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…
THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz [2016] EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias….
BUNDLES EXHIBITS AND PAGINATION: AVOIDING COSTLY MISTAKES
I have given up being surprised that the post on trial bundles and Sedley’s Law is the most read post on this blog. Day after day, month after month, it draws a regular readership. However, in practical terms, it is…
MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from…
IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited…
PROVING THINGS 21: WHEN THE WHOLE PROCESS OF INVESTIGATION IS FLAWED
I have looked at family cases before on this blog, usually in the context of witness evidence and issues relating to the burden of proof. Many of the decisions of family judges have to be taken on the basis of…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
WITNESS STATEMENTS: ALTERATIONS AND THE FALLIBLE MEMORY: A SCIENTIFIC STUDY
It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the…
WITNESS STATEMENTS & HILLSBOROUGH 3: CONFIRMATION BIAS AT ITS WORST
Much has been written and broadcast about Hillsborough. I am here concentrating on one small part of the process: the initial gathering of evidence. It was the flawed nature of this process that led to problems for the next two…
HILLSBOROUGH AND WITNESS STATEMENTS 2: THE EARLY MIXING OF FACT AND OPINION
The previous post in this series looked at the issues that arose when the solicitors for the police force sent out a missive asking the police officers on the ground for their “comment and impression”. There was an immediate mixing…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT BY THE TRIAL JUDGE
In Elliston -v- Glencore Services (UK) Ltd [2016] EWCA Civ 407 the Court of Appeal took the unusual step of overturning findings of fact by the trial judge. (It is perhaps important that I emphasise how rare this is. There…
HILLSBOROUGH AND WITNESS STATEMENTS 1: THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The recent inquest has put the evidence gathering that took…
A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION
This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff…
"AMPLIFYING" WITNESS STATEMENTS AT TRIAL: IT IS PROBABLY FAR TOO LATE
Anyone giving a talk, particularly to a group of lawyers, always has a fear that someone will ask the “unanswerable” question. There was a good question today at the PIBA conference after a talk I gave about witness statements. The…
WITNESS STATEMENTS: THE LAWYER'S DUTY NOT TO MISLEAD
There are some important observations by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin). The case relates to witness statements and the duty of the lawyer when they know that…
WITNESS STATEMENTS AND CREDIBILITY: LATE CHANGE OF MIND DOESN'T HELP
There are many aspects of the judgment today of Mrs Justice Lang DBE in Sparrow -v- Andre [2016] EWHC 739 (QB) that are of interest. Here I concentrate upon one aspect – witness credibility. “In my view, such a late…
IN-HOUSE COURSES ON WITNESS STATEMENTS AND CIVIL PROCEDURE
In response to several e-mails over recent months I have prepared two courses, available in-house only: one on drafting witness statements, the other on “avoiding procedural pitfalls”. WITNESS STATEMENTS “Too often (indeed far too often) witnesses who have had statements…
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 5: LEARN HOW TO DRAFT A WITNESS STATEMENT
As part of the series giving gentle reminders of the “litigator’s resolutions” set out at the beginning of the year I am returning to the very basic art of drafting a witness statement. It may be significant that the post…
PROVING THINGS 12: THAT "ORAL CONTRACT" IS IT WORTH THE PAPER ITS WRITTEN ON?
The issue of when, where and how a contract is formed is always of interest to academic lawyers. However, for the most part, the court has to determine issues of fact. The judgment of Mr Justice Knowles in JAS…
RELIABILITY OF WITNESS EVIDENCE: HONESTY IS NOT THE SAME AS RELIABILITY
In Sloper -v- Lloyds Bank Plc [2016] EWHC 483 Mr Justice Spencer had to consider issues relating to the reliability of witnesses. “I must emphasise at the outset of my analysis of the evidence that I am quite sure that…
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTIONS 3: THINK VERY CAREFULLY BEFORE SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
As part of the series reminding litigators of the new year’s resolutions for 2016 we look at resolution number 4: “Think very carefully before signing a statement of truth on behalf of a client”. We have already seen one case…
WITNESS EVIDENCE, RECOLLECTION,RECONSTRUCTION AND CLINICAL NEGLIGENCE
There were eighteen (factual and expert) witnesses in the trial in Dr Sido John -v- Central Manchester and Manchester Children’s Hospitals NHS Foundation Trust [2015] EWHC 407 (QB). However, ultimately, the case on liability rested rested on which lay witness…
SCHEDULES OF DAMAGES, WASTED COSTS AND THE STATEMENT OF TRUTH
It is important that the report of the decision in Brown -v- Haven by Flint Bishop in their post on wasted costs order is given wide publicity. The judgment of Deputy District Judge Lingard is available here. (This is one…
WITNESS EVIDENCE: MEDICAL NOTES AND CREDIBILITY
There have been several cases this week where a clinical negligence claim rested, ultimately, on whether or not a judge accepted a doctor’s account of what was said. In Lillington -v- Ansell & Jennison [2016] EWHC 351 (QB) Mr Justice…
LEGALLY STREETWISE: WHAT YOU DON’T LEARN IN LAW SCHOOL
Initially it was a surprise to discover that law students were being told to read this blog (I am not sure I need that kind of pressure). Apparently prospective pupils and trainees are advised to read it to answer interview…
WITNESSES TRIALS AND ACCURACY OF RECOLLECTION (II)
The previous post dealt with a case where a judge had preferred the evidence of the medical practitioners in a clinical negligence case. As is so often the case a judgment reported on the same day shows a case where…
WITNESS STATEMENTS: THE CHANCERY GUIDE: SOMETHING FOR US ALL
Such is the remarkable ability of the Chancery Division that the latest guide (dated March 2016) is already available. I have said many times that the Chancery Guide has much to offer all civil practitioners. Here I want to look…
ANOTHER ASSESSMENT OF WITNESS CREDIBILITY
A regular theme of this blog has been how important witness credibility is to the outcome of many civil actions. The assessment of credibility is often one of the key tasks of the trial judge at. It is an issue…
PROVING THINGS 10: "HE SAID, SHE SAID": THE DIFFICULTIES OF RECOLLECTION
In Jaciubek -v- Gulati [2016] EWHC 269 (QB) Mr Justice Foskett faced a familiar problem of matching up recollection evidence with (incomplete) medical notes. There are important practical points relating to the accuracy of recollection and the judicial scrutiny of…
PROVING THINGS 7: IF YOU DON'T PROVE A LOSS YOU DON'T GET AN ORDER: DIRECTORS DON'T HAVE TO CONTRIBUTE
This occasional series on the need to prove matters by evidence has covered a wide range of cases. Today we consider company law and insolvency. In Grant -v-Ralls [2016] EWHC 243 (Ch) Mr Justice Snowden rejected a claim by liquidators…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya [2016] EWHC 150 (Ch) there is a whole section of the judgment devoted to…
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