COURT REFUSES CLAIMANTS’ APPLICATION THAT WITNESS BE ANONYMOUS
In this case the judge considered in detail the principles relating to a witness in a civil trial being granted anonymity. The evidence in support of the application was found to be somewhat speculative. There is, it was held, a…
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
A BREACH OF “PURDAH” OBLIGATIONS WHEN A WITNESS IS GIVING EVIDENCE: MISGUIDED BUT NOT DISHONEST
This is a brief reminder of the importance of the obligations of a witness not to communicate with others (including their own legal team) whilst in the course of giving evidence. “This was obviously ill-advised but I accept that, by…
REVIEW OF THE YEAR 1: WITNESS EVIDENCE WEDNESDAY (ON A SUNDAY): STATEMENTS IN 2025: SHAKESPEARE, MONKEY, HALLUCINATIONS AND WITNESSES ANXIOUS TO GIVE THE JUDGE THEIR “OPINION”
The white book regularly contains a warning about drafting witness statements “Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.” This year has seen a…
THE HILLSBOROUGH REPORT AND THE AMENDMENT OF WITNESS STATEMENTS: NEW INFORMATION IN THE IPOC REPORT PUBLISHED YESTERDAY
This blog has looked at the issues relating to evidence gathering and the Hillsborough tragedy several times, in particular the way that witness statements were gathered, and the reports amended. The issues were considered again in the Independent Office for…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
CLINICAL NEGLIGENCE CORNER 5: ANOTHER CASE OF “WHAT WAS SAID?” AND “WHY WASN’T THAT PARTICULAR POINT IN THE MEDICAL NOTES?”
Here we have a clinical negligence case with a familiar issue. The trial depended on whose account the judge accepted of what was said in a particular medical consultation several years earlier. The treating doctor can, in reality, remember little…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
WITNESS EVIDENCE WEDNESDAY: A JUDGE ASKING A WITNESS TO CLARIFY THEIR EVIDENCE IS NOT “BIASED” : “JUDGES ARE NOT PASSIVE SPECTATORS AT A TRIAL”
This week we are looking at an appeal that considers the trial judge’s consideration of witnesses at trial. The appellant alleged that the judge was biased and the trial therefore unfair. There is a detailed consideration of the “bias” alleged…
CONTRIBUTORY NEGLIGENCE AND ACCIDENTS AT WORK: WEBINAR 1ST DECEMBER 2025: CRITICISM USING HINDSIGHT IS EASY BUT DOES NOT NECESSARILY LEAD TO FINDINGS AGAINST A CLAIMANT
This webinar explores the complex area of contributory negligence in employer’s liability cases. It examines how courts approach allegations that an employee’s actions contributed to their own injury, drawing on key case law to illustrate judicial reasoning. Delegates will gain…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
FUNDAMENTAL DISHONESTY AND CONTEMPT OF COURT: CLAIMANT BROUGHT A FRAUDULENT £3 MILLION CLAIM: SENTENCE OF IMPRISONMENT IMPOSED
This blog has looked at cases of fundamental dishonesty many times. It has to be remembered that, more often than not, bringing dishonest claims is also contempt of court. This case deals with the appropriate sentence that should be passed…
THE SOLICITOR AND THE STING OPERATION (2): WHY THE JUDGE DID NOT ACCEPT THAT THE CLAIMANTS WERE UNAWARE OF THE STRATEGY BEING USED
We are returning again to the case where the claimants arranged the taping of meetings with the defendants’ solicitors. The judge was sceptical of the claimants’ assertions that they were not fully aware of the methods being used. (This case…
THE SOLICITOR AND THE “STING” OPERATION (1): THE METHODS USED TO EXTRACT INFORMATION FROM THE SOLICITOR: “HE WAS DECEIVED AND PLAYED FOR A FOOL…”
A party to an action hires an enquiry agent to deceive their opponent’s solicitor into giving them information. That scenario may seem far fetched but it is what actually happened in this this case. It is worthwhile looking closely at…
WITNESS EVIDENCE WEDNESDAY: “MISLEADING AND UNTRUE STATEMENTS… HAVE BEEN MADE TO THE COURT ON BEHALF OF THE CHIEF CONSTABLE” (COURT OF APPEAL ARE NOT HAPPY…)
This week we are looking at a remarkable case. Shortly before a matter was due to be heard in the Court of Appeal the respondent (the Chief Constable of a police force) filed documents which showed that numerous witness statements…
PROVING THINGS 273: COURT OF APPEAL OVERTURNS FINDINGS OF FACT: IT “BEGGARS BELIEF” THAT THE DEFENDANT DID NOT KNOW OF THE RELEVANT MATTERS
