CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY: A REMINDER OF PAST COMMENTS … SOME CHESTNUTS HERE
The Witness Evidence Working Group is carrying out a survey of the use of witness statements in the Business & Property Courts. Here I provide a link to the post and a reminder of the comments that some judges have…
PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…
WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL [2018] EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often…
EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before…
UNDERSTANDING THE CODED LANGUAGE OF THE LEGAL DIRECTORIES: HUMBLEBRAGS AND BEYOND
This if the time of year that several legal directories are published. It leads to an inevitable pattern of behaviour. Thanks to law lecturer John Bates we can all now understand the coded language of the legal directory. THE PATTERN…
THE STATEMENT OF TRUTH: THE COURTS SAY IT AGAIN – NOT TO BE TAKEN LIGHTLY
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill provides a clear and stark reminder of the significance of the statement of truth and need for all relevant parties to sign it….
WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE
The post earlier today on the deficiencies in a witness statement that led to it being excluded provides a good opportunity to reprise certain key points. Not only was the excluded statement essentially “commentary” and “opinion” it also failed to…
MARMITE: SKELETON ARGUMENTS: “SO CALLED”: ATTEMPTS TO APPEAL THE FACTS: A SPREAD OF ISSUES CONSIDERED
In Solicitors Regulation Authority v Day & Ors [2018] EWHC 2726 the Divisional Court rejected the SRA’s appeal against a decision of the Solicitors’ Disciplinary Tribunal. There are some interesting comments about the number of documents and the length of skeleton’s…
SOLICITORS AND EXPERT WITNESSES CAN GO TO JAIL: WITNESS STATEMENTS AND THE VASTLY CHANGED MEDICAL REPORT
In Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) Mr Justice Garnham found a solicitor and a doctor in contempt of court. The solicitor was imprisoned for 12 months, the doctor given a six month sentence,…
ADVISING YOUR CLIENT ON LITIGATION RISKS 2 & 3 : RISKING IT ALL ON A RECOLLECTION OF A MEETING & THE WITNESS WHO GIVES A WHOLLY NEW ACCOUNT FROM THE WITNESS BOX
The judgment in Slade (t/a Richard Slade And Co) v Abbhi [2018] EWHC 2039 (Comm) (24 September 2018) illustrates another risk of litigation. The risk of a witness giving a wholly new account whilst giving evidence at trial. THE CASE The…
ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the…
CIVIL PROCEDURE BACK TO BASICS 13: WHAT IS MEANT BY WITNESS “CREDIBILITY”? WHY THIS IS OFTEN CENTRAL TO A LITIGATOR’S WORK
Many civil cases turn on witness credibility, yet very little training and education is given to lawyers about assessing credibility. Every litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
THE KIMATHI DECISION 4: THE APPROACH TO WITNESS EVIDENCE: MEMORIES ARE FLUID AND MALLEABLE: SOME KEY POINTS ON GESTMIN
This is the fourth in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). The trial judge was looking at evidence of matters that had happened some 50 years earlier,…
PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE
Many cases rest on the credibility of witnesses. A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation…
THE KIMATHI DECISION 3: THE EVIDENCE GATHERING PROCESS, STANDARD QUESTIONNAIRES AND THE USE OF LEADING QUESTIONS
This is the third in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). Here we look at the evidence gathering process, in particular the use of questionnaires and the…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
THE KIMATHI DECISION 2: TRANSLATORS ON TRIAL: ALSO A LOOK AT THE GUIDANCE ON TRANSLATING WITNESS STATEMENTS
This is the second in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). Here we look at issues relating to the translators. It shows the way in which the…
CHANGING WITNESS STATEMENTS: COMPARE AND CONTRAST: EDITING STATEMENTS CAN AFFECT CREDIBILITY
The judgment case of ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust [2018] EWHC 2010 has an interesting passage on witness statements. It is an example of how early witness statements that were not initially disclosed can…
THE “TRUE VOICE OF THE WITNESSES ARE NOTABLY LACKING FROM THEIR WITNESS STATEMENTS”: INORDINATE AMOUNT OF TIME & COSTS SPENT FOR NO GOOD REASON
In Estera Trust (Jersey) Ltd & Anor v Singh & Ors [2018] EWHC 1715 (Ch) Mr Justice Fancourt made some telling observations about the usefulness of witness statements prepared for the case. This is a common observation in relation to witness…
PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”
The judgment in Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong. “I am sure she is an honest person, but…
MORE ABOUT WITNESS STATEMENTS AND THE ICI CASE: WHEN EVIDENCE IS NOT ADMISSIBLE AND (WHEN IT IS) IT IS NOT RELIABLE
