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…
PROVING THINGS 13: LOSS, THERE WAS NO LOSS
The case of Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 is one that may have you scratching your head. The claimants claimed, at one stage, over £300,000 in damages. The judge awarded £250.00. It is a potent lesson…
PROVING THINGS 12: THAT "ORAL CONTRACT" IS IT WORTH THE PAPER ITS WRITTEN ON?
The issue of when, where and how a contract is formed is always of interest to academic lawyers. However, for the most part, the court has to determine issues of fact. The judgment of Mr Justice Knowles in JAS…
CONTEMPORARY DOCUMENTS: CLINICAL NEGLIGENCE AND MEDICAL NOTES
The judgment of Mrs Justice McGowan today in FE -v- St George’s Hospitals NHS Trust [2016] EWHC 533 (QB) highlights the importance of contemporary documents. It also shows the dangers of the subsequent alteration of notes. There is no suggestion…
RELIABILITY OF WITNESS EVIDENCE: HONESTY IS NOT THE SAME AS RELIABILITY
In Sloper -v- Lloyds Bank Plc [2016] EWHC 483 Mr Justice Spencer had to consider issues relating to the reliability of witnesses. “I must emphasise at the outset of my analysis of the evidence that I am quite sure that…
WITNESS EVIDENCE, RECOLLECTION,RECONSTRUCTION AND CLINICAL NEGLIGENCE
There were eighteen (factual and expert) witnesses in the trial in Dr Sido John -v- Central Manchester and Manchester Children’s Hospitals NHS Foundation Trust [2015] EWHC 407 (QB). However, ultimately, the case on liability rested rested on which lay witness…
WITNESS EVIDENCE: MEDICAL NOTES AND CREDIBILITY
There have been several cases this week where a clinical negligence claim rested, ultimately, on whether or not a judge accepted a doctor’s account of what was said. In Lillington -v- Ansell & Jennison [2016] EWHC 351 (QB) Mr Justice…
WITNESSES TRIALS AND ACCURACY OF RECOLLECTION (II)
The previous post dealt with a case where a judge had preferred the evidence of the medical practitioners in a clinical negligence case. As is so often the case a judgment reported on the same day shows a case where…
WITNESS STATEMENTS: THE CHANCERY GUIDE: SOMETHING FOR US ALL
Such is the remarkable ability of the Chancery Division that the latest guide (dated March 2016) is already available. I have said many times that the Chancery Guide has much to offer all civil practitioners. Here I want to look…
PROVING THINGS 11: LIES, DAMN LIES AND…
There has, over the years, been some considerable controversy about the use of “statistics” in criminal cases. Some civil cases have shown that judges are sceptical of the use of statistics in individual cases, preferring to base decisions on the…
ANOTHER ASSESSMENT OF WITNESS CREDIBILITY
A regular theme of this blog has been how important witness credibility is to the outcome of many civil actions. The assessment of credibility is often one of the key tasks of the trial judge at. It is an issue…
A QUICK WORD ON WITNESS CREDIBILITY: WHAT THE BUTLER SAID
In Burrell -v- Clifford [2016] EWHC 249 (Ch) Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division) had to assess the credibility of two litigants. It provides an interesting insight into the judicial scrutiny of witness evidence….
DISCLOSURE AND PREDICTIVE CODING: PYHRRO EXPLAINED FOR THE TYRO
There has been much written already in relation to the decision of Master Matthews in Pyrrho Investments Ltd -v- MWB Property Ltd [2016] EWHC 256 (Ch) [see the links below]. However I want to concentrate upon the fact that this…
PROVING THINGS 10: "HE SAID, SHE SAID": THE DIFFICULTIES OF RECOLLECTION
In Jaciubek -v- Gulati [2016] EWHC 269 (QB) Mr Justice Foskett faced a familiar problem of matching up recollection evidence with (incomplete) medical notes. There are important practical points relating to the accuracy of recollection and the judicial scrutiny of…
EXPERTS AND FACTS: IT IS ALL IN THE RULES
Following the post yesterday about proving things and the role of experts there was an interesting comment from Elfed Williams. WHAT DOES AN EXPERT DO ABOUT FACTS? “I have some misgivings about whether an expert should identify primary facts and…
PROVING THINGS 9: THE ROLE OF EXPERTS
Here I want to pick up on a few observations of Mr Justice Snowden in Grant -v-Ralls [2016] EWHC 243 (Ch) a case we looked at yesterday. That is the role of the experts. It is dangerous to defer the “proving”…
PROVING THINGS 8: DEFENDANT MUST PROVE THAT FAILURE TO WEAR A SEATBELT MADE A DIFFERENCE
The defendant bears the burden not only of proving contributory negligence but also establishing its causative relevance. The law in Syred -v- Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB) (Mr Justice Soole) was complex, however one key point…
THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE
In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the…
THE ROLE OF THE EXPERT WITNESS IN LITIGATION: SUPREME COURT GUIDANCE
In Kennedy -v- Cordia Services LLP [2016] UKSC 6 the Supreme Court made some telling observations relating to expert evidence. This was in the context of a Scottish case, however the observations are of general importance. THE CASE The Supreme Court…
PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION
The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation. KEY POINTS The burden was on…
ORDERING A SPLIT TRIAL ON PRELIMINARY ISSUES: A CAUTIONARY TALE
In Larkfleet -v- Allison Homes Eastern Limited [2016] EWHC 195 (TCC) Mr Justice Fraser made some important observations about the need for total clarity when a court orders the trial of a preliminary issue of law. ‘Preliminary points of law…
PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya [2016] EWHC 150 (Ch) there is a whole section of the judgment devoted to…
PROVING THINGS 3: THE COMPLETE ABSENCE OF EVIDENCE MEANS THE COURT WILL NOT SPECULATE
Another example of a failure to prove damages can be found in the decision of His Honour Judge Stephen Davies (sitting as a High Court judge) in Fairhurst Developments Limited -v- Collins [2016] EWHC 199 (TCC). KEY POINTS This is…
JUDGMENT IN OTHER PROCEEDINGS ARE NOT EVIDENCE
A short passage in the judgment of Mrs Justice Lang DBE in Daniel -v- St George’s Healthcare NHS Trust [2016] EWHC 23 (QB) highlights the point that the conclusions in other proceedings are not evidence in a civil trial. KEY…
NEW EVIDENCE ALLOWED AFTER HEARING: A HIGH COURT DECISION
In Swift Advances PLc -v- Ahmed [2015] EWHC 3265 (Ch) Mr Justice Norris permitted new evidence to be adduced after evidence and submissions had been completed. “..it may be expected that courts will allow fresh evidence when to refuse it…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS 2: A USEFUL COUNTERBALANCE
A post earlier this month looked at a case where the judge favoured the witness evidence over a written medical record. The decision in Grimstone -v- Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB) is a…
CORROBORATIVE WITNESSES : "SIMILAR FACT EVIDENCE" ALLOWED IN TEST CASE
We have already looked at the decision in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) in relation to the issue of historians being called as witnesses. Here we look at the judgment in relation to corroborative/”similar fact” evidence. KEY…
GOING ON A FISHING EXPEDITION? DON'T BANK ON AN ORDER FOR SIMILAR FACT EVIDENCE
In Claverton Holdings Ltd -v- Barclays Bank PLC [2015] EWHC 3603 (Comm) Mr Justice Phillips was highly critical of the claimant’s application for similar fact evidence. “The application has, at this point, in my judgment, become a fishing expedition, hoping…
IS AN EXPERT REALLY NECESSARY? TWO RECENT CASES
The determination of the courts to restrict the use of expert evidence can be seen by the fact that the text of CPR 35.1 appears under the heading “duty to restrict expert evidence”. The rule itself states “Expert evidence shall be…
WHEN AN EXPERT FAILS TO DISCLOSE THAT THEY KNOW THE PARTIES
A recent high profile criminal case has identified the major problems that can arise when an expert called to give evidence has failed to disclose that they have had previous dealings with the parties. Here we look at how the…
PERSONAL INJURY LITIGANTS, LAWYERS & SOCIAL MEDIA
Social media is coming to play an increasingly important part in personal injury litigation. It is worthwhile taking a look at developments and the lawyer’s duties. There is no doubt at all that the close scrutiny of social media accounts…
COMMENT POSING AS CROSS-EXAMINATION: "INAPPROPRIATE AND IMPROPER"
When does cross-examination turn to comment? That is a question all working advocates have to consider, both in relation to their own cross-examination of witnesses, and responding to their opponents. There are some important observations by Mr Justice McCloskey in…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
LITIGATION PRIVILEGE, DECEPTION AND THE ACCIDENTAL DISCLOSURE OF PRIVILEGED DOCUMENTS
In Property Alliance Group -v- The Royal Bank of Scotland PLC [2015] EWHC 3341 (Ch) Mr Justice Birss made some important observations on the scope of litigation privilege when evidence was obtained by deceit. Significant guidance was given on the…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…
SUMMARY JUDGMENT FOR DEFENDANT WHEN THERE WERE ALLEGED DISPUTES OF FACT: DON'T PARK THE CAR
Is it prudent to apply for summary judgment when there are alleged disputes of fact? I am grateful to my colleague Colm Nugent for sending me a copy of the judgment of Mr Justice Cooke in Price -v- Euro Car…
PROVING THINGS BY EVIDENCE: ANOTHER EXAMPLE OF AN ABSENCE OF EVIDENCE LEADING TO A CASE FAILING
The case of Goldsmith Williams -v- E.Surv Limited [2015] EWCA Civ 1147 will, no doubt, be discussed as a professional negligence case and it may have some impact on the duties of conveyancing solicitors. However the appeal, at heart, relates…
LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND
Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC [2015] EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to…
STRIKING OUT AT TRIAL BECAUSE THE CASE WAS A MESS: A WARNING FOR THOSE WHO WANT LIFE WITHOUT LAWYERS
On a day when the Lord Chief Justice has stated that the legal system must adapt to life without lawyers. It is interesting to read this report of the problems caused by litigants in person. It has kindly been provided…
