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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL

WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL

September 21, 2021 · by gexall · in Civil evidence, Disclosure, Witness statements

In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a…

SOLICITORS WHO ARE REPRESENTED AT COURT TO PROTECT LEGAL PROFESSIONAL PRIVILEGE ISSUES ARE ENTITLED TO THEIR COSTS

SOLICITORS WHO ARE REPRESENTED AT COURT TO PROTECT LEGAL PROFESSIONAL PRIVILEGE ISSUES ARE ENTITLED TO THEIR COSTS

October 2, 2019 · by gexall · in Appeals, Costs

One other aspect of the decision in  Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600  that is worth looking at is the appeal in relation to costs. The Court of Appeal rejected the appellants argument that the…

LEGAL PROFESSIONAL PRIVILEGE PERSISTS AFTER DISSOLUTION OF A COMPANY: COURT OF APPEAL DECISION TODAY

LEGAL PROFESSIONAL PRIVILEGE PERSISTS AFTER DISSOLUTION OF A COMPANY: COURT OF APPEAL DECISION TODAY

October 2, 2019 · by gexall · in Appeals, Civil evidence, Civil Procedure

In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 the Court of Appeal held that legal professional privilege survives the dissolution of a limited company.   THE CASE The claimants wanted to bring an action against a…

CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT

CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT

January 29, 2019 · by gexall · in Civil evidence, Civil Procedure, Witness statements

One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement.  This can (and does) happen even when the statement states, expressly, that the maker…

WHEN THE OTHER SIDE'S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS:  THE DILEMMA OF THE PARALEGAL "WHISTLE BLOWER"

WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”

June 26, 2018 · by gexall · in Applications, Civil evidence, Civil Procedure, Setting aside judgment

   Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…

WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS

WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS

March 8, 2018 · by gexall · in Civil evidence, Witness statements

A post earlier this week looked at the issue of privilege and the third edition of the standard work on the topic.  It is worthwhile looking at the decision in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase…

STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE

August 24, 2016 · by gexall · in Applications, Civil evidence, Uncategorized, Witness statements

There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…

LEGAL PROFESSIONAL PRIVILEGE: APPLIES TO LECTURE POWERPOINT NOTES

April 5, 2016 · by gexall · in Civil evidence, Litigation Privilege,, Uncategorized

There is an interesting decision about the scope of legal professional privilege by the First Tier of the General Regulatory Chamber (Information Rights) in the Ministry of Justice -v- The Information Commissioner & Shaw EA/2015/0160. THE CASE The applicant made…

WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION

January 25, 2016 · by gexall · in Civil evidence, Disclosure, Uncategorized, Witness statements

The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be…

PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL

January 15, 2015 · by gexall · in Appeals, Applications, Civil evidence, Civil Procedure, Disclosure, Witness statements

The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….

WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE

November 13, 2014 · by gexall · in Applications, Civil evidence, Civil Procedure, Disclosure, Witness statements

In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…

SHOULD THE ASSESSMENT OF COSTS BE IN PUBLIC OR IN PRIVATE? WHEN IS LEGAL PROFESSIONAL PRIVILEGE WAIVED?

October 26, 2014 · by gexall · in Appeals, Applications, Civil evidence, Civil Procedure, Costs, Disclosure

In Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 Mr Justice Roth addressed the issue of whether an assessment of solicitor and own client costs should be in private or in public. The judgment also considers important issues…

LITIGATION: EVIDENCE; MITIGATION OF LOSS AND "BLACK BOXES" IN THE EVIDENCE

September 17, 2014 · by gexall · in Applications, Civil evidence, Civil Procedure

The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) contains some interesting observations on evidence. In particular what is the position when a party claims privilege and fails to disclose legal advice relating to a settlement…

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