EXPERTS, LAWYERS & THE JOINT REPORT (II): NO SUBSTANTIVE INPUT FROM LAWYERS PLEASE
This is the second case today looking at observations made in cases this week in relation to the joint meeting of experts. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) HH Honour Judge Stephen Davies stated…
PROVING THINGS 114: A WITNESS OF FACT CANNOT GIVE EXPERT EVIDENCE: NO ADMISSIBLE EVIDENCE OF ANY LOSS
There are several elements worth looking at in the judgment in Wessely & Anor (Liquidators of Laishley Ltd) v White [2018] EWHC 1499 (Ch). However it is a prime example of a simple failure to prove things. If the applicants had…
PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have…
A JUDGMENT ADJOURNING A TRIAL: THE CLAIMANT DID NOT KNOW WHETHER THE ACTION WAS NECESSARY; THE TRIAL BUNDLE DID NOT HAVE THE KEY DOCUMENT (AND MORE)
The short judgment of Mr Justice Holman in Matthews v Matthews & Anor [2018] EWHC 906 (Fam) looks like a family case. However it is an inheritance claim and contains some surprising revelations. KEY POINTS If you are asking a judge…
PROVING THINGS 90 : THE TATTOO ARTIST & THE CACTUS SHOP: PRICK ME ONE MORE TIME
The opportunities for puns arising out of the issues in Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor [2018] EWHC 776 (IPEC) are obvious (and indeed are mentioned in the judgment itself)….
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
CIVIL PROCEDURE – BACK TO BASICS 1: THE HUMBLE APPLICATION: WORDING AND TIMING
Last year I was giving an in-house talk at a very prominent firm of litigation solicitors. The litigation partner present (a person of immense experience) made the point that the firm were continually having talks and education on esoteric and…
CIVIL LITIGATORS AND THE SECRET BARRISTER 4: WHY WE CAN’T TRUST THE GOVERNMENT (OR OURSELVES)
SB’s book sales plough on. It has reached the top 10 in the best seller list. The Criminal Bar Association have set up a fund to send a copy of the book to every MP. You can donate here. …
RELIEF FROM SANCTIONS : A CLASSIC CASE FOR RELIEF TO BE GRANTED: NOTICE TO PROVE SERVED LATE
In Tuke v JD Classics Ltd [2018] EWHC 531 (QB) Mr Justice Julian Knowles granted a claimant relief from sanctions when a “Notice to Prove” was served late. It is a reminder, amongst other things, of the need to serve a…
HOW A COURT ASSESSES WITNESS EVIDENCE: A SHORT PRIMER
We have already looked at the decision of the upper tribunal in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase of shares) [2018] UKFTT 82 (TC) in relation to issues of privilege and without prejudice discussions. The same judgment…
PROVING THINGS: IF YOU LIKE THE BLOGS – THEN WATCH THE MOVIE…
The Webinar I did last week called “Proving things: if you don’t prove it, then you don’t get it” is now available for purchase online. TOPICS COVERED Topics covered include: “If you don’t prove it you don’t get it” Witness…
DENTON APPLIED WHEN THE OTHER SIDE DOES NOT SHOW UP FOR TRIAL
In Foreman v Williams [2017] EWHC 3370 (QB) Peter Marquand (sitting as a High Court judge) considered the application of the Denton principles in an unusual context. The claimant required relief from sanctions because he was unable to serve documents on…
HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at [2017] EWHC 3054 (QB). This judgment deals with the issue…
ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice) [2017] EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course…
HOT TUBBING OF EXPERTS: NEW PRACTICE DIRECTION
The 93rd Update on Practice Direction Amendments also introduced a change in the rules as to concurrent evidence from experts. This gives the trial judge a considerable degree of flexibility about the way in which expert evidence is heard. These rules came…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
FABRICATING DOCUMENTS AND MISLEADING THE JUDGES: WHEN KEY DOCUMENTS ARE HIDDEN BEHIND THE CURTAINS IN COURT
The judgment of Mr Justice Henry Carr in Ghassemian v Chatsworth Court Freehold Company Ltd & Ors [2016] EWHC 872 (Ch) illustrates the lengths to which some litigants will go. The judge found that the applicant had forged documents, backdated applications…
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
