PROVING THINGS 169: WHEN THE DEFENDANT CALLS NO (LAY) EVIDENCE AND TRIES TO PROVE ITS CASE THROUGH THE CLAIMANT’S WITNESSES
There are a number of interesting aspects of the judgment of HHJ Coe in Esegbona v King’s College Hospital NHS Foundation Trust (false imprisonment in hospital) [2019] EWHC 77 (QB). One of which is the defendant’s failure to call any…
THE SELF INFLICTED WOUNDS OF A “TRUSTED BRAND”/”CAPRICIOUS MID-VICTORIAN FACTORY-OWNER”: THE DANGERS OF PUTTING YOUR CASE TOO HIGH
The judgment of Lord Justice Coulson rejecting the Post Office’s application for permission to appeal is available on “Post Office Trial”, a case that has already been looked at several times on this blog. Here we have a critical appraisal…
LAWYERS: JUDGES SO WANT TO SEE ALL THE CORRESPONDENCE (AND TO BE TOLD ABOUT IT AS WELL…): MASTER’S POINT OF PRACTICE WORTH READING
There are some observations in the judgment of Master Thornett in Palizban v Protech (UK) Ltd [2019] EWHC 3090 (QB) that every litigator should read. It relates to the manner in which solicitors present witness statements, and documents, in interlocutory…
CIVIL PROCEDURE BACK TO BASICS 69 : SOCIAL MEDIA AND THE LITIGATOR: A RECAP
The earlier post on the judgment last Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 was another case in which social media played a part. The defendant holiday company found social media entries which appeared inconsistent…
COMMITTAL PROCEEDINGS CAN BE BROUGHT IN RELATION TO PRE-ACTION WITNESS STATEMENTS: COMMITTAL PROCEEDINGS CAN BE AMENDED TO ALLEGE FALSE STATEMENTS ARE MADE IN THE COURSE OF THOSE PROCEEDINGS
In Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 the Court of Appeal held that committal proceedings can be brought in relation to allegedly false witness statements made and disclosed under the pre-action protocols. It is…
SOLICITORS GIVING EVIDENCE: IT JUST DOESN’T HELP: IS THIS EVIDENCE THAT THE WITNESS WOULD BE ALLOWED TO GIVE ORALLY?
The danger of witness statements from solicitors purporting to give evidence as to fact has been emphasised many times in the cases reported on the blog. The danger can be seen again in the judgment of Ms Pat Treacy (sitting…
PROVING THINGS 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND… SEWAGE: ALL MODERN LITIGATION IS HERE…
The judgment of HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), contains a number of interesting scenarios in relation to civil evidence. Many of the common problems of…
WITNESS SUMMARIES, WITNESS SUMMONSES AND RELIEF FROM SANCTIONS: ALL IN ONE CASE…
In Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc [2019] EWHC 2865 (Ch) Mr Justice Kerr granted the claimant’s application to rely on witness summaries and refused the defendant’s application to set aside witness summonses. The judge…
PROVING THINGS 166: LYING IN COURT (& HOW THE JUDGE DECIDES WHO IS…)
A search term led someone to this blog today “how is it legal to get away with lying in court”. There is a whole host of material on the question of what is a “lie”, compared to a false or…
HEATED LANGUAGE AND CAREFULLY CRAFTED WITNESS STATEMENTS: “METAPHORS OF WAR” RARELY (IF EVER) HELP IN LITIGATION
In Alesco Risk Management Services Ltd & Ors v Bishopsgate Insurance Brokers Ltd & Ors [2019] EWHC 2839 (QB) Mr Justice Freedman considered the language used in witness statements. The heat generated by intemperate language rarely helped the litigants involved….
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES
I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here. The Court of Appeal have ordered a retrial in the case. There are important observations about the role of the judge in…
COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT
In Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts. This decision raises some interesting issues. (The case…
WHEN WITNESSES ATTEMPT TO GIVE EXPERT EVIDENCE: LOOK OUT FOR THOSE PURPLE PASSAGES
This blog has reported on numerous cases where lay witnesses have attempted to give expert evidence (and, indeed, where expert witnesses have tried to give evidence of matters of fact). This issue can be seen in the judgment of Lord…
LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE
This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners…
SERVE YOUR EVIDENCE IN RESPONSE VERY LATE IN THE DAY – WHAT IS THE COURT GOING TO THINK?
