“LITIGATION WISHFUL THINKING”: A RECENT CASE AND A RECAP : SOMETHING ALL LITIGATORS MUST BEAR IN MIND WHEN CONSIDERING WITNESS EVIDENCE
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
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
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
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
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
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
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
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
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
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
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
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
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…
WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”
In Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements. We…
“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL
There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
“HYPERBOLIC COMMENT” NOT WELCOME IN LITIGATION: HIGH COURT JUDGE SENDS OUT A WARNING: PLANE LANGUAGE IS BEST…
In Peregrine Aviation Bravo Ltd & Ors v Laudamotion GmbH & Anor [2023] EWHC 48 (Comm) Mr Justice Henshaw was critical of “hyperbolic comment” in relation to the witness evidence. This is not the first time that a judge has…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
PROVING THINGS 236: THE DANGERS OF ADOPTING A FORMULAIC, TICK BOX APPROACH TO EVIDENCE
The decision in Camfield & Ors v Uyiekpen & Anor (HOUSING – RENT REPAYMENT ORDER – evidence – pro forma witness statements) [2022] UKUT 234 (LC) is a working example of the dangers of “tick box” evidence. “This case…
MORE ON WITNESS EVIDENCE: CREDIBILITY IS MORE THAN DEMEANOUR: PLAUSABILITY “IS ALSO THE HALLMARK OF THE CONFIDENCE TRICKSTER DOWN THE AGES”
The previous post looked at witness credibility and the Gestmin principles. Litigators will also benefit enormously from reading the talk given at Bristol University Law School in December 2014 by Mr Justice Mostyn “The Craft of Judging and Legal Reasoning”. …
THE SOURCE OF INFORMATION AND BELIEF: AN ESSENTIAL ELEMENT OF ANY WITNESS STATEMENT: 10 KEY POINTS
This week the blog looks at some basic procedural issues. Today we are looking at witness statements, in particular the mandatory requirement that a witness give the source of their information or belief. There are many cases where this basic…
WITNESS CREDIBILITY IN CIVIL LITIGATION: A REMINDER OF SOME KEY POINTS
Many, if not most, civil cases that get to trial rest on issues of witness credibility rather than issues of law. These are the cases and decisions that rarely make the law reports, but do reflect the underlying reality of…
THE MANDATORY REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST AND A REMINDER
This checklist covers the basic element of witness statements. It does not cover all the requirements of statements in the Business and Property Courts, guidance on those specific rules can be found in several posts on this blog, here and…
Witness statements in the client’s own words: Witness statements when the client’s first language is not English: Webinar today
I am giving a webinar on the 25th July 2022 at 12.00 on “Witness statements in the client’s own words: Witness statements when the client’s first language is not English.” Booking details can be found here. (The webinar will be…
WITNESS STATEMENTS: A FAILURE TO FOLLOW THE BASIC RULES IS OFTEN A SIGN OF MORE FUNDAMENTAL PROBLEMS…
We are looking at another aspect of the judgment of HHJ Pearce in Pitalia & Anor v NHS Commissioning Board [2022] EWHC 1636_2 (QB). The judge took the time to note that none of the claimant’s witness statements complied with…
THINGS TO THINK ABOUT WHEN SIGNING A DOCUMENT ON BEHALF OF A CLIENT: A FEW CASES CONSIDERED
It is also useful to issue periodic reminders of the dangers that are involved when a solicitor signs a document on behalf of their client. Here we look at several cases and the rules themselves. The observations of the…
THE RULES ABOUT WITNESS STATEMENTS “SHOULD NOT BE USED AS A WEAPON FOR THE PURPOSE OF BATTERING THE OPPOSITION”: COMMONSENSE MUST BE USED: APPLICANT ORDERED TO PAY 75% OF THE RESPONDENTS’ COSTS ON THE INDEMNITY BASIS
In Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) [2022] EWHC 1514 (TCC) HHJ Keyser QC (sitting as a Judge of the High Court) ordered the applicant to pay 75% the respondents’ costs on the indemnity basis. The…
THE PRACTICE DIRECTION SHOULD NOT BE TAKEN AS A WEAPON IN WHICH TO FILLET TWO OR THREE WORDS FROM A WITNESS STATEMENT: CLAIMANTS FAIL IN THEIR PITCH TO EXCLUDE EVIDENCE
In Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors [2022] EWHC 1244 (Ch) Mr Justice Mellor refused the claimants’ application to exclude or edit the defendants’ witness statements. “… in my view PD57AC…
FAILURE TO COMPLY WITH THE RULES LEADS TO PARTS OF A CLAIMANT’S WITNESS STATEMENT BEING STRUCK OUT: COMPLY WITH THE RULES – OR ELSE
In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch) HHJ Paul Matthews, sitting as a judge of the High Court, struck out parts of the claimant’s witness statement due to its failure to comply with the rules. …
INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE
In Sinha v Taylor & Ors [2022] EWHC 1096 (Comm) Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure. THE CASE The…
STRIKING OUT PART OF A WITNESS STATEMENTS: SOME PART OF THESE HAVE TO GO: HIGH COURT DECISION
The judgment of Mrs Justice Steyn in Vardy -v- Rooney & News Group Newspapers Ltd [2022] EWHC 946 (QB) also contains a consideration of an application to strike out part of the witness statement. There is a review of the…
