WITNESS EVIDENCE WEDNESDAY: “HIS EVIDENCE WAS FREQUENTLY AGGRESSIVE AND SARCASTIC”: SOMETIMES WITNESSES DO NOT HELP THEMSELVES
I have been considering a series on judicial observations on witness evidence for some time. It seems like a good idea to put this in the middle of the week so we have a regular reminder of how significant these…
WITNESSES WHO GIVE THE COURT THE BENEFIT OF THEIR “OPINION”: I’M NOT SAYING IT LED DIRECTLY TO THE APPLICANT LOSING THIS CASE – BUT IT DID NOT HELP…
There appears to be no end to the practice of witnesses giving the court the benefit of their opinion in witness statements. There have been numerous cases where the judiciary have warned against this. The white book has a specific…
WITNESS STATEMENTS THAT COULD BE DRAFTED TO “POINT OF NEAR HOMOGENEITY” DID NOT IMPRESS THE COURT (AT THE COSTS BUDGETING STAGE – AND PROBABLY FAR BEYOND…)
Here we look at some interesting observations made about the process of drafting witness statements. The court was budgeting the process and considering an argument that there should be “numerous reviews and peer-reviews” during the process of drafting the statements….
THE PERIODICAL REMINDER OF THE DANGERS OF A SOLICITOR SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: IN THIS CASE THE CLIENT WAS FOUND TO BE FUNDAMENTALLY DISHONEST
Here we are considering once again the question of whether it is wise for a solicitor to sign a statement of truth on behalf of a client. It arises from the case we have already looked at this morning. However…
COST BITES 284: DEFECTIVE WITNESS STATEMENTS PLAY A PART IN A DECISION TO AWARD INDEMNITY COSTS: “DEPRIVING THE DEFENDANT OF THE USUAL RIGHT NOT TO PAY DISPROPORTIONATE COSTS, IS AN ENTIRELY PROPORTIONATE RESPONSE TO THE DEFENDANT’S CONDUCT OF THIS ACTION”
Here we look at a judgment where indemnity costs were awarded against an unsuccessful defendant. As we shall see there were a number of factors in that decision. However it is notable that, in both judgments, the judge commented on…
THE CIVIL LITIGATION BRIEF TOOLBOX SERIES 1: WHERE DO YOU LOOK IF YOU WANT TO REFER TO A WITNESS STATEMENT SERVED BY YOUR OPPONENT BUT THEY ARE NOT CALLING THAT WITNESS?
The aim of this series is to give practitioners a quick place to look if they are placed in a sudden dilemma. The issue here, which can arise at short (or no) notice is what should a party (“A”) do…
MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
ANOTHER CASE WHERE A WITNESS STATEMENT WAS SERVED BUT THE WITNESS DID NOT ATTEND TRIAL: THE DEFENDANT HAD USED PARTS OF THE STATEMENT IN CROSS EXAMINATION – WHAT WAS ITS STATUS?
We are looking at another case where a party served a witness statement and yet the witness did not attend trial, the court only being told of this at the end of the trial itself. In this case the statement…
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…
CLINICAL NEGLIGENCE CORNER 2: OVER TWO WEEKS IN COURT, A PANOPALY OF EXPERTS – BUT THE CASE CAME DOWN TO “WHO SAID WHAT TO WHO?”
