CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
DRAFTING WITNESS STATEMENTS: WHEN THE WITNESS HAS NO KNOWLEDGE OF THE MATTERS THEY RELY ON: HE “SHOULD HAVE CHECKED THE UNDERLYING DOCUMENTS HIMSELF”.
There is an apparently never ending series of cases in which witness statements are used in circumstances where, in reality, the maker of that statement has no first hand knowledge of the matters stated. This often only becomes apparent at…
CAN THE COURT ORDER A PARTY TO DISCLOSE A DOCUMENT MENTIONED IN A WITNESS STATEMENT – WHEN THAT PARTY HAS NO RIGHT TO THE DOCUMENT ITSELF?
The rules state that a party can seek disclosure of a document mentioned (among other things) in a witness statement. This is the provision considered by the court in this case. The difficulty here was that the witness in question…
THE RULES AND GUIDANCE RELATING TO NON-PARTY DISCLOSURE CONSIDERED AND APPLIED: “THE EXCEPTION RATHER THAN THE RULE”
We are returning to the issue of non-party disclosure, indeed to the same case as the previous post. That post highlighted the Master’s concerns about the way in which claimant’s application had been conducted. The same judgment also contains a…
HOW NOT TO MAKE AN APPLICATION FOR NON-PARTY DISCLOSURE – AN OBJECT LESSON: “THE APPLICATION WAS… FATALLY FLAWED FROM THE OUTSET AND SHOULD NEVER HAVE BEEN MADE”
Today we are looking at a case that everyone involved in making an application for non-party disclosure should read. The Master was highly critical of the applicant’s conduct of the application and the evidence in support. It proved to be…
OPINION EVIDENCE IN WITNESS STATEMENTS CAN LEAD TO CROSS EXAMINATION “DEGENERATING INTO AN ARGUMENT”: THE LIMITED WEIGHT THAT A JUDGE CAN PLACE ON HEARSAY EVIDENCE
I am grateful to barrister Jack Macaulay for bringing my attention to the case we are looking at here. I refer people to Jack’s detailed summary of the issues below. However, here, I want to concentrate on two aspects of…
WHEN HISTORY REPEATS ITSELF AS TRAGEDY & FARCE: GOVERNMENT ORGANISATIONS, MAKING WITNESS STATEMENTS AND THE SOURCE OF INFORMATION AND BELIEF
The post earlier today on the need for MI5 operatives to give the source of their information and belief has a ring of “intrigue” about it. James Bond, we now know, cannot simply declaim something to be true. However, as…
SPIES, LIES, INTRIGUE – AND A BASIC FAILURE TO COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS: GIVING THE SOURCE OF INFORMATION AND BELIEF (WE’VE COVERED THIS MANY TIMES BEFORE…)
Here we have a case about MI5, spies and lies. However this is a site about civil procedure and evidence so we are largely bypassing the intrigue and lies (but not the potential of a finding of contempt of court) …
WITNESS STATEMENTS DRAFTED WITH CARELESSNESS AND WITHOUT APPRECIATION OF THEIR SIGNIFICANCE: “A FAILURE TO UNDERSTAND THE PURPOSE AND STATUS OF WRITTEN EVIDENCE”
The preparation of witness statements is an essential part of the stock in trade for most litigators. It is surprising how often statements are ill prepared, they are a regular feature of this site. We see examples here when the…
WITNESS STATEMENTS ANOTHER FAILURE TO COMPLY WITH PD57AC: A “WAIT AND SEE” STRATEGY MAY BE DANGEROUS: NON-COMPLIANCE GREATLY REDUCES THE WEIGHT OF THE STATEMENTS
Earlier we looked at a case where a party was not allowed to recover the costs of obtaining non-compliant witness statements. Here we are looking at a case where both sides did not comply with PD57AC. The claimant, aware of…
