PROVING THINGS 197: PROVING LOSS OF EARNINGS IN A PANDEMIC: ACTUAL EARNINGS EXCEEDED POTENTIAL EARNINGS
Sicri v Associated Newspapers Ltd (Rev 1) [2020] EWHC 3541 (QB) is an unusual case in many ways. There are issues that are sensitive and require careful consideration. However there are also observations about claiming loss of earnings and proving…
A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER
In Ceviz v Frawley & Anor [2021] EWHC 8 (Ch) HHJ Keyser QC made observations about a witness statement. This case highlights the need for practitioners to be aware of the limitations of witness statement. If this kind of statement…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
CIVIL PROCEDURE BLOG AND ARTICLES ROUNDUP – DECEMBER 2020
A round up of posts and articles relating to civil procedure from November 2020. COSTS ACL – Definition of proportionality to be expanded to include vulnerability ACL – High Court upholds assessment of success fee in high-value clinical negligence case ACL – Supreme…
REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS
Needless to say this has been an unusual year for litigators. It is always interesting to review what have been the most popular posts on this blog and look at some facts and figures. Can we tell anything about the…
STRAIGHTFORWARD LANGUAGE IS BEST: MISSIVE FROM THE BENCH: LAYWYERS MAY HAVE IMPROVED OVER TIME – OTHERS HAVE NOT
In Secretary of State for Business Energy And Industrial Strategy v Evans & Anor [2020] EWHC 3519 (Ch) (18 December 2020) Deputy Insolvency and Companies Court Judge Baister had something to say about the absence of plain language in the…
EXPERTS NOT REALLY NECESSARY WHEN A JUDGE LOOKS AT BALLET SHOES: EVIDENCE SHOULD HAVE BEEN MORE EN POINTE
Instructing experts in circumstances where they are not necessary, or their evidence is not admissible, is a common theme in litigation. This issue was considered by Mr David Stone (sitting as a Deputy High Court Judge) in Rothy’s Inc v…
A SERIES OF WEBINARS ON “STAYING SAFE” IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR
To help 2021 run smoothly for litigators I am presenting a series of webinars in February and March on the theme of “staying safe” in the running of personal injury cases. The webinars look at key areas of practice and…
PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK
The basic task of proving damages, particularly elements such as loss of earnings and disability in the labour market, are often overlooked in witness statements prepared for trial, both in personal injury actions and other actions were loss of income…
WITNESS STATEMENTS THAT REQUIRE TRANSLATION OR WHERE THE MAKER IS NOT LITERATE: FAILURE TO COMPLY WITH RULES IS NOT SIMPLY A “TECHNICAL BREACH”
In Diamond v Secretary of State for the Home Department [2020] EWHC 3313 Mr Justice Calver considered the weight to be attached to witness statements that did not comply with the Civil Procedure Rules. The case shows why everyone should…
JUDGE REFUSES TO RECONSIDER CRITICISMS OF EXPERT WITNESS IN A JUDGMENT: EXPERT DUTIES CANNOT BE DELEGATED
In Neurim Pharmaceuticals (1991) Ltd & Anor v Generics UK Ltd (t\a MYLAN) [2020] EWHC 3270 (Pat) Mr Justice Marcus Smith made some observations about the role of the expert witness and the importance of their evidence being criticised in…
“SADLY, THIS IS AN ALL-TOO-COMMON FAILURE IN WITNESS STATMENTS PROVIDED IN CIVIL LITIGATION”
The comments of Mr Justice Murray today in Guest Supplies Intl Ltd v South Place Hotel Ltd & Anor [2020] EWHC 3307 (QB) repeat what has been mentioned numerous times on this blog. “It will perhaps be seen from…
A BARRISTER OF “GOOD JUDGEMENT”: WHEN THE PERSON WHO USUALLY DOES THE CROSS-EXAMINING IS IN THE WITNESS BOX
The judgment of Mr Justice Jay in Torrance v Bradberry [2020] EWHC 3260 (QB) is one that should be read by every practising lawyer. It is a case of a lawyer as defendant, being accused of negligence in their conduct…
PROVING THINGS 187: THE CAMERA MAY LIE: THE IMPORTANCE OF DATES ON PHOTOGRAPHS
Today we are journeying into the Family Court to look at the judgment of Mrs Justice Judd in K v G [2020] EWHC 3209 (Fam). It shows the importance of obtaining metadata in relation to documents. In this case the…
WITNESS STATEMENTS SHOULD “NOT MAKE POINTS WHICH ARE ESSENTIALLY A MATTER FOR LEGAL SUBMISSION OR ARGUMENT”: HIGH COURT DECISION
In Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) Mr Justice Holgate made some telling comments on witness statements. Statements should not provide a commentary on documents or make points which are essentially legal submissions or argument. …
RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL
In ST (A Minor) & Anor v L Primary School (Rev 2) [2020] EWHC 1046 (QB) Deputy Master Hill QC granted relief from sanctions where the claimant failed to serve a notice of intention to rely on hearsay evidence prior…
REMOTE HEARINGS: TRIAL CAN GO AHEAD WITH PARTICIPANTS FROM ABROAD ALLOWED TO WATCH (SUBJECT TO SAFEGUARDS)
In the judgment this morning in Huber & Anor v X-Yachts (GB) Ltd & Anor [2020] EWHC 3082 (TCC) Mr Justice Kerr rejected an argument that participants in a civil trial could not continue to watch the trial if they…
WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA
There are many aspects of the judgment in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) that have gained wide media attention. Here I want to look at two issues in relation to the failure…
APPLICATION TO ADDUCE NEW PHOTOGRAPHS AFTER FINAL SUBMISSIONS REFUSED: DENTON PRINCIPLES APPLIED
In Mullane v Davies [2020] EW Misc 25 (CC) HHJ Jarman QC refused an application by a party to admit new photographs after closing submissions. The Denton principles applied and militated against granting relief from sanctions. “Such noncompliance is serious,…
THE IMPORTANCE OF GETTING EVIDENCE EARLY: “I DON’T REMEMBER NOW & I WON’T REMEMBER ANYTHING IF I COME TO COURT”
The observations of Mr Justice Nicklin in Rayner v Seabourne-Hawkins [2020] EWHC 2895 (QB) highlight the importance of gathering evidence promptly. It also contains the text of a highly perceptive letter from a prospective witness that, in many ways, highlights…
BROKEN PROMISES: PROPRIETARY ESTOPPEL IN THE MODERN WORLD: ONLINE EVENT 15th OCTOBER 2020
Several of my colleagues are taking place in this online event. Proprietary estoppel has become important in recent years in relation the ownership and transfer of property. There are many recent cases relating to farming families in particular, they give…
VIDEO EVIDENCE NOT ALLOWED AT TRIAL: APPEAL AGAINST REFUSAL DISMISSED: A “STORM IN A TEACUP”
In Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB) Mrs Justice Lambert dismissed an appeal against a refusal by a defendant to allow video evidence to be adduced at trial. The evidence was not relevant and…
JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY
In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on…
SIMILAR WITNESS STATEMENTS (WITH THE SAME TYPOS) AND WITNESS CONFERRING WITH OTHERS: WHY “I SAY THE SAME AS THEM” RARELY HELPS
In the judgment today in Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC) HHJ Russen QC (sitting as a High Court judge) made some observations about the witnesses giving evidence. The fact that some…
CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A REMINDER OF THE BASIC RULES: IF YOU DON’T DISPUTE YOU ARE DEEMED TO ADMIT AUTHENTICITY
Earlier posts have looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve a notice that you wish…
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
SIMILAR FACT EVIDENCE: AN OVERVIEW AND THE CASES: THE RELEVANT GUIDANCE CONSIDERED
The previous post about the Court of Appeal decision today in relation to similar fact evidence provides an opportunity to recap on some basic principles. OVERVIEW OF THE RELEVANT PRINCIPLES A detailed review of the cases appears below. By…
PROVING PROPENSITY AND SIMILAR FACT EVIDENCE IN CIVIL CASES: COURT OF APPEAL JUDGMENT TODAY
In the judgment today in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 the Court of Appeal set out the principles relating to similar fact evidence in civil and family cases. The case is also an example…
PROVING THINGS 180: ACCEPTING A LIFT WITH A DRUNKEN DRIVER, WHILST DRUNK: DEFENDANT FAILS TO ESTABLISH THAT FAILING TO WEAR A SEAT BELT MADE A DIFFERENCE
The judgment today of HHJ Robinson (sitting as a judge of the High Court) in Campbell v Advantage Insurance Company Ltd [2020] EWHC 2210 (QB) makes interesting reading. 1. A claimant cannot properly argue that he was too drunk himself…
PROVING THINGS 179: SECRETARY OF STATE’S “SUPERFICIAL INVESTIGATION” FAILS TO PROVE THAT DEFENDANT WAS A DE FACTO DIRECTOR
In the judgment given today in Secretary of State for Business, Energy And Industrial Strategy v Rahman [2020] EWHC 2213 (Ch) HHJ Paul Matthews found that the Secretary of State had failed to prove that the defendant had ever been…
EVIDENCE OBTAINED BY TORTURE: THE SUPREME COURT CONSIDERS THE APPROPRIATE APPROACH WHEN TORTURE CANNOT BE PROVEN
In the judgment today in Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 the Supreme Court sends out a clear message about the use (or rather non-use) of evidence obtained by torture in civil proceedings. This…
