IT IS “ESSENTIAL THAT JOINTLY INSTRUCTED EXPERTS ARE ABLE AND WILLING TO ENGAGE WITH COUNTERVAILING ARGUMENTS…”
There have been a number of cases recently where the courts have considered whether expert evidence should necessarily be accepted in full. In M (A Child)(Non-Accidental Injuries; Wider Canvas), Re [2024] EWFC 209 HHJ Coffey held that the views of…
RELIEF FROM SANCTIONS REFUSED WHEN WITNESS EVIDENCE SERVED THREE WEEKS LATE: SOMETHING ABOUT THE DANGERS OF “CUT AND PASTE” SUBMISSIONS TOO…
In Seaton Management Ltd v Evans-Jones [2024] EWHC 1883 (Ch) ICC Judge Barber refused the respondent’s application for relief from sanctions when a witness statement was served three weeks late. “The matters addressed in the Respondent’s skeleton argument on…
WRITING INFLAMMATORY THINGS IN COURT DOCUMENTS AND CORRESPONDENCE: IT NEVER, EVER, HELPS
We are looking at the judgment of HHJ Edward Hess in TM v KM [2022] EWFC 155 for two reasons: firstly the costs involved; secondly the judge’s observations about the unattractiveness of putting personal pejorative remarks in court documents. There…
WHEN EXPERTS KNOW EACH OTHER AND SPEAK AT THE SAME CONFERENCES: ATTACKS ON THE CREDIBILITY OF THE EXPERTS WERE REJECTED
There are some interesting observations about expert witness evidence in the judgment in Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) Firstly in relation to the attendance at clinical seminars (during the course of the trial). Secondly in relation to…
CLINICAL NEGLIGENCE, EVIDENCE AND DISCLOSURE: WHEN THE JUDGE FINDS THAT THE MEDICAL NOTES ARE NOT ACCURATE: “A CONTRIVED AND FALSE PIECE OF EVIDENCE”
In Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) HHJ Carmel Wall (sitting as a High Court Judge) found that annotations made to medical records were not, in fact, contemporaneous. She rejected the second defendant’s evidence based on…
FOUR WEBINARS ON FATAL ACCIDENT LITIGATION: CORONERS; RECENT CASES; CHILDREN AND FATAL CLAIMS & DAMAGES IN ANTICIPATION OF DEATH
There are four webinars over the next four weeks dealing with key elements of fatal accident litigation. An introduction to the coroner’s court for personal injury and clinical negligence lawyers 23rd July 2024 This webinar is an introduction to the…
COMPETENCES, CORONERS COURTS AND ADVOCACY: A REVIEW (AND A USEFUL WEBINAR ON THE 23rd JULY)
In 2021 a working group of legal professionals published a set of Competencies for practitioners working in the Coroners’ Courts, in addition to providing a useful toolkit. Concerns were raised following the experiences of the families of the victims of…
CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST: EXAGGERATING SYMPTOMS IS PLAINLY DISHONEST
We are returning to the judgment of HHJ Karen Walden-Smith in Hamed -v- Ministry of Justice (County Court in Cambridge – 7th June 2024). The judge found that the claimant had been fundamentally dishonest in the presentation of their symptoms. This…
AN EXPERT WHO SHOULD LEARN THE RULES BEFORE REPORTING AGAIN: CLAIMANT COMES TO GRIEF
We are taking a short break from the detailed examination of issues relating to service of the claim form to look at another common issue on this blog – an expert that failed to comply with the rules. I am…
EXPERT EVIDENCE: AN EXAMPLE OF AN EXPERT BEING UNBALANCED (FROM 2015).
