“VARIOUS WITNESSES CAN ALL GIVE HONEST BUT NEVERTHELESS CONFLICTING ACCOUNTS OF A GIVEN EVENT”: GESTMIN PRINCIPLES CONSIDERED IN THE CONTEXT OF A ROAD TRAFFIC ACCIDENT
In Barrow & Ors v Merret & Anor [2021] EWHC 792 (QB) Richard Hermer QC (sitting as a Deputy High Court Judge) considered the guidance given in Gestmin in the context of a road traffic accident. It is a reminder…
“WHAT’S THE DIFFERENCE BETWEEN A WITNESS STATEMENT AND SUBSTANTIVE SUBMISSIONS”
The title of this piece is a search term that led someone to this blog today. Again it caused me to repeat a point made several years ago on this blog. THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS In a…
PROVING THINGS 204: WHY FIRST-HAND EVIDENCE IS IMPORTANT: “THE FIRST HAND EVIDENCE… IS TO BE PREFERRED OVER THOSE WHO GAVE EVIDENCE FOR THE BANK”
In Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Chief Insolvency Court Judge Briggs considered the Gestmin principles in a case where a bank failed to establish that a client had signed a guarantee. It is a good example…
A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE
In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) HHJ Platts (sitting as a High Court Judge) rejected the defendant’s case that a witness who was “wholly unreliable” was also fundamentally dishonest. “Failing…
ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT
A common search term that leads to this blog is “opinion evidence in witness statements”, this remains a major issue in many areas of practice. It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
VULNERABLE WITNESSES IN CIVIL PROCEEDINGS: THE NEW RULES: WEBINAR 22nd MARCH 2021
I am presenting a webinar on the 22nd March 2021 dealing with the new rules relating to vulnerable witnesses in civil proceedings. The new rules are coming into force on the 6th April 2021. These change the rules so that…
RULE CHANGES COMING INTO FORCE IN APRIL 2021(1): VULNERABLE WITNESSES AND THE OVERRIDING OBJECTIVE
There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021. AMENDMENT TO THE OVERRIDING OBJECTIVE The new rules are referred to,…
A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER
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
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
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
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
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)
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
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
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
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
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”
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
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. …