YOU ARE NOT GOING TO GET PAID FOR RECTIFYING YOUR OWN DEFECTIVE WITNESS STATEMENTS: WHY NON-COMPLIANCE WITH PD57AC CAN BE EXPENSIVE
Here we have a case where a claimant was seeking to recover the costs of preparing defective witness statements. The court had ordered that compliant witness statements be filed. Should the claimant be entitled to recover the costs of preparing…
PROVING THINGS 267: COURT OF APPEAL OVERTURNS FINDING THAT COUNCIL HAD ESTABLISHED ITS STATUTORY DEFENCE: SOME VERY IMPORTANT POINTS HERE ABOUT THE USE OF STATEMENTS PUT TO WITNESSES AND JUDICIAL FACT FINDING
Here we are looking at an important decision of the Court of Appeal. On the face of it it is about a defendant’s failure to prove a statutory defence. However, perhaps more significantly, it is about evidence, the impact of…
HEARINGS WHEN WITNESSES GIVE EVIDENCE FROM ABROAD: SOME POINTS FOR PRACTITIONERS (AND JUDGES) TO WATCH: “IT WOULD ASSIST THE LOWER COURTS IF FORMAL CLARIFICATION IS GIVEN ADDRESSING THAT TENSION HEAD ON”
There have been a number of cases where litigants have run into difficulties because they have not complied with the requirements for witnesses who give evidence remotely from abroad. We see an example of this case where there a conflict…
PROVING THINGS 266: THE BURDEN OF PROOF, HEARSAY EVIDENCE AND WHEN EVIDENCE IS NOT “EXPERT EVIDENCE”: ALSO THE IMPORTANCE OF SERVING A NOTICE OF NON-AUTHENTICITY
We are looking, again, at a case where there were issues as to evidence. Part of the defendant’s case was that the evidence was not admissible or was hearsay. The defendant’s arguments did not prosper. Hearsay is admissible, the real…
WHAT ARE THE CONSEQUENCES WHEN A WITNESS BREAKS THE “PURDAH” RULES? THE ISSUES CONSIDERED IN THE HIGH COURT
The “purdah” rule – that a witness cannot discuss the case and their evidence with others, including their legal team, once they have started giving evidence is of utmost significance. Here we are looking at a case where a witness…
PROVING THINGS 262: CLAIMANTS DID NOT HAVE THE EVIDENCE AT TRIAL TO PROVE THE DAMAGES SOUGHT: AN EXHAUSTING JOB
This series may well be misnamed. A more apt description may well be “not proving things”. That is what we are considering in looking at the case today. There was a lengthy trial with a substantial claim for damages. The…
PARTS OF WITNESS STATEMENT STRUCK OUT – THIS “CARRIES NO WEIGHT AS EVIDENCE”:DOORS FIRMLY SHUT IN RELATION TO INADMISSIBLE COMMENTARY
If we had a pound for every word in witness statements served in just one single month that was irrelevant or inadmissible we could probably go a long way to paying off the national debt. The costs, however, are probably…
THE WITNESS STATEMENT “IS IN LARGE PART UNRELIABLE AND ALSO LACKS CREDIBILITY”: THE ENDURING PROBLEM OF “RETROSPECTIVE RECONSTRUCTION”
We have looked many times at the problems caused by witness statements, including when a witness “tries” to remember matters they really cannot, or reconstructs what they feel did happen (or should have happened). This is a feature of all…
THE IMPORTANCE OF CONTEMPORANEOUS ATTENDANCE NOTES EXAMINED IN THE COURT OF APPEAL (BUT A DIFFERENT DIVISION TO THE ONE WE USUALLY LOOK AT)
Today we are taking a rare trip into the criminal courts, the Court of Appeal Criminal Division. However we are looking at an issue that affects most, if not all, lawyers. A client can attempt to blame their lawyer for…
COST BITES 238: WHEN A CLIENT DISPUTES THE SOLICITOR’S COSTS: THE JUDGE’S VIEW ON MEMORY, WITNESSES AND STATEMENTS DRAFTED “WITH THE GUIDING HAND OF THE CLAIMANTS’ SOLICITOR”
