ASSESSING THE CREDIBILITY OF WITNESSES: PROBLEMS WITH INDEPENDENCE WHEN THE WITNESS REQUIRES A TRANSLATOR
Who is going to be believed? This is the central question in many (if not most) cases that go to trial. The judgment of Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) shows many of…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor…
WITNESS EVIDENCE: THE DANGERS OF OPINION EVIDENCE AND TRYING TO USURP THE ROLE OF THE JUDGE : BACK TO MARSH -v- MINISTRY OF DEFENCE
Anyone considering matters relating to witness evidence and the drafting of statements will be drawn like a moth to the fire to the decision of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040. Once again I am returning…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
WITNESS STATEMENTS DIRECT: MEMORY, GESTMIN £15 MILLION AND QUITE A LOT OF ALCOHOL: A HEADY BREW
There is a certain appropriateness in one of the last major first-instance judgments of Mr Justice Leggatt being about witness credibility and the Gestmin criteria. In Blue -v- Ashley [2017] EWHC 1928 (Comm) Gestmin figured heavily. Everyone believed they were…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT
I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up…
LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO?
Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct. However in litigation, as in life, people do tell lies. Litigators need to know about lies, and…
TALES FROM THE APIL CONFERENCE 3: WITNESS STATEMENTS: LITIGANTS IN PERSON ARE BETTER THAN LAWYERS
I attended the APIL conference because I was asked to talk about “proving things”, that is the basic task of establishing a case by evidence. The fact that this blog has a long-running series on this issue may have played…
WHEN THE WITNESS EVIDENCE SIMPLY SAYS – “I AGREE WITH HIM”
There was a post on this blog earlier this week about the issues caused by similar witness statements. Another intriguing problems is what happens when the witness simply says “I agree with…” the other witness. This type of “evidence” is…
WITNESSES, MUSIC AND RECOLLECTION: WHEN RADIO INTERVIEWS COME BACK AND THINGS ARE NOT ALRIGHT
I am looking for an excuse to blog about the decision of Judge Hacon in Editions Musicales Alpha S.A.R.L -v- Universal Music Publishing Limited [2017] EWHC 1058 (IPEC). The case shows something about witness evidence (a composer “forgot” he had agreed…
“GOOD DAYS AND BAD DAYS”: THE ROLE OF VIDEO EVIDENCE IN THE ASSESSMENT OF CREDIBILITY AND DAMAGES
In Karapetianas -v- Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB) Mr Jonathan Swift QC considered the appropriate approach to damages when the claimant’s case as to ongoing symptoms was contradicted by video evidence. He found that the…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT & CONSIDERS THE IMPORTANT ROLE OF THE SINGLE JOINT EXPERT
We have already looked at the decision in Perry -v- Raleys Solicitors [2017] EWCA Civ 314 in the context of the award of interest. The decision also contains important observations about evidence and the way in which the courts approach…
PROVING THINGS 61: MORE ON SOCIAL MEDIA: FACEBOOK ENTRIES AND WITNESS CREDIBILITY
Facebook and social media play an increasingly important part in litigation. We have looked at several cases where social media has played a critical part in the assessment of witness credibility. Facebook played a part of the judgment today of…
BANKS, WITNESSES AND CREDIBILITY: AN INTERESTING JUDGMENT
There are many reasons why lawyers should read the decision in Thomas -v- Triodos Bank NV [2017] EWHC 314 (QB). There is an interesting consideration of the duty of care a bank owes a customer and the Hedley Byrne principles….
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
WHEN THE EVIDENCE OF THE “INDEPENDENT” WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?
In a case where there are disputed facts a party that has an independent witness usually holds a strong hand. However in Elson -v- Stilgoe [2017] EWCA Civ 193 today the Court of Appeal upheld a decision where the trial…
WHEN PUBLIC OFFICIALS MAKE WITNESS STATEMENTS: FAREPAK REVISITED
There was a post earlier this week where a public official faced contempt of court proceedings that was “false and tended to mislead”, and was acquitted because the statement was “careless” rather than criminal. This provides a good opportunity to…
“SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT”: A VERY FRIGHTENING SEARCH TERM
It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to…
APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB
In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured. The judgment considers what inferences a…
THE PROCESS OF TAKING A STATEMENT: EXPLORED IN DETAIL IN OPEN COURT
The judgment of Master Bowles in Wilson -v- Lassman [2017] EWHC 85 (Ch) contains a detailed consideration of the way in which witness evidence was obtained. It highlights the importance of having a careful record of the way in which…
THE SELF-CONFIDENT WITNESSES THAT CONVINCE THEMSELVES BUT NO-ONE CAN RELY ON
In Bhullar -v- Bhullar [2017] EWHC 407 (Ch) His Honour Judge Stephen Davies had the difficult task of ascertaining the truth in that most fraught and difficult of circumstances: a family that has been in business together and then fallen out….
