ATTENDING A CIVIL COURT AS A WITNESS: USEFUL LINKS FROM HOME AND ABROAD: A GOOD START BUT WITH MORE WORK TO DO
Yesterday I wrote how little support there seemed to be for those attending civil courts to give evidence. I have since found some useful guidance and here are the links. I will be more than pleased if people write in…
WITNESS EVIDENCE WEDNESDAY: SUPPORT FOR WITNESSES ATTENDING COURT: THERE ARE SOME REAL GAPS HERE…
Legal professionals attend court as a matter of routine. It is all too easy to forget how alien courts can be to most of the population. Witnesses are asked to attend court and often attend with no idea of what…
THE CURRENT IMPORTANCE OF PLEADINGS 69: ALLEGATIONS OF DISHONESTY SHOULD HAVE PLEADED: IT IS INAPPROPRIATE TO QUESTION WITNESSES ON THE BASIS THAT THEY HAD ACCEPTED A PROPOSITION WHEN THEY HAD NOT DONE SO
There are several matters of interest in this judgment given last Friday. Firstly that allegations of fraudulent conduct were made when those assertions had not been pleaded. Secondly the judge was critical of the attempt to cross-examine witnesses on the…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
ARTIFICIAL INTELLIGENCE IN THE PREPARATION OF WITNESS STATEMENTS: THERE IS NO SATISFACTORY EXPLANATION FOR THIS: HOW DOES THE JUDGE KNOW IT IS THE WITNESS’S OWN WORDS?
We have another case where the judge considers the use of Artificial Intelligence in the preparation of witness statements. It was held that there was no good reason for this. He was concerned that ChatGPT had contributed to the witness…
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
THERE WAS NO AGREEMENT TO EXTEND TIME FOR SERVICE AS THE DEFENDANT ASSERTED: THE SCCO REFUSES TO SET ASIDE A DEFAULT COSTS CERTIFICATE
This is an interesting judgement on two levels. Firstly the judge did not accept the defendant’s contention that there had been an agreement to extend time for service of Points of Dispute to a bill of costs. Secondly, applying the…
WITNESS EVIDENCE WEDNESDAY: BOTH WITNESSES ARE HONEST AND BELIEVE THEY ARE TELLING THE TRUTH – BUT ONE IS WRONG…
It is often the case that the most difficult cases are those that depend almost wholly on witness recollection. This is made far more difficult in a case such as a motor accident where the incident happened in a matter…
WITNESS EVIDENCE WEDNESDAY: COURT STRIKES OUT PARTS OF DEFENDANT’S WITNESS STATEMENT AS NON COMPLIANT WITH PD57AC (AND THE DEFENDANT IS A BARRISTER…)
This case adds to the growing number of cases where the courts have considered whether a witness statement breaches PD 57AC and the consequences for breach. The defendant’s initial statement contained numerous breaches of PD57. A revised statement was more…
THE CURRENT IMPORTANCE OF PLEADINGS 65: THE REASON WHY PLEADINGS ARE IMPORTANT IN ALL TYPES OF CASES: “IF THE DEFENDANT FEELS SHE HAS FAILED TO ESTABLISH ANY PART OF HER CASE BY REASON OF INADEQUATE PLEADINGS … SHE MAY NEED TO TAKE THAT UP WITH HER SOLICITORS…”
I appreciate that today has been a “pleadings heavy” day on this site. However the reason for this is that pleadings are important across the board. Earlier today we looked at pleadings in a multi-million pound dispute between two banks. Here…
MASTERING PD57AC – GETTING WITNESS STATEMENTS RIGHT IN THE COMMERCIAL COURTS (AND THE CONSEQUENCES IF YOU DON’T): WEBINAR 30th APRIL 2026
