LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND
Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY
Issues relating to “witness training” are bound to be controversial. The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing. However it is clear that trial judges often have their reservations as…
WITNESS STATEMENTS & SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS
We looked in an earlier post at the case of Ali -v- CIS General Insurance (29/7/2015) where a claimant’s action was struck out because of failure to give disclosure. However there was a passing comment in the judgment which demonstrated…
WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC [2015] EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to…
MUDSLINGING IN WITNESS STATEMENTS CAN BACKFIRE: BUNDLES OF IRRELEVANT DOCUMENTS COUPLED WITH IRRELEVANT AND INADMISSIBLE WITNESS STATEMENTS: A FAMILIAR TALE?
The case of Mohidin -v- The Commissioner of Police for the Metropolis [2015] EWHC 2740 (QB) will, no doubt, be looked at in detail for its implications for claims against the police. The case also contains interesting observations about similar…
WITNESS CREDIBILITY WHEN BOTH SIDES ARE NOT WHOLLY TRUTHFUL: THE APPROPRIATE APPROACH
This blog has looked, many times, at the approach that the courts take in relation to conflicting witness evidence. Particular problems arise when both sides are being less than truthful. Many of these principles involved have developed out of hard…
SILENCE ON KEY ISSUES DOES NOT PROVE YOUR CASE: SQUARING UP TO WITNESS EVIDENCE
The judgment of Recorder Halpern QC in Canada Square Operations Ltd -v- Kinleigh Folkard & Hayward Limited (17/09/15)* is interesting for a number of reasons. Firstly on issues of limitation; secondly on the point that a court will not infer…
"DOCUMENTS WIN CASES"E-DISCLOSURE AND EVIDENCE FOR THE 21st CENTURY LITIGATOR: LEEDS 20th OCTOBER; LONDON 22nd OCTOBER
There is a panel session on e-disclosure and evidence in central Leeds on the 20th October and again in Lincoln’s Inn on the 22nd October. Both start at 4.00 pm and last two hours. LIVE AT LEEDS The session in…
WHOSE WITNESS STATEMENT IS IT ANYWAY? WELL THE SOLICITOR DRAFTED IT FOR ME
The judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) deals with many complex issues of causation and law in a difficult clinical negligence case. However I want to deal…
THE WITNESS WHO KNOWS NOTHING AND WANTS TO BE AN EXPERT: A REVIEW OF THE CASES
There are a surprising number of witness statements in which witnesses quite happy give “evidence” on matters on which they in fact know nothing. Some will even add to their “evidence” by assisting the court with matters of opinion. An…
MORE ABOUT WITNESS STATEMENTS AND CONTEMPORARY EVIDENCE: THE RULE OF RECENT FABRICATION
The post on the decision in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 led to an interesting comment. However that comment, in itself, leads to further interesting questions about the use of witness statements….
WITNESS STATEMENTS: WITNESS EVIDENCE: LETTERS BEFORE ACTION: CREDIBILITY AND…. CRICKET
The judgment of His Honour Judge Lopez in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 has some interesting lessons in relation to the treatment of witness evidence. In particular what happens when the claimant’s…
THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the judge’s assessment of that witness and the case generally. Further problems occur when both parties are lying. Here we look at some of the important judgments…
ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
I am returning to the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB). Among other things this case emphasises the dangers of leading questions when interviewing witnesses. There are dangers…
THE EFFECT OF QOCS ON LITIGATION: HERE'S THE THING: CASES WILL BE FOUGHT ON THEIR MERITS
There has been much debate about the impact of QOCS on litigation. To date much of this has, inevitably, been speculative. However it is worthwhile reading George Riley’s article, Fundamental dishonesty and litigation in the post-Jackson landscape. This shows, honestly…
WITNESSES WHO DID NOT DRAFT (OR UNDERSTAND) THEIR STATEMENTS, WOULD BE "EXPERTS" AND OTHER WITNESS WOES.