Today we are looking at part of a judgment about costs. Ten claimants had been selected (out of 223) to give evidence challenging a solicitor’s deduction of success fees. In fact only four of the claimants attended court to give…
PARTS OF A SOLICITORS’ WITNESS STATEMENT ARE STRUCK OUT: A REMINDER – A WITNESS STATEMENT IS A PLACE FOR FACTS, NOT OPINION, LEGAL ARGUMENTS OR ATTEMPTS TO GIVE EXPERT EVIDENCE: IT IS REALLY THAT SIMPLE
There are countless posts on this blog where judges have criticised the contents of witness statements. Here we are looking at a case where the judge struck out parts of a witness statement signed by a solicitor. Parts of the…
WITNESS STATEMENTS AND FINDINGS OF DISHONESTY BY AN EMPLOYMENT TRIBUNAL: EDMUND BURKE CITED “YOUR REPRESENTATIVE OWES YOU, NOT HIS INDUSTRY ONLY, BUT HIS JUDGEMENT: AND HE BETRAYS YOU INSTEAD OF SERVING YOU IF HE SACRIFIES IT TO YOUR OPINION”
It is rare for this blog to look at Employment Tribunal decisions. However examining the drafting of witness statements is part of its everyday fare. Here we look at a decision where the Tribunal was certain that witness statements had…
WITNESS STATEMENTS: WHEN THE JUDGE REFERS TO MONKEYS WRITING SHAKESPEARE AND THE CHANCES OF SIMILARITIES BEING AKIN TO THE HEAT DEATH OF THE UNIVERSE – YOU ARE PROBABLY IN TROUBLE
There are countless posts about witness statements on this blog. Most of them reflect judicial commentary that is far from favourable in relation to the way that the statements have been drafted. We see considerable criticism in this case where…
THE ROLE OF LEADING COUNSEL IN RELATION TO EXPERT REPORTS AND WITNESS STATEMENTS: A CLIENT CAN PAY FOR WHAT THEY WANT, BUT THESE COSTS WILL NOT BE RECOVERABLE INTER PARTES
How far should leading counsel, or counsel generally, be involved in the preparation of expert reports and witness statements? One obvious reply is “not at all”, given that the evidence should come from the expert or witness. These issues were…
£1 MILLION CASE AUTOMATICALLY STRUCK OUT: RELIEF FROM SANCTIONS REFUSED: THE FACT THAT THIS WAS A “ROGUE SOLICITOR” WAS NOT A STRONG ARGUMENT IN FAVOUR OF REINSTATEMENT
The judgment of HHJ Hassall in Mr Martyn Ian Haynes v Total Plant Hire Limited is available as a link on an article in the Law Society Gazette, available here. The case involves a detailed consideration of the Denton criteria. In particular some of the arguments on…
RECENT CASES ON LOSS OF EARNINGS: WHAT CAN WE LEARN FROM THEM? WEBINAR 23rd APRIL 2025
Practitioners can learn a lot from looking at judgments on claims for loss of earnings. These provide a practical grounding of how the courts approach such claims and, in particular, how judges consider the evidence (or absence of evidence) in…
“ARGUMENT SHOULD BE LEFT TO THE SKELETON ARGUMENTS”: GUIDANCE ON WITNESS STATEMENTS IN THE COMMERCIAL COURT REPORT
The Commercial Court report for 2023 – 2024 shows that there have been some changes to the Commercial Court Guide. The Guide has removed the requirement to obtain permission for a witness statement to exceed 30 pages. It is hoped…
APPLICATION TO ADDUCE “EXPERT EVIDENCE” FROM THE CLAIMANT’S SON WAS REFUSED: THIS IS NOT AN EXPERT REPORT, IT IS NOT COMPLIANT, NOT IMPARTIAL AND NOT ADMISSIBLE…
We are returning to the judgment of Jason Beer KC Rajan Marwaha v Director of Border Revenue & Anor [2025] EWHC 869 (KB) Jason Beer KC and staying with the issue of “expert” evidence. This time looking at the attempt of…
