CANAL TRUST’S ATTEMPTS TO BARGE OVER WITHOUT PREJUDICE RULE IS SUNK WITHOUT TRACE: NO WATERING DOWN OF THE PRINCIPLES
Can a party refer to without prejudice correspondence at interlocutory hearings? The previous post looked at the judgment of Chief Master Marsh in Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) in relation to the issue of McKenzie friends….
PROVING THINGS 30: OFFICE GOSSIP PROVES NOTHING: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF
There is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information and belief. This requirement is often ignored, or there is some vague and general wording of knowledge. Ignoring, and respecting,…
WITNESS STATEMENTS THAT ARE LARGELY DISREGARDED: A CASE IN POINT
Witness statements are often too long, contain inadmissible evidence and tendentious comments. An example can be see in the judgment in Moore -v- Moore [2016] EWHC 2202 (Ch) Mr S Monty QC (sitting as a Deputy Judge of the Chancery…
WITNESS STATEMENTS: WHEN CAN A LAY WITNESS GIVE OPINION EVIDENCE?THE STATUTE, THE CASES & SOME GUIDANCE
I have written, many times, about the dangers of putting opinion evidence into witness statements. The attempts of witnesses to be experts, or to tell the judge what the outcome of the case should be, can lead to robust adverse…
WITNESS STATEMENTS: THE LAWYER'S DUTIES: A FAMILY CASE
There are some observations in the judgment in Hampshire County Council -v- O [2016] EW B22 (CC) that are of general importance. It relates to the duty of lawyers to ensure that witness statements are full and adequate. “It is…
YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I…
PROVING THINGS 29: MAKE SURE THE WITNESS EVIDENCE DEALS WITH THE RELEVANT ISSUES
In Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam) Mr Justice Hayden had some important observations on the preparation of witness evidence. Although made in a family case the comments are of general observation: those who take witness…
YOUR WITNESSES ARE LINED UP ALL IN A ROW: THEN YOU MAY BE IN TROUBLE
Many cases have many witnesses saying, essentially, the same thing. Inconsistencies between witnesses are (often subconsciously) ironed out by lawyers during the statement stage. However consistency is not always a good thing. WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG This…
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
AN EXPERT DISPLAYING ZEALOTRY IS NO HELP AT ALL (AND USUALLY HARMFUL)
In the Matter of F (a Minor) EWHC 2149 (Fam)Mr Justice Hayden had to consider whether an expert report should be admitted in a family case. The comments on the expert evidence are of general relevance. “The overall impression is…
REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS' REPORTS
The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords looked at the point that, at the appeal stage, the courts were only concerned with whether they could…
RE-VISITING WHITEHOUSE -v- JORDAN 1: THESE APPEALS WERE NOT ABOUT CLINICAL NEGLIGENCE AT ALL: IT’S ALL ABOUT THE FACTS
The decisions of the Court of Appeal and House of Lords in Whitehouse -v- Jordan are often put forward as seminal cases in the law of clinical negligence. However these appeals, in reality, were not about issues relating to clinical…
THE ARROYO JUDGMENT 4: DON'T MAKE ALLEGATIONS OF LYING IF YOU HAVEN'T PUT THEM TO THE WITNESS
The previous posts* on the Arroyo judgment have concentrated, for the most part, on the judge’s criticisms of the evidence of the claimant. However there is one short passage which illustrates an important principle of litigation – a party cannot…
PROVING THINGS 28: MAKE UNWARRANTED PERSONAL ATTACKS AND USE A "MUD-SLINGING" EXPERT: THAT ALWAYS ENDS WELL
The judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd [2016] 1949 (TCC) contains some surprising observations. It also contains important lessons in relation to “conspiracy” theories in litigation and the role of the…
PROVING THINGS 27: BURDENS OF PROOF, HEARSAY EVIDENCE AND…. ATTEMPTED MURDER
In Daley -v- Bakiyev [2016] EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations. The fact that a central witness for the claimant did not attend court, and his…
THE ARROYO CASE WAS A BIG & COMPLEX ACTION: THE PROBLEMS WERE SIMPLE (AND COMMON) 1: UNCHECKED SCHEDULES OF DAMAGES
The judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC is 1885 paragraphs long. The trial lasted from the 15th October 2014 to the 5th March 2015, that is 62 court days. The judgment actually…
PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims….
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE
It is surprising how many posts there are on this blog which deal with the late service of witness evidence. This is an issue that occurs across the whole spectrum of civil procedure. The question arose again in the judgment…
ADVOCACY – THE JUDGE’S VIEW IV: "AVOID BULLSHIT, SMOKE AND MIRRORS" (OH AND BEWARE OF "WELL PADDED VANITY")
In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember…
BUNDLES EXHIBITS AND PAGINATION: AVOIDING COSTLY MISTAKES
I have given up being surprised that the post on trial bundles and Sedley’s Law is the most read post on this blog. Day after day, month after month, it draws a regular readership. However, in practical terms, it is…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
PROVING THINGS 20: ALLEGATIONS OF IMPROPER CONDUCT HAVE TO BE PROVEN: INDEMNITY COSTS ORDERED
In Collins -v- Thanet District Council Collins anor v Thanet DC anor (19 4 16)(Jud) 2 [2016] EWHC 1008 (QB) His Honour Judge Yelton (sitting as a Judge of the High Court) considered the evidence available to support allegations of misfeasance…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
SOCIAL MEDIA AND CIVIL EVIDENCE: WHAT DID YOU SAY ON LINKEDIN?
