CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)
The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on…
CIVIL PROCEDURE BACK TO BASICS 59: WHEN A CLIENT DISOWNS THEIR OWN WITNESS STATEMENT? SELF PROTECTION FOR THE LAWYER
There has been much discussion on Twitter tonight in relation to the language used in witness statements. That led to this account being given by “Sweary Expat” a lawyer based in the Cayman Islands (some people clearly have to suffer…
BOTH SIDES LATE WITH WITNESS EVIDENCE: BOTH SIDES REFUSED RELIEF FROM SANCTIONS: DEUCE IN A JUICE CASE
There are many interesting aspects of the judgment in Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret VE Sanati A.S (Goknur) v Organic Village Ltd [2019] EWHC 2201 (QB), not least that both sides were in default in relation to…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER
A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief. An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
DELAY OF 18 MONTHS IN GIVING JUDGMENT DID NOT UNDERMINE THE JUDGE’S VIEW AS TO CREDIBILITY
In Nuttal & Anor v Kerr & Anor [2019] EWHC 1977 (QB) Mr Justice Freedman rejected an argument that an excessive delay in giving judgment meant that the trial judge’s conclusions were innately unreliable. (The judgment also reviews the authorities…
PROVING THINGS 160: DELAY MUST BE EXPLAINED: COURT CAN DIRECT THAT EXTRA EVIDENCE BE FILED
In Hendry v Hendry & Ors [2019] EWHC 1976 (Ch) Master Shuman refused the claimant’s application for an extension of time to bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. THE CASE The claimant was married…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
BENCH WARRANT ISSUED IN CIVIL ACTION: WARRANT ISSUED TO ENSURE DEFENDANT’S ATTENDANCE AT A HEARING
In Hanson & Ors v Carlino & Anor [2019] EWHC 1366 (Ch) Mr Justice Birss issued a bench warrant to ensure a defendant’s attendance at a hearing. The defendant had a history of non-compliance and attempts to avoid the…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
THE DANGERS OF A LAWYER GIVING EVIDENCE: A “SOMEWHAT STRANGLED VERSION” OF THE SOURCE OF INFORMATION & BELIEF: SUMMARY JUDGMENT APPLICATION DISMISSED BECAUSE OF PAUCITY OF FIRST-HAND EVIDENCE
There are numerous posts on the blog about the need for first-hand evidence to be given, and the dangers of a lawyer making witness statements. These risks are exemplified in the judgment of Chief Master Marsh today in The David…
GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M [2019] EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains…