WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
WITNESS EVIDENCE WEDNESDAY (2): WHEN A WITNESS GETS COACHING FROM ARTIFICIAL INTELLIGENCE – WHAT ARE THE IMPLICATIONS?
Artificial Intelligence continues to give rise to novel legal issues. In this case the courts had to consider the impact of clear evidence that the complainant in a criminal case had received detailed “coaching” by the use of A.I. …
PROVING THINGS 294: THE CLAIMANT ESTABLISHES EVERY ELEMENT OF LIABILITY IN ITS CLAIM FOR BREACH OF CONTRACT: DAMAGES WERE ONE POUND…
This is almost a “classic” example of a failure to prove things. The claimant established that the defendant was in breach of contract and that certain exclusion clauses did not apply. However it ended up with damages of £1.00. The…
WITNESS EVIDENCE WEDNESDAY: A JUDGE IS NOT BOUND TO ACCEPT ALL DOCUMENTARY EVIDENCE: THE CLAIMANT “HONESTLY BELIEVED” THE CASE BUT THIS DID NOT PROVE IT…
We are looking at a case where an unsuccessful claimant attempted to argue that the trial judge had got the facts wrong, in particular there was a failure to take account of documentary evidence. This judgment highlights the difficulties of…
WITNESS EVIDENCE WEDNESDAY: WHEN DOES A WITNESS BECOMES A “HOSTILE WITNESS”? WHAT ARE THE CONSEQUENCES?
Earlier this week we looked at a case where a judge allowed the claimants’ application for an order that one of the witnesses they had called be declared a “hostile witness”. This meant that the claimants could then cross-examine their…
WHY PRINCE HARRY (AND OTHER PROMINENT CLAIMANTS) LOST WHEN THE JUDGE FOUND THAT THEY WERE ALL HONEST WITNESSES – BUT OTHER WITNESSES THEY CALLED PROVED TO BE “HOSTILE”
We are looking at a judgment that has already received major attention from the media. A number of prominent people brought a civil action against Associated Newspapers. The judge found that they were all honest witnesses. However honesty did not…
WITNESS EVIDENCE WEDNESDAY: WHEN A LITIGATOR MAKES A STATEMENT ON BEHALF OF THEIR CLIENT: A USEFUL CHECKLIST ON THE SOURCE OF INFORMATION AND BELIEF
We have looked several times recently at the problems caused when a litigator serves their own witness evidence on behalf of a client, particularly a “corporate” client. It often turns out that large parts of this statement are inadmissible, consisting…
BACK TO BASICS MONDAY (2): A SERIES OF CHECKLISTS TO HELP YOU WITH DRAFTING STATEMENTS FOR “CORPORATE” CLIENTS: THE SOURCE OF INFORMATION AND BELIEF
The normal post on back to basics came out a day early (due to an “administrative” error). However it does give us a chance to revisit the practical implications when a litigator has to draft a witness statement on behalf…
THROWBACK FRIDAY: “WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY? (JULY 2014): ISSUES OF WITNESS CREDIBILITY CONSIDERED
This week we go back 12 years to look at one of the recurring themes of this blog: witness credibility. We looked at a judgment which was all about the judge’s assessment of the witnesses. This was made more difficult…
ARTIFICIAL INTELLIGENCE AND LITIGATION: AN UPDATE ON CONSULTATION FINDINGS FROM THE CIVIL JUSTICE COUNCIL
The Civil Justice Council is carrying out a Consultation on the Use of AI for the preparation of court documents. It published an update on its consultation findings yesterday. The preliminary view appears to be that the use of AI…
