AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
THE ASSESSMENT OF EXPERT WITNESS CREDIBILITY: THE EARLIER THE BETTER (PARTICULARLY IF IT COSTS SOMEONE £7.5 MILLION)
The judgment of Mr Justice Snowden in Davey v Money & Anor [2019] EWHC 997 (Ch) will, no doubt, be read anxiously by all litigation funders. The judge held that the “Arkin cap” – a limit on the liability of…
RECORDINGS ARE DOCUMENTS: AN APPROACH TO EVIDENCE THAT WAS UNSATISFACTORY
In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court. It provides a…
PRELIMINARY ISSUES, WITNESS CREDIBILITY AND SUMMARY JUDGMENT: WHEN THE DEFENDANTS’ CHICKENS COME HOME TO ROOST…
The judgment of Mr Justice Lane in Antuzis & Ors v DJ Houghton Catching Services Ltd & Ors [2019] EWHC 843 (QB) is interesting for many reasons. It concerns a claim for damages for exploited labour. It confirms that directors…
WHEN AN EXPERT RELIES ON MATTERS FROM THE INTERNET FOR MATTERS OUTSIDE THEIR EXPERTISE THEN YOUR CASE IS LIKELY TO FALL APART: THE CIDER HOUSE RULES
I am returning to the decision of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch). Here was are looking at the judge’s view of one of the experts….
GIVING EVIDENCE AT TRIAL: JUST BECAUSE THE COURT HAS SAID YOU MAY – IT DOESN’T MEAN YOU WILL: HOW TO FAIL OF YOUR OWN ACCORD
Trials are always stressful events for the participants. They require careful preparation and are usually subject to close case management. Imagine the difficulties when you turn up at the trial and the judge says that the evidence you are relying…
YOU SPEND A FORTUNE ON EXPERT WITNESSES AND THEN FIND OUT THAT THEY ARE NOT ADMISSIBLE OR THEIR EVIDENCE ISN’T “EXPERT” AT ALL
There are parts of the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch) that merit close consideration by anyone involved in litigation that (they…
SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…
PROVING THINGS 146: NO EVIDENCE AT ALL TO PROVE A LOSS, OR THAT THE DEFENDANT CAUSED ANY “LOSS” (THIS IS BECOMING A FAMILIAR STORY)
The number of people who are willing to commit to large scale, and expensive, litigation without having the basic evidence to prove their case on damages has proven to be a staple fare for this series. Another example is the…
THE POST OFFICE CASE (AGAIN): STRIKING OUT PASSAGES IN WITNESS STATEMENTS: THE DEFENDANT WITH SUPERNATURAL POWERS
For the third time today I am writing about the case of Bates & Ors v Post Office Ltd [2018] EWHC 2698 (QB). However we are now looking at the earlier interlocutory application by the defendant to strike out large parts…
ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER
The judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) is 1122 paragraphs long, following a two week long trial. There are aspects of this case I will look at again. However, it is interesting…
EXPERTS WHO CAN’T REPORT IN TIME: BETTER READ THIS: IF YOU CAN’T REPORT ON TIME PROBABLY BEST NOT TO TAKE INSTRUCTIONS AT ALL…
In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH Clifford Bellamy (sitting as a Deputy Circuit Judge) made some observations in relation to the role of the expert, particularly when that expert cannot report timeously. The…
PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
CIVIL PROCEDURE BACK TO BASICS 33: INVALUABLE GUIDANCE ON EXPERT EVIDENCE FROM THE ICCA
The Inns of Court College of Advocacy has prepared a very useful guide called “Guidance on the preparation, admission and examination of expert evidence“. It is free of charge and can be downloaded here. This post is just a summary…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
COURT REFUSED TO ORDER THAT CONTESTED EVIDENCE BE REMOVED FROM EXPERT REPORTS
In A v B [2019] EWHC 275 (Comm) Mrs Justice Moulder refused the defendant’s application to declare inadmissible part of an expert report and a joint expert report. It was held that the principles in Rogers -v- Hoyle are of general…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL
We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge. It is worthwhile looking at the guidance and cases on this…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…