WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY
There are several short passages in the judgment of HHJ Baucher in Ali v The Home Office [2020] EW Misc 27 (CC) which emphasises the need for expert witnesses to consider the objective evidence before reporting. It also shows the…
THE APPROACH OF THE COURT AT TRIAL WHEN A PARTY HAS NOT GIVEN DISCLOSURE: THE BENEFIT OF DOUBT IS AGAINST THEM
In Aegean Baltic Bank SA v Renzlor Shipping Ltd [2020] EWHC 2851 (Comm) Mr Adrian Beltrami QC (sitting as a Judge of the High Court) considered the appropriate approach at trial when a party has been debarred from calling evidence….
PROVING THINGS 184: PROVING YOU CAN’T A CLAIM WILL BE “STIFLED” REQUIRES A DETAILED EXPLANATION
In National Tourism Council of Qatar v Mehdiyev [2020] EWHC 2638 (Ch) Deputy Master Hansen considered the defendant’s evidence as to means when deciding whether or not to impose terms when setting aside a judgment. It is important to note…
PROVING THINGS 182: FAILING TO PROVE A CONTRACT WAS SIGNED AND GETTING DAMAGES OF £1: NOT A GREAT RESULT FOR A CLAIMANT
The judgment of JJH Melissa Clarke, sitting as a High Court Judge, in DPA (London) Ltd v D’Aguanno & Ors [2020] EWHC 2374 (IPEC) is a classic example of failing to prove key matters in a claim. Firstly the claimant…
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP – JUNE 2020
A round up of posts and articles about costs, procedure and evidence from June 2020. (Matters relating to Coronavirus and civil procedure will be dealt with in a separate post). Costs Litigation Futures – QC’s £1.5m brief fee for nine months’…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS
This report of the Witness Evidence Working Group was produced at the end of last year. It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…
INACCURATE TRANSCRIPTS WERE NOT AUTHENTIC: HIGH COURT DECISION
One reliable element in most litigation is a transcript of a judgment. In Ghassemian v de Beaumont & Anor [2020] EWHC 1642 (Ch) Mr Justice Birss had cause to question the accuracy of a transcript of his own judgment. “The…
COUNSEL’S ADVICE IS NOT EVIDENCE: REALLY, ITS NOT.
There is an interesting consideration of the role of counsel’s advice in the judgment of HHJ Vincent in AZ v BZ (financial remedies appeal) [2020] EWFC 28. In a financial remedies hearing, a judge was wrong to firstly admit, and…
THE EXPERT THAT DOESN’T GIVE HIS SOURCES (EXCEPT WIKIPEDIA): A PRACTICE DEPRECATED BY THE COURT.
In Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC) Mrs Justice O’Farrell commented on the practice of one of the experts in the case. Failure to follow the basic guidance given in the…
PROVING THINGS 177: WHEN YOU ARE RELYING ON A MEDICAL EXPERT ON CAUSATION WHO “SHOOTS FROM THE HIP” (IT DOESN’T END WELL)
I have written many times about issues arising from expert witnesses. In clinical negligence cases the role of the expert witness is often paramount. The claimant, in particular, is almost wholly reliant on expert evidence in relation to causation. It…
THE SEVEN YEAR ITCH: CIVIL LITIGATION BRIEFS’ 7th (OR 29th?) BIRTHDAY: FACTS, FIGURES AND HOW IT ALL BEGAN
This week sees the seventh anniversary of Civil Litigation Brief as a blog. That, it appears, is relatively young as a blog, the housing law blog Nearly Legal recently celebrated its 14th anniversary and is well into its truculent teenage…
SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)
I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of HHJ Yelton (sitting in the High Court) in Kilbey -v-…
COVID REPEATS 43: FAREPAK: “A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS”
Today we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson in the need for careful preparation of witness evidence and identifying precisely what “evidence” a witness can give. “The…
COVID REPEATS 41: OFFICE GOSSIP IS NOT EVIDENCE
This week we continue with our look back at cases in relation to witness evidence. This contains another reminder that there is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information…
![JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN'T MAKE YOU AN EXPERT: "ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2020/06/calculator_count_statistics_1277492.jpg?resize=150%2C150&ssl=1)
JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN’T MAKE YOU AN EXPERT: “ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN”
Last week the “Covid Repeats” posts on this blog highlighted a few (and just a few) of the cases where judges had been critical of the role of experts, or experts involved in cases has been problematic. That this remains…
NON-COMPLIANCE WITH ORDER FOR EXPERT EVIDENCE AND THE CLAIMANT’S APPLICATION GOES UP IN SMOKE…
Possibly the most difficult position you could put yourself in in litigation is for the court to make an order, do something the court did not allow, not get permission in advance, and then seek relief from sanctions thereafter. …
EVALUATING EVIDENCE ON APPEAL: THE APPELLATE COURT WILL NOT READILY DISPLACE THE FINDINGS OF THE TRIAL JUDGE
I am grateful to Christopher Kardahji from Irwin Mitchell solicitors for sending me a copy of the judgment of Mr Justice Freedman in Lenord -v- First Manchester Limited [2020] EWHC 982 (QB). The judgment contains a detailed analysis of the…
WHEN A DEFENDANT FILED A COSTS BUDGET LATE: RELIEF FROM SANCTIONS REFUSED: “THE DEFAULTING PARTY HAS ONLY ITSELF OR ITS LEGAL REPRESENTATIVE TO BLAME”
The judgment of HHJ Simon Barker QC in Heathfield International LLC v Axiom Stone (London) Ltd [2020] EWHC 1075 (Ch) is another example of a party coming to grief because of the failure to file a costs budget timeously. That…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT: THE STANDARD OF PROOF FOR DISHONESTY: ALSO DELAY OF 22 MONTHS IN GIVING JUDGMENT UNACCEPTABLE
In Bank St Petersburg PJSC & Anor v Arkhangelsky & Anor [2020] EWCA Civ 408 the Court of Appeal ordered a retrial because of doubts in relation to the trial judge’s findings of fact. The judge had applied too high…