ALL THE WITNESSES SAY EXACTLY THE SAME THING 10 YEARS AFTER THE EVENT: DIFFICULT TO BELIEVE (AND NOT BELIEVED)
In Patel -v- Patel [2017] Andrew Simmonds QC (sitting as a judge of the High Court) was considering the credibility of witnesses. The case is an interesting read in that it sets out detail of some of the cross-examination. It…
PROVING THINGS 53: BECAUSE A SOLICITOR WAS DISHONEST SOME OF THE TIME IT DOESN’T MEAN THEY WERE DISHONEST ALL OF THE TIME
The case of Pemberton Greenish LLP -v- Henry [2017] EWHC 246 (QB) provides an interesting assessment of witness evidence and demonstrates the difficulty in proving dishonesty. Mr Justice Jeremy Baker held that the fact that a solicitor was negligent, breached…
ANODYNE WITNESS STATEMENTS: WHAT DOES IT TELL YOU WHEN A JUDGE PREFERS THE ORAL EVIDENCE OF A WITNESS- THAT CONTRADICTS THEIR WITNESS STATEMENT
There is an interesting observation in the judgment of Mrs Justice Rose in Singularis Holdings Ltd -v- Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch). It may well show much about the way in which witness statements are prepared. “……
THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION”
There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir…
TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. “the starting point is to identify what the judge decided. He considered that the witness had…
YOUR WITNESS STATEMENTS ARE IDENTICAL: NOW THAT IS A COINCIDENCE
There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case. Advocates of this approach may want to read the judgment of Mrs Justice Proudman in Abbott -v-…
THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY
In the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence. It provides…
BANKERS, WITNESS STATEMENTS AND CREDIBILITY: THE ENIGMATIC WITNESS
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) also contains an analysis of a witness who was “something of an enigma” “Although a witness statement should be…
WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice. Both posts will be about the judge’s assessment…
JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in…
PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was…
PROVING THINGS 47: FIRE IN THE LOFT: IT WASN’T THE MOUSE MAN AT ALL
The judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) is another example of a claimant failing to prove their case. More curiously, in some respects, the claimant’s own evidence contradicted their case. “In circumstances where there…
LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED
“This may be an interesting year for the consideration of issues relating to the accuracy of memory. An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic…
LAWYERS, LITIGATION & MEMORY II: HOW YOU ARE AFFECTING THE MEMORY OF WITNESSES (AND POSSIBLY SOWING THE SEEDS FOR DEFEAT)
The post on “Lawyers, litigation and memory”clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous…
IF YOU ARE BELIEVED YOU WILL WIN: THE NEED FOR A DEVIL'S ADVOCATE IN CIVIL LITIGATION
The post written yesterday on litigators and memory has already given rise to a large number of responses, particularly on Twitter. It is worthwhile taking the matter further by considering how and when a litigator should take stock of the quality…
LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION
A single moment of logical thought will lead to the conclusion that it is strange that lawyers don’t learn about memory. Much (indeed most) litigation relies on the memory of the parties. Judges are, more often than not, called upon…
TAKING WITNESS STATEMENTS AND FACT FINDING: VEHEMENT CRITICISM (OF A SURPRISING SOURCE)
The need to take care when drafting witness statements has been a regular theme of this blog. The delegating of witness statements to a party or client is an extremely dangerous (and foolish) practice. I have also examined, regularly,…
PROVING THINGS 44: FINDINGS OF FACT, WALTER MITTY AND WITNESS TRAINING
The judgment today of Mr Justice Coulson in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2016] 3188 EWHC (TCC) shows the importance of the judge’s assessment of witnesses. The judge made a clear and robust assessment of the witness evidence,…
PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER
The judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases. “…the decision of the court is not necessarily the objective truth…
PROVING THINGS 42: SILENCE DOES NOT PROVE INDUCEMENT
We are returning to the case of Francis -v- Knapper [2016] EWHC 3093 (QB). That case has been looked at in relation to a failure to prove damages. However the claimants also had major evidential problems in proving misrepresentation. KEY POINTS…
WHY ALL LAWYERS HAVE TO KNOW ABOUT THE FALLIBILITY OF MEMORY (EVEN COMPANY LAWYERS)
I have written about the Gestmin principles many times on this blog. The importance of every litigator knowing about the fallibility of memory, and the way in which a trial judge is likely to approach these issues, is shown in the judgment…
PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller [2016] EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in…
WITNESS CREDIBILITY, DELAY AND DENTON.
There is an interesting discussion of the credibility of witnesses in the judgment of Mr Registrar Briggs in Preston -v- Green (Liquidator of Cre8atsea Limited) [2016] EWHC 25222 (Ch). The Registrar also had to consider whether to exercise his discretion…
"DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT…"
There are several high profile cases in which judges have expressed scepticism (sometimes profound scepticism) about whether a witness statement really reflects the knowledge of a witness. A short, but telling, passage in the judgment of Mr Justice Mitting in…
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