In Gregory & Anor v Moore & Ors [2019] EWHC 2430 (Ch) Chief Master Marsh commented upon evidence served in response, but very late in the day. In the absence of an explanation in relation to late service the Master…
LAWYERS GIVING EVIDENCE 3: THE SOLICITOR (GIVING EVIDENCE WHILST REPRESENTING HIS CLIENTS) HAD BECOME FAR TOO CLOSE TO THE CASE TO BE OBJECTIVE
In the third post on the dangers of lawyers giving evidence we are looking at the judgment of Recorder Monty QC in Afia v Mellor & Anor [2013] EW Misc 23 (CC). The only witness called for the defendants was…
PROVING THINGS 162: WHEN THE GOVERNMENT DOESN’T HAVE THE COMMONS TOUCH
Constitutional lawyers will be writing about the Supreme Court decision today for decades to come. However I want to look at the more basic issue of the evidence that was placed before the courts. This was not a case…
LAWYERS GIVING EVIDENCE 2: “HARD TO FATHOM” WHY THE SOLICITOR WAS TENDERED AS A WITNESS
In the second post about the dangers of lawyers giving evidence we turn to the judgment of Master Marsh in Pineport Limited -v- Grangeglen Ltd [2016] EWHC 1318 (Ch). This was a relief from forfeiture hearing in which the only witness…
LAWYERS GIVING EVIDENCE 1: ENGAGING “TOTALLY INAPPROPRIATELY WITH LEGAL SUBMISSIONS”
An earlier post reported on the dangers of lawyers giving evidence when that “evidence” is in fact a set of legal submissions. It is clear that this issue is not confined to one jurisdiction. This can be seen from the…
“WHAT’S THE DIFFERENCE BETWEEN A SKELETON ARGUMENT AND A WITNESS STATEMENT?” NOW THERE’S A QUESTION…
That very question “the difference between a skeleton argument and a witness statement” appeared in a search that led someone to this blog today. It may be worrying that someone has to ask. The important distinction is often ignored. Day…
CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)
The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on…
CIVIL PROCEDURE BACK TO BASICS 59: WHEN A CLIENT DISOWNS THEIR OWN WITNESS STATEMENT? SELF PROTECTION FOR THE LAWYER
There has been much discussion on Twitter tonight in relation to the language used in witness statements. That led to this account being given by “Sweary Expat” a lawyer based in the Cayman Islands (some people clearly have to suffer…
BOTH SIDES LATE WITH WITNESS EVIDENCE: BOTH SIDES REFUSED RELIEF FROM SANCTIONS: DEUCE IN A JUICE CASE
There are many interesting aspects of the judgment in Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret VE Sanati A.S (Goknur) v Organic Village Ltd [2019] EWHC 2201 (QB), not least that both sides were in default in relation to…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER
A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief. An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
DELAY OF 18 MONTHS IN GIVING JUDGMENT DID NOT UNDERMINE THE JUDGE’S VIEW AS TO CREDIBILITY
In Nuttal & Anor v Kerr & Anor [2019] EWHC 1977 (QB) Mr Justice Freedman rejected an argument that an excessive delay in giving judgment meant that the trial judge’s conclusions were innately unreliable. (The judgment also reviews the authorities…
PROVING THINGS 160: DELAY MUST BE EXPLAINED: COURT CAN DIRECT THAT EXTRA EVIDENCE BE FILED
In Hendry v Hendry & Ors [2019] EWHC 1976 (Ch) Master Shuman refused the claimant’s application for an extension of time to bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. THE CASE The claimant was married…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
BENCH WARRANT ISSUED IN CIVIL ACTION: WARRANT ISSUED TO ENSURE DEFENDANT’S ATTENDANCE AT A HEARING
In Hanson & Ors v Carlino & Anor [2019] EWHC 1366 (Ch) Mr Justice Birss issued a bench warrant to ensure a defendant’s attendance at a hearing. The defendant had a history of non-compliance and attempts to avoid the…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
THE DANGERS OF A LAWYER GIVING EVIDENCE: A “SOMEWHAT STRANGLED VERSION” OF THE SOURCE OF INFORMATION & BELIEF: SUMMARY JUDGMENT APPLICATION DISMISSED BECAUSE OF PAUCITY OF FIRST-HAND EVIDENCE
There are numerous posts on the blog about the need for first-hand evidence to be given, and the dangers of a lawyer making witness statements. These risks are exemplified in the judgment of Chief Master Marsh today in The David…
GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M [2019] EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains…
ASKING QUESTIONS AFTER JUDGMENT: NOT TO BE USED IN AN ATTEMPT TO RE-OPEN THE CASE (OR ARGUE A DIFFERENT CASE ON DIFFERENT GROUNDS)
I am looking again at the decision in O v B-M [2019] EWFC B23. That case predates the more recent Court of Appeal judgment in Children [2019] EWCA Civ 898. However it is another example of a party attempting to use the…
THE APPOINTMENT OF A SINGLE JOINT EXPERT DOES NOT DISPLACE THE TRIAL JUDGE: EXPERTS SHOULD NOT “OVERREACH”
In O v B-M [2019] EWFC B23 Mr Recorder Allen QC noted that a Single Joint Expert had gone beyond their remit in making findings of “fact”. The parties do not “abdicate” findings to a single joint experts and the…
PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”
Most cases are lost not on issues of law but on issues of evidence. In Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the applicants’ evidence. The judgment contains…
CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST
Another short post caused by a discussion on Twitter about the number of witness statements that fail to comply with the most basic, mandatory, obligations in the Rules. The formal requirements of a witness statement are overlooked at the litigator’s…
PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…
Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence. “He is giving evidence about events…
CIVIL PROCEDURE BACK TO BASICS 45: THE COURT CAN REDUCE THE NUMBER OF WITNESSES AND EVIDENCE BEFORE TRIAL
We are looking at CPR 33.2(3) in relation to the reducing of witnesses or identifying issues prior to trial. THE RULE CPR 32.2(3) “(3) The court may give directions – (a) identifying or limiting the issues to which factual…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR
I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner…
ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH
In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case…
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