EXPERT WATCH 41: THE COURT OF APPEAL REFUSES TO OVERTURN A DECISION WHERE THE “WRONG” TYPE OF JOINT EXPERT WAS INSTRUCTED
This is an unusual case where, after the event, a party to the litigation argued that the court had relied on the “wrong” type of expert evidence. An educational psychologist had been instructed as a joint expert whereas what was…
CLINICAL NEGLIGENCE CORNER 6: CLAIMANT FAILS TO ESTABLISH CAUSATION: STATISTICAL RISK REDUCTION DOES NOT SATISFY THE BURDEN OF PROOF
Establishing causation is a key element of many clinical negligence cases. Here we have a case where the issue of causation was put in two ways: the “but for” test and alternatively the “indivisible injury” test. The claimant did not…
EXPERT WATCH 40: THE TRIAL JUDGE DID NOT ACCEPT THE EVIDENCE OF THE JOINTLY INSTRUCTED WITNESS: “THE DUTY OF THE COURT IS TO APPLY THE BURDEN OF PROOF AND TO FIND THE FACTS HAVING REGARD TO ALL THE EVIDENCE IN THE CASE…”
This is a case where the judge did not accept the views of a jointly instructed expert as to the authenticity of a document that was central to the case. The expert did not have access to all the relevant…
RELIEF FROM SANCTIONS REFUSED AFTER CLAIMANT FAILS TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: “THE CONSEQUENCE IS THAT THE PROCEEDINGS ARE STRUCK OUT”
Here we look at the “second half” of the decision considered in the previous post. Having rejected the claimant’s submissions that breaches of a peremptory order should be considered under CPR 3.10 the judge then went on to consider the…
COST BITES 362: WHETHER A BREAKDOWN SHOULD BE PROVIDED ON A DISBURSEMENT: READ THE JUDGMENT
An earlier post related to this case which deals with the question of whether a party should provide a breakdown of an invoice from a translator. Ben Williams KC has kindly provided me with a copy of the judgment. “In my judgment,…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
WHAT TO DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER: WEBINAR 29th APRIL 2026
The Court of Appeal’s decision in Attersley v UK Insurance Ltd has sharpened the costs risks faced by claimants who accept a Part 36 offer outside the relevant period. While a claimant who accepts late remains subject to fixed recoverable costs…
BACK TO BASICS MONDAY: EXHIBITS: A REMINDER OF THE RULES, WHERE THINGS GO WRONG AND HOW TO AVOID PROBLEMS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
AVOIDING THE PITFALLS WITH EXPERT EVIDENCE: WEBINAR 20th MARCH 2026: THE EXPERTS REPORT WAS “ALMOST WORSE THAN USELESS…”
We have seen some graphic examples in the past few weeks of a court robustly rejecting expert evidence adduced on behalf of a claimant. This webinar examines why expert evidence is not accepted, limited, or even wholly rejected at trial….
THROWBACK FRIDAY: LITIGATION: WHAT IS AN APPROPRIATE CASE LOAD – AND IS IT IMPORTANT? (MARCH 2016)
Here is a post from a decade ago with an issue that remains just as relevant today. What is an appropriate case load for litigators? How do we find the balance between economic survival and overloading, stress and the major…
EXPERT WATCH 39: WHEN THE HOME SECRETARY DID NOT CHALLENGE EXPERT EVIDENCE SHE CANNOT BE THAT SURPRISED WHEN THE COURT ACCEPTS IT
We are looking at another case where a party failed to challenge expert evidence. The Court of Appeal was clear in its view that if fault lay anywhere it was with the appellant’s failure to challenge the expert evidence that…
WITNESS EVIDENCE WEDNESDAY II: WITNESS CREDIBILITY: THE PRINCIPLES IN TUI -V- GRIFFITHS DID NOT IMPACT ON THE ASSESSMENT OF A LAY WITNESS
Here we have an unusual argument where an appellant attempted to use the decision in Tui -v- Griffiths to argue that a tribunal should not have accepted the evidence of a lay witness. The evidence of the witness in question…
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
BACK TO BASICS MONDAY: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF ANY WITNESS STATEMENT OR AFFIDAVIT
Here we are looking at one of the basic rules for witness statements. Curiously it is ignored in about 40 – 50% of the statements I see in practice. Often the oversight is ignored. Some judges take a hard line….