PROVING THINGS 258: GENERIC WITNESS STATEMENTS RARELY IMPRESS A COURT: CLAIM FOR £50,190.24 REDUCED TO £1,197: A CAR CRASH OF A CASE
In David Wiltshire v Aioi Nissay Dowa Insurance Company of Europe [2025] EWCC 13 District Judge Lumb rejected most of the claimant’s claim for damages following damage to his car. The claimant’s oral evidence differed greatly from his witness statement. These differences…
PROVING DAMAGES – THE CLAIMANT LAWYER’S BASIC TASK: WEBINAR 19th MARCH 2025
The “Proving Things” series on this blog is now up to number 256. The vast majority of this series is, in fact, about not proving things. That is where litigants fail to bring sufficient (sometimes any) evidence to court to prove…
IT WOULD BE AN “AFFRONT TO JUSTICE” TO ALLOW THE CLAIMANT’S CLAIM TO SUCCEED: “LIES IN THE COURSE OF LITIGATION ARE OFFENSIVE TO THE COURT”: SOME VERY UNCLEAN HANDS…
We are looking again at the judgment of HHJ Paul Matthews in Bains v Irshad & Anor [2025] EWHC 491 (Ch). This time about the consequences of telling lies to the court. The equitable doctrine that most lawyers remember best is the…
SOCIAL MEDIA AND THE PERSONAL INJURY LAWYER 2025: WEBINAR 12th MARCH 2025
Few lawyers can afford to ignore the effect of social media, both in relation to their cases and their practice generally. In some cases social media entries can affect the outcome of trials. There are specific duties placed upon lawyers…
THE DUTY OF FAIR PRESENTATION AT WITHOUT NOTICE HEARINGS: FREEZING ORDER TURNED INTO SLUSH…
In J&J Snack Foods Corporation & Anor v Ralph Peters & Sons Limited & Anor [2025] EWHC 436 (Ch) Mr Justice Fancourt set aside an injunction that had been obtained without notice. The case is an object lesson in the need…
PROVING THINGS 255: CLAIMANT FAILS TO PROVE IT HAS SUFFERED ANY LOSS AT ALL: THERE WAS NO GRIST TO THIS MILL
In Trident House Development Limited v Mohammed Yousaf [2025] EWHC 344 (Ch) HHJ Klein (sitting as a High Court Judge) found that a claimant had failed to establish it had suffered any loss at all in its claim for damages against the…
A WITNESS STATEMENT IS FOR EVIDENCE AND NOT SUBMISSIONS (SOMETHING THIS BLOG HAS OBSERVED MANY TIMES IN THE PAST…)
We are returning to the judgment of Senior Master Cook in Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust [2025] EWHC 337 (KB). The Master observed that the witness evidence served in support of the claimant’s application went…
INSURER FAILS IN COMMITTAL PROCEEDINGS AFTER A COURT HAD EARLIER MADE FINDINGS OF FUNDAMENTAL DISHONESTY TO THE CRIMINAL STANDARD: MANY TROUBLING THINGS HERE
In Aviva Insurance Ltd v Nadeem & Anor [2024] EWHC 3445 (KB) HHJ Tindal (sitting as Judge of the High Court) dismissed an action for committal against someone who had been found to be fundamentally dishonest at a personal injury…
SUMMARY JUDGMENT, PART 8 PROCEEDINGS AND THE FILING OF WITNESS EVIDENCE
In Director of Public Prosecutions v Surin [2025] EWHC 10 (KB) Mr Justice Mould considered issues relating to the service of witness evidence by the defendant in the claimant’s application for summary judgment. The unusual element of this action was…
“CUT AND PASTE” PARAGRAPHS UNDERMINE THE COGENCY OF THE EVIDENCE IN WITNESS STATEMENTS
We are returning to the judgment of HHJ Kelly (sitting as a High Court Judge) in MJF v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 3156 (KB). This time we are looking at the judge’s observations about the preparation…