Social media played a part in the decision of Registrar Derrett in Green -v- Marston [2016] EWHC B11 (Ch). It illustrates the importance of social media across many fields of litigation. THE CASE The claimant was the liquidator of a…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
PROVING THINGS 19: PROVE SERVICE OR YOU COULD BE CAUGHT OUT
A regular theme of this series has been to examine how cases fail, in full or partially, because of the absence of evidence. This can be seen in a decision of the First-Tier Tribunal Tax Chamber in England and Wales…
PROVING THINGS 18: DAMAGES; CAR HIRE; PROOF AND SUMMARY JUDGMENT
The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was…
CIVIL EVIDENCE: IS EVIDENCE OBTAINED BY TORTURE ADMISSIBLE?
The question of whether evidence obtained by torture in civil proceedings is one I never envisaged having address. However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v- HNA Group…
LEARNING HOW TO PROVE THINGS: A BASIC SKILL THAT NEEDS HONING
As part of the occasional series which jogs peoples memories about New Year’s resolutions for 2016 I am revisiting resolution number 6: “learn how to prove things”. A very basic skill in the litigator’s armoury, but one which is barely…
CIVIL EVIDENCE: ABSENT DOCTOR DOES NOT LEAD TO AN ADVERSE INFERENCE
CIVIL In Manzi -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB) Mr Justice Nicol considered the question of whether it was appropriate for a court to draw adverse inferences when a witness is not called. “… in…
PROVING THINGS 17: HEADS OF DAMAGE THAT WERE "ENTIRELY BOGUS"
The case of Perma-Soil UK Limited -v- Williams & Flintshire County Council [2016] EWHC 1087 (QB) was an unusual one. The claimant (unsuccessfully) brought a claim for damages for misfeasance in public office. However I want to look at the…
WITNESS STATEMENTS & HILLSBOROUGH 3: CONFIRMATION BIAS AT ITS WORST
Much has been written and broadcast about Hillsborough. I am here concentrating on one small part of the process: the initial gathering of evidence. It was the flawed nature of this process that led to problems for the next two…
HILLSBOROUGH AND WITNESS STATEMENTS 2: THE EARLY MIXING OF FACT AND OPINION
The previous post in this series looked at the issues that arose when the solicitors for the police force sent out a missive asking the police officers on the ground for their “comment and impression”. There was an immediate mixing…
HILLSBOROUGH AND WITNESS STATEMENTS 1: THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The recent inquest has put the evidence gathering that took…
PROVING THINGS 16: IF YOU DON'T PROVE IT YOU DON'T GET IT
In Undre & Down to Earth (London) Limited -v- the London Barrow of Harrow [2016] EWHC 931 a claimant failed, totally, to prove any loss. The judge found that there was a total failure by the claimant to prove…
PROVING THINGS 15: DAMAGES & EVIDENCE: GOING BACK TO COLLEGE
One harsh shock for many litigants occurs when they are asked to prove their damages at trial. We have looked several times when a litigant has come to grief at this stage, largely because there is no evidential support for…
ASSESSMENT OF COSTS CAN BE IN PRIVATE: DECHERT DECISION CONFIRMED BY THE COURT OF APPEAL
In Dechert LLP -v- Eurasian Natural Resources Corporation Ltd [2016] EWCA Civ 375 the Court of Appeal upheld a decision that an assessment of costs could be in private.” “The issue is clearly of importance for both parties. On the…
ANOTHER CASE OF TWITTER PROVIDING EVIDENCE: CLAIMANT CAUGHT OFFSIDE
There is a report in the Solicitors Journal of a sentence passed today for contempt of court. It is another example of the evidence coming from twitter and shows the growing importance of social media in many types of litigation….
PROVING THINGS 14: PROVING MITIGATION OF LOSS
The previous post in this series looked at the Court of Appeal decision in Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 where the court upheld an award of £250 in damages because of issues relating to mitigation of loss….
"AMPLIFYING" WITNESS STATEMENTS AT TRIAL: IT IS PROBABLY FAR TOO LATE
Anyone giving a talk, particularly to a group of lawyers, always has a fear that someone will ask the “unanswerable” question. There was a good question today at the PIBA conference after a talk I gave about witness statements. The…
WITNESS STATEMENTS: THE LAWYER'S DUTY NOT TO MISLEAD
There are some important observations by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin). The case relates to witness statements and the duty of the lawyer when they know that…
WITNESS STATEMENTS AND CREDIBILITY: LATE CHANGE OF MIND DOESN'T HELP
There are many aspects of the judgment today of Mrs Justice Lang DBE in Sparrow -v- Andre [2016] EWHC 739 (QB) that are of interest. Here I concentrate upon one aspect – witness credibility. “In my view, such a late…
LEGAL PROFESSIONAL PRIVILEGE: APPLIES TO LECTURE POWERPOINT NOTES
There is an interesting decision about the scope of legal professional privilege by the First Tier of the General Regulatory Chamber (Information Rights) in the Ministry of Justice -v- The Information Commissioner & Shaw EA/2015/0160. THE CASE The applicant made…
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 5: LEARN HOW TO DRAFT A WITNESS STATEMENT
As part of the series giving gentle reminders of the “litigator’s resolutions” set out at the beginning of the year I am returning to the very basic art of drafting a witness statement. It may be significant that the post…
IS THIS AN EXPERT REPORT I SEE BEFORE ME? I THINK NOT
In Al Nehayan -v- Kent [2016] EWHC 623 (QB) Mrs Justice Nicola Davies made observations upon “expert” evidence that had been placed before the court. There were major failures of form as well as of substance. The judgment contains an…
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