"AMPLIFYING" WITNESS STATEMENTS AT TRIAL: IT IS PROBABLY FAR TOO LATE
Anyone giving a talk, particularly to a group of lawyers, always has a fear that someone will ask the “unanswerable” question. There was a good question today at the PIBA conference after a talk I gave about witness statements. The…
WITNESS STATEMENTS: THE LAWYER'S DUTY NOT TO MISLEAD
There are some important observations by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin). The case relates to witness statements and the duty of the lawyer when they know that…
WITNESS STATEMENTS AND CREDIBILITY: LATE CHANGE OF MIND DOESN'T HELP
There are many aspects of the judgment today of Mrs Justice Lang DBE in Sparrow -v- Andre [2016] EWHC 739 (QB) that are of interest. Here I concentrate upon one aspect – witness credibility. “In my view, such a late…
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 5: LEARN HOW TO DRAFT A WITNESS STATEMENT
As part of the series giving gentle reminders of the “litigator’s resolutions” set out at the beginning of the year I am returning to the very basic art of drafting a witness statement. It may be significant that the post…
PROVING THINGS 12: THAT "ORAL CONTRACT" IS IT WORTH THE PAPER ITS WRITTEN ON?
The issue of when, where and how a contract is formed is always of interest to academic lawyers. However, for the most part, the court has to determine issues of fact. The judgment of Mr Justice Knowles in JAS…
RELIABILITY OF WITNESS EVIDENCE: HONESTY IS NOT THE SAME AS RELIABILITY
In Sloper -v- Lloyds Bank Plc [2016] EWHC 483 Mr Justice Spencer had to consider issues relating to the reliability of witnesses. “I must emphasise at the outset of my analysis of the evidence that I am quite sure that…
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTIONS 3: THINK VERY CAREFULLY BEFORE SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
As part of the series reminding litigators of the new year’s resolutions for 2016 we look at resolution number 4: “Think very carefully before signing a statement of truth on behalf of a client”. We have already seen one case…
WITNESS EVIDENCE, RECOLLECTION,RECONSTRUCTION AND CLINICAL NEGLIGENCE
There were eighteen (factual and expert) witnesses in the trial in Dr Sido John -v- Central Manchester and Manchester Children’s Hospitals NHS Foundation Trust [2015] EWHC 407 (QB). However, ultimately, the case on liability rested rested on which lay witness…
WITNESS EVIDENCE: MEDICAL NOTES AND CREDIBILITY
There have been several cases this week where a clinical negligence claim rested, ultimately, on whether or not a judge accepted a doctor’s account of what was said. In Lillington -v- Ansell & Jennison [2016] EWHC 351 (QB) Mr Justice…
WITNESSES TRIALS AND ACCURACY OF RECOLLECTION (II)
The previous post dealt with a case where a judge had preferred the evidence of the medical practitioners in a clinical negligence case. As is so often the case a judgment reported on the same day shows a case where…
WITNESSES, TRIALS AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE
In XYZ -v- Warrington & Halton NHS Foundation Trust [2016] EWHC 331 (QB) Mr Justice Dove considered a trial where the outcome, as so often, depended on the accuracy of recollection. THE CASE The claimant brought an action in…
WITNESS STATEMENTS: THE CHANCERY GUIDE: SOMETHING FOR US ALL
Such is the remarkable ability of the Chancery Division that the latest guide (dated March 2016) is already available. I have said many times that the Chancery Guide has much to offer all civil practitioners. Here I want to look…
ANOTHER ASSESSMENT OF WITNESS CREDIBILITY
A regular theme of this blog has been how important witness credibility is to the outcome of many civil actions. The assessment of credibility is often one of the key tasks of the trial judge at. It is an issue…
A QUICK WORD ON WITNESS CREDIBILITY: WHAT THE BUTLER SAID
In Burrell -v- Clifford [2016] EWHC 249 (Ch) Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division) had to assess the credibility of two litigants. It provides an interesting insight into the judicial scrutiny of witness evidence….
