PROVING THINGS 139: WHEN THE JUDGE HAS TO DECIDE WHETHER ITS ALL BEEN A BIT OF A CRUSH
Most of the cases looked at in this series are decisions in the High Court. However issues of witness credibility and accuracy are a constant issue throughout virtually every layer of court and tribunal. In Prosser v British Airways Plc [2018]…
CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT
One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement. This can (and does) happen even when the statement states, expressly, that the maker…
ASSESSING WITNESS CREDIBILITY: EX-FOOTBALL CLUB DIRECTORS’ EVIDENCE: ITS ALL A LOAD OF COBBLERS
This blog has looked at issues of witness credibility many times. There is a useful summary in the judgment of HHJ Simon Barker QC in Northampton Borough Council v Cardoza & Ors [2019] EWHC 26 (Ch) contains a review of the…
PROVING THINGS 138 : A WHOPPER OF AN OMISSION: McDONALD’S FAILS TO PROVE TRADEMARK RIGHTS TO “BIG MAC”: ADEQUATE EVIDENCE WAS NOT ON THE MENU
I am grateful to Yisroel for pointing out the decision of the European Union Intellectual Property Office in the “Big Mac” case. It is not my usual reading. However Yisroel points out that McDonald’s failed because of a basic failure…
PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU
The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00. …
“A MISUSE OF JUDICIAL POWER”: A WITNESS SPEAKING TO LAWYER IN THE COURSE OF GIVING EVIDENCE DOES NOT JUSTIFY COMMITTAL OR STRIKING OUT A CASE
In the judgment today in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case. It was found that the trial judge had,…
WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS
This is the third post on this subject in one day. Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could be…
WHEN A WITNESS CANNOT SPEAK ENGLISH: INTERPRETING THE RULES: GUIDANCE FROM THE CASES
If a witness cannot speak English and a witness statement is required what needs to be done? There are several cases where the issue of translation has caused a problem at trial. The best guidance comes from the Family Division….
ADVERSE INFERENCES DRAWN WHEN SOLICITOR DID NOT GIVE EVIDENCE: IF YOU’VE HAD £22 MILLION YOU NEED TO EXPLAIN IT
In The Lord Chancellor v Blavo & Co Solictors Ltd & Anor [2018] EWHC 3556 (QB) Mr Justice Pepperall found it was appropriate to draw adverse inferences when key participants did not give evidence. It is another example of the principles…
“MY SOLICITOR WROTE THAT STATEMENT”: A FAMILIAR TALE: HAVING A PLAN TO PROTECT YOURSELF
The previous post dealt with a case where the claimant’s witness statement was found to be “largely fictional”. This coincided with a number of posts on Twitter with various lawyers and judges (duly anonymous) commented on the situations in which…
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE
There has been much controversy recently about the need for cross-examination when allegations are made. I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION
A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association. I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…
A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…
a As a blogger feedback comes in many forms. Yesterday I had an email from a litigant in person. The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…
LINKS TO GUIDANCE ON DRAFTING WITNESS STATEMENT: INTERACTIVE BLOGGING
Yesterday I was speaking on the APIL Fatal Accidents course. One of the points I was making was the importance of reading the rules and and guidance in relation to the drafting of witness statements. The delegates asked for links…
APPLYING FOR RELIEF FROM SANCTIONS: 14 KEY POINTS TO HELP EASE THE STRAIN
There was a nice tweet earlier today from pupil barrister Miranda Grell explaining she had just appeared in her first relief from sanctions application and had found this blog useful. This reminded me that it may be a good time…
WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL [2018] EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often…
REVEALING THE TRUE IDENTITY OF A WITNESS IN CIVIL PROCEEDINGS: APPLICATION FOR ANONYMITY SCUTTLED
In the judgment today in Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2018] EWHC 2929 (Comm) Mr Justice Teare allowed an application by the defendants that the true identity of a witness be disclosed. The witness…
EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before…
THE STATEMENT OF TRUTH: WHY YOU AND YOUR CLIENTS NEED REGULAR REMINDERS OF THE RULES & CASES
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill made some important observations that apply to every aspect of litigation. We looked at the case yesterday: a stark reminder was provided of the dangers…
WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE
The post earlier today on the deficiencies in a witness statement that led to it being excluded provides a good opportunity to reprise certain key points. Not only was the excluded statement essentially “commentary” and “opinion” it also failed to…
WITNESS STATEMENT EXCLUDED BECAUSE IT WAS OF NO USE: THE DANGERS OF NOT KNOWING THE RULES RELATING TO WITNESS EVIDENCE
I have noted, many times, on this blog the dangerous tendency of some practitioners to conflate witness statements with submissions. Witness statements express opinions, comments on documents and the law and do not give the source of information and belief. …
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
WITNESS STATEMENTS AND WITNESS EVIDENCE: DO YOU KNOW ABOUT CPR 32.5(4): “LATE EVIDENCE” SHOULD BE HARD TO ADDUCE
In the judgment today in The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD [2018] EWCA Civ 2342 the Court of Appeal allowed an appeal against a claimant being successful in a Section 33 application. There is an…
VERY LATE CHANGE FROM PART 8 TO PART 7: NUANCED CASE MANAGEMENT IN THE TCC
