CIVIL PROCEDURE BACK TO BASICS 69 : SOCIAL MEDIA AND THE LITIGATOR: A RECAP
The earlier post on the judgment last Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 was another case in which social media played a part. The defendant holiday company found social media entries which appeared inconsistent…
PROVING THINGS 166: LYING IN COURT (& HOW THE JUDGE DECIDES WHO IS…)
A search term led someone to this blog today “how is it legal to get away with lying in court“. There is a whole host of material on the question of what is a “lie”, compared to a false or…
HEATED LANGUAGE AND CAREFULLY CRAFTED WITNESS STATEMENTS: “METAPHORS OF WAR” RARELY (IF EVER) HELP IN LITIGATION
In Alesco Risk Management Services Ltd & Ors v Bishopsgate Insurance Brokers Ltd & Ors [2019] EWHC 2839 (QB) Mr Justice Freedman considered the language used in witness statements. The heat generated by intemperate language rarely helped the litigants involved….
THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES
I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here. The Court of Appeal have ordered a retrial in the case. There are important observations about the role of the judge in…
WHY WOULD ANYONE WANT TO RECORD THEIR MEETING WITH AN EXPERT WITNESS? TWO EXAMPLES WHERE THE COURT’S FOUND THAT AN EXPERT’S STATEMENT OF AN INTERVIEW WAS UNRELIABLE
An earlier post dealt with the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB) and the claimant’s decision to record her appointments with the defendant’s medical experts. The issue of what, precisely, was said to an expert can…
THE HONEST WITNESS WHOSE EVIDENCE WAS NOT ACCEPTED – BUT WHO STILL WON HER CASE: A CLOSE ANALYSIS OF THE LAY AND EXPERT EVIDENCE IN MORDEL
The result of the judgment today in Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) has already been well publicised. A mother succeeded in her claim that the defendant trust was negligent in failing to check her…
LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE
This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners…
LATE SERVICE OF WITNESS SUMMARIES: HERE’S AN INGENIOUS ARGUMENT – THAT DIDN’T WORK: PERMISSION TO ADDUCE ADDITIONAL EVIDENCE FROM PARTIES OWN WITNESS ALSO REFUSED
In Smith & Anor v Crawshay [2019] EWHC 2507 (Ch) HHJ Paul Matthews considered an argument that the defendant was allowed to rely on a witness summary. He also refused permission to adduce further evidence in evidence-in-chief from a witness…
PROVING THINGS 162: WHEN THE GOVERNMENT DOESN’T HAVE THE COMMONS TOUCH
Constitutional lawyers will be writing about the Supreme Court decision today for decades to come. However I want to look at the more basic issue of the evidence that was placed before the courts. This was not a case…
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
WHEN A SOLICITOR MAKES A WITNESS STATEMENT: STATE THE SOURCE OF INFORMATION AND DON’T GIVE “OPINION” EVIDENCE (IT REALLY DOESN’T GO DOWN WELL)
There are numerous examples on this blog of the difficulties that can occur when a solicitor makes a witness statement on behalf of their clients. The dangers are exemplified in the judgment of Master Marsh in Folgender Holdings Ltd &…
CIVIL PROCEDURE BACK TO BASICS 57: YOU CAN’T SUBMIT THAT A WITNESS IS LYING UNLESS YOU HAVE PUT THAT CASE TO THEM
A short, but fundamental, point about making submissions at the close of a case. You cannot generally make submissions that a witness is lying unless that case has been put directly to that witness in cross-examination. “It is a fundamental…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
DELAY OF 18 MONTHS IN GIVING JUDGMENT DID NOT UNDERMINE THE JUDGE’S VIEW AS TO CREDIBILITY
In Nuttal & Anor v Kerr & Anor [2019] EWHC 1977 (QB) Mr Justice Freedman rejected an argument that an excessive delay in giving judgment meant that the trial judge’s conclusions were innately unreliable. (The judgment also reviews the authorities…
ADVICE TO A NEARLY QUALIFIED LITIGATOR (2): BE LEGALLY STREETWISE : A LITIGATION CLIENT’S STRATEGY MAY POSSIBLY BE TO BLAME YOU
In the second in this series I am reminding everyone of a very useful post from Darlingtons solicitors . I said at the time it was first written that it deserved wider publication, and they kindly agreed I could reproduce it. …
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
