little attention paid to judgments in relation to contributory negligence. Commentators tend to concentrate, on the whole, on primary liability. If considered at all contributory negligence is often an after thought – a “finding on the…
PROVING THINGS 255: HEARSAY NOTICE FROM AN ANONYMOUS CALLER HELPED DETERMINE KEY FINDINGS IN A CIVIL CASE: JUDGMENT IN FAVOUR OF THE CLAIMANT
The judgment of Her Honour Judge Howells (sitting as a Deputy High Court Judge) in Brown & Anor v Sestras & Ors [2023] EWHC 1220 (KB) is an interesting example of the use of hearsay, indeed anonymous evidence. An unknown…
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
PROVING THINGS 254: WHY YOU CAN NEVER BE CERTAIN ON BEING ABLE TO ESTABLISH CAUSATION: DEFENDANT’S CONDUCT QUESTIONABLE BUT STILL CLAIMANT FAILS TO ESTABLISH LOSS
There are plenty of examples in this series of claimants establishing breach of duty but failing on causation, particularly in the clinical negligence context. the judgment of Clare Padley (sitting as a High Court Judge) in J & J Franks…
PROVING THINGS 253: CLAIMANT FAILS TO PROVE DAMAGES: £123,000 CLAIMED REDUCED TO £946 HIRE AND REPAIR COSTS NOT ESTABLISHED AT ALL
The judgment of HHJ Malek in Mehmood v AIG Europe Ltd & Anor [2023] EW Misc 1 (CC) is a classic – if not graphic – example of a failure to prove damages. The claimant made a claim for £123,000…
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…
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