WITNESS STATEMENT IN RESPONSE TO EVIDENCE GIVEN IN TRIAL NOT PERMITTED: COURT ANXIOUS TO AVOID A NEVER ENDING SPIRAL
In Brake & Ors v The Chedington Court Estate Ltd (New Witness Statement) [2021] EWHC 2882 (Ch) HHJ Paul Matthews refused an application for permission to adduce an additional witness statement. “Of course, it is natural for litigants to…
LATE, AND BROAD, APPLICATION TO RELY ON EXPERT EVIDENCE REFUSED: HIGH COURT DECISION
In BES Commercial Electricity Ltd & Ors v Cheshire West & Chester Council [2021] EWHC 2820 (QB) Mr Justice Calver refused a very late application to adduce expert evidence. The commentary in relation to witness statements is also interesting. The…
STATEMENTS OF OPINION AND COMMENT WILL BE REDACTED: WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: THE NEW RULES CONSIDERED
The judgment of Mrs Justice O’Farrell in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 is one of the first times the new provisions on witness statements in the Business and Property Courts have been considered by…
CAN ONE WITNESS STATEMENT SIMPLY SAY “I AGREE WITH THEM” ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED
I gave a webinar earlier today where an interesting question was asked. If a husband and wife are giving evidence and they agree with each other, can one statement simply say “I agree with them”? This “agreement” of witness statements…
THE DANGEROUS USE OF PRECEDENTS 2: CIVIL LAWYERS – THE PROBLEMS OCCUR HERE TOO
The previous post on the use of “precedents” in divorce petitions could lead civil lawyers to think that “this couldn’t happen here”. There are numerous examples in civil cases of witness statements being drafted to a plan. PRECEDENT WITNESS…
DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES: WEBINAR 14th OCTOBER 2021
As part of a series of webinars on Civil Evidence I am presenting a webinar on witness statements on the 14th October 2021. Looking at rules and guidance relating to witness evidence and the importance of complying with them. Booking…
WHEN AN EMAIL FROM A SOLICITOR IS EVIDENCE OF LOSS: EVIDENCE AT THE STAGE 3 STAGE CONSIDERED ON APPEAL
I am grateful to barrister Sarah Robson for bringing my attention to the decision of HHJ Jarman QC in Akram v Aviva Insurance Ltd [2021] EW Misc 16 (CC). This is a case that highlights the flexibility the courts have…
WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL
In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a…
SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON
Now that the nights are drawing in people’s thoughts will, almost invariably, be drawn towards matters of civil evidence and the need to prove things. To cater for this I am presenting six webinars , covering key aspects of civil…
PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES
In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action. It is an example of the…
PROVING THINGS 212: MISTAKE, TRUSTS & TAXATION: “IT IS CLEAR THAT HIS WITNESS STATEMENT WAS CONSTRUCTED WITH ONLY PASSING REFERENCE TO WHAT HIS EVIDENCE IN CHIEF WOULD BE IF CALLED TO GIVE ORAL EVIDENCE”
The adequacy of witness evidence was considered in detail in the judgment of Deputy Master Marsh in Dukeries Healthcare Ltd v Bay Trust International Ltd & Ors [2021] EWHC 2086 (Ch). It shows the danger of setting out a case…
WITNESS STATEMENTS AND HILLSBOROUGH: AN ACADEMIC ANALYSIS OF HOW THE EVIDENCE WAS GATHERED
I have written several times about the major difficulties caused by the process of taking witness statements following the Hillsborough disaster. The process of taking statements is analysed by an academic in Hillsborough disaster: a revealing analysis of the language…
WITNESS STATEMENTS AND GATHERING WITNESS EVIDENCE: THE LESSONS THAT LAWYERS MUST LEARN FROM HILLSBOROUGH: WEBINAR 19th JULY 2021
On the 19th July 2021 I am presenting a webinar that looks at the implications of the Hillsborough case from the point of view of collecting witness evidence. Booking details are available here . NB – the webinar will be broadcast…
WHEN CAN A LAY WITNESS GIVE THEIR “OPINION”? SOMETHING YOU NEED TO KNOW
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) shows that it is essential for civil litigators to have detailed knowledge of what is “opinion” evidence and when it is allowed in a…
DEFENDANT UNSUCCESSFUL IN APPLICATION TO STRIKE OUT PART OF CLAIMANT’S WITNESS EVIDENCE: WHEN “HYPOTHETICAL” EVIDENCE MAY BE ADMISSIBLE
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) is possibly the first time that Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts has been considered by the…
“CARE MUST BE TAKEN IN ASSESSING A WITNESS WHO IS REPLYING TO QUESTIONS ASKED THROUGH AN INTERPRETER”: SOME PROBLEMS EXEMPLIFIED
Some of the difficulties a court has when considering witness evidence through a translator are set out in the judgment of Deputy Judge Agnello QC in Jackson v Song [2021] EWHC 1636 (Ch). “I have considered the evidence of…
WITNESS STATEMENTS & HILLSBOROUGH (A REPEAT II): CONFIRMATION BIAS AT ITS WORST
