WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL: A REPOST
The repost last week of a case where key facts came to light on the third day of a trial led me another post on the topic which is worth revisiting. After the first post was written I asked lawyers if…
CIVIL PROCEDURE BACK TO BASICS: WITNESS CREDIBILITY: A REMINDER OF THE KEY POINTS IN GESTMIN
Now that we have reached 100 it is a good time to revisit the basic issue of how the court assesses witness credibility. We are therefore looking at the basic guidance given in Gestmin SGPS SA v Credit Suisse (UK) Limited…
THE 10TH ANNIVERSARY OF THE HANDBOOK FOR LITIGANTS IN PERSON: A REMINDER OF THE FOUR GOLDEN RULES FOR DRAFTING WITNESS STATEMENTS
It is ten years since the publication of the Handbook for Litigants in Person. It can be found here. I wrote about it, briefly, when it was first published. Although there have been some procedural changes since the section on…
WITNESS STATEMENTS: THE FRAGILITY OF MEMORY AND THE DANGERS THIS POSES
A major issue at most trials is the question of what a witness can actual “remember”. How much of a witness statement is genuine recollection and how much is implanted? Much judicial time is spent in considering this question. There…
THE IMPORTANCE OF TAKING FULL WITNESS STATEMENTS: A RECAP: IF A FULLER WITNESS STATEMENT HAD BEEN TAKEN THE LOSS AT TRIAL COULD HAVE BEEN AVOIDED
As part of the series looking back at previous posts we are revisiting a case first looked at in 2014. It provides a good example of the very real dangers of not taking a comprehensive statement. A witness was interviewed…
PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT
In Cheshire Estate and legal Limited -v- Blanchfield & Others* HHJ Bever, sitting as a Judge of the High Court, considered witness statements served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing…
“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE
Many witnesses give inaccurate evidence. Sometimes this is due to dishonesty, others are mistaken. Many, it is to be suspected, fall foul of “litigation wishful thinking”. This concept was explored by Mr Justice Richards in Old Park Capital Maestro Fund…
WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS
There is a short passage in the judgment of Costs Judge Leonard in Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement. THE CASE The judge was considering issues of…
ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS, WITNESS CREDIBILITY AND WITNESS SUMMARIES
Continuing with the series looking a posts from this blog from the past, here we look at posts from June 2014. This was an interesting month, the blog set out all the arguments that took place in the Denton decision. There…
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
WITNESS CREDIBILITY, MEMORY AND ACCURACY: REVISITING GESTMIN
This is another opportune time to re-visit the principles in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm). This is case that is now mentioned regularly in cases involving witness recollection and dispute of facts. WHY LOOK AT GESTMIN?…
CROWING OVER COSTS IS NOT A GOOD LOOK FOR A LITIGANT: A REMINDER OF THE IMPORTANCE OF SOCIAL MEDIA
We are looking again at the judgment of Lord Justice Underhill in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262. There is a very brief passage which serves as a reminder that clients can expect…
WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”
In Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements. We…
JUDGMENT OF A FINDING OF FUNDAMENTAL DISHONESTY – BUT THIS CASE GOES MUCH FURTHER: COLLUSION IS FOUND
In Khan -v- Aviva Insurance Ltd (15/11/2022) District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to the…
“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL
There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
WITNESS CREDIBILITY: A SUMMARY OF THE APPROACH IN GESTMIN
A post last week dealt with issues relating to the judicial assessment of credibility. Here we look at one aspect of that in more detail. That is the decision in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor…
WITNESS DEMEANOUR: ARGUMENTS CONSIDERED BY THE COURT OF APPEAL
Occasionally I will use Twitter to tweet links to previous posts on this blog which may continue to be of interest. I did this recently in relation to a post on witness credibility and demeanour that I wrote in 2018….
ASSESSING WITNESS CREDIBILITY: CREDIBILITY IS NOT NECESSARILY THE SAME THING AS HONESTY
Here I want to discuss the issue of witness (and client) credibility. Many cases will turn on credibility and any litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings and…
“EACH OF THE CLAIMANTS’ STATEMENTS TENDED TO TAKE THE FORM OF A STANDARD TEMPLATE”: THE PERILS OF IDENTICAL EVIDENCE
It may say a lot about contemporary litigation that the practice of numerous witnesses producing near identical witness statements is so common that I almost decided not to write about it. The practice was considered by HHJ Judge Hodge QC…