“LITIGATION WISHFUL THINKING”: A REMINDER OF ITS IMPORTANCE
This blog has looked many times at those cases where a case is determined by the judge’s assessment of the credibility of the witnesses. This does not always (or event often) mean that the losing side are not telling the…
ASSESSING WITNESS CREDIBILITY A “REASONING PROCESS VITIATED BY AT LEAST THREE FUNDAMENTAL ERRORS OF APPROACH”: HIGH COURT LAYS DOWN THE LAW
In Dutta, R (On the Application Of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin) Mr Justice Warby set out a powerful critique of the reasoning given by the Medical Practitioners Tribunal. The judgment contains an essential summary of…
WHEN WITNESS EVIDENCE GOES OFF TRACK: CREDIBILITY SPRINTS AWAY
There are several recent cases where judges deal with the issue of credibility and witnesses. The first we are looking it is the decision of HHJ Melissa Clarke in British Amateur Gymnastics Association v UK Gymnastics Ltd & Ors [2020]…
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE
There are particular dangers for solicitors giving evidence. This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law. In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS
This report of the Witness Evidence Working Group was produced at the end of last year. It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…
SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)
I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of HHJ Yelton (sitting in the High Court) in Kilbey -v-…
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. …
COVID REPEATS 43: FAREPAK: “A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS”
Today we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson in the need for careful preparation of witness evidence and identifying precisely what “evidence” a witness can give. “The…
COVID REPEATS 41: OFFICE GOSSIP IS NOT EVIDENCE
This week we continue with our look back at cases in relation to witness evidence. This contains another reminder that there is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information…
COVID REPEATS 40: ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
This week we are looking at witness statements and the process of gathering witness evidence. In August 2015 I wrote at length about the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA…
WITNESS STATEMENTS FULL OF VITRIOL – THIS IS NEVER GOING TO END WELL…
The “Covid Repeats” series next week will revisit some of those (many) cases where judges have found witness statements to be inadequate. The inclusion of unnecessary matters in witness statements is a continuing issue. It can be seen in the…
LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO? (A RECAP)
For various reasons issues relating to the credibility of witnesses and “lies” are in the news this week. Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct….
ASSESSING WITNESS CREDIBILITY: A REMINDER OF THE BASIC PRINCIPLES
Today is is a good day to look again at the judgment of Mr Justice Leggatt 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…
COVID REPEATS 30: THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
We are going back to what was the most widely read post on this blog in 2017 and 2018. It is about witnesses telling lies.Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the…
PROVING THINGS 176: RELYING ON MEMORY FROM EVENTS A LONG TIME BACK
I am grateful to David Platt QC for sending me a copy of the judgment given today of Geoffrey Tattersall QC (sitting as a Deputy High Court Judge) in Bannister -v- Freemans Public Limited Company [2020] EWHC 1256 (QB). …
THOSE WHO DRAFTED THE WITNESS STATEMENTS HAVE “FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: BACK TO BASICS FROM MR JUSTICE WAKSMAN
I am returning to more traditional territory in looking at the judgment of Mr Justice Waksman in PCP Capital Partners LLP & Anor v Barclays Bank Plc [2020] EWHC 646 (Comm). Witness evidence and witness statements have been a regular…
COVID REPEATS 16: THE DOG THAT GOT A BETTER MASTER’S DEGREE THAN A WITNESS (WHEN WITNESSES DIG REALLY DEEP HOLES FOR THEMSELVES)
To lighten up a Saturday we are looking again at the judgment of Mr Justice Ramsey in BSky B -v- HP Enterprises Ltd [2010] EWHC 86 (TCC). This contains some interesting comments on the credibility of witnesses and how the…
COVID REPEATS 13: “CLOSING ARGUMENT WAS … AND EYE-GLAZING, BUM-NUMBING, DISC-HERNIATING TOTAL OF 662 PAGES”
For this repeat we are staying with Mr Justice J.W. Quinn, this time looking at his judgment in The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) It is a judgment worth looking at again, not…