PROVING THINGS 293: THE CLAIMANT ESTABLISHES CAUSATION IN A CLINICAL NEGLIGENCE CASE: THE JUDGE DID NOT DRAW ADVERSE INFERENCES -AND THIS WAS A SUBMISSION THAT PUT THE DEFENDANT IN SOME JEOPARDY…
This is an interesting case on clinical negligence where judgment was given today. It warrants (and will receive) several posts. Here we look at the trial judge’s rejection of the argument that adverse inferences should be drawn when the claimant…
BACK TO BASICS MONDAY: WHEN A RULE OR AN ORDER PRESCRIBES A PAGE LIMIT TO A WITNESS STATEMENT – THEN YOU’D BETTER STICK TO IT: THE COURT IS UNLIKELY TO CONDONE “FORENSIC CHEATING”
Here we are, with no apology, looking at the same case in the earlier post again. The earlier post dealt with the issue of relief from sanction. Here I want to concentrate on the litigant’s deliberate decision to breach the…
RELIEF FROM SANCTIONS: AS STRONGLY WORDED A REFUSAL AS I HAVE SEEN: THE CONCEPT “DOES NOT EMBODY A PRINCIPLE OF “BREACH NOW REPENT LATER”
Here we look at a strongly worded judgment where relief from sanctions was refused. A party had exceeded the page limit set by court directions and also served the statement late. The judge dismissed the arguments that the other side…
WHEN A LOCAL AUTHORITY REQUIRES RELIEF FROM SANCTIONS: “IT IS PARTICULARLY IMPORTANT THAT THE PUBLIC BODY FILES ITS PAPERS IN A TIMELY FASHION AND CO-OPERATES WITH THE CLAIMANT”
Here we look at a case where a defendant local authority had to apply for relief from sanctions in relation to breaches of court orders and directions. The judge was critical of the defendant’s conduct, pointing out that there was…
PROVING THINGS 292: CLAIMANT ORDERED TO PROVIDE SECURITY FOR COSTS: NO “HUMAN SOURCE” FOR THE MATERIAL PROVIDED: THE IMPORTANCE OF GIVING THE SOURCE OF INFORMATION AND BELIEF
Here we are looking at another case where the court considered the burden of proof in an application for security for costs. In this case the claimant was ordered to provide security. An interesting feature is the identified failure of…
WITNESS EVIDENCE WEDNESDAY: CLAIMANT’S WITNESS STATEMENT WAS SUFFICIENT TO SHOW THAT IT COULD PAY AN ADVERSE COSTS AWARD: APPLICATION FOR SECURITY FOR COSTS REFUSED
An assessment of the degree to which a judge can disbelieve witness evidence in writing plays a major part in the judgement we are looking at here. The claimant’s witness gave evidence that it was solvent and would be able…
WHEN A LAWYER MAKES A WITNESS STATEMENT FOR THEIR CLIENT: THEY MAY BELIEVE IT TO BE TRUE, BUT IT IS A VERY DIFFERENT MATTER TO PROVIDING EVIDENCE FROM SOMEONE WITH DIRECT RELEVANT KNOWLEDGE
This is the second post on witness evidence and the preparation of witness statements today. It is in a very different context to the first. Here we look at a case in the Intellectual Property List where a judge considered…
WHEN A JUDGE DESCRIBES THE WAY IN WHICH A WITNESS STATEMENT WAS DRAFTED AS “ALARMING” IT IS CLEAR THAT THINGS ARE GOING WRONG
Here we have a case where the judge uses the word “alarmingly” to describe the way in which a witness prepared their witness statement. It transpired that only part of the statement was the witnesses’ evidence, the rest had been…
WITNESS EVIDENCE WEDNESDAY: CLAIMANT’S EVIDENCE FAILS TO ESTABLISH THE FACTUAL CASE SET OUT IN THE PARTICULARS OF CLAIM
Here we have an example of another case which rested, more or less totally, on the claimant’s accuracy of recollection. I am grateful to Patrick Limb KC for drawing my attention to the judgment. The claimant (looking back to events…