Hot on the heels of my posing the question whether 278 years of judicial prompting on witness statements had led to any results comes the decision today of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos…
WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions. This…
PSYCHOBABBLE IN WITNESS STATEMENTS: STRONG VIEWS FROM THE FAMILY COURT
This blog has looked many times at the perils of giving “opinion” evidence in witness statements. A particularly stark example can by found in the judgment of Ms Justice Russell in re W [2015] EWHC 2039 (Fam). Another case that…
EXPERT EVIDENCE IN INSURANCE CASES 2: BRIT UW LIMITED: FAILURE TO DISCLOSE UNDERMINED DEFENDANT'S CASE
There are, coincidentally, two recent cases on the use of expert witnesses in insurance disputes. In Brit UW Limited -v- F & B Trenchless Solutions Limited [2015] EWHC 2237 (Comm) Mrs Justice Carr DBE considered the utility of expert evidence…
WITNESS CREDIBILITY: PROBLEM WITH DEFENDANTS' EVIDENCE
The recent posts on witness credibility have given rise to much attention. Matthew Stockwell, junior counsel for the claimant, has pointed out that the case of Pollock -v- Cahill [2015] EWHC 2260 (QB) also involves an assessment of witness evidence….
WITNESS CREDIBILITY AGAIN: THE HIDDEN VICTIMS OF PERSONAL INJURY FRAUD: HONEST CLAIMANTS
This post should serve as a necessary balance/counterblast to the earlier post on the Sonae Industria case. In that case some of the witnesses were found to be honest and some patently dishonest. It was a feature of that case…
WITNESS EVIDENCE: CREDIBILITY;FACEBOOK;TWITTER AND THE CLAIMS GO UP IN SMOKE…
This blog has looked at issues relating to witness credibility many times. It is one of the most under-examined aspects of the civil litigation process. The decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK)…
THE PRIMACY OF ORAL TESTIMONY: ABSENT WITNESSES ORDERED TO ATTEND AND LATE AMENDMENTS REFUSED: ALL IN ONE CASE
There is an interesting report of two separate decisions of Mr Justice Peter Smith in Harb -v- HRH Price Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWHC 2195 (Ch). This relates to two decisions made on the first day…
ASSESSING WITNESS CREDIBILITY: THE CENTRAL BANK OF ECUADOR CASE REVISITED: THE OCEAN FROST APPROACH
I have already posted an article on the Privy Council decision in Central Bank of Ecuador -v- Conticort CA [2015] UKPC 11. It was a remarkable case in that the Privy Council overturned findings of fact of the trial judge. In…
THIS "PROBLEM" WITH WITNESSES: IT IS NOT A ONE WAY STREET: DEFENDANT'S EVIDENCE NOT BELIEVED
Much attention is, rightly, paid to the actions of evidence of claimants who bring fraudulent claims or give untrue evidence. However it is important to remember that this issue with evidence is not a one way street. There are plenty…
THINKING OF ALLEGING OR PLEADING FRAUD: BETTER READ THIS FIRST
In NGM Sustainable Developments Ltd -v- Wallis [2015] EWHC 2089 (Ch) Mr Justice Peter Smith highlighted the importance of full and accurate pleading of a case alleging fraud. “…in commercial matters the parties and their lawyers tend to work long…
THE IMPORTANCE OF THE STATEMENT OF TRUTH: COMMENTS IN THE ADMINISTRATIVE COURT: THE SIGNATORY CANNOT HIDE BEHIND THE DRAFTSMAN
The signing of a statement of truth is now an everyday event in litigation. With documents signed by clients, or by lawyers on behalf of their clients. Recent cases highlight the significance of the statement of truth. It is important…
IS A FALSE AFFIDAVIT WORSE THAN A FALSE WITNESS STATEMENT? THE HIGH COURT CONSIDERS THE POINT
In International Sports Tours -v- Shorey [2015] EWHC 2040 (QB) Mr Justice Green considered some interesting issues relating to committal for contempt, witness statements and affidavits. THE ACTION The claimant brought an action against a former employee and others claiming breach…
OVERTURNING FINDING OF FACTS ON APPEAL: FINDINGS OF ABSENCE OF DISHONESTY OVERTURNED BY THE PRIVY COUNCIL
The judgment of the Privy Council in Central Bank of Ecuador and others v Conticorp SA and others [2015] UKPC 11; [2015] WLR (D) 150 is quite extraordinary. It involved the Privy Council overturning a finding of fact of the judge at first instance that…
RECONSTRUCTION AND RECOLLECTION: HONEST WITNESSES GET THINGS WRONG: WHICH WITNESS WILL BE BELIEVED
The case of Wright -v- Lewis Silkin LLP [2015] EWHC 1897 (QB) has been widely reported. Some report it as a case where a solicitor’s evidence was not believed. This is grossly unfair. This case is another example of the…
HIGHWAYMEN, EVIDENCE AND DAMAGES ALL ON THE MENU.
