YOUR CLAIM FORM IS, WELL, PRETTY DAMN HOPELESS – AND WITNESS EVIDENCE CAN’T PUT IT RIGHT
The observations made by Mr Justice Andrew Baker in Orascom Tmt Investments SARL v Veon Ltd [2018] EWHC 985 (Comm) are of general interest. They highlight the need for statements of case to be properly particularised and also highlight the dangerous…
WHAT IS THE DIFFERENCE BETWEEN “KNOWLEDGE” AND “BELIEF”? A CASE AND A REVIEW OF 10 KEY POINTS
This blog has looked, many times, at the importance of giving the source of information and belief when a party (and particularly when a legal representative) makes a witness statement. It is sometimes possible for you opponent to attempt to…
WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION
CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy. The judgment in Best Friends Group & Anor…
WITNESS EVIDENCE AND DOCUMENTS: GESTMIN CONSIDERED IN THE SUPREME COURT
In Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)[2018] UKSC 3 the Supreme Court considered the “Gestmin” principles. There are several aspectse of the judgment. Here we look at the judgment…
WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY THE GIVING THE SOURCE OF INFORMATION IS IMPORTANT: LITIGATION REQUIRES EVIDENCE NOT GOSSIP
There is a brief report on Lawtel that highlights the need for compliance with the rules relating to witness statements. The issue of failing to give sources of information and belief has been dealt with several times on this blog….
HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at [2017] EWHC 3054 (QB). This judgment deals with the issue…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
WITNESSES WHO ARGUE THE CASE AND EXPERTS WHO ACT AS ADVOCATES: THIS IS NOT GOING TO HELP …
In British Telecommunications Plc v Office Of Communications [2017] CAT 25 the Competition Appeal Tribunal commented on two of the central evidential issues of much commercial litigation: witnesses who give much commentary and “argue” the case; experts who act as advocates. …
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
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…
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….
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
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…
WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME
We have already looked at judge’s observations as to the amount of material before the court in the case of Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
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…
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…
GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
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 third of the series looking at the case more closely we…
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…
GLADWIN & SANCTIONS – AN ANALYSIS 1: WHAT WENT WRONG
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 a series looking at the case more closely we look at what…
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…
“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…
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…
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….
ANODYNE WITNESS STATEMENTS: WHAT DOES IT TELL YOU WHEN A JUDGE PREFERS THE ORAL EVIDENCE OF A WITNESS- THAT CONTRADICTS THEIR WITNESS STATEMENT
There is an interesting observation in the judgment of Mrs Justice Rose in Singularis Holdings Ltd -v- Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch). It may well show much about the way in which witness statements are prepared. “……
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
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…
YOUR WITNESS STATEMENTS ARE IDENTICAL: NOW THAT IS A COINCIDENCE
There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case. Advocates of this approach may want to read the judgment of Mrs Justice Proudman in Abbott -v-…
PROVING THINGS 35: RECONSTRUCTION, DOCUMENTS AND MEMORY
Most law reports will look at the findings of law made in a judgment. In this blog we are interested in findings of fact and the way in which a judge goes about making those findings. A good example can…
PROVING THINGS 31: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO REMEMBER
How do judges decide whether a witness is accurate in their recollection? This issue has been a common theme on this blog. This was an issue considered by Mark Cawson QC (sitting as a Deputy High Court Judge) in The Connaught…
THE INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: EVIDENCE BEFORE THE COURT OVERRIDES HEARSAY
This blog has looked many times at cases which consider the practical implication of the test in Central Manchester Health Authority v W (A minor) [1998] PIQR P324: the inferences a trial judge should infer when witnesses are noted called at…
ADVOCACY THE JUDGE’S VIEW VI: HOW A JUDGE ASSESSES WITNESS EVIDENCE
We have covered many countries so far in this series which looks at the advice that judges give on advocacy. For the next few posts I have decided to stay closer to home. I want to look at the…
PROVING THINGS 30: OFFICE GOSSIP PROVES NOTHING: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF
There is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information and belief. This requirement is often ignored, or there is some vague and general wording of knowledge. Ignoring, and respecting,…
WITNESS STATEMENTS THAT ARE LARGELY DISREGARDED: A CASE IN POINT
Witness statements are often too long, contain inadmissible evidence and tendentious comments. An example can be see in the judgment in Moore -v- Moore [2016] EWHC 2202 (Ch) Mr S Monty QC (sitting as a Deputy Judge of the Chancery…
FAILURE TO PROVIDE INFORMATION IN WITNESS STATEMENT LEADS TO APPLICATION BEING STRUCK OUT: HIGH COURT DECISION TODAY
Chief Master Marsh has had a busy day. This is the second decision today I am writing about. In Wave Lending Ltd -v- Batra and SFM Legal Services Ltd [2016] EWHC 2238 (Ch) he considered whether a witness statement complied…
WITNESS STATEMENTS: WHEN CAN A LAY WITNESS GIVE OPINION EVIDENCE?THE STATUTE, THE CASES & SOME GUIDANCE
I have written, many times, about the dangers of putting opinion evidence into witness statements. The attempts of witnesses to be experts, or to tell the judge what the outcome of the case should be, can lead to robust adverse…
WITNESS STATEMENTS: THE LAWYER'S DUTIES: A FAMILY CASE
There are some observations in the judgment in Hampshire County Council -v- O [2016] EW B22 (CC) that are of general importance. It relates to the duty of lawyers to ensure that witness statements are full and adequate. “It is…
BANQUO’S GHOST NOT AT THE FEAST: WHEN A KEY WITNESS IS NOT CALLED – THE INFERENCES A COURT WILL DRAW
There is an interesting discussion of the role of the “absent witness” in the judgment today of Mr Justice Kerr in O’Hare -v-Coutts & Co [2016] EWHC 2224 (QB). There are dangers in a party not calling someone who is…
YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I…
PROVING THINGS 29: MAKE SURE THE WITNESS EVIDENCE DEALS WITH THE RELEVANT ISSUES
In Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam) Mr Justice Hayden had some important observations on the preparation of witness evidence. Although made in a family case the comments are of general observation: those who take witness…
YOUR WITNESSES ARE LINED UP ALL IN A ROW: THEN YOU MAY BE IN TROUBLE
Many cases have many witnesses saying, essentially, the same thing. Inconsistencies between witnesses are (often subconsciously) ironed out by lawyers during the statement stage. However consistency is not always a good thing. WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG This…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 1: A BOOK WORTH READING
There is surprisingly little written about the actual experience of being a litigant, particularly a litigant in the civil courts. What is more the “experience”, or viewpoint of the client does not figure greatly (if at all) in legal training. Doctors have…
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
PROVING THINGS 27: BURDENS OF PROOF, HEARSAY EVIDENCE AND…. ATTEMPTED MURDER
In Daley -v- Bakiyev [2016] EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations. The fact that a central witness for the claimant did not attend court, and his…
THE ARROYO JUDGMENT 3: WITNESSES AND CREDIBILITY
This is the third in the series of posts on the judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages; the second at the…
PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims….
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
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