WITNESS EVIDENCE WEDNESDAY: ANALYSIS OF THE ROLE OF WITNESS EVIDENCE IN A CLINICAL NEGLIGENCE TRIAL
Much of the discussion in relation to clinical negligence cases is based on expert evidence and the standard of care (and rightly so). However it is important that practitioners do not overlook the vital role played by witness evidence. Those…
COST BITES 391: TOO MUCH CORRESPONDENCE, GRADE C RATES NOT INCREASED AND “SO CALLED” SKELETON ARGUMENTS, WHICH REPEAT THE CONTENTS OF OVER-LENGTHY WITNESS STATEMENTS
There are some interesting observations in the short judgment on costs in this case. There was too much correspondence, “witness statements” were in reality skeleton arguments, with the contents then repeated in skeleton arguments. Furthermore a “good” Grade C is…
COST BITES 390: THE COURT OF APPEAL, “LATE” WITNESS STATEMENTS, THE COPPERS AND THE COSTS
We looked earlier at the Court of Appeal decision yesterday in relation to relief from sanctions. Here we look at the judgment in relation to the costs of the hearing below and of the appeal itself. As we shall see…
THE COURT OF APPEAL ALLOWED DEFENDANT TO RELY ON WITNESS STATEMENTS SERVED “LATE”: THE CRUCIAL DISTINCTION BETWEEN “IN TIME” AND “OUT OF TIME” APPLICATIONS TO EXTEND TIME
I am grateful to Barrister Simon Brindle for sending me a copy of the judgment of this Court of Appeal judgment given yesterday. It relates primarily to the major distinction between an application made “ahead” of time and one made…
WEBINARS AVAILABLE ON DEMAND: WITNESS STATEMENTS; MAZUR; INFORMING THE CLIENT ABOUT THE COSTS OF LITIGATION AND PART 36: A HEADY BREW TO LIGHTEN UP ANY LITIGATOR’S DAY…
Four webinars are now available “on demand” from Civil Litigation Brief: PD57AC; Mazur in the Court of Appeal; Informing the Client about the Costs of Litigation; Part 36 recent developments. THE COSTS (The costs are £75.00 plus VAT if you…
WITNESS EVIDENCE WEDNESDAY: WITNESS EVIDENCE, A LATE APPLICATION FOR SUMMARY JUDGMENT AND THE LAW OF UNINTENDED CONSEQUENCES…
Here we have an example of a litigation strategy backfiring. The applicant made a (late) application for summary judgment to be heard on the first day of the trial. The respondents filed evidence in response to the application. Much of…
WITNESS EVIDENCE WEDNESDAY: A USEFUL ENCAPSULATION OF THE COURT’S APPROACH TO DISPUTED WITNESS EVIDENCE: WITNESSES CAN LIE FOR VARIOUS REASONS
This judgment contains a neat summary of the approach that the court takes when it is faced with a case that rests primarily on witness evidence. The judge reviewed the case law and it was very relevant to the task…
WHEN A CASE – WEEKS AWAY FROM TRIAL WAS “UNTENABLE”: HOW DID WE GET HERE?
We don’t normally look at the same case twice in the same day. However this particular judgment needs looking at from different angles. The previous post looked at the case from the point of view of the pleadings. However the…
WEBINAR ON PD57AC WITNESS STATEMENTS: NOW AVAILABLE “ON DEMAND”: IF YOU MISSED IT YOU CAN STILL WATCH IT…
The webinar on Mastering PD57AC – Getting Witness Statements Right in the Commercial Courts is now available “on demand”. You can watch it at your leisure. Booking details are available here. The webinar includes a series of checklists and a…
ARTIFICIAL INTELLIGENCE IN THE PREPARATION OF WITNESS STATEMENTS: THERE IS NO SATISFACTORY EXPLANATION FOR THIS: HOW DOES THE JUDGE KNOW IT IS THE WITNESS’S OWN WORDS?