The tragic events of Hillsborough are in the news again. I am here repeating a post first written in 2016. The post is on one small part of the process: the initial gathering of evidence. It was the flawed nature…
CLAIMANTS WIDE RANGING EVIDENCE EXCLUDED: HIGH COURT DECISION TODAY
In BB & Ors v Al Khayyat & Ors [2021] EWHC 1499 (QB) Mr Justice Chamberlain allowed, in part, an application by a defendant that certain evidence put forward by the claimants in relation to an application be excluded. THE…
HILLSBOROUGH AND WITNESS STATEMENTS 1 (A REPEAT): THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
This is a repeat of a post first written on this blog in April 2016. There is always a danger in writing about a tragedy that the human consequences, the pain and suffering of the victims and family members are…
WITNESS STATEMENTS: HILLSBOROUGH AND THE ROLE OF THE SOLICITOR
The previous post on this blog presented what is most probably the first academic research into the taking of witness statements. It is remarkable that such a central part of the lawyer’s role remains unresearched. The blunt reality is that…
RESEARCH INTO THE TAKING OF WITNESS STATEMENTS: A POST FROM PROFESSOR PENNY COOPER AND DR MICHELLE MATTISON
A recent High Court decision emphasised that all legal cases are, in reality, all about the facts. Despite that there is very little research into the role of the judge as fact finder. There is even less research on the…
PARTY ALLOWED TO RELY ON WITNESS SUMMARIES: RELIEF FROM SANCTIONS GRANTED WHEN PERMISSION SOUGHT RETROSPECTIVELY
In Benyatov v Credit Suisse Securities (Europe) Ltd [2021] EWHC 1318 (QB) Mr Justice Freedman gave the claimant permission to rely on witness summaries. He also granted the claimant relief from sanctions in relation to late service of those summaries. …
LAWYERS, CLIENTS AND WITNESS STATEMENTS: REDUCING THE RISKS: SOME EXAMPLES AND A STRATEGY
Many people kindly send me cases for publication on this site. Sometimes the information they send with the case is as enlightening as the case itself. In a recent example I was told that a litigant had tried to throw…
DEFENDANT FAILS TO BEAT CLAIMANT’S PART 36 OFFER: PART 36 CONSEQUENCES HELD NOT TO APPLY: THE CONSEQUENCES OF SERVING EVIDENCE LATE
The judgment of Mr Justice Johnson in Head v The Culver Heating Co Ltd [2021] EWHC 1235 (QB) is one that is of profound interest to those involved in fatal accident litigation. I will be writing about the damages aspect…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
A LOT ABOUT LITIGATION CONDUCT HERE: SIGNATURE OF THE STATEMENT OF TRUTH: POOR BUNDLES: POOR WITNESS STATEMENTS AND THE TOTAL LACK OF WISDOM IN SENDING MATERIAL DIRECTLY TO THE JUDGE IN THE MIDDLE OF A TRIAL…
The judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) demonstrate some “unusual” conduct in litigation. Not least the claimant’s solicitors wrote to the judge, in the middle of…
WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS
Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….
LYING IN A WITNESS STATEMENTS PASSES THE CUSTODY THRESHOLD: WHEN A PARTY ASSERTED THEY DID NOT KNOW A WITNESS
In Axa Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB) Mrs Justice Eady found that telling lies in a witness statement in a personal injury case passed the custody threshold. A claimant in a personal injury, who…
THE DANGERS OF LEAVING SERVICE OF EVIDENCE UNTIL THE LAST MINUTE: DEFENDANT MISCALCULATED TIME WITNESS STATEMENTS DUE – REQUIRED RELIEF FROM SANCTIONS
In Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) Mr Justice Johnson granted relief from sanctions to a defendant who served witness evidence late. However the defendant’s failures were serious and significant and the defendant had no…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERT COURTS: GESTMIN PRINCIPLES NOW ENSHRINED IN THE RULES
From the 6th April this year some of the key principles from the judgment in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm) are effectively enshrined into the rules. Key parts of the Gestmin principles are included in the Appendix to…
DRAFTING WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 5th APRIL: THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET
This blog has looked in detail at the rule changes coming into force early next month. In particular there is a need for the whole process of taking witness statements to be transparent. Lawyers are enjoined not to ask leading…
“POSSIBLE CRIMINAL ACTIONS THAT MAY HAVE TAKEN PLACE IN THIS CASE INCLUDE PERJURY, CONSPIRACY TO DEFRAUD AND CONSPIRACY TO PERVERT THE COURT OF JUSTICE”: THE NON-EXISTENT TRIP TO ILKLEY
The judgment of HH Judge Davis-White QC (sitting as a High Court Judge) in The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) contains clear findings of fact in relation to three witnesses. Among the matters of interest…
WITNESS STATEMENTS THE TIMES WILL SOON BE CHANGING: “A SOMEWHAT OVERLAWYERED DOCUMENT”: “A LOT OF COMMENT THAT IS INADMISSIBLE”
The judgment of John Kimbell QC (sitting as a Deputy High Court Judge) in One Blackfriars Ltd, Re [2021] EWHC 684 (Ch) provides a reminder as to why the strictures as to witness statements are being tightened next month. “It…