Proving things 74: WHEN YOUR EVIDENCE IS FAR FROM FABULOUS AND COMES WITH A “HEALTH WARNING”: APPLICANT’S CASE PUT BACK IN THE BOX
There is an interesting discussion of the evidence in the Upper Tribunal decision in Fabulous Collections Ltd v Smith (Valuation Officer), Re: 3 Poplar Arcade [2017] UKUT 452. A central part of an applicant’s case essentially disappeared on the morning of…
FINDINGS OF FACT AND EXPERT EVIDENCE: A JUDGE MAKES THE FINDINGS FIRST AND CONSIDERS THE EXPERT EVIDENCE NEXT
In Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch) Mr Justice Birss made some important observations about findings of fact and expert evidence. It shows the importance of primary findings of fact and the limitations of expert evidence. …
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
WIKIPEDIA IN THE COURTS (SO FAR): MUSIC, BREWERIES, CANALS, DOG WHISTLE POLITICS AND GETTING TO THE HEART OF THE MATTER: SOME QUESTIONS TO BE ASKED
I have had to apologise in the past for taking small parts of a judicial judgment and scrutinising them closely in relation to matters of procedure or evidence. This apology is particularly apposite in relation to the judgment in Oldham Metropolitan…
BUNDLES: A QUICK REMINDER: SEDLEY’S LAW OF DOCUMENTS STILL APPLIES WITH SURPRISING REGULARITY
Over the past fortnight I have seen every one of Sedley’s Laws of Documents in action. This has prompted me to set out a quick reminder. Firstly of the Practice Direction and secondly of Sedley’s laws themselves. The “Laws” were…
THE ASSESSMENT OF EXPERT EVIDENCE: HANDWRITING EVIDENCE ADMISSIBLE : THE JUDGE FELT HE WAS IN SAFE HANDS
The judgment of Mr Justice Jay in ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) is one that has already made headlines. There is much of interest. However, that part of the judgment that deals with the analysis of…
ERRANT EVIDENCE AND PHYSICAL EVIDENCE THAT GOES MISSING: CLAIMANT’S EXPERTS FEEL THE HEAT
I am returning for the fifth time to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have seen the judge’s views on the witnesses, the claimant’s disclosure and arguments that…
DOCUMENTS, AUTHENTICITY AND ADMISSIONS: A TIMELY REMINDER OF THE PROVISIONS OF CPR 32.19
I said in the previous post that there are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). One of those reasons is that it contains…
PROVING THINGS 64 : ABSENCE OF STRONG AND STABLE EVIDENCE LEADS TO DAMAGES AWARD OF £2.00
There are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). However this is another case where a claim for damages failed because the…
WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up…
GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
GLADWIN & SANCTIONS – AN ANALYSIS 1: WHAT WENT WRONG
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In a series looking at the case more closely we look at what…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
EXPERTS AND EVIDENCE: WHEN THE CASE GETS PIECED TOGETHER ON THE EVE OF THE TRIAL
In the course of a very detailed judgment today in a clinical negligence case Mr Justice Langstaff made some important observations about expert evidence. He observed that late evidence may lead to costs consequences. Given that the whole rationale of…
PROVING THINGS 61: MORE ON SOCIAL MEDIA: FACEBOOK ENTRIES AND WITNESS CREDIBILITY
Facebook and social media play an increasingly important part in litigation. We have looked at several cases where social media has played a critical part in the assessment of witness credibility. Facebook played a part of the judgment today of…
PROVING THINGS 60: PUTTING SEAWEED OUT OF THE WINDOW: THE ABSENCE OF EVIDENCE AND THE JUDGE WHO WAS EVEN-HANDEDLY OFFENSIVE:
The Court of Appeal judgment in McBride -v- UK Insurance Ltd [2017] EWCA Civ 144 has been covered widely on the issue of the appropriate rate for car hire charges after an accident. However less widely discussed is the fact that,…
BANKS, WITNESSES AND CREDIBILITY: AN INTERESTING JUDGMENT
There are many reasons why lawyers should read the decision in Thomas -v- Triodos Bank NV [2017] EWHC 314 (QB). There is an interesting consideration of the duty of care a bank owes a customer and the Hedley Byrne principles….