WITNESS STATEMENTS: REASONS TO BE WARY OF ELECTRONIC SIGNATURES (2): A SOLICITORS DISCIPLINARY TRIBUNAL DECISION
We are returning to the issue of the difficulties that can be caused by the use of electronic signatures on witness statements. The dangers involved can be seen clearly in the decision of the Solicitors Disciplinary Tribunal in SRA -v-…
CIVIL LITIGATION BRIEF IN 2024: SOME FACTS AND FIGURES
As 2024 draws to a close this is a good time to look back at the year in terms of civil procedure. There have been 463 posts to date this year amounting to 938 thousand words (I haven’t counted them…
WITNESS STATEMENTS: REASONS TO BE WARY OF ELECTRONIC SIGNATURES (1)
In Waterrower (UK) Limited v Liking Ltd (t/a Topiom) [2024] EWHC 3049 (IPEC) Campbell Forsyth (sitting as a High Court Judge) observed that there were a number of issues with a witness statement served on behalf of the defendant. There…
OPENING LINES OF JUDGMENT IN 2024: GIVING THE OTHER SIDE A CHANCE TO OBJECT, NELSONIAN POLICY MAKING,HERDS OF CATTLE AND WHY THIS BLOG CAN NEVER GIVE THE LAST WORD ON SERVICE OF THE CLAIM FORM…
We are at the time of year when we can look back at some of the opening lines of judgments. This year it is clear that this is an international contest. THE SUPREME COURT STARTS OF THE YEAR WITH…
THE WITNESS SUMMARY AT TRIAL: THE OLD FASHIONED APPROACH MAY WELL BE BEST
In Waite v Skilton & Ors [2024] EWHC 3153 (Ch) Mr Recorder Adrian Jack (sitting as a High Court Judge) considered the practical problems that can arise where a witness gives evidence at trial following service of a witness summary….
WITNESS STATEMENTS: “COMPLIANCE WITH THE PRACTICE DIRECTION IS NOT SIMPLY A MATTER BETWEEN THE PARTIES”: THE WITNESS IS “THE AUTHOR OF HIS OWN MISFORTUNE”
In Milford Investments Ltd v Lanyon Bowdler LLP [2024] EWHC 3227 (Comm) we see yet another example of a witness statement that does not comply with the rules. Although the defendant did not argue that the statement should not be…
A CLAIM FOR WORKING 24.4 HOURS A DAY – EVERY DAY OF THE YEAR: WHEN DRAFTING SCHEDULES OF DAMAGES ARE LEFT TO THE CLAIMANTS: PROFOUND PROBLEMS FOLLOW
We are returning to the judgment in Samrai & Ors v Kalia [2024] EWHC 3143 (KB). It is interesting to isolate out the parts of the judgment relating to the drafting of the schedules. The claimants’ schedules were found to…
ACTIONS OF TWO CLAIMANTS STRUCK OUT BECAUSE THEIR WITNESS STATEMENTS WERE IN ENGLISH AND THEY COULD NOT SPEAK ENGLISH: “THE SOLICITORS HAVE NOT DONE THEIR DUTY APPROPRIATELY”
We are returning to the judgment of Mr Justice Martin Spencer in Rashpal Samrai & Ors v Rajinder Kalia [2024] EWHC 3143 (KB). More accurately we are looking at a preliminary judgment in the case which appears as an annexe to…
PROVING THINGS 251: TRIAL JUDGE FINDS THAT DEFENDANT’S LETTER WAS NOT WRITTEN CONTEMPORANEOUSLY AND CONCOCTED IN AN ATTEMPT TO EXCULPATE
The judgment of HHJ Berkley in Melia & Anor v Tamlyn And Son ltd [2024] EWHC 3002 (Ch) has a number of interesting aspects in relation to the assessment of evidence. One of those things is the judge’s rejection of…
“COMPUTER SAYS NO”: JUDGE MAKES TRENCHANT OBSERVATIONS ON LOCAL AUTHORITY’S WITNESSES: SOMETHING THE COUNCIL TAX PAYERS OF WAKEFIELD MAY WISH TO READ
I am always reluctant to invade the patch of the many erudite family law bloggers. However I read the judgment of HHJ Trotter-Jackson in Wakefield Metropolitan District Council v A & Ors [2024] EWFC 345 (B) and concluded that it…
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