Witness statements can make—or break—your case in the Commercial Courts. Since the introduction of Practice Direction 57AC in April 2021, the courts have repeatedly emphasised that compliance is not optional. Yet many practitioners continue to fall into the same costly…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: A MANDATORY OBLIGATION OFTEN IGNORED
It is surprisingly common to see witness statements that fail to comply with the basic – and mandatory – requirement that the maker of the statement gives the source of any matters of information or belief they are giving evidence…
PROVING THINGS 284: APPLICANT FOR INJUNCTION FAILS ON JUST ABOUT EVERY POINT: THE CASE WAS DIFFICULT TO UNDERSTAND; NO EVIDENCE OF A RISK OF DISSIPATION; MATTERS THAT LEAVE THE JUDGE “BAFFLED” AND UNCOMFORTABLE
The applicant in this case sought an injunction. The application was (unusually) made on notice. The respondent did not have the opportunity to put in evidence. The applicant failed on just about every point. It was unclear what the applicant’s…
WITNESS EVIDENCE WEDNESDAY: MAKING ASSERTIONS WITH NO CORROBORATIVE EVIDENCE LEADS TO APPLICATION BEING REJECTED: THE EVIDENCE WAS SO “UNSPECIFIC” THAT IT FAILED TO PROVE THE APPLICANT’S CONCERNS
Here we look at the judge’s assessment of the evidence produced in support of an application that details of the applicant should not be disclosed. The judge held that the evidence was “unspecific” and was not corroborated. There was a…
WITNESS EVIDENCE WEDNESDAY II: A STATEMENT THAT WAS “BASED ON A COMBINATION OF SPECULATION AND DOUBLE, TRIPLE OR EVEN MORE REMOTE HEARSAY”
We have looked at many cases in which judges have been critical of the way in which witness statements are drafted. This case is one of the most clear and extreme examples. The defendant (a firm of solicitors) failed to…
RELIEF FROM SANCTIONS REFUSED AFTER CLAIMANT FAILS TO COMPLY WITH PEREMPTORY ORDER FOR DISCLOSURE: “THE CONSEQUENCE IS THAT THE PROCEEDINGS ARE STRUCK OUT”
Here we look at the “second half” of the decision considered in the previous post. Having rejected the claimant’s submissions that breaches of a peremptory order should be considered under CPR 3.10 the judge then went on to consider the…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
BACK TO BASICS MONDAY: EXHIBITS: A REMINDER OF THE RULES, WHERE THINGS GO WRONG AND HOW TO AVOID PROBLEMS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
WITNESS EVIDENCE WEDNESDAY II: WITNESS CREDIBILITY: THE PRINCIPLES IN TUI -V- GRIFFITHS DID NOT IMPACT ON THE ASSESSMENT OF A LAY WITNESS
Here we have an unusual argument where an appellant attempted to use the decision in Tui -v- Griffiths to argue that a tribunal should not have accepted the evidence of a lay witness. The evidence of the witness in question…
WITNESS EVIDENCE WEDNESDAY: EVIDENCE BY VIDEO LINK ALLOWED: IS THERE A GOOD REASON, DOES IT SERVE A LEGITIMATE AIM & IS IT CONSISTENT WITH THE OVERRIDING OBJECTIVE?
Here we have an unusual issue in an unusual (but high profile) case. The question was whether a witness could be permitted to give evidence by video link in circumstances where he was unable to attend court, but it was…
BACK TO BASICS MONDAY: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF ANY WITNESS STATEMENT OR AFFIDAVIT
Here we are looking at one of the basic rules for witness statements. Curiously it is ignored in about 40 – 50% of the statements I see in practice. Often the oversight is ignored. Some judges take a hard line….