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB
In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured. The judgment considers what inferences a…
PROVING SERVICE BY FAX: OPERATOR OF A FAX MACHINE IS A “RESPONSIBLE PERSON”
In a judgment today in LBI EHF -v- RAIFFEISEN ZENTRALBANK ÖSTERREICH AG [2017] EWHC 522 (Comm) Mr Justice Knowles CBE had to consider whether the fact that a party could not find a fax meant that it had not been served. This involved…
PROVING THINGS 57: LEASE SAID SOONEST MENDED: CLAIM FOR SUBSTANTIAL DAMAGES FAILS (AND GUESS THE REASON)
This series often looks at cases that have floundered at trial – usually because of the absence of basic evidence to prove a litigant’s case. This can be seen again in the judgment of Mr Stephen Furst QC in Car…
TWITTER, LIBEL AND EVIDENCE: THE KATIE HOPKINS JUDGMENT
The judgment of Mr Justice Warby in Monroe -v- Hopkins [2017] EWHC 433 (QB) has already attracted a lot of attention. Here I want to look at the issues relating to the evidence. The case is one of the…
PROVING THINGS 56: A JUDGE WILL NOT SPECULATE WHEN MATTERS COULD HAVE BEEN PROVEN: COUNTERCLAIM FAILS FOR LACK OF EVIDENCE
The judgment of Mr Recorder Douglas Campbell QC in Starbuck -v- Patsystems (UK) Limited [2017] EWHC 397 (IPEC) illustrates issues in relating to recollection and credibility, it is another example of a claim (counterclaim in this case) failing because of…
EXPERT WITNESSES: RARELY TOTALLY IMPARTIAL BUT SOME ARE LESS PARTIAL THAN OTHERS
There is a short passage in the judgment of His Honour Judge Hacon in Edward Lifesciences -v- Boston Scientific 2017] EWHC 405 (Pat) (03 March 2017) that encapsulate the issues surrounding the assessment of expert evidence. “Rarely, if ever, is an…
COMPOUND INTEREST OR SIMPLE INTEREST? COUNTING THE COPPERS: CLAIMANT’S ARGUMENT MISSES THE NET
In Ipswich Town Football Club Company Limited -v- The Chief Constable of Suffolk Constabulary [2017] EWHC 375 (QB) Mr Justice Green considered the question of whether a claimant was entitled to compound interest or simple interest. The judge gave that particular…
EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY
It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott [2017] EWHC 294 (QB). A party failed to make an application to call oral…
EVIDENCE IN HOLIDAY ILLNESS CLAIMS: COURSE IN LIVERPOOL: 13th MARCH 2017: 2 – 4.30
I am presenting a course on behalf of Diversify Law Limited on “Evidence in Holiday Illness Claims”, in Liverpool on the 13th March 2017 2 – 4.30. VENUE (CLOSE TO THE CAVERN) It is at the “Hard Days Night” Hotel….
EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT
In Wheeldon Brothers Waste Limited -v- Millennium Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs…
PROVING THINGS 52: SOLICITOR’S NEGLIGENCE ACTION FAILS ON ALL COUNTS: NO NEGLIGENCE AND NO LOSS
The judgment of HHH David Cooke today in Anderson Properties Ltd -v- Blyth Liggins [2017] EWHC 244 (Ch) is another example of a solicitor’s negligence case failing because of the absence of basic evidence in relation to liability, causation and damages….
TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. “the starting point is to identify what the judge decided. He considered that the witness had…
YOUR WITNESS STATEMENTS ARE IDENTICAL: NOW THAT IS A COINCIDENCE
There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case. Advocates of this approach may want to read the judgment of Mrs Justice Proudman in Abbott -v-…
You must be logged in to post a comment.