Here we look at a case where the Court of Appeal overturned the trial judge’s findings of fact at trial. Usually this is difficult, or the court acts with some reticence, here the Court uses the phrase “it beggars belief”…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
WITNESS EVIDENCE WEDNESDAY: HOW JUDGES DECIDE CIVIL CASES: “JUDGES ARE HUMAN. THEY DO NOT POSSESS SUPERNATURAL POWERS”
This week we are looking at a judgment that sets out in detail the process by which judges determine issues in a civil case. Ranging from the burden and standard of proof , the role of judges, the fallibility of…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
WITNESS EVIDENCE WEDNESDAY: THE DUTY TO PUT YOUR CASE TO A WITNESS: THE PRINCIPLES SUMMARISED IN THE HIGH COURT
Earlier this week we looked at a case where difficulties occurred because the claimant’s case was not put to a witness for the defendant. Here I want to highlight the key parts of that judgment relating to the need…
THE REQUIREMENT TO PUT YOUR CASE TO YOUR OPPONENT’S WITNESS (AND THE POTENTIAL DIRE CONSEQUENCES IF THIS IS NOT DONE): SOME UNUSUAL PROCEDURAL TANGLES IN THE THE HIGH COURT
We are looking at a case where, for reasons that are unclear, the claimants failed to challenge a key part of the evidence of the defendant’s witness. That evidence was central to the claimants’ case. The claimants’ attempts to rectify…
(NOT) PROVING THINGS 272: AN ABSENT WITNESS LEADS TO ADVERSE INFERENCES BEING DRAWN: PROBLEM OCCUR WHEN YOUR CASE AT TRIAL IS WHOLLY DIFFERENT TO THE PLEADED CASE
Many people have noted that the argument that the court should draw adverse inferences from the absence of key witnesses is often bypassed by the courts, with judges preferring to base their decisions on the evidence of witnesses that are…
WITNESS STATEMENTS: GUIDANCE FOR THOSE WHO TAKE THEM AND THOSE WHO SUPERVISE THEM: WEBINAR 15th OCTOBER 2025
On a regular basis on this blog we see cases where judges have been highly critical of the witness statements used at trials or hearings. This criticism is not a rare event and is usually justified. Many witness statements are…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
This is an important and interesting case about findings of dishonesty on the part of a practising solicitor in their failure to make relevant checks on the background of their client. It was not suggested that the solicitor was aware…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
UPDATED VERSION OF THE CHANCERY GUIDE: A USEFUL LINK
The Chancery Guide was updated earlier this month. Here we look at the Practice Note and have a link to the updated Guide itself. FINDING THE LINK The Practice Note that accompanies it gives a link to the Guide itself…
WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
ATTENDANCE NOTES IN CIVIL LITIGATION 2025: WEBINAR 15th SEPTEMBER 2025
There have been at least three cases over the previous few months where attendance notes taken by solicitors have played a significant part in the outcome of a case, appeal or application. These notes protected a solicitor against complaints of…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
YOU ARE NOT GOING TO GET PAID FOR RECTIFYING YOUR OWN DEFECTIVE WITNESS STATEMENTS: WHY NON-COMPLIANCE WITH PD57AC CAN BE EXPENSIVE
Here we have a case where a claimant was seeking to recover the costs of preparing defective witness statements. The court had ordered that compliant witness statements be filed. Should the claimant be entitled to recover the costs of preparing…
PROVING THINGS 267: COURT OF APPEAL OVERTURNS FINDING THAT COUNCIL HAD ESTABLISHED ITS STATUTORY DEFENCE: SOME VERY IMPORTANT POINTS HERE ABOUT THE USE OF STATEMENTS PUT TO WITNESSES AND JUDICIAL FACT FINDING
Here we are looking at an important decision of the Court of Appeal. On the face of it it is about a defendant’s failure to prove a statutory defence. However, perhaps more significantly, it is about evidence, the impact of…
HEARINGS WHEN WITNESSES GIVE EVIDENCE FROM ABROAD: SOME POINTS FOR PRACTITIONERS (AND JUDGES) TO WATCH: “IT WOULD ASSIST THE LOWER COURTS IF FORMAL CLARIFICATION IS GIVEN ADDRESSING THAT TENSION HEAD ON”
There have been a number of cases where litigants have run into difficulties because they have not complied with the requirements for witnesses who give evidence remotely from abroad. We see an example of this case where there a conflict…
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