WITNESS STATEMENTS: KEEPING DRAFTS AND “THE SHREWSBURY 24”: LESSONS FROM PAST MISTAKES
It may seem strange to link the highly important Court of Appeal decision in Warren & Ors v R. [2021] EWCA Crim 413 with modern civil litigation. However this is an important case and there are direct parallels to many…
WHY, IF YOU PRACTICE IN THE BUSINESS AND PROPERTY COURTS, YOU HAVE TO LEARN TO ASK NON-LEADING QUESTIONS…
It is difficult to understate the depth and breadth of the new rules coming into force on the 6th April in the BPC. One good example is the fact that the person taking a witness statement has got to learn…
DEFENDANT GIVEN PERMISSION TO RELY ON WITNESS STATEMENTS THAT THE CLAIMANT DISCLOSED BY MISTAKE: HIGH COURT RULING
In Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm) Sir Michael Burton (sitting as a High Court Judge) granted a defendants’ application to rely on witness statements mistakenly disclosed by the claimant. “The…
CLAIMANT WHO GAVE MISLEADING ACCOUNT OF HER INJURIES FOUND TO BE FUNDAMENTALLY DISHONEST
In Smith v London Borough of Haringey [2021] EWHC 615 (QB) Master David Cook found a claimant to be fundamentally dishonest. A failure to disclose previous back problems, coupled with an exaggeration of her medical condition was found to be…
SOLICITORS AND ATTENDANCE NOTES: JUDGES NEARLY ALWAYS PREFER THE CONTEMPORANEOUS NOTES
The judgment of HHK Keyser QC (sitting as a High Court judge) in Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch) serves as a reminder of the importance of contemporary attendance notes as a source of evidence. “the best…
THE NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: WHY THE IRON FIST? BASICALLY – THE PROFESSION HAD IT COMING
As anyone practising in the BPC is just about to discover the rules on witness statements coming into force next month are highly prescriptive, even covering the way in which questions are to be asked to witnesses. Further it has…
WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING
The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement. The judge struck out an…
COURT CAN COMPEL SOLICITOR TO ATTEND COURT TO EXPLAIN THEMSELVES (THIS CASE WAS OVERTURNED ON APPEAL)
NB THIS CASE WAS OVERTURNED ON APPEAL, SEE THE DECISION AT Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 The decision of Mr Justice Saini in Hunt Annolight Ltd & Ors [2020] EWHC 3744 (QB) has just arrived on…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the…
CLEAR FINDINGS OF FUNDAMENTAL DISHONESTY: NO SUBSTANTIAL INJUSTICE IN APPLYING THE PRINCIPLE: CLAIMANT IN AT THE DEEP END
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of HHJ Sephton QC (sitting as a High Court judge) in Iddon -v- Warner, a judgment given on the 2nd March 2021. A copy of…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6th APRIL 2021: THE DECLARATION THAT THE SOLICITOR HAS TO SIGN
One of the many requirements that come into force on the 6th April is the requirement for the solicitor to sign a declaration that the witness statement complies with the rules. This is not an obligation that can be taken…
THE NEW WITNESS STATEMENT REQUIREMENTS AND ADMIRALTY CLAIMS: NEW RULES WILL APPLY
The new requirements for certification of witness statements in the Business and Property Courts come into force on the 6th April 2021. Initially it was thought that Admiralty claims may be excluded, because of the importance of contemporary statements in…
THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The number of people who had not read the judgement of Canadian judge J.W. Quinn looked at last Sunday made me think that this would be a good time to remind people of the judgment in Bruni -v- Bruni in 2010. The…
![WITNESS STATEMENTS IN THE DOCK AGAIN: "DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2021/02/balalaika_garmon_shepherds_horn.jpg?resize=150%2C150&ssl=1)
WITNESS STATEMENTS IN THE DOCK AGAIN: “DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE”
The judgment of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm) provides a further example of the contention that obtaining witness evidence is probably not part of the “stock in trade” of those who…
PROVING THINGS 204: WHY FIRST-HAND EVIDENCE IS IMPORTANT: “THE FIRST HAND EVIDENCE… IS TO BE PREFERRED OVER THOSE WHO GAVE EVIDENCE FOR THE BANK”
In Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Chief Insolvency Court Judge Briggs considered the Gestmin principles in a case where a bank failed to establish that a client had signed a guarantee. It is a good example…
“Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)”: A good time to repeat one of our favourite cases…
Periodically I feel bound to remind people of the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn. In the middle of “lockdown”, when we may well…
WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)
The judgment of Gavin Mansfield QC (sitting as a High Court judge) in Puharic v Silverbond Enterprises Ltd [2021] EWHC 351 (QB) highlights the difficulties that can occur if the pleaded case differs from the evidence. Put bluntly running a…
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