We have another case where the judge considers the use of Artificial Intelligence in the preparation of witness statements. It was held that there was no good reason for this. He was concerned that ChatGPT had contributed to the witness…
WITNESS EVIDENCE WEDNESDAY: KEEPING COMMERCIAL LITIGATORS OFF THE NAUGHTY STEP: WEBINAR PLUS USEFUL CHECKLISTS AND PRECEDENTS: 30th APRIL 2026
For the past week we have looked at cases where judges have been critical of the failure to comply with the provisions of PD57AC. These issues are being addressed in the webinar tomorrow. In addition to looking at the guidance…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 5: PD57AC AND REFERENCE TO DOCUMENTS: WHY LAWYERS NEED TO BE PRISED AWAY FROM THEIR COMFORT BLANKETS
PD57AC is very prescriptive in the guidance it gives in relation to the way in which documents are referred to in witness statements. This is another example of a rule that is often breached, with statements often referring to, and…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 3: WHY PD57AC WAS INTRODUCED: “THE PROPER AND SENSIBLE SCOPE OF EVIDENCE-IN-CHIEF IS NO LONGER THE STOCK-IN-TRADE KNOWLEDGE OF THOSE RESPONSIBLE FOR PROOFING WITNESSSES…”
It is useful to remember why the strictures in PSD57AC were introduced. It followed the report of the Witness Evidence Working Group which was produced at the end of 2019. That report highlighted some major issues in relation to the…
WITNESS STATEMENTS SERVED LATE: THE COURT GRANTED RELIEF FROM SANCTIONS – BUT… : BE WARY OF MISSING THINGS WHEN OTHER THINGS ARE GOING ON…
Here we have a case where both parties failed to comply with a direction to file witness statements by a certain date. The court granted relief from sanctions, and it is easy to see why. However it is case that…
COMMERCIAL LITIGATORS ON THE NAUGHTY STEP 2: NON-COMPLIANCE WITH PD57AC: “HE KNOWS NOT OF WHAT HE SPEAKS”
Over the next week there will be a short series dealing with errors and omissions relating to witness statements and PD57AC. What is surprising is how much material there is. These rules are five years old this month, yet we…
WITNESS EVIDENCE WEDNESDAY: COMMERCIAL LITIGATORS ON THE NAUGHTY STEP AGAIN (GUESS THE REASON…): YOUR STATEMENTS DID COMPLY WITH PD57AC SO WE ARE JUST GOING TO IGNORE THE ERRANT PARTS
Here we have (yet another) case about a failure to comply with PD57AC. The response of the defendants here was simply to state that they would not cross-examine the claimants’ witnesses on material that was irrelevant or inadmissible. “I was…
WITNESS EVIDENCE, RECOLLECTION AND CREDIBILITY: AMY WINEHOUSE, HER FRIENDS AND THE ACCURACY OF RECOLLECTION
Here we have a classic case about witness recollection and accuracy. The result has already been widely reported given that it concerns the singer Amy Winehouse. The case rested, ultimately, on witness evidence “The factual findings in relation to this…
THROWBACK FRIDAY: THE DANGERS OF LETTING WITNESSES GIVE “OPINION” EVIDENCE: TWELVE YEARS ON AND THINGS MAY HAVE NOT CHANGED THAT MUCH: APRIL 2014
Here we look at at post from twelve years ago concerning judicial protestations about opinion evidence in witness statements. Despite all the warnings have occurred since, and the advent of PD57AC, this remains a regular (and improper) occurrence. We looked…
WITNESS EVIDENCE WEDNESDAY: THE COMMERCIAL COURT REPORT AND WITNESS STATEMENTS: PD57AC WAS FIVE YEARS OLD THIS MONTH – STILL GUIDANCE IS NEEDED
The Business and Property Courts – The Commercial Court Report 2024-2025 makes interesting reading. It notes that PD57AC came into force some five years ago. It still shows the need to emphasise that the Practice Direction needs to be complied…
CIVIL EVIDENCE: “BARE ASSERTIONS” ARE INSUFFICIENT TO ESTABLISH A DISPUTED DEBT NOR WILL “VAGUE AND UNPARTICULARISED” EVIDENCE
