WITNESS EVIDENCE WEDNESDAY II: A STATEMENT THAT WAS “BASED ON A COMBINATION OF SPECULATION AND DOUBLE, TRIPLE OR EVEN MORE REMOTE HEARSAY”
We have looked at many cases in which judges have been critical of the way in which witness statements are drafted. This case is one of the most clear and extreme examples. The defendant (a firm of solicitors) failed to…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
WITNESS EVIDENCE WEDNESDAY II: WITNESS CREDIBILITY: THE PRINCIPLES IN TUI -V- GRIFFITHS DID NOT IMPACT ON THE ASSESSMENT OF A LAY WITNESS
Here we have an unusual argument where an appellant attempted to use the decision in Tui -v- Griffiths to argue that a tribunal should not have accepted the evidence of a lay witness. The evidence of the witness in question…
AVOIDING THE PITFALLS: WITNESS EVIDENCE AND WITNESS STATEMENTS: WEBINAR 6th MARCH 2026
We have seen a lot of issues over the years in relation to the drafting of witness statements and presentation of witness evidence. There are many cases that illustrate the problems that arise. This webinar aims to head off those…
WITNESS EVIDENCE WEDNESDAY: A WITNESS STATEMENT “MADE UP OF SUBMISSIONS OR COMMENTARY ON DOCUMENTS RATHER THAN EVIDENCE”
There are numerous warnings and strictures about not putting submissions, commentary and opinion in witness statements. More than one observer has commented that these rules are routinely ignored. We have examples of this here. We also have an example of…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
PROVING THINGS 278: CLAIMANT FAILS TO PROVE THEIR CASE WHILST THE DEFENDANT FAILS TO PROVE FRAUD: MULTIPLE INCONSISTENCIES LEAD TO EVIDENCE NOT BEING ACCEPTED
Here we look at a judgment where the claimant failed to establish his case. The defendant also failed to prove that the claimant was involved in a “staged crash”. It shows how cumulative inconsistencies in a party’s evidence can lead…
WITNESS EVIDENCE WEDNESDAY: THE USE OF ARTIFICIAL INTELLIGENCE IN THE DRAFTING OF WITNESS STATEMENTS: “IT IS DIFFICULT TO DISTINGUISH BETWEEN WHAT F SAYS AND WHAT AN ALGORITHM TELLS F TO SAY”
There is much material about witness evidence and witness statements on this site. In recent years we have also been discussing the use (and misuse) of artificial intelligence. We can be fairly sure that there will be much more about…
DEFENDANTS GIVEN PERMISSION TO RELY ON SURVEILLANCE EVIDENCE SERVED LATE: EVEN THOUGH THIS LED TO THE ADJOURNMENT OF THE TRIAL
A defendant that wishes to rely on surveillance evidence must choose its timing with extreme care. If the evidence is disclosed too early then the claimant could be “tipped off”; too late and this could be categorised as an “ambush”. …
WITNESS EVIDENCE WEDNESDAY ii: WHY A JUDGE DID NOT ACCEPT THE EVIDENCE OF THE DEFENDANTS’ WITNESS: SOME REPLIES WERE “ESSENTIALLY MEANINGLESS VERBIAGE DESIGNED TO FOB OFF QUESTIONS” HE “PREFERRED NOT TO ANSWER”
Knowing the factors that lead to the evidence of a witness not being accepted is an important part of the litigator’s “skill set”. Here we look at a case where the evidence of a witness was roundly rejected. “I…
WITNESS EVIDENCE WEDNESDAY: HOW DOES THE COURT APPROACH EVIDENCE OF SOMETHING THAT HAPPENED OVER FOUR YEARS BEFORE AND TOOK PLACE WITHIN TWO MINUTES?
