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…
PROVING THINGS 72: THE BARRISTER’S LAMENT: BUNDLES WHEN THE CLAIMANT DOES THE DEFENDANT’S JOB FOR THEM
Much has been written on this blog about the preparation of bundles. Some bundles are prepared on the basis that every single disclosed document should be included. In doing so many claimants are causing harm to their own case. Disclosed…
SOCIAL MEDIA, DOCTOR FREUD AND “MARINATING IN A MUTUAL HATRED”: THE JUDICIAL USE OF FOOTNOTES
Regular readers of this blog will need little introduction to the work of Canadian judge J.W. Quinn. J. Here I look at the use of footnotes in his judgment in a family case of Bruni -v- Bruni in 2010 (this…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
WIKIPEDIA IN THE COURTS (SO FAR): MUSIC, BREWERIES, CANALS, DOG WHISTLE POLITICS AND GETTING TO THE HEART OF THE MATTER: SOME QUESTIONS TO BE ASKED
I have had to apologise in the past for taking small parts of a judicial judgment and scrutinising them closely in relation to matters of procedure or evidence. This apology is particularly apposite in relation to the judgment in Oldham Metropolitan…
PROVING THINGS 71: NO EVIDENCE AT ALL: NO DAMAGES AT ALL
In Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) we see another examples of a total failure to prove damages. I include it as another example of a party attending a hearing with no evidence at all to prove a…
BUNDLES – AGAIN: BORROWING FROM THE COMMERCIAL COURT GUIDE
For many years a post on preparing a trial bundle was, by far, the most read post on this blog. I have re-visited the issue recently. It is worthwhile all practitioners having a look at the specific guidance on bundles…
ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying….
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
ATTACKING THE OTHER SIDE’S CREDIBILITY: DEFENDANTS ARE THE ARCHITECTS OF THEIR OWN DOWNFALL: SELF-SERVING STATEMENTS ARE TO NO AVAIL
There are a lot of reasons why litigators should read the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Not least is the judge’s assessment of the witness evidence…
THE ASSESSMENT OF EXPERT EVIDENCE: HANDWRITING EVIDENCE ADMISSIBLE : THE JUDGE FELT HE WAS IN SAFE HANDS
The judgment of Mr Justice Jay in ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) is one that has already made headlines. There is much of interest. However, that part of the judgment that deals with the analysis of…
THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT
In Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 (Ch) Mr Justice Morgan considered issues relating to the standard of proof when there are allegations of dishonesty and fraud. Part of the judgment also deals with the…
WHEN THE CLAIMANT WAS REFUSED PERMISSION TO ACCEPT £300,000: WHAT HAPPENED NEXT? (THIS DOESN’T END WELL FOR SOMEONE)
Earlier this week there was a post on the case of Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) [2017] EWHC 1738 (Ch) in which a claimant was refused permission to accept an offer of £300,000 after…
EVIDENCE IN A CLINICAL NEGLIGENCE CASE: MISSING WITNESSES AND ERRANT EXPERTS: LIABILITY SHOULD HAVE BEEN ADMITTED EARLIER: ATTEMPT TO BACKTRACK FROM JOINT REPORT NOT SUCCESSFUL
The case of Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) is one where the defendant was, ultimately, successful on the issue of causation. However the judge had some interesting observations as to the expert evidence called by both…
WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME
We have already looked at judge’s observations as to the amount of material before the court in the case of Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and…
THIS IS A LOT OF MATERIAL FOLKS: ALL THIS INDUSTRY MAY NOT BE TO POINT: SEEING THE WOOD FOR THE TREES
In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) Mr Justice Turner made some observations in relation to the volume of documentation and the subsequent judgment. It is important, he said, for a judge to keep sight of the wood…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
“MULTIPLE SERIOUS ERRORS” IN JUDICIAL DECISION MAKING : THE UPPER TRIBUNAL DECISION IN FULL
The case of AA069062014 & Ors. [2017] UKAITUR AA069062014 has already attracted considerable attention on social media and beyond. The Upper Tribunal (Immigration & Asylum Chamber) considered appeals in 14 cases. The major issue was the tribunal judge. Here are the…
WHEN A JUDGMENT STARTS “OH DEAR, OH DEAR, OH DEAR”: CAR CRASHES AND MOTORWAY PILE UPS IN THE UPPER TRIBUNAL: UPPER TRIBUNAL JUDGE RENDERED SPEECHLESS
This blog sometimes looks at tribunal decisions, primarily in the context of procedural issues. These issues abound in the decision of Upper Tribunal judge Nicholas Wikeley in AF v Secretary of State for Work and Pensions (DLA) (No2) (Tribunal procedure and…
WHEN ONE EXPERT TELLS THE OTHER EXPERT TO “GO BACK TO SCHOOL”: CASES ON CONDUCT AND THE MEETING OF EXPERTS
The case of Hatfield -v- Drax Power Ltd (18/08/2017)* highlights some of the issues that arise in the meeting of experts. The meeting is an important stage in many types of action, however the case law and rules relating to it…
AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”: THIS DOESN’T END WELL
Problems caused by expert witnesses feature heavily on this blog. I am grateful to barrister Brian McCluggage for sending me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which contains robust…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
EXPERT WITNESS GIVEN “NO WEIGHT AT ALL”: FAILURE TO DISCLOSE A CONFLICT OF INTEREST
There are some interesting passages in the judgment of David Stone (sitting as a Deputy High Court Judge) in Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor [2017] EWHC 2142 (Ch). Here we look at the judgment…
PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor…
WITNESS STATEMENTS “INADMISSIBLE”: CONTAINED “SUBJECTIVE INTENTION”, “OPINION” AND “LEGAL ARGUMENT”: ANOTHER EXAMPLE
A brief passage under the judgment of Mr Justice Arnold in Takeda Pharmaceutical Company Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch) serves to show how much “witness evidence” served by a litigant can, in fact, be inadmissible….
DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009. In 2013 the Court of Appeal overturned a judge’s decision to grant…
WRITING TO THE COURT UNILATERALLY (AGAIN) – PROCEDURAL FAIRNESS AND WHY JUDGES NEED THE PATIENCE OF A SAINT
I have no plans to expand this blog to cover issues relating to procedure in Employment Tribunals. However there are certain passages of the judgment of Mr Justice Kerr in Jones v The Secretary of State for Business Innovation &…
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