The principles relating to clinical negligence cases are well known. The major problem is usually determining the facts. In cases that involve a disputed recollection of what was said and asked in medical consultations this gives rise to major issues. …
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…
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…
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…
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…
WITNESS STATEMENTS, FORGED DOCUMENTS AND A FINDING OF CONTEMPT OF COURT: A WHOLE BUNCH OF PROBLEMS
This is a case where the judge found that the claimant and a witness relied on documents that they knew to be forged. It is an important reminder of the lengths that some people can go to in litigation. It…
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…
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…
“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…
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…
AVOIDING PITFALLS WITH WITNESS STATEMENTS – HOW TO DRAFT AN EFFECTIVE WITNESS STATEMENT: WEBINAR 26th FEBRUARY 2025
Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give. This webinar is designed to help practitioners avoid the major…
“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-…
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…
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…
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…
ADVOCACY THE JUDGE’S VIEW 7: WITNESS STATEMENTS “ACCURACY AND NOT LEGAL ARGUMENT IS THE KEY TO ENSURING A WITNESS STATEMENT IS AS EFFECTIVE AS IT CAN BE”
In terms of preparation of client’s case, and prospects of success, witness statements are crucial. The rules only allow the witness to give additional evidence in exceptional circumstances. Many cases that go to trial are, in essence, about the credibility…
MENTIONING WITHOUT PREJUDICE MEETINGS IN WITNESS STATEMENTS: PART OF THE WITNESS STATEMENTS WERE STRUCK OUT
In Bond & Anor v Webster & Ors [2024] EWHC 989 (Ch) Master Bowles (sitting in retirement) granted an application to strike out parts of a witness statement that referred to an offer made at a without prejudice meeting. The…
THE REQUIREMENTS FOR BOTH PARTIES IF THE PART 8 PROCEDURE IS TO BE USED IN MATTERS OF CONTRACTUAL CONSTRUCTION: BEST NOT THROW THE KITCHEN SINK INTO THE MIX
In Workman Properties Ltd v Adi Building And Refurbishment Ltd [2024] EWHC 2627 (TCC) HHJ Stephen Davies sent out a clear reminder of the duties on all parties in a Part 8 case where the court was being asked to…
COURT ALLOWS LATE WITNESS STATEMENT TO BE RELIED UPON: DENTON CRITERIA CONSIDERED
In Titan Wealth Holdings Ltd & Ors v Okunola (Rev1) [2024] EWHC 2586 (KB) Mrs Justice Hill considered the Denton criteria when granting the claimant permission to rely on a witness statement served out of time. There was a good…
ANOTHER WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THE CLAIMANT’S STATEMENT WAS “PARTICULARLY UNHELPFUL” AND LARGE IGNORED
In Burns v Bridge & Anor [2024] EWHC 2620 (Ch) HHK Cawson KC, sitting as a High Court Judge, observed that the claimant’s witness statement did not comply with PD 57AC. The witness statement was, to all and intents and…
RELIEF FROM SANCTIONS, LATE WITNESS STATEMENTS AND THE “WEIGHT” (OR ABSENCE OF WEIGHT) TO BE GIVEN TO THOSE STATEMENTS
In Oliver v Duffy [2024] EWHC 2590 Mrs Justice Hill considered an application for relief from sanction in a case where witnesses had not attended trial. The judge granted relief from sanctions but went on to hold that those statements…
WITNESS CREDIBILITY AND REWRITING EVENTS OVER TIME: DEFENDANT DRIVER CAST AROUND FOR AN INTERPRETATION OF THEIR ACTIONS THAT PLACED THEM IN THE BEST LIGHT POSSIBLE
We have looked recently at a number of cases in relation to witness credibility. The judgment of HHJ Martin Picton in Palmer v Timms [2024] EWHC 2292 (KB) is a case where the primary issue at trial was the credibility…
WITNESS STATEMENTS, WITNESSES, EVIDENCE AND PSYCHOLOGY: GUIDANCE FROM THE EAST: ANOTHER EXAMPLE FROM A DECADE AGO THAT REMAINS RELEVANT
We are looking again at the skills necessary to take accurate witness statements. Here we revisit a real gem of an article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and the…
A WORKING EXAMPLE OF THE DANGERS OF NOT TAKING A FULL WITNESS STATEMENT: DISASTER CAN STRIKE: A DECADE ON AND THIS CASE IS STILL RELEVANT
One case I regularly refer to when speaking, or writing, about taking witness statements 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…
NO “VYING AND REVYING”: WITNESS STATEMENTS, EVIDENCE AND LOTS OF OTHER MATERIAL BESIDES: AFTER 287 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Anyone involved in civil litigation will spend a great deal of their time reading witness “evidence” which, in reality, is no such thing. Witness statements tend to be seen as an opportunity to put forward opinions, submissions and innuendo. As…
PROVING THINGS 241: “WHICH WITNESS’S ACCOUNT IS PREFERRED?”: CONTEMPORARY EVIDENCE IS BEST
In Gadsby v Hayes [2024] EWHC 2142 (KB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the evidence of witnesses in a case where the accident had happened ten years previously. The accounts given near the time…
NON-COMPLIANT WITNESS STATEMENTS (AGAIN): THE SOLICITOR’S STATEMENT OF COMPLIANCE WAS “FALSE”:
For the third time this week I find myself writing about judicial criticisms of the way in which witness statements have been prepared. This case has by far the most excoriating comments. In Fulstow & Anor v Francis [2024] EWHC…
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