BEWARE THE EXPERT WHO "LECTURES" THE COURT (AND TELLS THE JUDGE WHO TO BELIEVE)
In Walls -v- London Eastern Railway Ltd (N Wilkinson QC) 05/12/2014* the judge found that the claimant’s continuing back pain was caused by a long-standing degenerative spinal condition rather than an accident. THE JUDGE’S COMMENTARY ON THE EXPERT EVIDENCE One…
ASSESSING WITNESSES: A UNIVERSAL ISSUE IN LITIGATION
The judge’s assessment of witnesses is often the crucial element in most cases that go to trial. This applies at every level, from the small claims arbitration to the most complex commercial dispute (and, of course, high profile defamation actions)….
WITNESS STATEMENTS THAT HARM RATHER THAN HELP AND A FAILURE TO PROVE DAMAGES: A HIGH COURT CASE EXAMINED
In Re-Use Collections Limited -v- Sendall & May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses…
WITNESS CREDIBILITY, BOLAM AND CLINICAL NEGLIGENCE: A HIGH COURT DECISION
The judgment of Stephens J in McGovern -v- Sharkey [2014] NIQB 117 contains some important observations in relation to the Bolam test and the role of evidence and experts in this context. It demonstrates that the credibility of a lay…
MORE ON EXPERTS: NON-COMPLIANCE WITH THE RULES TAINTS THE EVIDENCE BADLY
We have already looked at one of the observations on experts by HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC 3257 Ch. There we looked at “over eager” experts. The judge also had something to…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
THE ROLE OF THE APPELLATE COURT IN CONSIDERING FINDINGS OF FACT
In Clydesdale Bank -v- Duffy [2014] EWCA Civ 1260 the Court of Appeal set out a clear statement of the limited role of the appeal court in considering appeals in relation to findings of fact by the trial judge. THE…
THE CREDIBILITY OF WITNESSES; JOINT MEETINGS AND OVERREACHING EXPERTS: A CASE TO POINT
The judgment of Mr Justice Dingemans in Garcia -v- Associated Newspapers Ltd [2014] EWHC 3137 is a defamation action. It contains some interesting examples of evidential issues and problems. Firstly relating to the assessment of witnesses; secondly in relation to…
THE JUDGE, THE EXPERT, CAUSATION AND DAMAGES: THE APPROPRIATE APPROACH WHEN THE DEFENDANT HAS MADE A BAD SITUATION WORSE
The decision of Foskett J in Reaney -v- University Hospital of North Staffordshire NHS Trust [2014] EWHC 2016 (QB) contains important observations on the role of the judge and the expert in assessing damages for care. It also contains a…
ADDUCING A SECOND EXPERT WITNESS LATE IN THE DAY: THWAYTES -v- SOTHEBYS CONSIDERED
There is a brief report on Lawtel today of a decision of Rose J in Thwaytes -v- Sothebys (16/09/2014) where permission was given for the defendant to rely on an additional expert and the application was heard six weeks before…
WHAT IS THE POSITION WHEN LEGAL COSTS ARE CLAIMED AS A HEAD OF DAMAGES?
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) was looked at in the previous post in relation to evidence. However it also raised an interesting issue as to the approach a court should take when a…
PROTOCOL FOR THE INSTRUCTION OF EXPERTS: THE NEW BITS
There has been much coverage of the forthcoming changes to the guidance for the instruction of experts in civil claims. There have been several additions which impose specific duties upon solicitors. SOLICITOR MUST MAKE POSITION CLEAR IF FURTHER DOCUMENTS ARE…
PRINCIPLES OF MITIGATION OF LOSS & THE CREDIBILITY OF EXPERT WITNESSES: A HIGH COURT DECISION CONSIDERED
The case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) where judgment was given today contains many interesting lessons for those involved in professional negligence litigation in particular. Here I just want to concentrate upon two: (i)…
INSTRUCTING EXPERT WITNESSES: VIEWS FROM "ACROSS THE POND"
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known. It is clear that the issues are international. A recent article in the American Journal “The Lawyerist” contains some interesting…
EXPERT EVIDENCE: THE EXPERT’S ROLE: SEEING THE WOOD FOR THE TREES
A recent post dealt with the cross-examination of expert witnesses. It is interesting, in some cases, to look at how judged view expert evidence in practice. A good example arises in the judgment of Mr Justice Coulson in Stagecoach Great…
CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses is in the news today. This would seem an appropriate time to look at the cross-examination of expert witnesses, particularly in the context of civil litigation. THE ROLE OF THE EXPERT IN…
THE DANGERS OF LETTING WITNESSES GIVE THEIR OPINIONS: IT HINDERS RATHER THAN HELPS YOUR CASE
A post yesterday reviewed the comments on witness statements made in the Jackson Report. One major criticism was that witness statements were being used to advance matters of opinion and not fact. A case decided yesterday exemplifies that problem. It…
USE OF EXTERNAL REPORTS IN CIVIL PROCEEDINGS: HOYLE -v- ROGERS CONSIDERED
Can a party rely on an external report that contains opinion evidence? The Court of Appeal considered this question in a case reported today Hoyle -v- Rogers[2014] EWCA Civ 257. Important distinctions have to be drawn between admissibility and weight…
ANOTHER HIGH COURT DECISION: RELIEF FROM SANCTIONS REFUSED: CLARKE –V- BARCLAYS BANK CONSIDERED
The Clarke –v- Barclays Bank [2014] EWHC decision is interesting for a number of reasons. Among other things it provides object lessons in the dangers of failing to make prompt applications and assuming cases will settle. It also highlights the…
“AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED.”
It may be thought that commentary on issues of procedural default is in abeyance until the Mitchell decision from the Court of Appeal. However, as recent posts have shown, cases are still coming through thick and fast. When a judge…
DEFAULT, DELAY AND EXPERT EVIDENCE: COURT OF APPEAL LAYS DOWN THE LAW
The case of Boyle –v- Commissioner of Police for the Metropolis provides another example of the problems caused by late service of evidence. The Court of Appeal set down clear guidance of the new culture of intolerance to delay. THE…
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