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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » Witness evidence

A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER

January 8, 2021 · by gexall · in Case Management, Civil evidence, Webinar, Witness statements

In  Ceviz v Frawley & Anor [2021] EWHC 8 (Ch)  HHJ Keyser QC made observations about a witness statement.  This case highlights the need for practitioners to be aware of the limitations of witness statement.   If this kind of statement…

STRAIGHTFORWARD LANGUAGE IS BEST: MISSIVE FROM THE BENCH: LAYWYERS MAY HAVE IMPROVED OVER TIME - OTHERS HAVE NOT

STRAIGHTFORWARD LANGUAGE IS BEST: MISSIVE FROM THE BENCH: LAYWYERS MAY HAVE IMPROVED OVER TIME – OTHERS HAVE NOT

December 20, 2020 · by gexall · in Civil Procedure

In Secretary of State for Business Energy And Industrial Strategy v Evans & Anor [2020] EWHC 3519 (Ch) (18 December 2020) Deputy Insolvency and Companies Court Judge Baister had something to say about the absence of plain language in the…

PROVING THINGS 191: PROVING LOSS OF EARNINGS (II): A CLIENT QUESTIONNAIRE

PROVING THINGS 191: PROVING LOSS OF EARNINGS (II): A CLIENT QUESTIONNAIRE

December 10, 2020 · by gexall · in Civil evidence, Damages, Personal Injury

Here we return to the basic issue of proving loss of income.  This often applies in personal injury action, but is an issue that can arise in several other types of litigation.  We have a questionnaire on the single issue…

PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK

PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK

December 9, 2020 · by gexall · in Civil Procedure, Damages, Personal Injury, Useful links, Witness statements

The basic task of proving damages, particularly elements such as loss of earnings and disability in the labour market, are often overlooked in witness statements prepared for trial, both in personal injury actions and other actions were loss of income…

A BARRISTER OF “GOOD JUDGEMENT”: WHEN THE PERSON WHO USUALLY DOES THE CROSS-EXAMINING IS IN THE WITNESS BOX

December 1, 2020 · by gexall · in Civil evidence, Damages, Professional negligence,, Witness statements

The judgment of Mr Justice Jay in Torrance v Bradberry [2020] EWHC 3260 (QB) is one that should be read by every practising lawyer. It is a case of a lawyer as defendant, being accused of negligence in their conduct…

PROVING THINGS 189: IF YOU WANT TO PROVE THE DEPTH OF SOMETHING - TAKE A RULER (OH, AND PHOTOGRAPHS)

PROVING THINGS 189: IF YOU WANT TO PROVE THE DEPTH OF SOMETHING – TAKE A RULER (OH, AND PHOTOGRAPHS)

November 30, 2020 · by gexall · in Civil evidence, Personal Injury, Witness statements

In Nash v Hertfordshire County Council [2020] EWHC 3247 (QB) HHJ Lickley QC, sitting as judge of the High Court, dismissed the claimant’s claim for damages.  There were numerous witnesses and expert involved. “They took photographs when they were at…

IT'S NOT YOUR OPPONENT'S JOB TO POINT OUT OMISSIONS IN YOUR OWN EVIDENCE: A CLOSER LOOK AT ONE ASPECT OF PJSC TATNEFT

IT’S NOT YOUR OPPONENT’S JOB TO POINT OUT OMISSIONS IN YOUR OWN EVIDENCE: A CLOSER LOOK AT ONE ASPECT OF PJSC TATNEFT

November 30, 2020 · by gexall · in Civil evidence, Written advocacy

One particular aspect of the judgment in PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) that warrants closer investigation. That is the claimant’s argument that it did not have notice that the defendants were going to invite the court…

MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT'S STATEMENT LARGELY STRUCK OUT AS AN ABUSE

MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT’S STATEMENT LARGELY STRUCK OUT AS AN ABUSE

November 26, 2020 · by gexall · in Applications, Civil evidence, Witness statements

The judgment in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) that was looked at yesterday referred to the earlier case of JD Wetherspoon plc v Harris [2013] 1 WLR 3296.  Since that decision pre-dated this blog. I thought it…

RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL

RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL

November 23, 2020 · by gexall · in Civil evidence, Relief from sanctions, Sanctions, Witness statements

In  ST (A Minor) & Anor v L Primary School (Rev 2) [2020] EWHC 1046 (QB) Deputy Master Hill QC granted relief from sanctions where the claimant failed to serve a notice of intention to rely on hearsay evidence prior…

WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA

WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA

November 16, 2020 · by gexall · in Civil evidence, Witness statements

There are many aspects of the judgment in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) that have gained wide media attention.  Here I want to look at two issues in relation to the failure…

PROVING THINGS 185: SAYING "I'M BROKE" DOES NOT PROVE IMPECUNIOSITY: "THE DEFENDANT IS ENTITLED TO KNOW THE CASE THEY HAVE TO MEET"

PROVING THINGS 185: SAYING “I’M BROKE” DOES NOT PROVE IMPECUNIOSITY: “THE DEFENDANT IS ENTITLED TO KNOW THE CASE THEY HAVE TO MEET”

November 5, 2020 · by gexall · in Civil evidence, Damages, Witness statements

We are returning again to the Court of Appeal decision in Diriye v Bojaj & Anor [2020] EWCA Civ 1400. This time concentrating upon the Court’s comments in relation to the need to prove impecuniosity and the claimant’s failure to…

WITNESSES AT SEA: EVIDENCE FROM THE HIGH SEAS

WITNESSES AT SEA: EVIDENCE FROM THE HIGH SEAS

October 5, 2020 · by gexall · in Civil evidence, Remote hearings

The judgment of Mr Justice Teare (sitting with two assessors) in  Sakizaya Kalon, Owners of The Vessel v Panamax Alexander, Owners of The Vessel [2020] EWHC 2604 (Admlty) shows some real advantages of being able to take witness evidence remotely. …

WITNESS EVIDENCE AND COUNTER-SCHEDULE STRUCK OUT AS INADMISSIBLE: THE PRINCIPLES APPLIED

WITNESS EVIDENCE AND COUNTER-SCHEDULE STRUCK OUT AS INADMISSIBLE: THE PRINCIPLES APPLIED

September 16, 2020 · by gexall · in Applications, Civil evidence, Witness statements

In Rahman v Rahman & Ors [2020] EWHC 2392 (Ch) Master Clark struck out part of the defendants’ witness evidence and counter-schedule.  The judgment provides a useful summary of when the court will strike out evidence and statements of case….

"LITIGATION WISHFUL THINKING": A REMINDER OF ITS IMPORTANCE

“LITIGATION WISHFUL THINKING”: A REMINDER OF ITS IMPORTANCE

September 7, 2020 · by gexall · in Civil evidence, Witness statements

This blog has looked many times at those cases where a case is determined by the judge’s assessment of the credibility of the witnesses.  This does not always (or event often) mean that the losing side are not telling the…

WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS?  A REVIEW OF THE CASES

WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES

July 6, 2020 · by gexall · in Applications, Avoiding negligence claims, Case Management, Civil evidence, Witness statements

Last week I gave an in-house talk to a London firm of solicitors.*  One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …

SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE

SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE

June 30, 2020 · by gexall · in Applications, Civil evidence, Conduct, Witness statements

There are particular dangers for solicitors giving evidence.  This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law.  In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…

WITNESS STATEMENTS "NOT IN MY STOCK IN TRADE": HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS

WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS

June 30, 2020 · by gexall · in Applications, Civil evidence, Summary judgment, Witness statements

Last week I wrote about the report on witness evidence working group of the business and property courts.   That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …

WITNESS STATEMENTS:  EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS

WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS

June 26, 2020 · by gexall · in Civil evidence, Witness statements

This report  of the Witness Evidence Working Group was produced at the end of last year.  It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…

OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL

OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL

June 11, 2020 · by gexall · in Civil evidence, Civil Procedure, Witness statements

In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. …

COVID REPEATS 43: FAREPAK: "A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS"

COVID REPEATS 43: FAREPAK: “A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS”

June 5, 2020 · by gexall · in Civil evidence, Witness statements

Today we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson in the need for careful preparation of witness evidence and identifying precisely what “evidence” a witness can give.   “The…

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