There are some interesting observations in the judgment of Mr Recorder Acton David QC in Luffeorm Limited -v- Kitsons LLP [2015] EWHC B10(QB). This illustrates some important issues in relation to evidence and the need to prove damages. “The Highwayman’s…
APPEALS ON ISSUES OF FACT: SPECULATION AND "OPINION" EVIDENCE FROM WITNESSES IS TO NO AVAIL
In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688 the Court of Appeal set out the criteria for appealing findings of fact. Further the case highlights the important distinction between what witnesses saw and what…
JUDGES AND WITNESSES 4: THE LITIGANT IN PERSON AND THE ABSENT WITNESS
In Otou -v- Brierley [2015] EWHC 1938 (Ch) Edward Murray (sitting as s Deputy Judge of the Chancery Division) was in an unusual situation. A witness statement drafted by a litigant in person contrasted to a witness statement by a…
JUDGES AND WITNESSES 3: "UNCHALLENGED" EVIDENCE AND CREDIBILITY
In Various Claimants -v- Giambrone [2015] EWHC 1946 (QB) Mr Justice Foskett looked at issues relating to the credibility of witnesses where it was alleged that their evidence had not been “challenged” in certain respects. “…the days of the “I…
JUDGES AND WITNESSES 2: POISE AND POLISH IS FAR FROM CONCLUSIVE
This is the second post today on the issue of how judges assess witnesses. In Mudroglu -v- Reddish LLP [2015] EWHC 1044 (Ch) His Honour Judge Keyser QC had to consider issues relating to the credibility of two witnesses. THE…
JUDGES AND WITNESSES 1: IT WAS A LONG TIME AGO
There have been a number of cases recently where the courts have considered, expressly, how they should approach witness evidence. The first, Axa -v- Arab Insurance Group [2015] EWHC 1939 (Comm) related to witnesses who had to consider matters after…
MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)
The post on the Canadian case of The Hearing Clinic (Niagara Falls) -v- Ontario 2014 ONAC 5831 attracted a lot of views and a lot of comments. I am grateful to Chris Rees for pointing out the judgment of Mr…
ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION
The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*). THE CASE The…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
HOW THE COURT ASSESSES WITNESSES: NOT A NUMBERS GAME
In TM -v- St George’s Healthcare NHS Trust [2015] EWHC 1866 (QB) Sir David Eady considered the judicial approach to witnesses and the burden of proof, stressing that the assessment of evidence is not a “numbers game”, THE CASE The…
SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES
In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting…
APPEAL COURT CAN DECIDE ISSUES BETWEEN EXPERTS ON FOREIGN LAW: AND ANOTHER LOOK AT WITNESS STATEMENTS
The issue of when an appeal can court take its own view on expert evidence was considered in Group Seven Limited -v- Allied Investment Corporation Limited [2015] EWCA Civ 631. The judgment at first instance also makes for informative reading…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
LATE WITNESS STATEMENTS IN JUDICIAL REVIEW PROCEEDINGS: DON'T GO TO COLLEGE – JUST READ THE RULES
In R (on the application of the London College of Finance & Accounting) -v- Secretary of State for the Home Department [2015] EWHC 1688 (Admin) Mr Justice Cobb made some important observations in relation to the late service of evidence…
OPINION EVIDENCE IN WITNESS STATEMENTS AND THE CASE THAT MAY HAVE SPARKED OFF THE JACKSON REFORMS: Multiplex -v- Cleveland Bridge
Whilst doing some work on the problems caused when lay witnesses attempt to give expert evidence I came across the case of Multiplex Constructions (UK) LImited -v- Cleveland Bridge UK Limited [2008] EWHC 2220(TCC). It makes interesting reading for a…
WITNESS EVIDENCE, CLINICAL NEGLIGENCE AND CLINICAL NOTES: A CASE IN POINT
The judgment of Mr Justice Jay in FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536 contains another interesting consideration of the value of witness evidence and contemporary records in a clinical negligence case. I was recently…
You must be logged in to post a comment.