PROVING THINGS 10: "HE SAID, SHE SAID": THE DIFFICULTIES OF RECOLLECTION
In Jaciubek -v- Gulati [2016] EWHC 269 (QB) Mr Justice Foskett faced a familiar problem of matching up recollection evidence with (incomplete) medical notes. There are important practical points relating to the accuracy of recollection and the judicial scrutiny of…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya [2016] EWHC 150 (Ch) there is a whole section of the judgment devoted to…
THE JUDGE MUST GIVE REASONS FOR ADVERSE FINDINGS (PLUS A QUICK LOOK AT ALLEGED BIAS)
The previous post looked at a Court of Appeal decision where a judgment at first instance was set aside because of a failure to give reasons for disbelieving solicitors. Similar principles applied in the case of The Gulf Agencies Limited…
ALLEGATIONS OF DISHONESTY AGAINST SOLICITORS: CLEAR FINDINGS OF FACT MUST BE MADE
There have been two cases in the past few days where the Court of Appeal have overturned judgments because of a failure to give reasons for findings against solicitors. In Clydesdale Bank PLC -v- Workman [2016] EWCA Civ 73 findings…
WITNESS CREDIBILITY, ATTENDANCE NOTES AND FINDINGS OF FACT
In Mansion Estates Ltd -v- Hayre & Co (A Firm) [2016] EWHC 96 (Ch) His Honour Judge Saffman (sitting as a judge of the High Court) went, carefully, through the principles relating to witness credibility and findings of fact. Given…
EVIDENCE, PROOF AND DOCUMENTS: MEDICAL RECORDS NOT DEFINITIVE OF CONDITION
The judgment of Mrs Justice Patterson DBE in Hunt -v- Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB) is one where the claimant succeeded in establishing negligence on the part of the defendant Trust. However there is an interesting…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS: THE RECORDS MAY NOT BE RIGHT
This blog has looked, many times, at the issue of witness credibility and the various criteria that judges use when assessing evidence. This issue was to the fore in the Court of Appeal judgment yesterday in Synclair -v- East Lancashire…
WHEN THE CREDIBILITY OF THE LAY AND EXPERT WITNESSES LIES IN SHREDS
The previous post in relation to Part 36 led me to examine the substantive judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC). It contains as damning an assessment of witness…
THE YEO CASE: WITNESS EVIDENCE & CREDIBILITY: THERE'S A HOOK HERE SOMEWHERE
The decision of Mr Justice Warby in Yeo -v- Times Newspapers Limited [2015] EWHC 3375 (QB) is one of those cases that, obviously, will be of wider interest. It contains much of interest in relation to an analysis of the…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…
WITNESS EVIDENCE & THE BURDEN OF PROOF: A CIVIL TRIAL IS NOT A SEARCH FOR THE ABSOLUTE TRUTH: FOOTBALLERS ON TRIAL
Anyone looking for a detailed consideration of the law relating to witness evidence and the burden of proof can find it in the judgment of His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY
Issues relating to “witness training” are bound to be controversial. The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing. However it is clear that trial judges often have their reservations as…
WITNESS STATEMENTS & SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS
We looked in an earlier post at the case of Ali -v- CIS General Insurance (29/7/2015) where a claimant’s action was struck out because of failure to give disclosure. However there was a passing comment in the judgment which demonstrated…
WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC [2015] EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to…
THE CIVIL EVIDENCE ACT, THE ABSENT WITNESS AND WITNESS CREDIBILITY: A CASE IN POINT
This blog has already looked at the decision in Mohidin -v- Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) in the context of the contents of witness statements and the length of the trial bundles. That judgment also…
MUDSLINGING IN WITNESS STATEMENTS CAN BACKFIRE: BUNDLES OF IRRELEVANT DOCUMENTS COUPLED WITH IRRELEVANT AND INADMISSIBLE WITNESS STATEMENTS: A FAMILIAR TALE?
