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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. Hardwicke, London
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DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL

DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL

April 27, 2019 · by gexall · in Appeals, Civil Procedure, Witness statements

The Immigration Upper Tribunal does not appear to recognise some of the basic principles of civil evidence and appellate jurisdiction.  Certainly this is the impression you get when reading the judgment of Lord Justice Davis in Palash v Secretary of…

CIVIL PROCEDURE BACK TO BASICS 34: "THE SOURCES OF INFORMATION AND BELIEF" IN WITNESS STATEMENTS: 10 KEY POINTS

CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS

April 7, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure, Witness statements

The maker of a witness statement must given the source of their information or belief.  This obligation is often overlooked, or simply paid lip service to.  However the careful following of this rule could prevent many of the common problems we…

WITNESS STATEMENTS: THE IMPORTANCE OF THAT "FIRST DRAFT"

WITNESS STATEMENTS: THE IMPORTANCE OF THAT “FIRST DRAFT”

March 28, 2019 · by gexall · in Civil evidence, Witness statements

If you think “first drafts” of witness statements are not that important it is worthwhile having a look at the judgment of Mrs Justice Whipple in PPX v Aulakh [2019] EWHC 717 (QB). It is also an example of a…

JUDICIAL FOOTNOTES: I'LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS "ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART"

JUDICIAL FOOTNOTES: I’LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”

March 25, 2019 · by gexall · in Civil evidence, Witness statements

The previous post on the judgment of  Canadian judge J.W. Quinn. J. led (believe it or not) to a heated – and I hope not entirely serious – discussion between some of hte lawyers on which was the best footnote…

SOMETHING FOR THE WEEKEND: THE THIRD POST  THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT

SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT

March 22, 2019 · by gexall · in Applications, Civil evidence, Civil Procedure, Committal proceedings, Statements of Truth

I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…

WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER:  A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?

WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?

March 22, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure, Witness statements

This topic follows directly on from  the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…

WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON'T WANT TO GO TO JAIL

WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL

March 21, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure, Witness statements

The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered  by the entire profession. Particularly those who draft statements, and those…

WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)

WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)

February 19, 2019 · by gexall · in Civil evidence, Civil Procedure, Conduct, Costs, Witness statements

The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC).  Here we look at the…

KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS' BOWS

KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS

February 18, 2019 · by gexall · in Applications, Civil evidence, Witness statements

In  Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…

JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION

JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION

February 7, 2019 · by gexall · in Applications, Summary judgment

In  Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119 the Court of Appeal overturned a first instance decision where a summary judgment application was adjourned on terms that the defendant provided security for costs.  The defendant…

RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL

RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL

February 7, 2019 · by gexall · in Appeals, Applications, Civil Procedure, Relief from sanctions, Witness statements

In  Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…

WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT

WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT

February 3, 2019 · by gexall · in Applications, Civil evidence, Witness statements

For the third (and last) time I am returning to the judgment of HHJ Halliwell in  Currie v Thornley & Anor [2019] EWHC.  172 (Ch).  This time the judge’s observations in relation to witness statements.  Using witness statements to “argue” the case…

ELECTRONIC BUNDLES, WITNESSES AND THE TRIAL PROCESS: A WARNING FROM THE COURTS:  SORT THIS OUT OR THE COURT WILL GO BACK TO PAPER BUNDLES

ELECTRONIC BUNDLES, WITNESSES AND THE TRIAL PROCESS: A WARNING FROM THE COURTS: SORT THIS OUT OR THE COURT WILL GO BACK TO PAPER BUNDLES

January 23, 2019 · by gexall · in Bundles, Civil evidence, Civil Procedure

There is a warning to anyone considering the use of electronic bundles at trial contained in the judgment of Mr Justice Birss in Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch). THE CASE The judge…

WHEN A WITNESS CANNOT SPEAK ENGLISH:  INTERPRETING THE RULES: GUIDANCE FROM THE CASES

WHEN A WITNESS CANNOT SPEAK ENGLISH: INTERPRETING THE RULES: GUIDANCE FROM THE CASES

January 8, 2019 · by gexall · in Civil evidence, Civil Procedure, Witness statements

If a witness cannot speak English and a witness statement is required what needs to be done? There are several cases where the issue of translation has caused a problem at trial.  The best guidance comes from the Family Division….

THE WITNESS WHOSE STATEMENT WAS "SOMEWHAT FICTIONAL": EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY

THE WITNESS WHOSE STATEMENT WAS “SOMEWHAT FICTIONAL”: EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY

December 19, 2018 · by gexall · in Civil evidence, Civil Procedure, Credibility of experts, Expert evidence, Experts, Witness statements

There are several aspects of the judgment in JAH v Burne & Ors [2018] EWHC 3461 (QB) that are of interest to civil litigators.  Firstly it is another example of a case where the claimant’s witness statement was not accepted (at…

GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION

GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION

November 27, 2018 · by gexall · in Advocacy, Useful links, Witness statements, Written advocacy

A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association.  I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…

A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES...

A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…

November 24, 2018 · by gexall · in Case Management, Civil evidence, Witness statements

a As a blogger feedback comes in many forms.  Yesterday I had an email from a litigant in person.  The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…

LINKS TO GUIDANCE ON DRAFTING WITNESS STATEMENT: INTERACTIVE BLOGGING

LINKS TO GUIDANCE ON DRAFTING WITNESS STATEMENT: INTERACTIVE BLOGGING

November 22, 2018 · by gexall · in Advocacy, Fatal Accidents, Witness statements

Yesterday I was speaking on the APIL Fatal Accidents course. One of the points I was making was the importance of reading the rules and and guidance in relation to the drafting of witness statements.   The delegates asked for links…

SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY:  A REMINDER OF PAST COMMENTS ... SOME CHESTNUTS HERE

SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY: A REMINDER OF PAST COMMENTS … SOME CHESTNUTS HERE

November 16, 2018 · by gexall · in Civil evidence, Useful links, Witness statements

The Witness Evidence Working Group is carrying out a survey of the use of witness statements in the Business & Property Courts.  Here I provide a link to the post and a reminder of the comments that some judges have…

PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW

PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW

November 14, 2018 · by gexall · in Civil evidence, Personal Injury, Witness statements

The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…

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