THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY
In the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence. It provides…
ADMISSIBILITY OF PREVIOUS JUDGMENT AS EVIDENCE OF FOREIGN LAW
In Joint Stock Company -v- Wood [2017] EWHC 150 (Ch) Mr Justice Warren considered whether a decision by judge in relation to foreign law was admissible as evidence. KEY POINTS A previous judgment where the judge considered and made findings…
E-DISCLOSURE: UNLESS ORDERS: STRIKING OUT, COMPLIANCE AND DENTON: DEFENDANTS COME TO GRIEF
There is a lot to consider in the judgment today of Mr Justice Green in Micheal -v- Phillips [2017] EWHC 42 (QB). It relates to inadequate disclosure; retention of electronic documents; peremptory orders and relief from sanctions. Things did not…
JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in…
PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker…
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
THE DANGERS OF RELYING ON EXPERT EVIDENCE: BEWARE YE THE PARTISAN EXPERT: "UNBALANCED AND HIGHLY MISLEADING"
Some types of litigation are heavily reliant upon expert evidence. Clinical negligence cases are often determined by the judge’s assessment of the experts involved. It is disturbing to see the matters raised in judgment today of His Honour Peter Hughes…
PROVING THINGS 34 : THERE IS NO PRIMER FOR SCUTTLERS: WHEN YOUR SHIP DOESN'T COME IN
We have looked at many different types of case during this series. However this is the first time we have looked at an Admiralty case and at case about the “scuttling” of a ship. The judgment of Mr Justice…
PROVING THINGS 33: CAUSATION AND THE BURDEN OF PROOF IN CLAIMS AGAINST SOLICITORS
We have looked before at the decision in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors [2016] EWHC 2286 (Ch). The previous post was in connection with witness evidence. However the judgment on the burden of proof is significant in terms…
I'VE LOST £5 MILLION AND ITS ALL MY SOLICITOR'S FAULT: WHEN THE CLIENT BLAMES YOU FOR THEIR OWN BAD DECISIONS
This post is unusual in that it deals with a case from a different jurisdiction (Northern Ireland) and a professional negligence action against a conveyancer not a litigator. However the decision of Deeny J in Eden (NI) Limited -v- Mills,…
BANQUO’S GHOST NOT AT THE FEAST: WHEN A KEY WITNESS IS NOT CALLED – THE INFERENCES A COURT WILL DRAW
There is an interesting discussion of the role of the “absent witness” in the judgment today of Mr Justice Kerr in O’Hare -v-Coutts & Co [2016] EWHC 2224 (QB). There are dangers in a party not calling someone who is…
CHALLENGING VIDEO SURVEILLANCE BY THE USE OF EXPERT EVIDENCE: THE PREQUEL
Last month I wrote about the decision of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB). One of the many issues the judge considered in that case was the admissibility of expert evidence to…
AN EXPERT DISPLAYING ZEALOTRY IS NO HELP AT ALL (AND USUALLY HARMFUL)
In the Matter of F (a Minor) EWHC 2149 (Fam)Mr Justice Hayden had to consider whether an expert report should be admitted in a family case. The comments on the expert evidence are of general relevance. “The overall impression is…
PROVING THINGS 28: MAKE UNWARRANTED PERSONAL ATTACKS AND USE A "MUD-SLINGING" EXPERT: THAT ALWAYS ENDS WELL
The judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd [2016] 1949 (TCC) contains some surprising observations. It also contains important lessons in relation to “conspiracy” theories in litigation and the role of the…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
EXPERTS:YOU'RE NOT RIGHT JUST BECAUSE YOU'RE FAMOUS: A DECISION NOT WRITTEN ON THE BACK OF A FAG PACKET
The judgment of Mr Justice Green in British American Tobacco (UK) Limited -v- Secretary of State for Health [2016] EWHC 1169 is 1,000 paragraphs long. It covers many aspects of law and procedure. I want to concentrate upon one issue….
