WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS
This is the third post on this subject in one day. Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could relied…
“MY SOLICITOR WROTE THAT STATEMENT”: A FAMILIAR TALE: HAVING A PLAN TO PROTECT YOURSELF
The previous post dealt with a case where the claimant’s witness statement was found to be “largely fictional”. This coincided with a number of posts on Twitter with various lawyers and judges (duly anonymous) commented on the situations in which…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE
There has been much controversy recently about the need for cross-examination when allegations are made. I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
CIVIL EVIDENCE AND LITIGANTS IN PERSON : THE DANGERS OF A JUDGE ASKING LEADING QUESTIONS
In Global Corporate Ltd v Hale [2018] EWCA Civ 2618 the Court of Appeal emphasised the dangers of a judge asking leading questions of a witness. It is a case that highlights the difficulties of trials involving litigants in person. THE…
GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION
A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association. I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…
A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…
a As a blogger feedback comes in many forms. Yesterday I had an email from a litigant in person. The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…
PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…
GUIDANCE TO EXPERTS, STRAIGHT FROM THE BENCH: ONLY PUT YOUR HAT WHERE YOU CAN REACH IT: AVOID EXPERT-WITNESS-ITIS
There are several series on this blog which features judges giving advice to advocates. In his keynote address to the Bond Solon Experts conference Lord Justice McFarlane gives advice to experts. As ever the aim of this post is to…
PROVING THINGS 132: BUNDLES, BURDENS OF PROOF AND GO-KARTS: CLAIMANT MANAGES TO CROSS THE WINNING LINE ON APPEAL
The judgment in Cowley Property Investment Ltd v Oxford Karting Ltd [2018] EWHC 2824 (Ch) contains a consideration of the rule that documents in an agreed trial bundle are admissible. It is a case all about proving things without calling evidence….
WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL [2018] EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often…
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before…
TRYING TO SNEAK EXPERT EVIDENCE INTO A WITNESS STATEMENT: PEOPLE MIGHT NOTICE: DEFENDANT’S ATTEMPT TO EXHIBIT EXPERTS STRUCK OUT
There have been numerous cases in which parties have attempted to give expert evidence in witness statements. Another example can be seen in the decision in New Media Distribution Company Sezc Ltd v Kagalovsky [2018] EWHC 2742 (Ch). An attempt to…
EXPERT EVIDENCE – SHOULD YOU FRET ABOUT WHAT THE EXPERT HAS QUOTED? I DON’T LIKE MONDAYS BUT YOU CAN KEEP THE GUITAR PARTS
In Moylett v Geldof & Anor [2018] EWHC 893 (Ch) Mr Justice Carr considered some aspects relating to the admissibility of expert evidence. Statements of others included in a report are not expert evidence, however the inclusion of those statements did…
WHO SIGNED THE STATEMENT OF TRUTH? THIS COULD BE A VERY IMPORTANT QUESTION: TICKING A BOX IS NOT SUFFICIENT
I am looking again at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). Here we look at the crucial question of who signed the statement of truth. A difficult concept when a claim form…
PROVING THINGS 123: THE PERSONAL INJURY CLAIMANT WHO COULD NOT SAY WHETHER OR NOT HE HAD BEEN INJURED
We looked at the case of Kavak v FMC – HHJ Pearce Manchester CC 24.04.18) in an earlier post, primarily in the context of re-allocation. However that case provides a clear illustration of a failure to prove a basic element of…
CHANGING TRACK AFTER TRIAL: CLAIM RE-ALLOCATED FROM FAST TRACK TO SMALL CLAIMS TRACK: CLAIMANT CONFINED TO SMALL CLAIM TRACK COSTS
I am grateful to Michael Cordeux from Plexus Law for sending me a copy of the decision of His Honour JudgePearce, sitting in the Manchester County Court, on the 9th April 2018. It is an example of how a case…
