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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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"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

“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

April 6, 2021 · by gexall · in Civil evidence, Civil Procedure, Personal Injury, Witness statements

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"

“WHAT’S THE DIFFERENCE BETWEEN A WITNESS STATEMENT AND SUBSTANTIVE SUBMISSIONS”

March 26, 2021 · by gexall · in Civil evidence, Civil Procedure, Witness statements, Written advocacy

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"

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”

February 23, 2021 · by gexall · in Civil evidence, Witness statements

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

A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE

February 18, 2021 · by gexall · in Civil evidence, Fundamental Dishonesty, Witness statements

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

ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT

February 15, 2021 · by gexall · in Civil evidence, Witness statements

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...

THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…

February 15, 2021 · by gexall · in Avoiding negligence claims, Civil evidence, Well being, Witness statements

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

February 4, 2021 · by gexall · in Civil evidence, Rule Changes, Webinar, Witness statements

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

February 2, 2021 · by gexall · in Amendment, Civil evidence, Rule Changes, Witness statements

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

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. …

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