RELIEF FROM SANCTIONS REQUIRED WHEN A PARTY SERVES A WITNESS SUMMARY AND NOT A WITNESS STATEMENT: SOME WITNESSES ALLOWED, OTHERS WERE NOT
The judgment of Mrs Justice Steyn in Vardy -v- News Group Newspapers Ltd [2022] EWHC 946 (QB) serves as a reminder that a party cannot simply serve witness summaries in place of witness statements. The judge granted relief from sanctions…
WITNESS STATEMENTS AND LANGUAGE DIFFICULTIES: JUDGE EXAMINES THE “MINEFIELD” FOR THE LITIGANT
In Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) Mrs Justice Joanna Smith considered the problems that arose when a witness provided a statement in English but was not totally proficient in that language. The decision to provide the…
WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”
In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case. The defendant’s different accounts on different occasions did not help his cause. The judge…
“LEGAL PROCEEDINGS DO NOT EXIST FOR THE PURPOSE OF PERMITTING PARTIES TO PUT IRRELEVANT MATTERS INTO THE PUBLIC DOMAIN”: EVIDENCE ON BEHALF OF THE DUKE OF SUSSEX IS CURTAILED
In The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 682 (Admin) Mr Justice Swift excluded irrelevant material in witness statements and other documents. He also refused the claimant’s request…
“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE
In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: WEBINAR 22nd MARCH 2022
Over the past few months this blog has covered several cases where clinical negligence cases have been determined, ultimately, on the accuracy of witness recollection. For example the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS…
JUDGE CALLS A FOUL: CLAIMANT NOT ALLOWED TO RELY ON WITNESS STATEMENTS THAT BREACHED THE RULES: IF YOU ARE GOING TO CERTIFY COMPLIANCE WITH A PRACTICE DIRECTION IT MAY HELP TO READ IT BEFOREHAND…
In Greencastle MM LLP v Payne & Ors [2022] EWHC 438 (IPEC) Mr Justice Fancourt was highly critical of the way in which witness statements on behalf of a claimant had been drafted. The statements involved wholesale breaches of the…
WITNESS STATEMENTS, CPR 32 AND … SPIES: GOVERNMENT MUST GIVE SOURCE OF INFORMATION OR BELIEF
The judgment in HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) [2022] EWHC 380 (QB) relates to confidentiality and spies. It also contains some important observations on the information needed, and formal requirements, when a witness…
COURT OF APPEAL ALLOWED APPEAL BECAUSE OF PROCEDURAL UNFAIRNESS: INADEQUATE WITNESS STATEMENTS SHOULD NOT BE SUPPLEMENTED BY ADDITIONAL QUESTIONING: THE RIGHT TO CROSS-EXAMINE IS FUNDAMENTAL TO A FAIR HEARING
In Rea & Ors v Rea [2022] EWCA Civ 195 the Court of Appeal (hearing a 2nd tier appeal) overturned a decision of the trial judge and ordered a re-trial when the appellants had not been given an opportunity to…
PLEADING A DEFENCE: THE DIFFICULT STATUS OF A “NON-ADMISSION”: (SOMETHING ABOUT RE-USING WITNESS STATEMENTS TOO)
In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch) Mr Justice Adam Johnson found himself deciding matters relating to the pleading of the action, the scope of the trial and the admissibility of witness evidence on the…
LATE WITNESS STATEMENTS AND THE ASSESSMENT OF COSTS: COSTS REDUCED EVEN WHEN THEY WERE ON THE INDEMNITY BASIS
There are two distinct issues arising from the judgment of HHJ Pelling QC (sitting as a High Court judge) in Various Airfinance Leasing Companies & Ors v Saudi Arabian Airlines Corporation [2021] EWHC 3509 (Comm). The first relates to the…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: CRUCIAL FACTUAL FINDINGS MADE IN FAVOUR OF THE DEFENDANT
It is surprising how many clinical negligence cases rest, ultimately, on findings of fact as to what was said. An example can be seen in the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS Foundation Trust…
WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE…
In the judgment today in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response to a witness statement that failed…
THE GOOD LAW PROJECT JUDGMENT TODAY – TWO PROCEDURAL ISSUES: RELIEF FROM SANCTIONS & THE COURT’S APPROACH TO UNCHALLENGED WITNESS EVIDENCE
The Court of Appeal judgment today in The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office [2022] EWCA Civ will, no doubt, be subject to much legal, and political, scrutiny. Here I want to…
“EACH OF THE CLAIMANTS’ STATEMENTS TENDED TO TAKE THE FORM OF A STANDARD TEMPLATE”: THE PERILS OF IDENTICAL EVIDENCE
It may say a lot about contemporary litigation that the practice of numerous witnesses producing near identical witness statements is so common that I almost decided not to write about it. The practice was considered by HHJ Judge Hodge QC…
THE KEY POINTS OF DRAFTING WITNESS STATEMENTS: A GUIDE – FROM 1951: A HOMAGE TO JOHN MUNKMAN
There are several hundred posts on this site about the drafting of witness statements. These are usually written about because things have gone awry. The skill and effort involved in drafting a proper and appropriate witness statement are often overlooked. …
WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…
PRISING LAWYERS AWAY FROM THEIR COMFORT BLANKET WHEN DRAFTING WITNESS STATEMENTS: A DETAILED CONSIDERATION OF THE REQUIREMENTS FOR WITNESS STATEMENTS AND PD57AC
In the judgment this morning in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) HHJ Stephen Davies (sitting as a High Court Judge) carried out a detailed consideration of the rules relating to witness statements…
You must be logged in to post a comment.