This series enables us to look at witness evidence in many different contexts. Here we look at evidence relating to an arrest and events that took place within two minutes. The judge was well aware of the issues that could…
EXPERT WATCH 32: A REVIEW OF THE CASE LAW AS TO THE INDEPENDENCE (OR OTHERWISE) OF EXPERT WITNESSES
We are looking again at a case looked at yesterday. This is because the judgment contained a useful summary of many leading cases relating to the question of expert bias, or apparent bias. “It is always desirable that an expert…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
THROWBACK FRIDAY: WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY GIVING THE SOURCE OF INFORMATION IS IMPORTANT (FROM JANUARY 2018)
Today we go back to a post from January 2018 on a point that remains just as relevant today. There is a mandatory requirement that a witness give the source of their information and belief. A surprising number of witness…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
REVIEW OF THE YEAR 8: PROVING THINGS – OR NOT PROVING THINGS, AS THE CASE MAY BE…
The “Proving things” series is the longest running feature of this blog. Initially I thought it would be a series of then posts. I was planning to end it at a hundred when a chance conversation on the Leeds Legal…
WHEN THE WITNESS STATEMENT OF THE DEFENDANT CONTAINS PASSAGES THAT ARE CUT AND PASTED FROM AN EXPERT’S REPORT: SOMEONE MAY NOTICE THIS…
It is clear that many judge’s approach witness statements with a degree of scepticism, regarding them more as a lawyer’s construct than the actual recollection of the witness. In this case the defendant’s own witness statement included passages that were…
A BREACH OF “PURDAH” OBLIGATIONS WHEN A WITNESS IS GIVING EVIDENCE: MISGUIDED BUT NOT DISHONEST
This is a brief reminder of the importance of the obligations of a witness not to communicate with others (including their own legal team) whilst in the course of giving evidence. “This was obviously ill-advised but I accept that, by…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
THE HILLSBOROUGH REPORT AND THE AMENDMENT OF WITNESS STATEMENTS: NEW INFORMATION IN THE IPOC REPORT PUBLISHED YESTERDAY
This blog has looked at the issues relating to evidence gathering and the Hillsborough tragedy several times, in particular the way that witness statements were gathered, and the reports amended. The issues were considered again in the Independent Office for…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
WITNESS EVIDENCE WEDNESDAY: A JUDGE ASKING A WITNESS TO CLARIFY THEIR EVIDENCE IS NOT “BIASED” : “JUDGES ARE NOT PASSIVE SPECTATORS AT A TRIAL”
This week we are looking at an appeal that considers the trial judge’s consideration of witnesses at trial. The appellant alleged that the judge was biased and the trial therefore unfair. There is a detailed consideration of the “bias” alleged…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
THE SOLICITOR AND THE STING OPERATION (2): WHY THE JUDGE DID NOT ACCEPT THAT THE CLAIMANTS WERE UNAWARE OF THE STRATEGY BEING USED
We are returning again to the case where the claimants arranged the taping of meetings with the defendants’ solicitors. The judge was sceptical of the claimants’ assertions that they were not fully aware of the methods being used. (This case…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
WITNESS EVIDENCE WEDNESDAY: HOW JUDGES DECIDE CIVIL CASES: “JUDGES ARE HUMAN. THEY DO NOT POSSESS SUPERNATURAL POWERS”
This week we are looking at a judgment that sets out in detail the process by which judges determine issues in a civil case. Ranging from the burden and standard of proof , the role of judges, the fallibility of…
EXPERT WATCH 22: JUST WHEN YOU THINK YOU MAY HAVE SEEN IT ALL: THE CLIENT (BASICALLY) DRAFTS THE JOINT STATEMENT: THE JUDGE THINKS THEY MAY HAVE PLAYED A LARGE PART IN THE DRAFTING OF THE REPORT ITSELF…
No matter how long, and how much, you write about civil procedure cases can still come along which surprise – if not astonish. We have such a case here. The judge found that, essentially, it was the client who played…
WITNESS EVIDENCE WEDNESDAY: THE DUTY TO PUT YOUR CASE TO A WITNESS: THE PRINCIPLES SUMMARISED IN THE HIGH COURT
Earlier this week we looked at a case where difficulties occurred because the claimant’s case was not put to a witness for the defendant. Here I want to highlight the key parts of that judgment relating to the need…
(NOT) PROVING THINGS 272: AN ABSENT WITNESS LEADS TO ADVERSE INFERENCES BEING DRAWN: PROBLEM OCCUR WHEN YOUR CASE AT TRIAL IS WHOLLY DIFFERENT TO THE PLEADED CASE
Many people have noted that the argument that the court should draw adverse inferences from the absence of key witnesses is often bypassed by the courts, with judges preferring to base their decisions on the evidence of witnesses that are…
SURVEILLANCE EVIDENCE UNDER SCRUTINY, ADMISSIBILITY AND CONDUCT CONSIDERED: “THE PROVIDING OF PATENTLY UNTRUE WITNESS STATEMENTS TO THE COURT, ENDORSED WITH STATEMENTS OF TRUTH, IS A MATTER OF SERIOUS CONCERN TO THE COURT”
This is the most serious criticism of surveillance operatives as I have seen. The judge found that the operatives, filming on behalf of a defendant for the purpose of litigation, had been “fundamental and repeated” errors. The operatives then put…
WITNESS STATEMENTS: GUIDANCE FOR THOSE WHO TAKE THEM AND THOSE WHO SUPERVISE THEM: WEBINAR 15th OCTOBER 2025
On a regular basis on this blog we see cases where judges have been highly critical of the witness statements used at trials or hearings. This criticism is not a rare event and is usually justified. Many witness statements are…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
NB THIS DECISION THAT THE SOLICITOR WAS DISHONEST WAS OVERTURNED BY THE COURT OF APPEAL SEE Grosvenor Property Developers Ltd v Portner Law Ltd [2026] EWCA Civ 1238 (02 October 2026) This is an important and interesting case about findings…
EXPERT WATCH 13: “IT SUGGESTS THE WITNESS WAS SEEKING TO BUILD A CASE FOR THE CLAIMANTS RATHER THAN INDEPENDENTLY ANALYSE THE EVIDENCE IN REACHING HIS OPINION”: THE JUDGE FINDS THIS TROUBLING
Here we are looking a judicial observations about the role of forensic reconstruction experts. There are telling comments on the reasons the judge preferred one expert over another. Again it comes down to a simple failure to consider and apply…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
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