AVOIDING THE PITFALLS: WITNESS EVIDENCE AND WITNESS STATEMENTS: WEBINAR 6th MARCH 2026
We have seen a lot of issues over the years in relation to the drafting of witness statements and presentation of witness evidence. There are many cases that illustrate the problems that arise. This webinar aims to head off those…
EXPERT WATCH 39: BOTH EXPERTS “ACTED AS SURROGATE ADVOCATES ON BEHALF OF THEIR INSTRUCTING PARTY”: MORE LESSONS TO BE LEARNT…
We have another High Court decision where the judge was highly critical of the approach of each expert. The judge found that each took on the role of advocate rather than expert. The criticisms are stark “they were similar in…
HOW FAR IS A CIVIL COURT BOUND (IF AT ALL) BY THE CONCLUSIONS IN ANOTHER CIVIL MATTER? THE ISSUE CONSIDERED IN THE HIGH COURT
Can a judge take into account findings of fact in a “related” civil action? That is the matter being considered here. The judge had to consider whether factual findings as to the employment status of the petitioner in Employment Tribunal…
THE CURRENT IMPORTANCE OF PLEADINGS 59: IT IS TOO LATE TO RAISE THIS NOW: CLAIMANT ALLOWED TO RELY ON AMENDED PLEADINGS EVEN THOUGH THEY DID NOT HAVE PERMISSION TO DO SO
Here we have a case where the claimant amended his pleading extensively, going beyond the limited permission that the court had granted. The defendants noted that and objected to it, however they did nothing about it for 10 months. At…
MAZUR MATTERS 51: WHY THE HEARING IS NOT BEING “LIVESTREAMED”: A QUICK WORD FOR THE CONSPIRACY THEORISTS
The appeal in the decision of Mazur -v- Charles Russell Speechlys LLP continues today. There were (I am told) some 400 people watching remotely. This has not stopped a large number of people online putting forward (sometimes bizarre) theories as to…
WITNESS EVIDENCE WEDNESDAY: A WITNESS STATEMENT “MADE UP OF SUBMISSIONS OR COMMENTARY ON DOCUMENTS RATHER THAN EVIDENCE”
There are numerous warnings and strictures about not putting submissions, commentary and opinion in witness statements. More than one observer has commented that these rules are routinely ignored. We have examples of this here. We also have an example of…
EXPERT WATCH 37: THE COURT SHOULD MAKE FINDINGS OF FACT FIRST AND NOT ABDICATE THIS TASK TO AN EXPERT: A FIRST INSTANCE DECISION WITH A “FUNDAMENTAL FLAW”
We are looking at a family law case which considers several significant aspects of expert evidence. Firstly it makes clear that it is not for an expert to make findings of fact. Further a judge cannot simply abdicate they key…
FATAL ACCIDENTS WEBINAR SERIES 2026: ADVANCE NOTICE : JUNE – JULY 2026: BASIC PRINCIPLES AND SOME INTERESTING NEW DEVELOPMENTS CONSIDERED
The recent High Court decision in Denning v Stone [2025] EWHC 3517 (KB) is a powerful reminder of the very particular nature of fatal accident damages. Although the deceased’s farm was not making a profit, the court awarded £377,577 to…
MORE DECISIONS ABOUT ARTIFICIAL INTELLIGENCE AND “HALLUCINATED” CASES: THE UPPER TRIBUNAL IS FAR FROM HAPPY: LEGAL PROFESSIONALS WHO DELEGATE THEIR WORK REMAIN RESPONSIBLE FOR ENSURING ITS ACCURACY
As I’ve said before the hallucinated cases just keep on coming. The issues were considered by the Upper Tribunal (Immigration and Asylum Chamber) here. There are important points about the need to supervise staff who undertake legal research. It is…
THE USE OF AI FOR PREPARING COURT DOCUMENTS: READ THE CIVIL JUSTICE COUNCIL INTERIM REPORT AND CONSULTATION
The Civil Justice Council has produced an interim report and consultation document on the use of AI for preparing Court documents. This is worthwhile reading. It summarises many of the current issues “Artificial intelligence (“AI”) has enormous potential to be…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
EXPERT WATCH 36: THE JUDGE FINDS THAT EXPERT EVIDENCE IS “LITERALLY UNBELIEVABLE” (AND IT GETS WORSE…) “I MEAN, IT IS DISHONEST, FULL STOP”
