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…
REMOTE HEARINGS: BUT WHAT ABOUT “WITNESS DEMEANOUR”?
One of the issues that has been raised in objection to “remote” hearings is the question of witness demeanour. In modern litigation recent case law suggests that this is not a major factor in any event. “No doubt it…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT: THE STANDARD OF PROOF FOR DISHONESTY: ALSO DELAY OF 22 MONTHS IN GIVING JUDGMENT UNACCEPTABLE
In Bank St Petersburg PJSC & Anor v Arkhangelsky & Anor [2020] EWCA Civ 408 the Court of Appeal ordered a retrial because of doubts in relation to the trial judge’s findings of fact. The judge had applied too high…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: NOT A MERE TECHNICALITY: FAILURE TO COMPLY WITH RULES CAN HAVE MAJOR CONSEQUENCES
This blog has dealt, many times, with the difficulties that can arise when a solicitor makes a witness statement in support of an interlocutory application. Not least there is a duty to give details of the source of information and…
THE PROBLEMS THAT CAN OCCUR WHEN A LAWYER MAKES A STATEMENT ON THEIR CLIENT’S BEHALF: “I ATTACH NO WEIGHT TO WHAT HE SAYS”
This blog has looked, many times, at the pitfalls that can occur when lawyers make statements on behalf of their clients. An example can be seen in the judge of Mr Justice Edis in Cobussen Principal Investment Holdings Ltd v…
THE PRODUCTION OF WITNESS STATEMENTS: NOW BEING SUBJECT TO RESEARCH: CAN YOU HELP?
This blog has looked, many times, at issues relating to the drafting of witness statements. The Institute for Crime and Justice Policy Research is carrying out research on this subject, in the context of witness evidence in employment tribunals, “Taking…
GIVING EVIDENCE OF MATTERS THAT HAPPENED 17 YEARS EARLIER: AN EXAMPLE IN THE CONTEXT OF CLINICAL NEGLIGENCE
This blog has looked at the issues relating to memory and witness evidence many times. Particularly the problems of people giving evidence many years after the event. An example of these difficulties can be seen in the judgment of Mrs…
ATTEMPTING TO GIVE EVIDENCE IN SUBMISSIONS AND SUBMISSIONS IN EVIDENCE: SHOULD THE TWAIN EVER MEET?
The recent post on the Post Office case and the defendant’s attempts to introduce new evidence at the submissions stage has caused me to revisit a post from several years ago. This was, in turn, caused by a recollection of…
PROVING THINGS 170: YOU CAN’T GIVE EVIDENCE BY WAY OF SUBMISSIONS (HONESTLY, YOU CAN’T)
One important aspect of the judgment in Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB) is the judge’s criticism of the defendant’s attempt to give “evidence” at the stage of closing submissions….
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: TO WHAT EXTENT IS “HYPOTHETICAL” EVIDENCE FROM DOCTORS ADMISSIBLE?
The judgment of Mrs Justice Lambert in AB v East Lancashire Hospitals NHS Trust [2019] EWHC 3542 (QB), provides an important lessons for those who draft witness statements, particularly on behalf of defendants in clinical negligence cases. The question is…
CIVIL PROCEDURE BACK TO BASICS 74: HEARSAY EVIDENCE AND SECTION 4 OF THE CIVIL EVIDENCE ACT 1995
The judgment of Deputy Master Linwood in Barnaby & Anor v Johnson (aka Smith) [2019] EWHC 3344 (Ch) provides a reminder of the terms of Section 4 of the Civil Evidence Act 1995 and an example of its application. …
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (4): FUNDAMENTAL DISHONESTY
There have been relatively few cases about fundamental dishonesty this year. However the cases that have been reported have all been interesting. The first involves a failing adverse to the defendant. The second highlights the point that there is no…
CIVIL PROCEDURE BACK TO BASICS 72: THE EXPERT’S DUTY TO LOOK AT BOTH SIDES OF THE ISSUE AND GIVE REASONS FOR THEIR VIEWS (A MANDATORY OBLIGATION MORE HONOURED IN THE BREACH…)
The recent post on the decision in Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) highlights a common omission from many expert reports. The expert’s duty to consider whether there is a range of opinion and to give…
WHEN WITNESSES ALL SAY THE SAME THING: THIS RARELY TURNS OUT WELL: (WHEN THEY SIGN THE SAME STATEMENT, IT COULD BE WORSE…)
There has been a brief exchange on Twitter this morning. Someone has been served with a single witness statement – signed by three people. There are manifest breaches of the rules here. It is another example of a statement being…
PROVING THINGS 169: WHEN THE DEFENDANT CALLS NO (LAY) EVIDENCE AND TRIES TO PROVE ITS CASE THROUGH THE CLAIMANT’S WITNESSES
There are a number of interesting aspects of the judgment of HHJ Coe in Esegbona v King’s College Hospital NHS Foundation Trust (false imprisonment in hospital) [2019] EWHC 77 (QB). One of which is the defendant’s failure to call any…
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 NEWLY 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 &…
EXPERT WITNESSES: A CRISIS IN THE CRIMINAL COURTS – RECOMMENDED READING FOR ALL LITIGATORS
Matthew Scott’s “Barrister Blogger” blog is always an interesting read. His latest post Expert witnesses: a crisis in the criminal courts is essential reading for everyone involved in any type of litigation – and also for anyone who is an…
THE EXPERT WITNESS AND THE “HIRED GUN”: THE FACT THAT EXPERTS WERE VERY EXPENSIVE (AND FEES WERE FIXED IN RETROSPECT) DID NOT MAKE THEM UNRELIABLE
In O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48 the Supreme Court of Ireland made some telling observations on the role of the expert witness. Problems with experts are clearly not confined to one jurisdiction. OPENING OBSERVATIONS OF…
PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”
Most cases are lost not on issues of law but on issues of evidence. In Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the applicants’ evidence. The judgment contains…
“THIS WAS A DECISION TAKEN ON FACTS UNSUPPORTED BY EVIDENCE”: MASSIVE INCOMPETENCE BY THE PAROLE BOARD: WHERE TWO CASES GET CONFUSED – HOW CAN WE SLEEP AT NIGHT?
It is unusual for this blog to look at decisions relating to Parole Board. However the careful gathering and analysis of evidence is central to every litigator’s role. A remarkable set of facts is outlined in the judgment of HHJ…
PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…
Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence. “He is giving evidence about events…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
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