WITNESS EVIDENCE WEDNESDAY i : COURT WOULD NOT DRAW ADVERSE INFERENCES FROM WITNESSES WHO WERE NOT CALLED TO GIVE EVIDENCE “THE PERMISSIBLE FUNCTIONS OF CROSS-EXAMINATION DO NOT INCLUDE ENABLING THESE DEFENDANTS TO FISH FOR MATERIAL IN SUPPORT OF A CASE THAT IS (i) UNPLEADED (ii) IS INCONSISTENT WITH THE CASE THAT IS PLEADED”
As you may guess from the title we are looking at witness evidence more than once today. Firstly we are going to look at an argument from the defendants that a claimant’s failure to call witnesses to give evidence meant…
WHEN A WITNESS STATEMENT IS REALLY LEGAL ARGUMENT: THIS IS NOT APPROPRIATE (NOR IS IT A NEW PROBLEM…)
I know that Wednesday is the day when we usually focus on witness evidence. However here we look at a case where it was conceded that a statement was, in reality, “more akin to a skeleton argument”. This is wrong….
THROWBACK FRIDAY: WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY GIVING THE SOURCE OF INFORMATION IS IMPORTANT (FROM JANUARY 2018)
Today we go back to a post from January 2018 on a point that remains just as relevant today. There is a mandatory requirement that a witness give the source of their information and belief. A surprising number of witness…
WITNESS EVIDENCE WEDNESDAY: A ROBUST OVERTURNING OF THE APPROACH TO THE WITNESS EVIDENCE AT FIRST INSTANCE: “GENERALISED FINDINGS ON CREDIBILITY ARE NOT A USEFUL TOOL FOR RESOLVING SPECIFIC ISSUES OF FACT”
It is unusual to see an appellate court make robust criticisms of the fact finding process at first instance. We have such a judgment here by the Employment Appeal Tribunal. The EAT made it clear that generalised findings as to…
WITNESS EVIDENCE WEDNESDAY: WHEN WITNESS STATEMENTS SHOULD BE AVAILABLE FOR THIRD PARTIES AT COURT: NO NOTICE NECESSARY…
Is a third party, with no relationship to the case, entitled to see the witness statements being used in the hearing? That is the issue considered in this case which, unusually, was an application for judicial review of a County…
THE RELEVANCE OF THE ABSENCE OF ORAL EVIDENCE AT INTERLOCUTORY APPLICATIONS: A JUDGE MUST MAKE A DECISION ON THE EVIDENCE BEFORE THEM
In this case the claimant appealed against the findings of fact that the court made at first instance. However those findings were made on the basis of written evidence that was before the court. The claimant had not applied for…
WITNESS EVIDENCE WEDNESDAY: FINDINGS OF DISHONESTY WERE WRONG AND COULD NOT STAND: ISSUES OF WITNESS CREDIBILITY ARE NOT SIMPLY A MATTER OF “INTUITION”
Here we look at a case where, unusually, the judge overturned first instance findings of dishonesty. The circumstances in which those findings were made were seriously flawed. Important procedural safeguards had not been in place, not least the allegations…
WITNESS EVIDENCE WEDNESDAY: SPECIAL TWIXMAS EDITION: RELIEF FROM SANCTIONS WHEN STATEMENTS SERVED LATE: CLAIMANT ALLOWED TO RELY ON PARTICULARS OF CLAIM AS EVIDENCE
The last Witness Evidence Wednesday of the year deals with an unusual case relating to relief from sanctions following a failure to serve witness evidence timeously. The judge at first instance had refused the claimant’s application for relief from sanctions. …
WITNESS EVIDENCE WEDNESDAY: JUDGE CONSIDERS ADMISSIBILITY OF WITNESS EVIDENCE ON THE FIRST DAY OF TRIAL: “ARE YOU EXPERIENCED”?
It is unusual for a judge to consider the admissibility of witness evidence on the first day of a trial. However, in some ways, this is an unusual case. The judge found that the statement was relevant to the pleaded…
WITNESS EVIDENCE WEDNESDAY: DEFENDANT REFUSED PERMISSION TO RELY ON EVIDENCE SERVED (VERY LATE): “THE TIME IS NOW”
We have seen examples of witness evidence served late, sometimes very late. Here we see an example of witness evidence served five minutes before a hearing was due to start, and two months late. Further that evidence attempted to disavow…
WITNESS EVIDENCE WEDNESDAY : DO THE PROVISIONS OF PD57AC APPLY WHERE THE COURT IS TAKING AN ACCOUNT?
Here we are looking at an unusual issue. The court was taking an account following directions of the High Court. One of the witness statements did not comply with PD57AC. The judge had to consider the issue as to whether…
CLINICAL NEGLIGENCE CORNER 5: ANOTHER CASE OF “WHAT WAS SAID?” AND “WHY WASN’T THAT PARTICULAR POINT IN THE MEDICAL NOTES?”
