WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
PROVING THINGS 113: POOR EVIDENCE COLLECTION: EXPERTS STRAYING WELL BEYOND THEIR REMIT AND WHO ARE “NOT ENTITLED TO REACH THAT CONCLUSION”
Family cases, however, often come up with interesting observations in relation to the judge’s role as a fact finder. Similarly much can be gained by looking at the judge’s observations on experts. We see a critique of the process of…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
THE NATURE OF EXPERT EVIDENCE: THIS IS NOT EXPERT EVIDENCE AT ALL – AND OF NO HELP TO ME: JUDGE NOT IMPRESSED BY “ATTACHMENT THEORY”
It is rare for the court to reject “expert” evidence placed before it on the grounds that it is not expert evidence at all. This is rarer still now that permission is normally required before expert evidence can be adduced. It…
APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED
In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence. It is a a case that highlights the difficulties of…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
PROVING THINGS 107: PROVING A “STAGED CRASH” TO THE CRIMINAL STANDARD: CCTV EVIDENCE PROVIDES CONVINCING EVIDENCE
In Aviva Insurance Ltd v Nazir & Anor [2018] EWHC 1296 (QB) His Honour Judge Gosnell (sitting as a Deputy High Court Judge) found the two defendants in contempt of court when they had taken part in a staged crash and…
PROVING THINGS 106: YOU DIDN’T COMPLY WITH YOUR OWN RISK ASSESSMENT AND YOU WANT TO APPEAL: COURT REJECTS DEFENDANT’S ARGUMENT THAT CLAIMANT FAILED TO PROVE CAUSATION
In CC v Leeds City Council [2018] EWHC 1312 (QB) Mr Justice Turner reiterates the importance of the risk assessment in personal injury litigation. On appeal the judge rejected an argument that a claimant had failed to prove causation. The defendant’s…
PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 104: “THERE IS NO EVIDENCE BEFORE ME AS TO HOW THE PLAINTIFF WOULD PROVE THE EXISTENCE OF A GHOST”
I don’t normally travel too far from England and Wales in the Proving Things series. However a kind reader sent me an article on the Canadian decision in Ont. Inc. v K-W Labour Association et al, 2013 ONSC 5401 (CanLII). It…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT
One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness. Litigants can (and often do) have strong views about the case and what they said and did. The fact that…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
CIVIL PROCEDURE – BACK TO BASICS 7: BUNDLES: A CHANCE TO REVISIT “SEDLEY’S LAWS”
If there is a league for blogs with the most number of posts about bundles then Civil Litigation Brief may well be in the top 10 (sadly I suspect even in the top place). There is a reason for this….
PROVING THINGS 91: HOW TELLING IS A “FIST BUMP”? A JUDGE NOTICES THINGS THAT GO ON OUTSIDE THE WITNESS BOX
There are a number of issues that arise in the judgment of Mrs Justice Yip in the judgment today Clark v Farley & Anor [2018] EWHC 1007 (QB). It shows how how a defendant failed to prove its case and the…
VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS
The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses. There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here…
CIVIL PROCEDURE – BACK TO BASICS 4: WHAT NOT TO PUT IN A WITNESS STATEMENT: “INADMISSIBLE AND IRRELEVANT OPINION, SUBMISSION, SPECULATION AND INNUENDO”
This is a very basic point. A witness statement should consist of evidence. That principle is often breached in interlocutory applications, as we have seen. However when a lawyer does this, or allows it to happen, in a witness statement…
CIVIL PROCEDURE – BACK TO BASICS 3: THE STATEMENT OF TRUTH
The aim of this series is to look at things that litigators do every day – almost automatically. Signing a statement of truth is one of those things. This is a regular occurrence in many solicitor’s offices. It is a…
PROVING THINGS 88: MATTERS YOU HAVE TO PROVE IF YOU WANT AN INJUNCTION: THE IMPACT OF A SIX MONTH DELAY IN APPLYING
In Blade Motor Group Ltd v Reynolds & Reynolds Ltd [2018] EWHC 497 (Ch) an applicant for an injunction failed because it failed to prove the basic requirements. The fact that there was a six-month delay in applying for the injunction…
CIVIL PROCEDURE – BACK TO BASICS 2: “EVIDENCE IN SUPPORT” OF AN APPLICATION
The previous post looked at some of the basic requirements of an application to the court. Here we look at the evidence that may be needed in support of an application. The key point here being “evidence”. Numerous hours are…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
HOW A COURT ASSESSES WITNESS EVIDENCE: A SHORT PRIMER
We have already looked at the decision of the upper tribunal in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase of shares) [2018] UKFTT 82 (TC) in relation to issues of privilege and without prejudice discussions. The same judgment…
WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS
A post earlier this week looked at the issue of privilege and the third edition of the standard work on the topic. It is worthwhile looking at the decision in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase…
A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust…
“MISSING WITNESSES”- THE INFERENCES TO BE DRAWN: THE USE OF YOUR OPPONENT’S WITNESS STATEMENTS – ITS ALL OR NOTHING