We are used to seeing judicial criticism of experts on this site. We have an example here of a claimant’s case coming to grief because the judge did not accept her evidence or the evidence of the two experts called…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION (2): CONTRIBUTIONS FROM THE NICE PEOPLE OF TWITTER:
I am here summarising the Advice given by lawyers on the social media site formerly known as Twitter. In April 2019 I asked lawyers what their advice would be for their colleagues in the profession when things go wrong. Specifically…
PRACTICE DIRECTION AMENDMENTS: 193rd UPDATE: CHANGES TO RULES ABOUT DISCLOSURE IN THE BUSINESS AND PROPERTY COURTS: THE COURT CAN ORDER A PARTY TO SEEK INSPECTION FROM “ANY PERSON”
There are several amendments in Practice Directions made in the the most recent update. Here we look at one that is directly related to the rule change we looked at last week. The amendment introduces into the Business and Property…
EXPERT WATCH 35: CLAIMANT REFUSED PERMISSION TO ADDUCE A SUPPLEMENTARY REPORT AFTER THE TRIAL HAD ENDED
There are many (if not all) working advocates who have thought, after a hearing is over, “I could have said that”. The same may well be true of experts. Here we have an attempt to introduce new material in a…
THROWBACK FRIDAY: “EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”: FEBRUARY 2018
There have been several major issues about the way in which the joint meetings of experts are conducted. This includes the problems that occur when the parties cannot even agree on an agenda for the meeting. This post looked at…
EXPERT WATCH 34: THE COURT REFUSES TO REPLACE A JOINTLY INSTRUCTED EXPERT BUT ALLOWS SOME OF THE PARTIES TO INSTRUCT THEIR OWN EXPERT
When it is appropriate for a court to replace a jointly instructed expert? That issue was considered in this case. The judge rejected the allegations made about the jointly instructed expert, however given that expert evidence was central to the…
PROVING THINGS 278: CLAIMANT FAILS TO PROVE THEIR CASE WHILST THE DEFENDANT FAILS TO PROVE FRAUD: MULTIPLE INCONSISTENCIES LEAD TO EVIDENCE NOT BEING ACCEPTED
Here we look at a judgment where the claimant failed to establish his case. The defendant also failed to prove that the claimant was involved in a “staged crash”. It shows how cumulative inconsistencies in a party’s evidence can lead…
THE CIVIL PROCEDURE (AMENDMENT) RULES 2026 (2): THE COURT CAN ORDER A PARTY TO REQUEST ANY PERSON TO PRODUCE DISCLOSURE AND INSPECTION
We are continuing with our look at the The Civil Procedure (Amendment) Rules 2026 which come into force on the 6th April 2026. Here we look at a totally new provision which gives the court power to order a party to…
WITNESS EVIDENCE WEDNESDAY: THE USE OF ARTIFICIAL INTELLIGENCE IN THE DRAFTING OF WITNESS STATEMENTS: “IT IS DIFFICULT TO DISTINGUISH BETWEEN WHAT F SAYS AND WHAT AN ALGORITHM TELLS F TO SAY”
There is much material about witness evidence and witness statements on this site. In recent years we have also been discussing the use (and misuse) of artificial intelligence. We can be fairly sure that there will be much more about…
DEFENDANTS GIVEN PERMISSION TO RELY ON SURVEILLANCE EVIDENCE SERVED LATE: EVEN THOUGH THIS LED TO THE ADJOURNMENT OF THE TRIAL
A defendant that wishes to rely on surveillance evidence must choose its timing with extreme care. If the evidence is disclosed too early then the claimant could be “tipped off”; too late and this could be categorised as an “ambush”. …
WITNESS EVIDENCE WEDNESDAY ii: WHY A JUDGE DID NOT ACCEPT THE EVIDENCE OF THE DEFENDANTS’ WITNESS: SOME REPLIES WERE “ESSENTIALLY MEANINGLESS VERBIAGE DESIGNED TO FOB OFF QUESTIONS” HE “PREFERRED NOT TO ANSWER”
Knowing the factors that lead to the evidence of a witness not being accepted is an important part of the litigator’s “skill set”. Here we look at a case where the evidence of a witness was roundly rejected. “I…
WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