Here we have a clinical negligence case with a familiar issue. The trial depended on whose account the judge accepted of what was said in a particular medical consultation several years earlier. The treating doctor can, in reality, remember little…
PROVING THINGS 274: A WITNESS STATEMENT SHOULD NOT BE RESPONSIVE TO AND COMMENT UPON THE OTHER SIDE’S STATEMENTS: FAILURE TO COMPLY HAS CONSEQUENCES
It is surprisingly common to see witness statements that “comment” on aspects of the case rather than give evidence. This clearly breaches the rules relating to witness statements. Further it can lead to adverse consequences for those who make such…
AND THEY KEEP ON COMING… ANOTHER FALSE CITATIONS CASE: “I RELIED ON THE AI OVERVIEW” FROM GOOGLE
The cases continue to come. Some lawyers are continuing to rely upon artificial intelligence to produce false authorities. Here was a firm of solicitors (defending themselves) who relied on the AI contents of a Google search. Such searches are never…
WITNESS EVIDENCE WEDNESDAY: WHAT SHOULD A JUDGE DO WHEN THE FACTS ARE DISPUTED BUT WITNESSES ARE NOT CALLED TO GIVE EVIDENCE?
What is a judge to do if there is a dispute as to the facts but neither party calls evidence and there is no cross-examination? That is the question considered here. (How can a judge determine which witness is correct…
WITNESS EVIDENCE WEDNESDAY: DISTILLING THE GESTMIN GUIDELINES: WHICH WITNESS WILL BE BELIEVED? (AND WHAT PART OF THEIR EVIDENCE ACCEPTED?)
Over the past month or so there have been at least half a dozen cases where the judge references Gestmin – the consideration and guidance given to judicial fact finding, particularly in relation to witness evidence. These range from actions…
WITNESS EVIDENCE WEDNESDAY: HOW JUDGES DECIDE CIVIL CASES: “JUDGES ARE HUMAN. THEY DO NOT POSSESS SUPERNATURAL POWERS”
This week we are looking at a judgment that sets out in detail the process by which judges determine issues in a civil case. Ranging from the burden and standard of proof , the role of judges, the fallibility of…
THE RESPONDENTS’ ARGUMENTS ABOUT FAILURES OF PROCEDURE WERE NOT “NIT PICKING”: RATHER THEY SHOWED THAT THE APPLICATION HAD NOT BEEN PROPERLY BROUGHT AND COULD NOT BE CONSIDERED…
There are often major differences of view as to the effect of non-compliance with the rules. We have such differences here. The claimants, in default, regarded the respondents’ procedural objections as “nit-picking”. The judge, however, held that the default was…
WHEN A SOLICITOR SIGNS THE STATEMENT OF TRUTH FOR A COMPANY: THE COURT CAN ORDER THAT THE COMPANY DELIVERS UP DETAILS OF WHICH INDIVIDUAL GAVE INFORMATION
It is not uncommon for the solicitor to sign a statement of truth on behalf of a company or corporation. This case considers the question of whether the company can be compelled to give details of the individuals who gave…
WITNESS EVIDENCE WEDNESDAY: THE DUTY TO PUT YOUR CASE TO A WITNESS: THE PRINCIPLES SUMMARISED IN THE HIGH COURT
Earlier this week we looked at a case where difficulties occurred because the claimant’s case was not put to a witness for the defendant. Here I want to highlight the key parts of that judgment relating to the need…
(NOT) PROVING THINGS 272: AN ABSENT WITNESS LEADS TO ADVERSE INFERENCES BEING DRAWN: PROBLEM OCCUR WHEN YOUR CASE AT TRIAL IS WHOLLY DIFFERENT TO THE PLEADED CASE
Many people have noted that the argument that the court should draw adverse inferences from the absence of key witnesses is often bypassed by the courts, with judges preferring to base their decisions on the evidence of witnesses that are…
WITNESS STATEMENTS: GUIDANCE FOR THOSE WHO TAKE THEM AND THOSE WHO SUPERVISE THEM: WEBINAR 15th OCTOBER 2025
On a regular basis on this blog we see cases where judges have been highly critical of the witness statements used at trials or hearings. This criticism is not a rare event and is usually justified. Many witness statements are…
PROVING THINGS 271: “THAT IS SIMPLY NOT AN ADEQUATE WAY OF ADVANCING A CLAIM FOR £8 MILLION”:
We are looking at a case that shows that both sides can fail to prove things. Here we have a claimant who failed to prove a claim for £8 million. On any view this was quite a significant omission. (No evidence…
WITNESS EVIDENCE WEDNESDAY: HOW NUMEROUS SMALL REPETITIONS, AND UNEVIDENCED CLAIMS FOR DAMAGES UNDERMINE THE CREDIBILITY OF THE CASE
Here we are looking at a judgment in a group litigation claim where the judge had to assess the evidence of numerous witnesses. The feature I want to look at is the way in which claims for damages were put…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
This is an important and interesting case about findings of dishonesty on the part of a practising solicitor in their failure to make relevant checks on the background of their client. It was not suggested that the solicitor was aware…
WHEN A WITNESS COULD NOT SPEAK ENGLISH: A STATEMENT PREPARED SO BADLY THAT AN ADJOURNMENT WAS NECESSARY
It is fitting that on witness evidence Wednesday we are also looking at a case where there was a wholesale failure to comply with the rules relating to evidence from those whose primary language is not English. The breaches in…
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…
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