Looking back at previous posts there are, numerous, indeed hundreds, where the courts have considered the role of experts. The cases that appear on this blog tend to be where judges have found the experts wanting. It almost feels unfair…
EXPERT EVIDENCE: COURT OF APPEAL STATE WHY THE JUDGE SHOULD BE WARY OF RELYING ON SCIENTIFIC PAPERS
In D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663 the Court of Appeal set out a clear warning about the dangers of trial judges analysing research literature in detail. The literature should be read through the prism…
WHEN THE JUDGE PREFERS ONE EXPERT WITNESS OVER ANOTHER: A CLINICAL NEGLIGENCE EXAMPLE
In Woods v Doncaster And Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB) Mrs Justice Lambert preferred the claimant’s expert evidence to that that of the defendant. This was not because either expert was unduly partisan. Rather it…
APPEAL COURT OVERTURNS JUDGE’S REFUSAL TO RELY ON OWN EXPERT WHEN HE DID NOT AGREE WITH THE JOINTLY INSTRUCTED EXPERT: THE “STAGGERED APPROACH” IS IMPORTANT
In Seneschall v Trisant Foods Ltd & Ors [2024] EWHC 1380 (Ch) Mr Justice Adam Johnson overturned a decision whereby a party was refused permission to rely on their own expert report. The judgment is important because it emphasises the…
UNCONTROVERTED EXPERT EVIDENCE: THE TRIAL JUDGE WAS NOT ENTITLED TO OVERRIDE THE UNQUESTIONED REPORT: GRIFFITHS -v- TUI LEADS TO CLAIMANTS BEING SUCCESSFUL ON APPEAL
I am grateful to Jatinder Paul from Irwin Mitchell for sending me a copy of the decision of HHJ Humphreys in the Wrexham County Court. The report involves a personal injury case alleging negligence which led to food poisoning which…
EXPERT EVIDENCE, ADJOURNMENTS, CAPACITY AND APPLICATIONS TO COMMIT FOR CONTEMPT: COURT OF APPEAL UPHOLDS DECISION AT FIRST INSTANCE
In Solicitors Regulation Authority Ltd v Khan & Ors [2024] EWCA Civ 53 the Court of Appeal considered the issue of expert evidence in relation to capacity, in the context of applications for contempt of court. It was held that…
CROSS-EXAMINING EXPERTS: USEFUL GUIDES AND HINTS
There are hundreds of posts on this blog about the role of experts in civil litigation. In many of those cases the experts have been cross-examined and this has not ended well – for them. I have already planned a…
CIVIL EVIDENCE: WHEN YOU TELL A WHOPPER THE FIRST TIME AROUND – IT COMES BACK TO BITE YOU IN A SECOND TRIAL
In McDonald’s Restaurants Ltd v Shirayama Shokusan Company Ltd [2024] EWHC 1133 (Ch) Mr Justice Edwin Johnson found that a company had misrepresented its intention at a trial which involved, essentially, the claimant’s right to a new tenancy of business…
IS A PARTY ENTITLED TO SEE THEIR OPPONENT’S CORRESPONDENCE WITH AN EXPERT LEADING UP TO THE JOINT MEETING? AN ISSUE THAT IS IMPORTANT – BUT UNDECIDED
In Frasers Group plc v Saxo Bank AS & Anor [2024] EWHC 188 (Comm) HHJ Pelling KC considered issues relating to whether a party’s correspondence with their expert leading up to the joint meeting of experts should be disclosed. The…
AVOIDING MISTAKES WHEN DRAFTING WITNESS STATEMENTS: WEBINAR 9th MAY 2024
Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give. This webinar looks at how practitioners can avoid basic errors…
A COURT CANNOT SIMPLY IGNORE AN UNCHALLENGED EXPERT REPORT: DOG SAVED BY THE ADMINISTRATIVE COURT
The significance of unchallenged expert evidence at court was considered by the Administrative Court in Fitzgerald v CPS [2024] EWHC 869 (Admin). Although this is a criminal case it considers the authorities in civil actions and the central point that…
PROCEDURE, DAMAGES, LIABILITY, COSTS AND LIMITATION: A SERIES OF WEBINARS THIS YEAR AIMING TO HELP AVOID OR DEAL WITH PROBLEMS IN LITIGATION
The issues arising from many of the cases looked at on this blog are being considered in a series of webinars starting later this month. The webinars cover many of the problem areas of litigation: what to do when things…
FUNDAMENTAL DISHONESTY: “SUBSTANTIAL INJUSTICE” CONSIDERED IN DETAIL: HIGH COURT DECISION TODAY
In the judgment given today in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) Mr Justice Ritchie dismissed the claimant’s claim as being fundamentally dishonest. The judgment contains a detailed consideration of the issues relating to the…