LEARNING HOW TO PROVE THINGS: A BASIC SKILL THAT NEEDS HONING
As part of the occasional series which jogs peoples memories about New Year’s resolutions for 2016 I am revisiting resolution number 6: “learn how to prove things”. A very basic skill in the litigator’s armoury, but one which is barely…
PROVING THINGS 17: HEADS OF DAMAGE THAT WERE "ENTIRELY BOGUS"
The case of Perma-Soil UK Limited -v- Williams & Flintshire County Council [2016] EWHC 1087 (QB) was an unusual one. The claimant (unsuccessfully) brought a claim for damages for misfeasance in public office. However I want to look at the…
BOOK REVIEW: THE ELECTRONIC EVIDENCE AND E-DISCLOSURE HANDBOOK: ESSENTIAL INFORMATION IN BYTE SIZED CHUNKS
Peter Hibbert has written an impressive work, The Electronic Evidence and E-Disclosure Handbook. Does it deserve a place on your bookshelf? I have a quick review and a longer review. They both lead to the same conclusion. THE SHORT…
THE ONLINE COURT: A GLIMPSE OF THE FUTURE
In Bi -v- Mohammed [2016] EWHC 506 (Fam) today Mr Justice Holman gives an insight into the future of the on-line court, commenting on the problems with evidence by video link. EVIDENCE BY VIDEO LINK There were long periods during…
INTERIM PAYMENTS, EVIDENCE AND THE BURDEN OF PROOF: OBSERVATIONS FROM THE HIGH COURT
In Sellar-Elliot -v- Howling [2016] EWHC 443 (QB) Mr Justice Sweeney considered some important issues in relation to interim payments. The case is somewhat unusual in that the judgment is one that refuses permission to appeal. However the judge recognised…
A CLEVER PLOY: HIRE EXPENSIVE LAWYERS AND THEN ARGUE COSTS ARE DISPROPORTIONAL
The decision of Mr Justice Foskett in Vilca -v- Xtrata Limited [2016] EWHC 389 (QB) is interesting for a number of reasons, in particular relating to disclosure and case management. Here I want to look at the judge’s consideration of arguments…
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…
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 7: IF YOU DON'T PROVE A LOSS YOU DON'T GET AN ORDER: DIRECTORS DON'T HAVE TO CONTRIBUTE
This occasional series on the need to prove matters by evidence has covered a wide range of cases. Today we consider company law and insolvency. In Grant -v-Ralls [2016] EWHC 243 (Ch) Mr Justice Snowden rejected a claim by liquidators…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
PROVING THINGS 2: EVIDENCE TO SUPPORT A CLAIM FOR DAMAGES MUST BE PITCH PERFECT
Another example of the need to prove damages can be seen in the Court of Appeal decision in Gartell & Son (a firm) -v- Yeovil Town Football & Athletic Club Limited [2016] EWCA Civ 62. It is another case that…
PROVING THINGS 1: CIVIL EVIDENCE ACT NOTICES WILL NOT CUT IT
The really surprising thing about going to court (for some people) is that, you have to prove things. Judges work on the basis of evidence. On the whole judges prefer live evidence from witnesses who are cross-examined. I The case…
EVIDENCE AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE IN THE HIGH COURT
The judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 121 (QB) is another example of a case resting on the accuracy of recollection of a witness. Further the judge rejected a “statistical”…
EVIDENCE, DAMAGES AND A SOLICITOR'S GOODWILL
The Court of Appeal decision in Karim -v- Wemyss [2016] EWCA Civ 27 has already received some publicity, involving as it does litigation following the sale of a solicitor’s practice. However the decision also shows the dangers of not bringing…
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…
RELIEF FROM SANCTIONS, FRAUD AND THE CHANGING SITUATION
I must preface this post with the warning that it is not possible to cite decisions relating to permission to appeal. However the decision in Bawden -v- WM Morrison Supermarkets PLC [2015] EWCA Civ 957 is interesting in itself. The…
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 THE CREDIBILITY OF THE LAY AND EXPERT WITNESSES LIES IN SHREDS
The previous post in relation to Part 36 led me to examine the substantive judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC). It contains as damning an assessment of witness…
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…
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…
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…
PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 4: CLAIM ONLY WHAT YOU CAN PROVE
Proportionality is, mostly, about money. The problems that proportionality causes increase in those cases where the sums recovered are much less than those originally sought. The over-claiming of damages is a dangerous tactic for many reasons. Not least it…
PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT
The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence…
ADVERSE INFERENCES FROM MISSING DOCUMENTS AND WITNESSES: ANOTHER CASE TO POINT
We have looked at the decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) several times, firstly in relation to witness evidence and then in relation to the use of social…
BOOK REVIEW: OCCUPIERS, HIGHWAYS AND DEFECTIVE PREMISES CLAIMS: WILL IT STOP YOUR CLAIMS SLIPPING UP?
Law books nowadays are not reviewed enough. Particularly practitioner’s texts. Given that there are precious few legal bookshops in which people can browse it is nice to see s a review now and again. I have been sent a copy…
A FAILURE TO DISCLOSE CAN BE JUST AS TELLING AS DISCLOSURE ITSELF: EVIDENCE, INFERENCES AND THE BLUE ANGEL CASE
The decision of Mr Robin Hollington QC (Sitting as a Deputy Judge of the Chancery Division) in Davy -v- Croxen [2015] EWHC 2372 (Ch) (“The Blue Angel case”) contains some illuminating observations about the practicalities and costs of disclosure and…
EXPERT EVIDENCE IN INSURANCE CASES 2: BRIT UW LIMITED: FAILURE TO DISCLOSE UNDERMINED DEFENDANT'S CASE
There are, coincidentally, two recent cases on the use of expert witnesses in insurance disputes. In Brit UW Limited -v- F & B Trenchless Solutions Limited [2015] EWHC 2237 (Comm) Mrs Justice Carr DBE considered the utility of expert evidence…
MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)
The post on the Canadian case of The Hearing Clinic (Niagara Falls) -v- Ontario 2014 ONAC 5831 attracted a lot of views and a lot of comments. I am grateful to Chris Rees for pointing out the judgment of Mr…
SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES
In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
CAUSATION AND EVIDENCE – A BURNING PROBLEM? IMPORTANT ISSUES FROM A BIZARRE SET OF FACTS
In Graves -v- Brouwer [2015] EWCA Civ 595 the Court of Appeal carried out an extensive review of the principles and authorities relating to evidence and causation. There is a useful discussion on the role and questioning of experts at…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
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