THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors [2017] EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of…
BLACKPOOL CASE SHOWS THAT MEMORY IS NOT A ROCK – IT DEGRADES OVER TIME: “EMBELLISHMENT” OF A WITNESS STATEMENT RARELY HELPS
There have been 398 people who have looked at this blog directly from a link at Fansonline.net. This has little to do with the intrinsic fascination that football fans obviously have for civil procedure. It is more do do with…
PROVING THINGS 71: NO EVIDENCE AT ALL: NO DAMAGES AT ALL
In Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) we see another examples of a total failure to prove damages. I include it as another example of a party attending a hearing with no evidence at all to prove a…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
APPEALING FINDINGS OF FACT: AN UNUSUAL ARGUMENT – TO NO AVAIL
In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the appellant attempted to argue that the trial judge had erred on the facts. The arguments were given fairly short shrift. THE CASE After a hearing in the Court of…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying….
ATTACKING THE OTHER SIDE’S CREDIBILITY: DEFENDANTS ARE THE ARCHITECTS OF THEIR OWN DOWNFALL: SELF-SERVING STATEMENTS ARE TO NO AVAIL
There are a lot of reasons why litigators should read the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Not least is the judge’s assessment of the witness evidence…
SOME WARNINGS AS TO EVIDENCE: A SYMPHONY REVIVED: HOW THE JUDGE CONDUCTS AN ASSESSMENT OF CREDIBILITY
The post yesterday on witness credibility in the case of Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) referred to a passage in the earlier case of EPI Environmental Technologies Inc v Symphony Plastic Technologies plc (Practice Note) [2005] 1 WLR 3456. This…
PROVING THINGS 67: THE DIFFICULTIES WHEN WITNESSES DEPARTS FROM THEIR WITNESS STATEMENT: MULTIPLE INCONSISTENCIES DAMAGE CREDIBILITY
I am grateful to my colleague Colm Nugent for sending me a copy of the decision in Baker -v- British Gas Services (Commercial) Limited [2017] EWHC 2302. Amanda Yip QC (sitting as a Deputy Judge of the High Court*), considered…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor…
WITNESS EVIDENCE: THE DANGERS OF OPINION EVIDENCE AND TRYING TO USURP THE ROLE OF THE JUDGE : BACK TO MARSH -v- MINISTRY OF DEFENCE
Anyone considering matters relating to witness evidence and the drafting of statements will be drawn like a moth to the fire to the decision of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040. Once again I am returning…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts…
“LATE” SERVICE OF WITNESS STATEMENTS WHEN THERE IS NEW EVIDENCE: SOME ISSUES CONSIDERED
The third reason litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch) is the brief discussion in relation to the service of witness evidence outside deadline allowed by…
EVIDENCE GIVEN WITH THE BENEFIT OF HINDSIGHT: MEDICAL NEGLIGENCE AND CAUSATION
In the judgment today in Diamond -v- Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) His Honour Judge Freedman (sitting as a High Court Judge) found that a totally honest witness was not correct in her assessment…
WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up…
ABSENT WITNESSES DO NOT LEAD TO ADVERSE INFERENCES: ARGUMENT WOULD LEAD TO NEW “COSTS AND TERROR” IN LITIGATION
In Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) Mr Justice Arnold considered, and robustly dismissed, an argument that the court should draw adverse inferences from absent witnesses. “I find it extraordinary that it can be suggested that…
ADVERSE INFERENCES FROM ABSENT WITNESSES: ANOTHER EXAMPLE IN THE HIGH COURT
In NRC Holding Limited -v- Danilitskiy [2017] EWHC 1431 (Ch) Robin Dicker QC, sitting as a High Court judge, considered the inferences that should be drawn when a key individual did not give evidence. THE CASE The claimant had a…
WITNESS SUMMONS AGAINST SOLICITOR NOT SET ASIDE: BUT BE THERE AT 2.00 pm (AND BRING YOUR FILES)
In Morris -v- Hatch [2017] EWHC 1448 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) refused to set aside a witness summons issued against a solicitor. “… it is the civic duty of each of us,…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
GLADWIN & SANCTIONS – AN ANALYSIS 2: WHY (IN THEORY) THE DEFAULTING CLAIMANT COULD STILL RELY ON THE LATE WITNESS EVIDENCE
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the second of the series looking at the case more closely we…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
LIES, DAMN LIES AND CAR HIRE QUOTES: COMPUTER RECORDS, AND INTERNAL DOCUMENTS PREFERRED TO WITNESS EVIDENCE
The judgment in Accident Exchange Limited -v- Broom [2017] EWHC 1096 (Admin) shows a deliberate, and concerted, effort to undermine the civil justice process. It also shows the importance of obtaining computer records, and internal documentation when preparing a trial….
WITNESSES, MUSIC AND RECOLLECTION: WHEN RADIO INTERVIEWS COME BACK AND THINGS ARE NOT ALRIGHT
I am looking for an excuse to blog about the decision of Judge Hacon in Editions Musicales Alpha S.A.R.L -v- Universal Music Publishing Limited [2017] EWHC 1058 (IPEC). The case shows something about witness evidence (a composer “forgot” he had agreed…
BANKS, WITNESSES AND CREDIBILITY: AN INTERESTING JUDGMENT
There are many reasons why lawyers should read the decision in Thomas -v- Triodos Bank NV [2017] EWHC 314 (QB). There is an interesting consideration of the duty of care a bank owes a customer and the Hedley Byrne principles….