WHEN WITNESSES TOTALLY CHANGE THEIR EVIDENCE AT TRIAL: A CASE IN POINT
In Advantage Insurance Company Ltd v Harris [2024] EWHC 626 (KB) HHJ Russen KC (sitting as a High Court Judge) found that a claimant in a personal injury action had been in contempt of court for making false statements. It…
DEFENDANT FAILS TO GIVE FULL DISCLOSURE: PEREMPTORY ORDER MADE AND BREACHED: APPLICATION FOR RELIEF FROM SANCTIONS FAILED: APPEAL UNSUCCESSFUL
In Winchester Park Ltd v 1 Palace Gate Freehold Ltd [2024] EWHC 661 (Ch) Mr Justice Adam Johnson dismissed a defendant’s appeal on the issue of relief from sanctions. He held that the judge below was entitled to refuse to…
A SERIES OF FOUR WEBINARS TO TAKE YOU THROUGH LAW AND PRACTICE RELATING TO FATAL ACCIDENTS
In March and April 2024 I am presenting four webinars which take practitioners through the major issues relating to law and procedure in Fatal Accident Act claims. All of those who subscribe to the webinars will receive comprehensive questionnaires for…
COURT ORDERS DISCLOSURE AGAINST HEALTHCARE SAFETY INVESTIGATION BOARD
In Turner & Anor Sheffield Teaching Hospital NHS Foundation Trust & Anor [2023] EWHC 3452 (KB) Master Brown allowed an application by the claimant for disclosure of statements made to the Healthcare Investigation Board. “A trial judge faced with deciding…
PROVING THINGS 237: CLAIMANT FAILS TO PROVE ITS CASE, FAILS TO PROVE IT HAD SUFFERED DAMAGES HAD IT SUCCEEDED (SOMETHING ABOUT EXPERT EVIDENCE TOO)
In Hamsard One Thousand And Forty-Three Ltd v AE Insurance Brokers Ltd [2024] EWHC 262 (Comm) the claimant failed to establish its case. The judgment shows many issues with the claimant’s evidence, in particular the problems that flowed from issues…
CHANGES TO THE FIXED COSTS RULES 2: 20 PAGES IN AN EXPERT’S REPORT DOES NOT MEAN 20 PAGES
Another change being introduced on the 6th April 2024 is a change (or possibly clarification) in relation to to the number of pages in an expert report in the Intermediate Track. The substantive report is still limited to 20 pages….
THIS WAS NOT AN APPROPRIATE CASE TO ADD A PENAL NOTICE TO AN ORDER: COURT WILL DETERMINE THE SUBSTANTIVE DISPUTE INSTEAD
In Wintermute Trading Ltd v Terraform Labs Pte Ltd [2024] EWHC 141 (KB) Mr Justice Lavender considered whether it was appropriate, on the facts of this case, to add a penal notice to an order for disclosure. He held that…
A DEFENDANT CANNOT SIMPLY SEEK TO SET ASIDE THE CONSEQUENCES OF A DEBARRING ORDER: AN APPLICATION SOUNDLY REFUSED
In Al Saud v Gibbs [2024] EWHC 123 (Comm) Mr Justice Calver refused a defendant’s application to set aside a debarring order so that they could be involved in the trial of the action. The judgment contains important observations on…
THE WITNESS EVIDENCE AT TRIAL WAS DIFFERENT TO THE PLEADED CASE AND THE WITNESS STATEMENTS: ANOTHER EXAMPLE OF WHY CARE IS NEEDED
Earlier this month I posted an article on the need for “self protection” by lawyers when drafting witness statements. An example of why care is needed can be seen in the judgment of HHJ Stephen Davies, sitting as a High…
EXPERTS IN THE COURTS IN 2023: ESSENTIAL POINTS FOR PRACTITIONERS AND EXPERTS: WEBINAR 24th JANUARY 2024
Keen readers will note that already this week there have been two cases reported on this blog where the conduct or “expertise” of experts have been subject to judicial criticism. Issues relating to expert evidence in litigation have been a…
EXPERTS NOT QUALIFIED TO COMMENT ON THE MATTERS THEY DID: ADMINISTRATIVE COURT DECISION
Another example of expert evidence going awry can be seen in the judgment of Mr Justice Ritchie in Balachandra v The General Dental Council [2024] EWHC 18 . The experts in question were giving evidence in relation to matters that…
MR BATES AND THE POST OFFICE 2: THE JUDGE’S VIEW ON WITNESS CREDIBILITY
I am repeating a post first written in 2019. Matters that are in the public consciousness now were very much in the consciousness of the legal profession then. This post dealt with the trial judge’s view of the credibility of…
DAMAGES FOR PAIN AND SUFFERING: WEBINAR 11th JANUARY: PART OF THE DAMAGES SERIES 2024
On the 11th January 2024 I am presenting a webinar on Damages for pain and suffering. This is a part of a series of webinars looking at the basic elements of major heads of damages for personal injury, with a…