WITNESS EVIDENCE WEDNESDAY: A WITNESS STATEMENT “MADE UP OF SUBMISSIONS OR COMMENTARY ON DOCUMENTS RATHER THAN EVIDENCE”
There are numerous warnings and strictures about not putting submissions, commentary and opinion in witness statements. More than one observer has commented that these rules are routinely ignored. We have examples of this here. We also have an example of…
PROVING THINGS 281:THE CCC CASE IN THE SUPREME COURT: LOSS OF EARNINGS AND CHILDREN: “THE COURT MUST ASSESS DAMAGES AS BEST IT CAN ON SUCH EVIDENCE AS IS REASONABLY AVAILABLE”
One of the things that the judgment in CCC -v- Sheffield has done is to highlight the issues relating to proving loss of earnings claims in relation to children. Indeed this difficulty in establishing such losses was a major issue…
WITNESS EVIDENCE WEDNESDAY: EXPERT EVIDENCE IN WITNESS STATEMENTS (ALLOWED IN PART): ADVOCACY AND ARGUMENT – HAD TO GO
We are looking at a case where the sole issue the court was considering was the question of whether passages in the witness statements provided by the claimant were admissible. Unusually the Competition Appeal Tribunal allowed parts of the statements…
PROVING THINGS 278: CLAIMANT FAILS TO PROVE THEIR CASE WHILST THE DEFENDANT FAILS TO PROVE FRAUD: MULTIPLE INCONSISTENCIES LEAD TO EVIDENCE NOT BEING ACCEPTED
Here we look at a judgment where the claimant failed to establish his case. The defendant also failed to prove that the claimant was involved in a “staged crash”. It shows how cumulative inconsistencies in a party’s evidence can lead…
WITNESS EVIDENCE WEDNESDAY: THE USE OF ARTIFICIAL INTELLIGENCE IN THE DRAFTING OF WITNESS STATEMENTS: “IT IS DIFFICULT TO DISTINGUISH BETWEEN WHAT F SAYS AND WHAT AN ALGORITHM TELLS F TO SAY”
There is much material about witness evidence and witness statements on this site. In recent years we have also been discussing the use (and misuse) of artificial intelligence. We can be fairly sure that there will be much more about…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION(1): A PRIMER FOR “WHEN THE SKY IS FALLING”
Very little (if any) of the legal curriculum is devoted to what to do when things go wrong. Not enough (in my view) is devoted to preventing things go wrong. However here we concentrate on what do when something goes…
WITNESS EVIDENCE WEDNESDAY ii: WHY A JUDGE DID NOT ACCEPT THE EVIDENCE OF THE DEFENDANTS’ WITNESS: SOME REPLIES WERE “ESSENTIALLY MEANINGLESS VERBIAGE DESIGNED TO FOB OFF QUESTIONS” HE “PREFERRED NOT TO ANSWER”
Knowing the factors that lead to the evidence of a witness not being accepted is an important part of the litigator’s “skill set”. Here we look at a case where the evidence of a witness was roundly rejected. “I…
WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
WITNESS EVIDENCE WEDNESDAY: HOW DOES THE COURT APPROACH EVIDENCE OF SOMETHING THAT HAPPENED OVER FOUR YEARS BEFORE AND TOOK PLACE WITHIN TWO MINUTES?
This series enables us to look at witness evidence in many different contexts. Here we look at evidence relating to an arrest and events that took place within two minutes. The judge was well aware of the issues that could…
PROVING THINGS 276: APPEAL JUDGE OVERTURNS TRIAL JUDGE’S “INFERENCES” OF LOSS: DAMAGES AWARD OF £347,285 REPLACED WITH £NIL
This is a classic “Proving Things” case, the only surprise being that it reached the appeal stage. On appeal the the judge overturned the trial judge’s findings in favour of the defendant’s counterclaim and reduced a damages award of £347,285…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
THROWBACK FRIDAY: WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY GIVING THE SOURCE OF INFORMATION IS IMPORTANT (FROM JANUARY 2018)
Today we go back to a post from January 2018 on a point that remains just as relevant today. There is a mandatory requirement that a witness give the source of their information and belief. A surprising number of witness…
WHEN DOCUMENTS WERE CHANGED AFTER THE EVENT: “THEY ARE FALSE AND WERE INTENDED TO DEFLECT BLAME”: SOME POINTS FOR LITIGATORS TO REMEMBER IF THEY WANT TO KEEP THEIR CASES ON AN EVEN KEEL…
Many the cases which consider and give guidance on witness credibility stress the importance of contemporary documents. However what happens when the “contemporary” documents have been re-written after the event? Litigations should be alive to that possibility. Here we look…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
WITNESS EVIDENCE WEDNESDAY: WHEN WITNESS STATEMENTS SHOULD BE AVAILABLE FOR THIRD PARTIES AT COURT: NO NOTICE NECESSARY…
Is a third party, with no relationship to the case, entitled to see the witness statements being used in the hearing? That is the issue considered in this case which, unusually, was an application for judicial review of a County…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
REVIEW OF THE YEAR 8: PROVING THINGS – OR NOT PROVING THINGS, AS THE CASE MAY BE…
The “Proving things” series is the longest running feature of this blog. Initially I thought it would be a series of then posts. I was planning to end it at a hundred when a chance conversation on the Leeds Legal…
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