PROVING THINGS 250: FAILING TO PROVE IMPECUNIOSITY: A BARE ASSERTION IS NOT ADEQUATE
The judgment of Lord Justice Underhill (refusing permission to appeal) in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262 relates a party who failed to adduce sufficient evidence to show impecuniosity. “No evidence of Mr…
WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”
In Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements. We…
“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL
There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements…
“HYPERBOLIC COMMENT” NOT WELCOME IN LITIGATION: HIGH COURT JUDGE SENDS OUT A WARNING: PLANE LANGUAGE IS BEST…
In Peregrine Aviation Bravo Ltd & Ors v Laudamotion GmbH & Anor [2023] EWHC 48 (Comm) Mr Justice Henshaw was critical of “hyperbolic comment” in relation to the witness evidence. This is not the first time that a judge has…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
WITNESS DEMEANOUR: ARGUMENTS CONSIDERED BY THE COURT OF APPEAL
Occasionally I will use Twitter to tweet links to previous posts on this blog which may continue to be of interest. I did this recently in relation to a post on witness credibility and demeanour that I wrote in 2018….
PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE
This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly…
COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE
In Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action. The court was fairly critical about the evidence that had been placed before it…
A WITNESS GIVING EVIDENCE WHILST DRIVING A CAR: THEN FROM A CROWDED OFFICE AND THEN WITHOUT MOST OF THE DOCUMENTS AVAILABLE: THIS DOES NOT END WELL
There are passages in the judgment of Recorder Douglas Campbell QC in ASR Interiors Ltd v AWS Trading Ltd & Anor [2022] EWHC 372 (IPEC) which demonstrate a remarkably “relaxed” attitude to giving evidence in court by one of the…
PROVING THINGS 224: PROVING LOSS OF EARNINGS: THE IMPORTANCE (& LIMITATIONS) OF THE CLAIMANT’S OWN EVIDENCE
The impairment of someone’s ability to earn their living is always a serious matter. There are a number of approaches that the court can take to the award of damages. Anyone representing a claimant should read McRae -v- Chase International…
FAILING TO TAKE STEPS IN RELATION TO A VULNERABLE WITNESS RENDERED THE TRIAL UNFAIR: COURT OF APPEAL DECISION
In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 the Court of Appeal set aside a judgment when the court had not appreciated that a key witness was a vulnerable witness and that steps needed to be taken…
WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: THE COURT CONSIDERS WHAT WAS SAID – 17 YEARS AFTER THE EVENT
In HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) Mr Justice Cotter considered the issue of the reliability of witness evidence when the events being considered occurred 17 years previously. It is an example of the kind…
WHEN A WITNESS CHANGES A KEY PART OF THEIR EVIDENCE WHILST GIVING EVIDENCE AT TRIAL: THIS DOES NOT END WELL
In Murphy v Milton Keynes Parks Trust Ltd & Anor [2021] EWHC 2917 (QB) HHJ Crane considered that (relatively familiar) scenario of a party giving new evidence at the date of the trial. The claimant, it must be emphasised, was…
MISSING WITNESSES: THE SUPREME COURT SAYS IT IS REALLY A MATTER OF COMMON SENSE
This blog has looked, many times, at the inferences that courts draw when witnesses do not give evidence at court. In Royal Mail Group Ltd v Efobi [2021] UKSC 33 the Supreme Court made it clear that the principles involved…
PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES
In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action. It is an example of the…
PROVING THINGS 212: MISTAKE, TRUSTS & TAXATION: “IT IS CLEAR THAT HIS WITNESS STATEMENT WAS CONSTRUCTED WITH ONLY PASSING REFERENCE TO WHAT HIS EVIDENCE IN CHIEF WOULD BE IF CALLED TO GIVE ORAL EVIDENCE”
The adequacy of witness evidence was considered in detail in the judgment of Deputy Master Marsh in Dukeries Healthcare Ltd v Bay Trust International Ltd & Ors [2021] EWHC 2086 (Ch). It shows the danger of setting out a case…
A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES
Returning to the judgment of Mr Justice Cavangh in TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…
WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS
Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….
“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. …
WITNESS EVIDENCE AND COUNTER-SCHEDULE STRUCK OUT AS INADMISSIBLE: THE PRINCIPLES APPLIED
In Rahman v Rahman & Ors [2020] EWHC 2392 (Ch) Master Clark struck out part of the defendants’ witness evidence and counter-schedule. The judgment provides a useful summary of when the court will strike out evidence and statements of case….
“LITIGATION WISHFUL THINKING”: A REMINDER OF ITS IMPORTANCE
This blog has looked many times at those cases where a case is determined by the judge’s assessment of the credibility of the witnesses. This does not always (or event often) mean that the losing side are not telling the…
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE
There are particular dangers for solicitors giving evidence. This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law. In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS
This report of the Witness Evidence Working Group was produced at the end of last year. It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Harlow v Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was,…
COVID REPEATS 43: FAREPAK: “A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS”
Today we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson in the need for careful preparation of witness evidence and identifying precisely what “evidence” a witness can give. “The…
COVID REPEATS 41: OFFICE GOSSIP IS NOT EVIDENCE
This week we continue with our look back at cases in relation to witness evidence. This contains another reminder that there is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information…
COVID REPEATS 40: ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
This week we are looking at witness statements and the process of gathering witness evidence. In August 2015 I wrote at length about the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA…
![JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN'T MAKE YOU AN EXPERT: "ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2020/06/calculator_count_statistics_1277492.jpg?resize=150%2C150&ssl=1)
JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN’T MAKE YOU AN EXPERT: “ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN”
Last week the “Covid Repeats” posts on this blog highlighted a few (and just a few) of the cases where judges had been critical of the role of experts, or experts involved in cases has been problematic. That this remains…
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