This case serves as a reminder that, if a debt is to be disputed, then the evidence in support of the denial has to be particularised and credible. Here the respondents faced a debt of £920,000. There was an attempt…
WITNESS EVIDENCE WEDNESDAY: BOTH WITNESSES ARE HONEST AND BELIEVE THEY ARE TELLING THE TRUTH – BUT ONE IS WRONG…
It is often the case that the most difficult cases are those that depend almost wholly on witness recollection. This is made far more difficult in a case such as a motor accident where the incident happened in a matter…
WITNESS EVIDENCE WEDNESDAY: COURT STRIKES OUT PARTS OF DEFENDANT’S WITNESS STATEMENT AS NON COMPLIANT WITH PD57AC (AND THE DEFENDANT IS A BARRISTER…)
This case adds to the growing number of cases where the courts have considered whether a witness statement breaches PD 57AC and the consequences for breach. The defendant’s initial statement contained numerous breaches of PD57. A revised statement was more…
MASTERING PD57AC – GETTING WITNESS STATEMENTS RIGHT IN THE COMMERCIAL COURTS (AND THE CONSEQUENCES IF YOU DON’T): WEBINAR 30th APRIL 2026
Witness statements can make—or break—your case in the Commercial Courts. Since the introduction of Practice Direction 57AC in April 2021, the courts have repeatedly emphasised that compliance is not optional. Yet many practitioners continue to fall into the same costly…
BACK TO BASICS MONDAY: GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: A MANDATORY OBLIGATION OFTEN IGNORED
It is surprisingly common to see witness statements that fail to comply with the basic – and mandatory – requirement that the maker of the statement gives the source of any matters of information or belief they are giving evidence…
HOW A FIRM OF SOLICITORS SHOULD NOT CONDUCT THEMSELVES IN LITIGATION: A WORKING EXAMPLE: EVIDENCE THAT WAS “GENERALLY UNRRELIABLE” AND “LACKING IN CREDIBILITY”
Here we are looking at a judgment that contains some remarkable observations and findings about the conduct of a solicitor. The judge was concerned not only about the failure to comply with directions, the inadequate nature of the statement of…
WITNESS EVIDENCE WEDNESDAY: MAKING ASSERTIONS WITH NO CORROBORATIVE EVIDENCE LEADS TO APPLICATION BEING REJECTED: THE EVIDENCE WAS SO “UNSPECIFIC” THAT IT FAILED TO PROVE THE APPLICANT’S CONCERNS
Here we look at the judge’s assessment of the evidence produced in support of an application that details of the applicant should not be disclosed. The judge held that the evidence was “unspecific” and was not corroborated. There was a…
WITNESS EVIDENCE WEDNESDAY II: A STATEMENT THAT WAS “BASED ON A COMBINATION OF SPECULATION AND DOUBLE, TRIPLE OR EVEN MORE REMOTE HEARSAY”
We have looked at many cases in which judges have been critical of the way in which witness statements are drafted. This case is one of the most clear and extreme examples. The defendant (a firm of solicitors) failed to…
APPLICATION TO ADDUCE NEW WITNESS STATEMENT ON THE FIRST DAY OF THE TRIAL: DENTON PRINCIPLES APPLIED
A party who serves a witness statement late always has problems. A litigant who tries to introduce a new witness on the morning of the trial has major problems. We have such an application here. Unsurprisingly it did not fare…
WITNESS EVIDENCE WEDNESDAY: WHEN A CLIENT BLAMES THEIR SOLICITOR FOR ISSUES IN THE WITNESS STATEMENT: SOME EXAMPLES CONSIDERED
Occasionally I give in-house presentations on drafting witness statements. I always emphasise the importance of protecting the client from over-enthusiastic drafting by their lawyer to make sure that the witness statement is accurate and compliant. I then ask what steps…
BACK TO BASICS MONDAY: EXHIBITS: A REMINDER OF THE RULES, WHERE THINGS GO WRONG AND HOW TO AVOID PROBLEMS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
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