We are looking again at aspects of the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).The previous post in this case looked at the “duplicate” witness statements of the defendant. Here…
WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
WITNESS STATEMENTS AND COST BUDGETS: “THEY WILL HAVE BECOME AN ARTIFICIAL CONSTRUCT OF THE LAWYERS”
There are some interesting observations in the judgment of Chief Master Marsh in Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch). The way in which a witness statement is likely to be drafted can be considered at the cost budget…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 100: IT IS DIFFICULT TO PROVE ANYTHING WHEN EVERYONE IS LYING: “A FESTIVAL OF MENDACITY”
The judgment of Mr Justice Turner today in Rashid v Munir & Ors [2018] EWHC 1258 (QB) illustrates the difficult task of the trial judge when all of the witnesses are strangers to the truth. “Attempting to establish the common but…
EXPERTS AS ADVOCATES FOR THE CLAIMANTS’ CAUSE: WITNESSES WHOSE EVIDENCE WAS VERY DIFFERENT TO THEIR WITNESS STATEMENTS
I am grateful to Dominic Regan for sending me a copy of the judgment of Mrs Justice Andrews today in Gee -v- Depuy International Ltd [2018] EWHC 1208. The judgment is 762 paragraphs long and will be widely read by…
PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT
In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly…
PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT
One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness. Litigants can (and often do) have strong views about the case and what they said and did. The fact that…
CIVIL PROCEDURE: BACK TO BASICS 8: LEAVING VENOM OUT OF WITNESS STATEMENTS: A PEN DIPPED IN VITRIOL IS GOING TO COST YOU MONEY
It is surprising how many witness statements I have read (both in practice and in the reports) that contain invective material. Litigants appear to think it important, and effective, that they disparage their opponents. Litigants should be warned that this…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
WITNESS CREDIBILITY 3: A JUDGMENT FROM TODAY: CREDIBILITY A CENTRAL PART OF THE CASE
This is the third post today about the subject of the assessment of witness credibility. By a curious piece of good planning it comes from a judgment today in Jiangsu Shagang Group Co Ltd v Loki Owning Company Ltd [2018] EWHC…
WITNESS CREDIBILITY 2: ACADEMIC SCRUTINY: PSYCHOLOGICAL RESEARCH AND WITNESS EVIDENCE
Near the beginning of many judgments after a trial there is a section where the judge gives their view of the reliability and credibility of the witnesses. In about 98% of cases it is not necessary to read further to…
WITNESS EVIDENCE AND DOCUMENTS: GESTMIN CONSIDERED IN THE SUPREME COURT
In Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)[2018] UKSC 3 the Supreme Court considered the “Gestmin” principles. There are several aspectse of the judgment. Here we look at the judgment…
WITNESS EVIDENCE: CREATING AN ACCURATE RECORD OF INAPPROPRIATE CONDUCT AT WORK: SPOT – AN IMPORTANT DEVELOPMENT
I have written before about the book The Memory Illusion. In essence lawyers need to be concerned about how easy it is for false memories to be created and how fallible the human memory is. The creation of an inaccurate…
WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY THE GIVING THE SOURCE OF INFORMATION IS IMPORTANT: LITIGATION REQUIRES EVIDENCE NOT GOSSIP
There is a brief report on Lawtel that highlights the need for compliance with the rules relating to witness statements. The issue of failing to give sources of information and belief has been dealt with several times on this blog….
THE ADVANTAGES OF GETTING WITNESS EVIDENCE EARLY – AND GETTING IT RIGHT: REDUCING THE RISKS OF LITIGATION
It is worthwhile repeating, and thinking about one part of the judgment of Master Leonard Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs). “… the cost of preparing witness evidence will normally be recoverable as part of the cost…
HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at [2017] EWHC 3054 (QB). This judgment deals with the issue…
THE CREDIBILITY OF WITNESSES: WHEN THE DEFENDANT’S OWN EVIDENCE AMOUNTS TO A HOME GOAL
This blog has looked many times at the issue of witness credibility and why the judge prefers the evidence of one witness over another . This was an issue to the fore in the judgment of Mr Justice Green in Khakshouri…
“SOMETIMES AN UNIMPRESSIVE WITNESS SPEAKS THE TRUTH”: FACT FINDING AND THE CIVIL COURTS: PRIVY COUNCIL OVERTURN FINDINGS OF FACT
In Cleare v The Attorney General & Ors (Bahamas) [2017] UKPC 38 the Privy Council was scathing of the method of fact finding of the trial judge. The judge erred in failing to consider the significance of medical evidence. ” It…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE
We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence. “I start by asking myself this question:…
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
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