In Property Alliance Group Ltd v The Royal Bank of Scotland Plc [2018] EWCA Civ 355 the Court of Appeal considered, amongst other things, two issues relating to witness evidence. Firstly in relation to the inferences a court should draw from missing…
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION
In Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) Mr Justice Turner considered the issue of anonymous witnesses and confidentiality clubs. He granted six witnesses anonymity. This was subject to the identity of the witnesses being…
WITNESS EVIDENCE: CREATING AN ACCURATE RECORD OF INAPPROPRIATE CONDUCT AT WORK: SPOT – AN IMPORTANT DEVELOPMENT
I have written before about the book The Memory Illusion. In essence lawyers need to be concerned about how easy it is for false memories to be created and how fallible the human memory is. The creation of an inaccurate…
CLINICAL NEGLIGENCE AND WITNESS EVIDENCE: INFORMED CONSENT NOT GIVEN: HIGH COURT JUDGMENT TODAY
There are many posts on this blog about how, ultimately, many clinical negligence cases turn on the issue of what was said. Liability often depends on which account of a conversation the trial judge prefers. This can be seen in stark…
PROVING THINGS 85: AN INABILITY TO PROVE EVEN A SMALL SUM MEANS IT WILL NOT BE AWARDED
Many of the issues that have been looked at in the Proving Things series have been in relation to failures to prove substantial issues, or substantial sums. However the need to prove things is a universal requirement. I want to look…
PROVING THINGS 83: WHEN A DEFENDANT DOES NOT GIVE EVIDENCE, ADVERSE INFERENCES CAN BE DRAWN: STAGED CRASH ESTABLISHED
In UK Insurance Ltd v Gentry [2018] EWHC 37 (QB) Mr Justice Teare considered what inferences can properly be drawn when a defendant, accused of dishonesty, does not give evidence. KEY POINTS The claimant brought a case in deceit – alleging…
THE CREDIBILITY OF WITNESSES: WHEN THE DEFENDANT’S OWN EVIDENCE AMOUNTS TO A HOME GOAL
This blog has looked many times at the issue of witness credibility and why the judge prefers the evidence of one witness over another . This was an issue to the fore in the judgment of Mr Justice Green in Khakshouri…
PREVIOUS FINDINGS OF FOREIGN LAW CAN BE BINDING: THE ACT, THE NOTICES AND A CASE
We have looked at the decision in Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2017] EWHC 3374 (Comm) Mr Justice Picken in the context of the Foreign Limitation Periods Act. There was a brief description of a little used…
CIVIL LITIGATION REVIEW OF 2017 (I): “SURVIVING THE EMOTIONS OF LITIGATION” & “THINGS THAT IRRITATE JUDGES”
This is the fourth annual review on this blog. This year I have decided to break it into a number of reviews. First it is interesting to look at what is being read on this site and the search terms…
CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 3: LATE WITNESS STATEMENTS AND “IMPLICIT” ORDERS FOR RELIEF FROM SANCTIONS
We have already looked twice at the “sparring” arguments in relation to procedure in the case of McGann v Bisping [2017] EWHC 2951 (Comm). A further procedural issue arose as to whether a party was debarred from calling evidence at all. The…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
HOT TUBBING OF EXPERTS: NEW PRACTICE DIRECTION
The 93rd Update on Practice Direction Amendments also introduced a change in the rules as to concurrent evidence from experts. This gives the trial judge a considerable degree of flexibility about the way in which expert evidence is heard. These rules came…
MAKE UP A FRAUDULENT CASE, TELL LIES TO THE COURT – GO TO JAIL: THE FORGED WILL CASE HAS A SEQUEL
An earlier post looked at Patel -v- Patel [2017] EWHC 133 (Ch) in which the judge disbelieved all the witnesses who gave evidence that a will had been made in 2005. The trial judge observed. “My remaining concern with Nirja’s evidence is…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE
We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence. “I start by asking myself this question:…
PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS…
LEGAL QUACKERY & AN “OVERWHELMING MIASMA OF FAKE LAW” : OBSTRUCTING JUSTICE AND OBSTRUCTING THE COURT SYSTEM
I usually confine this blog to cases relating to the law in England and Wales. However the judgment of Noonan J in Bank of Ireland Mortgage Bank -v- Martin & anor [2017] IEHC 707 was brought to my attention by an…
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
PROVING THINGS 76: A RECAP – I DIDN’T EXPECT TO GET THIS FAR…
Today saw the 75th in the series “proving things”. I never anticipated that the series would run so long, I initially planned around 10 posts. Now we have reached 75 (and with no plans to stop) this is an appropriate…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 4: THREATENING YOUR OPPONENT WITH A “PROCTOLOGY EXAMINATION” AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
This series is about learning from judges. Here I advocate (hopefully in a civil way) learning from one judgment. That is the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC….
PROVING THINGS 73: FORESEEABILITY: NOT A TEST SET IN STONE BUT A MATTER OF COMMONSENSE
Foreseeability of damages is one of those topics that takes up a lot of space in text books but is rarely an issue in practice. The question of foreseeability of damages did, however, form a part of the judgment we…
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