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
WHEN THE EVIDENCE OF THE “INDEPENDENT” WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?
In a case where there are disputed facts a party that has an independent witness usually holds a strong hand. However in Elson -v- Stilgoe [2017] EWCA Civ 193 today the Court of Appeal upheld a decision where the trial…
WHEN PUBLIC OFFICIALS MAKE WITNESS STATEMENTS: FAREPAK REVISITED
There was a post earlier this week where a public official faced contempt of court proceedings that was “false and tended to mislead”, and was acquitted because the statement was “careless” rather than criminal. This provides a good opportunity to…
WHEN A PUBLIC OFFICIAL SIGNS A “CARELESS” WITNESS STATEMENT THAT WAS “FALSE AND TENDED TO MISLEAD”: NOT IMPRESSIVE TO SAY THE LEAST
There are many cases that show a surprisingly insouciant approach to accuracy by those who draft, and those who sign, witness statements. This insouciance is even more surprising when the person who has signed the statement is a public official,…
“SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT”: A VERY FRIGHTENING SEARCH TERM
It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to…
APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB
In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured. The judgment considers what inferences a…
TWITTER, LIBEL AND EVIDENCE: THE KATIE HOPKINS JUDGMENT
The judgment of Mr Justice Warby in Monroe -v- Hopkins [2017] EWHC 433 (QB) has already attracted a lot of attention. Here I want to look at the issues relating to the evidence. The case is one of the…
THE PROCESS OF TAKING A STATEMENT: EXPLORED IN DETAIL IN OPEN COURT
The judgment of Master Bowles in Wilson -v- Lassman [2017] EWHC 85 (Ch) contains a detailed consideration of the way in which witness evidence was obtained. It highlights the importance of having a careful record of the way in which…
WHERE DOES THE TRUTH LIE? GESTMIN IN THE FAMILY COURTS
This blog has looked at the “Gestmin” guidance many times. I am grateful to Lucy Reed for pointing out that it has been considered in the context of family law. In Lachaux -v- Lachaux [2017] EWHC 385 (Fam) Mr Justice…
A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER
The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike. A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with…
THE SELF-CONFIDENT WITNESSES THAT CONVINCE THEMSELVES BUT NO-ONE CAN RELY ON
In Bhullar -v- Bhullar [2017] EWHC 407 (Ch) His Honour Judge Stephen Davies had the difficult task of ascertaining the truth in that most fraught and difficult of circumstances: a family that has been in business together and then fallen out….
EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY
It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott [2017] EWHC 294 (QB). A party failed to make an application to call oral…
ALL THE WITNESSES SAY EXACTLY THE SAME THING 10 YEARS AFTER THE EVENT: DIFFICULT TO BELIEVE (AND NOT BELIEVED)
In Patel -v- Patel [2017] Andrew Simmonds QC (sitting as a judge of the High Court) was considering the credibility of witnesses. The case is an interesting read in that it sets out detail of some of the cross-examination. It…
PROVING THINGS 53: BECAUSE A SOLICITOR WAS DISHONEST SOME OF THE TIME IT DOESN’T MEAN THEY WERE DISHONEST ALL OF THE TIME
The case of Pemberton Greenish LLP -v- Henry [2017] EWHC 246 (QB) provides an interesting assessment of witness evidence and demonstrates the difficulty in proving dishonesty. Mr Justice Jeremy Baker held that the fact that a solicitor was negligent, breached…
PROVING THINGS 52: SOLICITOR’S NEGLIGENCE ACTION FAILS ON ALL COUNTS: NO NEGLIGENCE AND NO LOSS
The judgment of HHH David Cooke today in Anderson Properties Ltd -v- Blyth Liggins [2017] EWHC 244 (Ch) is another example of a solicitor’s negligence case failing because of the absence of basic evidence in relation to liability, causation and damages….
THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION”
There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir…
PROVING THINGS 51: NO EVIDENCE OF LOSS – NO DAMAGES: A LESSON TO SHARE
For the second time today we are looking at the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch). This time in relation to the failure of the claimants to quantify or prove they had…
THE JUDICIAL ASSESSMENT OF EVIDENCE: AN ESSENTIAL SUMMARY
In the judgment today in The Queen on the application of ASK -v- The Secretary of State for the Home Department [2017] EWHC 196 (Admin) Mr Justice Green sets out a template for the judicial assessment of evidence. It provides…
WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice. Both posts will be about the judge’s assessment…
EXPERT EVIDENCE NOT NECESSARY ON AN QUESTION OF CONSTRUCTION: SNEAKING EXPERT EVIDENCE INTO WITNESS STATEMENTS: EVIDENCE IS STRUCK OUT
We have seen several examples of litigants attempting to give “expert” evidence in their witness statements. This practice was considered by Master Matthews in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch). The Master was considering whether…
PROVING THINGS 50: TO PROVE BREACH OF CONTRACT YOU FIRST HAVE TO PROVE THAT THERE WAS A CONTRACT
The judgment of Mr Justice Stuart-Smith in Secker -v-Fairhill Property Services Ltd [2017] EWHC 69 (QB) may contain an important lesson about pleading as well as evidence. The claimant’s claim could not be put in negligence and her case based…
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