THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz [2016] EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias….
MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
CIVIL EVIDENCE: IS EVIDENCE OBTAINED BY TORTURE ADMISSIBLE?
The question of whether evidence obtained by torture in civil proceedings is one I never envisaged having address. However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v- HNA Group…
WITNESS STATEMENTS: ALTERATIONS AND THE FALLIBLE MEMORY: A SCIENTIFIC STUDY
It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the…
WITNESS STATEMENTS & HILLSBOROUGH 3: CONFIRMATION BIAS AT ITS WORST
Much has been written and broadcast about Hillsborough. I am here concentrating on one small part of the process: the initial gathering of evidence. It was the flawed nature of this process that led to problems for the next two…
HILLSBOROUGH AND WITNESS STATEMENTS 2: THE EARLY MIXING OF FACT AND OPINION
The previous post in this series looked at the issues that arose when the solicitors for the police force sent out a missive asking the police officers on the ground for their “comment and impression”. There was an immediate mixing…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT BY THE TRIAL JUDGE
In Elliston -v- Glencore Services (UK) Ltd [2016] EWCA Civ 407 the Court of Appeal took the unusual step of overturning findings of fact by the trial judge. (It is perhaps important that I emphasise how rare this is. There…
HILLSBOROUGH AND WITNESS STATEMENTS 1: THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The recent inquest has put the evidence gathering that took…
A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION
This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff…
"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…