There is an interesting piece of case management in the judgment of Recorder Andrew Singer QC (sitting as a Judge of the Technology and Construction Court) in Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC). …
WHEN WITNESSES DID NOT ATTEND TRIAL 3: ADVERSE INFERENCES ARE DRAWN IN A CLINICAL NEGLIGENCE CASE
There are three cases today about the implications of witnesses not attending trial. This was an issue in Asante v Guy’s and St Thomas’ NHS Foundation Trust [2018] EWHC 2570 (QB). The absence of key witnesses from the defendant led…
AVOIDING PROCEDURAL PITFALLS – AND PUTTING THEM RIGHT: WEBINAR 6th DECEMBER 2018: HELPING LITIGATORS SLEEP SOUNDLY AT NIGHT…
On the 6th December I am presenting a webinar “Avoiding Procedural Pitfalls and Putting Them Right”. The aim is to look at the key problem areas of civil procedure, how to avoid problems and how to rectify problems if things…
ADVISING YOUR CLIENT ON LITIGATION RISKS 2 & 3 : RISKING IT ALL ON A RECOLLECTION OF A MEETING & THE WITNESS WHO GIVES A WHOLLY NEW ACCOUNT FROM THE WITNESS BOX
The judgment in Slade (t/a Richard Slade And Co) v Abbhi [2018] EWHC 2039 (Comm) (24 September 2018) illustrates another risk of litigation. The risk of a witness giving a wholly new account whilst giving evidence at trial. THE CASE The…
ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
PROVING THINGS 124: “PUT BLUNTLY: THAT EVIDENCE IS WHOLLY INADEQUATE”: DEFENDANT’S EVIDENCE ON AN INJUNCTION APPLICATION
In Jahangiri v St. George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 (QB) Mr Justice Nicklin observed that witness evidence put forward by the defendant was far from adequate. “The Court is best assisted when the evidence of someone who…
THE KIMATHI DECISION 4: THE APPROACH TO WITNESS EVIDENCE: MEMORIES ARE FLUID AND MALLEABLE: SOME KEY POINTS ON GESTMIN
This is the fourth in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). The trial judge was looking at evidence of matters that had happened some 50 years earlier,…
THE KIMATHI DECISION 3: THE EVIDENCE GATHERING PROCESS, STANDARD QUESTIONNAIRES AND THE USE OF LEADING QUESTIONS
This is the third in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). Here we look at the evidence gathering process, in particular the use of questionnaires and the…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
THE KIMATHI DECISION 2: TRANSLATORS ON TRIAL: ALSO A LOOK AT THE GUIDANCE ON TRANSLATING WITNESS STATEMENTS
This is the second in the series that looks at the decision in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). Here we look at issues relating to the translators. It shows the way in which the…
CHANGING WITNESS STATEMENTS: COMPARE AND CONTRAST: EDITING STATEMENTS CAN AFFECT CREDIBILITY
The judgment case of ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust [2018] EWHC 2010 has an interesting passage on witness statements. It is an example of how early witness statements that were not initially disclosed can…
HOME SECRETARY REFUSED PERMISSION TO SERVE EVIDENCE LATE: THE OVERRIDING OBJECTIVE WAS USED EVEN IF DENTON DID NOT APPLY
In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the Secretary of State was refused permission to rely on evidence served late. The issue was decided under the Overriding Objective, rather than by reference to the…
PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”
The judgment in Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong. “I am sure she is an honest person, but…
FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started…
WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
PROVING THINGS 114: A WITNESS OF FACT CANNOT GIVE EXPERT EVIDENCE: NO ADMISSIBLE EVIDENCE OF ANY LOSS
There are several elements worth looking at in the judgment in Wessely & Anor (Liquidators of Laishley Ltd) v White [2018] EWHC 1499 (Ch). However it is a prime example of a simple failure to prove things. If the applicants had…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
WITNESS STATEMENTS AND COST BUDGETS: “THEY WILL HAVE BECOME AN ARTIFICIAL CONSTRUCT OF THE LAWYERS”
There are some interesting observations in the judgment of Chief Master Marsh in Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch). The way in which a witness statement is likely to be drafted can be considered at the cost budget…
PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since…
PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT
One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness. Litigants can (and often do) have strong views about the case and what they said and did. The fact that…
CIVIL PROCEDURE: BACK TO BASICS 8: LEAVING VENOM OUT OF WITNESS STATEMENTS: A PEN DIPPED IN VITRIOL IS GOING TO COST YOU MONEY
It is surprising how many witness statements I have read (both in practice and in the reports) that contain invective material. Litigants appear to think it important, and effective, that they disparage their opponents. Litigants should be warned that this…
PROVING THINGS 92: WHERE THE CLAIM FOR DAMAGES WAS LARGELY “WISHFUL THINKING”: £1 MILLION CLAIM REDUCED TO £25,104 (OH & THROW IN A ERRANT EXPERT AS WELL)
The judgment of John Martin QC (sitting as a High Court judge) in London College of Business Ltd v Tareem Ltd & Anor [2018] EWHC 437 (Ch) is a prime example of a failure to prove damages. The claim was…
LATE SKELETON ARGUMENTS AND LATE EVIDENCE: THE GOVERNMENT SHOULD DO BETTER: DIVISIONAL COURT DECISION: A TEXTBOOK EXAMPLE OF WHAT NOT TO SAY AND DO
In The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Procedural Matters) [2018] HC 976 (Admin) the Divisional Court took care to file a supplemental judgment that dealt…
WITNESS CREDIBILITY 3: A JUDGMENT FROM TODAY: CREDIBILITY A CENTRAL PART OF THE CASE
This is the third post today about the subject of the assessment of witness credibility. By a curious piece of good planning it comes from a judgment today in Jiangsu Shagang Group Co Ltd v Loki Owning Company Ltd [2018] EWHC…
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