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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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PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS

PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS

January 18, 2023 · by gexall · in Appeals, Civil evidence, Statements of Truth, Witness statements

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

WITNESS CREDIBILITY: A SUMMARY OF THE APPROACH IN GESTMIN

August 24, 2022 · by gexall · in Civil evidence, Witness statements

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

WITNESS DEMEANOUR: ARGUMENTS CONSIDERED BY THE COURT OF APPEAL

May 24, 2022 · by gexall · in Appeals, Civil evidence

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

ASSESSING WITNESS CREDIBILITY: CREDIBILITY IS NOT NECESSARILY THE SAME THING AS HONESTY

April 4, 2022 · by gexall · in Civil evidence

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

January 11, 2022 · by gexall · in Civil evidence, Witness statements

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…

WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES

WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES

December 9, 2021 · by gexall · in Civil evidence, Civil Procedure, Clinical Negligence, Witness statements

We looked yesterday at the judgment  of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…

WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: THE COURT CONSIDERS WHAT WAS SAID – 17 YEARS AFTER THE EVENT

December 1, 2021 · by gexall · in Civil evidence, Clinical Negligence, Witness statements

In HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) Mr Justice Cotter considered the issue of the reliability of witness evidence when the events being considered occurred 17 years previously.  It is an example of the kind…

CAN ONE WITNESS STATEMENT SIMPLY SAY "I AGREE WITH THEM" ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED

CAN ONE WITNESS STATEMENT SIMPLY SAY “I AGREE WITH THEM” ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED

October 14, 2021 · by gexall · in Civil evidence, Witness statements

I gave a webinar earlier today where an interesting question was asked.  If a husband and wife are giving evidence and they agree with each other, can one statement simply say “I agree with them”? This “agreement” of witness statements…

CIVIL EVIDENCE: MISSING WITNESSES, HAMLET: "THE REST IS SILENCE...": OH, AND IT IS THE JUDGE THAT IS ON TRIAL

CIVIL EVIDENCE: MISSING WITNESSES, HAMLET: “THE REST IS SILENCE…”: OH, AND IT IS THE JUDGE THAT IS ON TRIAL

August 30, 2021 · by gexall · in Civil evidence

The judgment of HHJ Hodge (sitting as a High Court judge) in Ahuja Investments Ltd v Victorygame Ltd & Anor (CONTRACT – Purchase of commercial investment property) [2021] EWHC 2382 (Ch) is one of interest to anyone involved in litigation…

A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES

A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES

May 6, 2021 · by gexall · in Civil evidence, Damages, Expert evidence, Experts, Witness statements

Returning to the judgment of Mr Justice Cavangh in  TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…

WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS

WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS

April 30, 2021 · by gexall · in Civil evidence, Witness statements

Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in  Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….

"VARIOUS WITNESSES CAN ALL GIVE HONEST BUT NEVERTHELESS CONFLICTING ACCOUNTS OF A GIVEN EVENT": GESTMIN PRINCIPLES CONSIDERED IN THE CONTEXT OF A ROAD TRAFFIC ACCIDENT

“VARIOUS WITNESSES CAN ALL GIVE HONEST BUT NEVERTHELESS CONFLICTING ACCOUNTS OF A GIVEN EVENT”: GESTMIN PRINCIPLES CONSIDERED IN THE CONTEXT OF A ROAD TRAFFIC ACCIDENT

April 6, 2021 · by gexall · in Civil evidence, Civil Procedure, Personal Injury, Witness statements

In  Barrow & Ors v Merret & Anor [2021] EWHC 792 (QB) Richard Hermer QC (sitting as a Deputy High Court Judge) considered the guidance given in Gestmin in the context of a road traffic accident. It is a reminder…

"POSSIBLE CRIMINAL ACTIONS THAT MAY HAVE TAKEN PLACE IN THIS CASE INCLUDE PERJURY, CONSPIRACY TO DEFRAUD AND CONSPIRACY TO PERVERT THE COURT OF JUSTICE": THE NON-EXISTENT TRIP TO ILKLEY

“POSSIBLE CRIMINAL ACTIONS THAT MAY HAVE TAKEN PLACE IN THIS CASE INCLUDE PERJURY, CONSPIRACY TO DEFRAUD AND CONSPIRACY TO PERVERT THE COURT OF JUSTICE”: THE NON-EXISTENT TRIP TO ILKLEY

March 26, 2021 · by gexall · in Civil evidence, Civil Procedure, Witness statements

The judgment of HH Judge Davis-White QC (sitting as a High Court Judge) in The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) contains clear findings of fact in relation to three witnesses.  Among the matters of interest…

THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”

THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”

February 28, 2021 · by gexall · in Civil evidence, Witness statements

The number of people who had not read the judgement of Canadian judge J.W. Quinn looked at last Sunday made me think that this would be a good time to remind people of the judgment in Bruni -v- Bruni  in 2010.  The…

WITNESS STATEMENTS IN THE DOCK AGAIN: "DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE"

WITNESS STATEMENTS IN THE DOCK AGAIN: “DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE”

February 25, 2021 · by gexall · in Civil evidence, Witness statements

The judgment of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm) provides a further example of the contention that obtaining witness evidence is  probably not part of the “stock in trade” of those who…

"Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)": A good time to repeat one of our favourite cases...

“Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)”: A good time to repeat one of our favourite cases…

February 21, 2021 · by gexall · in Civil evidence, Witness statements

Periodically I feel bound to remind people  of the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn.   In the middle of “lockdown”, when we may well…

ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT

ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT

February 15, 2021 · by gexall · in Civil evidence, Witness statements

A common search term that leads to this blog is “opinion evidence in witness statements”,  this remains a major issue in many areas of practice.  It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…

THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD...

THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…

February 15, 2021 · by gexall · in Avoiding negligence claims, Civil evidence, Well being, Witness statements

One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC.  This case  gives a working example of the…

WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)

January 26, 2021 · by gexall · in Civil evidence, Webinar, Witness statements

A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?”  Examination in chief is rare in civil cases.   The dangers of asking leading…

PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE

PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE

December 14, 2020 · by gexall · in Civil evidence, Personal Injury, Witness statements

In Pinnegar v Kellogg International Corporation & Anor [2020] EWHC 3431 (QB)  HHJ Platts (sitting as a High Court judge) considered the weight to be given to evidence of matters that had happened some 50 years previously.  It shows that…

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