CORONAVIRUS LAW: COVID AND CONTACT BETWEEN PARENTS AND CHILD
The number of cases dealing with issues relating to COVID have reduced. However issues still arise. In the judgement today in D-S (Contact With Children In Care: Covid-19) [2020] EWCA Civ 1031 the Court of Appeal set out clear principles…
ASSESSING WITNESS CREDIBILITY A “REASONING PROCESS VITIATED BY AT LEAST THREE FUNDAMENTAL ERRORS OF APPROACH”: HIGH COURT LAYS DOWN THE LAW
In Dutta, R (On the Application Of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin) Mr Justice Warby set out a powerful critique of the reasoning given by the Medical Practitioners Tribunal. The judgment contains an essential summary of…
WHEN WITNESS EVIDENCE GOES OFF TRACK: CREDIBILITY SPRINTS AWAY
There are several recent cases where judges deal with the issue of credibility and witnesses. The first we are looking it is the decision of HHJ Melissa Clarke in British Amateur Gymnastics Association v UK Gymnastics Ltd & Ors [2020]…
CIVIL EVIDENCE AND THE BURDEN OF PROOF: WHEN WHO BEARS THE BURDEN CAN HAVE A MAJOR EFFECT ON THE OUTCOME OF A CASE
The judgment of Mr Justice Birss in Emmanuel v Avison & Ors [2020] EWHC 1696 (Ch) contains some interesting observations about the burden of proof. The burden lay with the claimant, despite the fact that if different proceedings had been…
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE
There are particular dangers for solicitors giving evidence. This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law. In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
COUNSEL’S ADVICE IS NOT EVIDENCE: REALLY, ITS NOT.
There is an interesting consideration of the role of counsel’s advice in the judgment of HHJ Vincent in AZ v BZ (financial remedies appeal) [2020] EWFC 28. In a financial remedies hearing, a judge was wrong to firstly admit, and…
CLINICAL NEGLIGENCE TRIAL HELD REMOTELY: AND IT WORKED WELL…
I have highlighted some cases where remote hearings have had difficulties. In Jones v Ministry of Defence [2020] EWHC 1603 (QB) the judgment indicates that the remote hearing in a clinical negligence case worked well. THE CASE The case was…
WHEN THE SKY FALLS IN: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 6th AUGUST 2020
I have been writing on this blog for some time now that lawyers should be taught that mistakes happen. We should aim to avoid them but if errors are made they are often rectifiable if dealt with correctly and quickly. …
AN EXPERT WITH A CONFLICT OF INTEREST: SHOULD NEVER HAVE BEEN INSTRUCTED
I am giving a webinar on the 29th June 2020 on the Perils and Pitfalls of Expert Evidence. I have not found that there is any shortage of material. That material is added to in the judgment of Mr Justice…
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
CIVIL PROCEDURE BACK TO BASICS 79: NON-DISCLOSURE OF THE OTHER SIDE’S WITNESS STATEMENT
Today we are looking at CPR 32.12. The rule preventing a party using the other side’s witness statements for purposes other than the action they were served in. THE RULE Use of witness statements for other purposes 32.12 (1) Except…
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. …
EXPERT EVIDENCE: THE PERILS AND THE PITFALLS: WEBINAR 29th JUNE 2020
The problems that experts can cause in cases (often to the side that instructed them) have been extensively catalogued on this blog over the years. On the 29th June I am giving a webinar on the perils and pitfalls of…
COVID REPEATS 40: ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
This week we are looking at witness statements and the process of gathering witness evidence. In August 2015 I wrote at length about the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA…
WHY YOU NEED TO KNOW THE RULES AND GUIDANCE IN RELATION TO SURVEILLANCE EVIDENCE: A WEBINAR
In the judgment discussed earlier today in Tully v Exterion Media (UK) Ltd & Anor [2020] EWHC 1119 (QB), Master McCloud, made some important observations in relation to how the courts deal with surveillance evidence. As a result of that…
NON-COMPLIANCE WITH ORDER FOR EXPERT EVIDENCE AND THE CLAIMANT’S APPLICATION GOES UP IN SMOKE…
Possibly the most difficult position you could put yourself in in litigation is for the court to make an order, do something the court did not allow, not get permission in advance, and then seek relief from sanctions thereafter. …
COVID REPEATS 37: CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses was in the news in June 2014. Since expert evidence has been a constant theme on this blog. This would seem an appropriate time to revisit a post about the cross-examination of…
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