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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE'S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG

PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG

November 7, 2023 · by gexall · in Appeals, Civil evidence, Statements of Case, Witness statements

The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts.  It is also an example of the importance…

CIVIL PROCEDURE BACK TO BASICS: WITNESS CREDIBILITY: A REMINDER OF THE KEY POINTS IN GESTMIN

CIVIL PROCEDURE BACK TO BASICS: WITNESS CREDIBILITY: A REMINDER OF THE KEY POINTS IN GESTMIN

November 3, 2023 · by gexall · in Civil evidence, Witness statements

Now that we have reached 100 it is a good time to revisit the basic issue of how the court assesses witness credibility.  We are therefore looking at the basic guidance given in Gestmin SGPS SA v Credit Suisse (UK) Limited…

"A COMPLETELY UNACCEPTABLE WAY OF PREPARING FOR AN IMPORTANT HEARING": NON-COMPLIANT AND INCOMPLETE BUNDLES: WITNESS STATEMENTS IMPROPERLY PREPARED

“A COMPLETELY UNACCEPTABLE WAY OF PREPARING FOR AN IMPORTANT HEARING”: NON-COMPLIANT AND INCOMPLETE BUNDLES: WITNESS STATEMENTS IMPROPERLY PREPARED

October 19, 2023 · by gexall · in Applications, Bundles, Witness statements

The judgment of HHJ Pearce in Shobeiry v Patel [2023] EWHC 2549 (KB) shows how failing to comply with the rules can lead to major problems in relation to hearings.  Here there was non-compliance with the rules relating to bundles,…

THE 10TH ANNIVERSARY OF THE HANDBOOK FOR LITIGANTS IN PERSON: A REMINDER OF THE FOUR GOLDEN RULES FOR DRAFTING WITNESS STATEMENTS

THE 10TH ANNIVERSARY OF THE HANDBOOK FOR LITIGANTS IN PERSON: A REMINDER OF THE FOUR GOLDEN RULES FOR DRAFTING WITNESS STATEMENTS

October 16, 2023 · by gexall · in Civil evidence, Useful links, Witness statements

It is ten years  since the publication of the Handbook for Litigants in Person. It can be found here.  I wrote about it, briefly, when it was first published. Although there have been some procedural changes since the section on…

WITNESS STATEMENTS: THE FRAGILITY OF MEMORY AND THE DANGERS THIS POSES

WITNESS STATEMENTS: THE FRAGILITY OF MEMORY AND THE DANGERS THIS POSES

August 24, 2023 · by gexall · in Civil evidence, Witness statements

A major issue at most trials is the question of what a witness can actual “remember”. How much of a witness statement is genuine recollection and how much is implanted?  Much judicial time is spent in considering this question. There…

WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL

WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL

August 15, 2023 · by gexall · in Civil evidence, Civil Procedure, Witness statements

We are looking back at a post in 2019. Primarily because the issues the case raises in relation to lawyers making witness statements are prevalent. There are numerous examples on this blog of the difficulties that can occur when a…

WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST

WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST

August 9, 2023 · by gexall · in Appeals, Case Management, Civil evidence, Civil Procedure, Personal Injury, Witness statements

It has taken to the third time of writing about the decision in  Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB) to get to the detail of what the appeal was actually about.  This part of the judgment is important…

"LITIGATION WISHFUL THINKING":   A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE

“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE

July 28, 2023 · by gexall · in Civil evidence, Witness statements

Many witnesses give inaccurate evidence.  Sometimes this is due to dishonesty, others are mistaken. Many, it is to be suspected, fall foul of “litigation wishful thinking”.   This concept was explored by Mr Justice Richards in Old Park Capital Maestro Fund…

WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS

WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS

July 20, 2023 · by gexall · in Avoiding negligence claims, Civil evidence, Witness statements

There is a short passage in the judgment of Costs Judge Leonard in  Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement. THE CASE The judge was considering issues of…

A MULTI-LINGUAL WITNESS IS NOT COMPELLED TO GIVE EVIDENCE IN THEIR "FIRST LANGUAGE": DECISION PREVENTING CLAIMANT GIVING EVIDENCE OVERTURNED ON APPEAL TO THE HIGH COURT

A MULTI-LINGUAL WITNESS IS NOT COMPELLED TO GIVE EVIDENCE IN THEIR “FIRST LANGUAGE”: DECISION PREVENTING CLAIMANT GIVING EVIDENCE OVERTURNED ON APPEAL TO THE HIGH COURT