The case of Mohidin -v- The Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) will, no doubt, be looked at in detail for its implications for claims against the police. The case also contains interesting observations about similar…
WITNESS CREDIBILITY WHEN BOTH SIDES ARE NOT WHOLLY TRUTHFUL: THE APPROPRIATE APPROACH
This blog has looked, many times, at the approach that the courts take in relation to conflicting witness evidence. Particular problems arise when both sides are being less than truthful. Many of these principles involved have developed out of hard…
SILENCE ON KEY ISSUES DOES NOT PROVE YOUR CASE: SQUARING UP TO WITNESS EVIDENCE
The judgment of Recorder Halpern QC in Canada Square Operations Ltd -v- Kinleigh Folkard & Hayward Limited (17/09/15)* is interesting for a number of reasons. Firstly on issues of limitation; secondly on the point that a court will not infer…
THERE AREN'T EIGHT DAYS A WEEK: HIGH COURT'S CONCERNS ABOUT CASE MANAGEMENT AND TIMING ISSUES
It is rare for a judgment to begin with the judge setting out a series of concerns on the way that the case has been conducted. This is the situation in the judgment of HH Judge Saffman (sitting as a…
WHOSE WITNESS STATEMENT IS IT ANYWAY? WELL THE SOLICITOR DRAFTED IT FOR ME
The judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) deals with many complex issues of causation and law in a difficult clinical negligence case. However I want to deal…
THE WITNESS WHO KNOWS NOTHING AND WANTS TO BE AN EXPERT: A REVIEW OF THE CASES
There are a surprising number of witness statements in which witnesses quite happy give “evidence” on matters on which they in fact know nothing. Some will even add to their “evidence” by assisting the court with matters of opinion. An…
MORE ABOUT WITNESS STATEMENTS AND CONTEMPORARY EVIDENCE: THE RULE OF RECENT FABRICATION
The post on the decision in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 led to an interesting comment. However that comment, in itself, leads to further interesting questions about the use of witness statements….
WITNESS STATEMENTS: WITNESS EVIDENCE: LETTERS BEFORE ACTION: CREDIBILITY AND…. CRICKET
The judgment of His Honour Judge Lopez in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 has some interesting lessons in relation to the treatment of witness evidence. In particular what happens when the claimant’s…
THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the judge’s assessment of that witness and the case generally. Further problems occur when both parties are lying. Here we look at some of the important judgments…
ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
I am returning to the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB). Among other things this case emphasises the dangers of leading questions when interviewing witnesses. There are dangers…
THE EFFECT OF QOCS ON LITIGATION: HERE'S THE THING: CASES WILL BE FOUGHT ON THEIR MERITS
There has been much debate about the impact of QOCS on litigation. To date much of this has, inevitably, been speculative. However it is worthwhile reading George Riley’s article, Fundamental dishonesty and litigation in the post-Jackson landscape. This shows, honestly…
WITNESSES WHO DID NOT DRAFT (OR UNDERSTAND) THEIR STATEMENTS, WOULD BE "EXPERTS" AND OTHER WITNESS WOES.
Hot on the heels of my posing the question whether 278 years of judicial prompting on witness statements had led to any results comes the decision today of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos…
WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions. This…
PSYCHOBABBLE IN WITNESS STATEMENTS: STRONG VIEWS FROM THE FAMILY COURT
This blog has looked many times at the perils of giving “opinion” evidence in witness statements. A particularly stark example can by found in the judgment of Ms Justice Russell in re W [2015] EWHC 2039 (Fam). Another case that…
WITNESS CREDIBILITY: PROBLEM WITH DEFENDANTS' EVIDENCE
The recent posts on witness credibility have given rise to much attention. Matthew Stockwell, junior counsel for the claimant, has pointed out that the case of Pollock -v- Cahill [2015] EWHC 2260 (QB) also involves an assessment of witness evidence….
WITNESS CREDIBILITY AGAIN: THE HIDDEN VICTIMS OF PERSONAL INJURY FRAUD: HONEST CLAIMANTS
This post should serve as a necessary balance/counterblast to the earlier post on the Sonae Industria case. In that case some of the witnesses were found to be honest and some patently dishonest. It was a feature of that case…
WITNESS EVIDENCE: CREDIBILITY;FACEBOOK;TWITTER AND THE CLAIMS GO UP IN SMOKE…
This blog has looked at issues relating to witness credibility many times. It is one of the most under-examined aspects of the civil litigation process. The decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK)…