MR BATES AND THE POST OFFICE: LOOKING BACK TO THE CASE OF THE YEAR 2019
Yesterday I noticed that a post I had written in 2019 was suddenly gaining a lot of readers. I suspect that this was due to the power of television. Not that the blog was being advertised, but that the series…
CIVIL LITIGATION 2023: A BRIEF REVIEW
I am not sure whether the facts and figures from this site can show any major trends in civil litigation. Here is a quick look back at some numbers from 2023. MOST VIEWED POSTS: THE TOP 10 (to date)…
A CLAIMANT, ALLEGING FRAUD, IS NOT ENTITLED TO DELIBERATELY BREACH A COURT ORDER AND THE RULES OF COURT: HIGH COURT JUDGMENT GIVES LITIGATORS MUCH TO THINK ABOUT
Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is…
EXPERTS IN THE COURTS IN 2023: WEBINAR 24TH JANUARY 2024: ESSENTIAL ISSUES FOR ALL LITIGATORS AND EXPERTS
Over the course of 2023 we saw many cases in which the conduct of experts and those who instruct them came under close scrutiny and criticism in the courts. I am presenting a webinar on the 24th January 2024 reviewing…
COST BITES 119: COSTS BUDGETING: DEFENDANT ALLOWED TO VARY ITS BUDGET TO INCLUDE COSTS ALREADY INCURRED OBTAINING SURVEILLANCE EVIDENCE
There is a report of an interesting decision of Master McCloud in Yelland -v- Space Engineering Services Ltd [2023] EWHC 2823 (KB). The report is from Sean Linley of Carter Burnett and can be read here. There is a link to…
DECISION TO DISMISS CLAIM BECAUSE OF ABSENCE OF EXPERT EVIDENCE UPHELD ON APPEAL:
We are looking at the second part of the decision in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). The post yesterday looked at the decision in Doyle. Here we look at the judgment in Rowe, the other case…
COST BITES 110: THE IMPORTANCE OF ATTENDANCE NOTES: COUNSEL’S FEES INCLUDED
In Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO) Costs Judge Leonard emphasised the point that records of conferences and important steps in a case are important in relation to the assessment of costs….
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
WEBINARS ON DAMAGES IN 2024: SOMETHING TO WARM UP THE WINTER DAYS EARLY IN THE NEW YEAR…
Early next year I am presenting a series of eight webinars on personal injury damages. The series looks at the major heads of damages for personal injury and clinical negligence cases, with a particular emphasis on those claims in the…
CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)
In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert. The judge contains a detailed consideration of the law and authorities relating to the court’s discretion…
WEBINAR ON DRAFTING SCHEDULES IN PERSONAL INJURY CASES: 9th NOVEMBER 2023
I am presenting a webinar on drafting Schedules on the 9th November 2023. Booking details are available here. “In the event, the Original Schedules of Loss were shown to be quite unreliable and, in many respects, bore little or no relation…
PARTY NOT PERMITTED TO ADDUCE EXPERT EVIDENCE FROM OTHER CASES AS HEARSAY EVIDENCE
One of the issues decided by Mr Justice Mellor in Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch) related to the attempts by a party (COPA) to adduce expert evidence from other trials by way of hearsay evidence…
DAMAGES IN ANTICIPATION OF DEATH AND FOR LOSSES PRIOR TO DEATH: WEBINAR 11th OCTOBER 2023
Claims for reduction of life expectancy or for losses prior to death can be difficult and complex. They require a highly sensitive approach. They also require a large degree of knowledge of the relevant legal principles. There are traps and…
CLAIMANT HAD NOT BREACHED THEIR DUTY OF DISCLOSURE: A PARTY DOES NOT HAVE “CONTROL” OF THEIR PARTNER’S FINANCIAL DOCUMENTS
The judgment of Mr Justice Julian Knowles in Morgan-Rowe v Woodgate [2023] EWHC 2375 (KB) makes some important points about the duty of disclosure. A party giving disclosure doesn’t have to disclose details of their spouses’/partners accounts. “A married couple…
AN EXPERT SHOULD HAVE EXPERTISE IN THE ISSUE THEY ARE GIVING EVIDENCE ON: THEY CAN’T SIMPLY TEACH THEMSELVES FOR THE PURPOSE OF THE CASE
There are some important observations on expert evidence in the judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat). An expert must give evidence within the scope of their expertise. To assert…
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