July 18, 2023 · by gexall · in Access to justice, Appeals, Civil evidence, Witness statements

I am grateful to Ten Legal Associates Ltd for sending me a copy of the judgment of Mr Justice Freedman in Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB), a copy of that judgment is available here.  AFZALJUDGMENT TRANSCRIPT …

PERMISSION GIVEN FOR "UPDATING" WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE

PERMISSION GIVEN FOR “UPDATING” WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE

July 17, 2023 · by gexall · in Case Management, Clinical Negligence, Relief from sanctions, Witness statements

The judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is an example of how consideration needs to be given to “updated” witness statements in a case where there situation is…

ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS,  WITNESS CREDIBILITY AND WITNESS SUMMARIES

ON THIS BLOG NINE YEARS AGO: WITNESS STATEMENTS, WITNESS CREDIBILITY AND WITNESS SUMMARIES

June 29, 2023 · by gexall · in Advocacy, Useful links, Witness statements

Continuing with the series looking a posts from this blog from the past, here we look at posts from June 2014. This was an interesting month, the blog set out all the arguments that took place in the Denton decision. There…

PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS "IN ALMOST IDENTICAL FORMAT" FAIL TO BRING HOME THE DOUGH

PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS “IN ALMOST IDENTICAL FORMAT” FAIL TO BRING HOME THE DOUGH

June 26, 2023 · by gexall · in Civil evidence, Disclosure, Witness statements

The judgment of Lionel Persey KC (sitting as a Judge of the High Court) in Finsbury Food Group Plc v Axis Corporate Capital UK Ltd [2023] EWHC 1559 (Comm) shows some significant issues in relation to the evidence presented in…

CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS

CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS

June 7, 2023 · by gexall · in Civil evidence, Civil Procedure, Witness statements

This is not the first time that this series has dealt with this issue. The post earlier this week on the judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) shows that it is a regular issue….

DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF

DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF

June 5, 2023 · by gexall · in Applications, Civil evidence, Civil Procedure, Witness statements

The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement).  However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…

WITNESS CREDIBILITY:"BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION": A CASE IN POINT

WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT

May 22, 2023 · by gexall · in Avoiding negligence claims, Civil evidence, Uncategorized, Witness statements

The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility.  It also highlights the point that…

Drafting witness statements the rules, the guidance and the cases: Webinar 18th APRIL 2023

Drafting witness statements the rules, the guidance and the cases: Webinar 18th APRIL 2023

April 12, 2023 · by gexall · in Civil evidence, Witness statements

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 looks in detail at the rules and practice…

DEFENDANT GRANTED RELIEF FROM SANCTIONS WHEN WITNESS EVIDENCE SERVED ONE YEAR LATE: WIDER INTERESTS OF JUSTICE CONSIDERED

DEFENDANT GRANTED RELIEF FROM SANCTIONS WHEN WITNESS EVIDENCE SERVED ONE YEAR LATE: WIDER INTERESTS OF JUSTICE CONSIDERED

April 5, 2023 · by gexall · in Appeals, Fundamental Dishonesty, Relief from sanctions, Witness statements

I am grateful to barrister Andrew McLaughlin for drawing my attention to the judgment of Mr Justice Freedman in  Tiernan-Spratt & Anor v City Of Wolverhampton Council [2023] EWHC 811 (KB). It concerns a successful appeal. The judge at first…

THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY

THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY

March 23, 2023 · by gexall · in Applications, Case Management, Civil evidence, Relief from sanctions, Witness statements

It is quite possible that both parties in an action could be in default.  One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…

PERSONAL PEJORATIVE REMARKS IN WITNESS STATEMENTS DO NOT HELP: RECENT DECISIONS AND A REVIEW OF THE CASES

PERSONAL PEJORATIVE REMARKS IN WITNESS STATEMENTS DO NOT HELP: RECENT DECISIONS AND A REVIEW OF THE CASES

March 16, 2023 · by gexall · in Civil evidence, Conduct, Witness statements, Written advocacy

Some recent comments by HHJ Edward Hess in TM -V- KM [2022] EWFC 155  as to the language used in witness statements gives me a chance to reprise the guidance as to the lack of wisdom of  using intemperate language…

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