HIGH COURT SETS ASIDE AN ORDER MADE FOLLOWING AN APPLICATION WITHOUT NOTICE : THIS IS A REHEARING IN FULL – THE APPLICANT DOES NOT HAVE TO SHOW AN ERROR SUCH AS TO WARRANT SETTING ASIDE THE ORIGINAL ORDER
Here we look at a case where the court set aside an order made without notice. The Master found that the evidence presented to him at the initial hearing was “neither full nor frank”. It is a reminder of the…
MAKING THREATS TO REPORT LAWYERS TO THEIR REGULATORY BODIES IS CAPABLE OF AMOUNTING TO CONTEMPT OF COURT: MAKE THREATS AT YOUR OWN PERIL…
We are looking at a case where a respondent to committal proceedings threatened to make regulatory and other complaints about the conduct of the claimant solicitors. The judge held that such threats made in these circumstances are capable of amounting…
EXPERT WATCH 33: WHEN AN AN EXPERT RELIES ON THE FINDINGS OF A PREVIOUS EXPERT: THIS CAN LEAD TO DIFFICULTIES…
I am grateful to Jim Shepphard solicitor for sending me a copy of this report part of which relates to to the assessment of expert evidence. The claimant’s expert had a problem because their report was based, in part, on…
THE STATEMENT OF TRUTH WAS NOT SIGNED BY AN AUTHORISED PERSON: IT REQUIRES “FACTS” NOT INFORMATION: A SOLICITOR EMPLOYEE SHOULD NOT HAVE SIGNED IN THE NAME OF THE FIRM
Here we have an example of a Statement of Truth that was non-compliant it contained the wrong wording and was signed by the wrong person in the wrong way. It shows the need to ensure that the rules in relation…
WITNESS EVIDENCE WEDNESDAY: HOW DOES THE COURT APPROACH EVIDENCE OF SOMETHING THAT HAPPENED OVER FOUR YEARS BEFORE AND TOOK PLACE WITHIN TWO MINUTES?
This series enables us to look at witness evidence in many different contexts. Here we look at evidence relating to an arrest and events that took place within two minutes. The judge was well aware of the issues that could…
EXPERT WATCH 31: A PARTY WAS NOT ALLOWED TO RELY ON THE EXPERT EVIDENCE OF SOMEONE WHO WAS CONFLICTED: THE EXPERT CANNOT “MARK THEIR OWN HOMEWORK”
This is an interesting example of a judge refusing a party permission to rely on an expert witness because they were conflicted. They had been involved in the issues previously and could not give independent or disinterested advice. “Ms…
COST BITES 338: COURT AWARDS THE DEFENDANT INDEMNITY COSTS: THE CLAIMANT’S HAD AN “ENTIRELY, UNREASONABLE AND ALMOST IRRATIONAL APPROACH TO THIS LITIGATION”
We have looked many times at cases where the courts have considered whether or not costs should be awarded on an indemnity basis. I do not recall a judgment where the judge has decided this issue so emphatically. There were…
PROVING THINGS 276: APPEAL JUDGE OVERTURNS TRIAL JUDGE’S “INFERENCES” OF LOSS: DAMAGES AWARD OF £347,285 REPLACED WITH £NIL
This is a classic “Proving Things” case, the only surprise being that it reached the appeal stage. On appeal the the judge overturned the trial judge’s findings in favour of the defendant’s counterclaim and reduced a damages award of £347,285…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
THROWBACK FRIDAY: WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY GIVING THE SOURCE OF INFORMATION IS IMPORTANT (FROM JANUARY 2018)
Today we go back to a post from January 2018 on a point that remains just as relevant today. There is a mandatory requirement that a witness give the source of their information and belief. A surprising number of witness…
WHEN DOCUMENTS WERE CHANGED AFTER THE EVENT: “THEY ARE FALSE AND WERE INTENDED TO DEFLECT BLAME”: SOME POINTS FOR LITIGATORS TO REMEMBER IF THEY WANT TO KEEP THEIR CASES ON AN EVEN KEEL…
Many the cases which consider and give guidance on witness credibility stress the importance of contemporary documents. However what happens when the “contemporary” documents have been re-written after the event? Litigations should be alive to that possibility. Here we look…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
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