MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT’S STATEMENT LARGELY STRUCK OUT AS AN ABUSE
The judgment in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) that was looked at yesterday referred to the earlier case of JD Wetherspoon plc v Harris [2013] 1 WLR 3296. Since that decision pre-dated this blog. I thought it…
WITNESS STATEMENTS SHOULD “NOT MAKE POINTS WHICH ARE ESSENTIALLY A MATTER FOR LEGAL SUBMISSION OR ARGUMENT”: HIGH COURT DECISION
In Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) Mr Justice Holgate made some telling comments on witness statements. Statements should not provide a commentary on documents or make points which are essentially legal submissions or argument. …
IF YOU WANT RELIEF FROM SANCTIONS – PUT THE DEFAULT RIGHT AT ONCE, AND CERTAINLY WELL BEFORE ANY APPLICATION FOR RELIEF: DEFENDANT FAILS ON APPEAL WHEN WITNESS EVIDENCE SERVED LATE
In the many posts I have written about seeking relief from sanctions one matter that has been stressed is the overwhelming importance of rectifying the breach immediately. The dangers of not doing so are exemplified in the judgment of Mr…
PROVING THINGS 186: WHEN THE ONE WITNESS IN THE CASE HAD LITTLE KNOWLEDGE OF HOW THE FIGURES IN THE SCHEDULE HAD BEEN REACHED – THERE IS TROUBLE AHEAD…
In Crazy Bear Group Ltd v Patel & Anor [2020] EWHC 3023 (Ch) Insolvency and Companies Court Judge Jones (sitting as a Judge of the High Court) considered whether defendants in an action had proven that they had suffered damages…
COURT REFUSES PARTY PERMISSION TO RELY ON WITNESS STATEMENT SERVED LATE
In RGB Plastering Ltd v TAWE Drylining and Plastering Ltd [2020] EWHC 3028 (TCC) HHJ Jarman QC (sitting as a judge of the High Court) refused the defendant permission to rely on a witness statement that was served late. “Ms…
WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA
There are many aspects of the judgment in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) that have gained wide media attention. Here I want to look at two issues in relation to the failure…
“A MARKED ‘DISCONNECT’ BETWEEN THE RESPONDENT’S WRITTEN EVIDENCE AND HIS ORAL TESTIMONY”: ANOTHER “ARGUMENTATIVE” WITNESS STATEMENT BITES THE DUST
The judgment of ICC Judge Barber in Leopard v Robinson [2020] EWHC 2928 (Ch) provides another example of a written witness statement being misused. The judge held that the statement consisted of “assertions and legal submissions”. These have no place…
THE IMPORTANCE OF GETTING EVIDENCE EARLY: “I DON’T REMEMBER NOW & I WON’T REMEMBER ANYTHING IF I COME TO COURT”
The observations of Mr Justice Nicklin in Rayner v Seabourne-Hawkins [2020] EWHC 2895 (QB) highlight the importance of gathering evidence promptly. It also contains the text of a highly perceptive letter from a prospective witness that, in many ways, highlights…
SERVE WITNESS STATEMENTS LATE AT YOUR PERIL: RELIEF FROM SANCTIONS NECESSARY AND LATE SERVICE IS NEARLY ALWAYS A SERIOUS BREACH
There are many interesting aspects of the judgment of HHJ Mithani QC in Patel & Anor v Barlows Solicitors (a firm) & Ors [2020] EWHC 2753 (Ch). Here I want to look at the part of the judgment that considers…
PROVING THINGS 184: PROVING YOU CAN’T A CLAIM WILL BE “STIFLED” REQUIRES A DETAILED EXPLANATION
In National Tourism Council of Qatar v Mehdiyev [2020] EWHC 2638 (Ch) Deputy Master Hansen considered the defendant’s evidence as to means when deciding whether or not to impose terms when setting aside a judgment. It is important to note…
LIFE IN LAW ISN’T ALWAYS GLAMOROUS: A CLIENT CAN BLAME THEIR LAWYER (OR FORMER LAWYER) FOR THEIR WITNESS STATEMENT
A classic example of a client seeking to blame their lawyer for the contents of a witness statement can be seen in the judgment in Simpson v Payne, reported in the PI Brief Update Law Journal. THE CASE The claimant…
A CAREFUL APPROACH IS NEEDED TO THE GATHERING OF EVIDENCE AND THE SIGNING OF WITNESS STATEMENTS: A LOCAL AUTHORITY FALLS WELL SHORT OF THE MARK
It is unusual for this blog to cover family cases, particularly decisions made some three years ago. However the judgment of HHJ Corbett in E (A Child : Care proceedings : Costs) [2017] EWFC 118 has recently been published on…
TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT
In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late. In a “rolled up” hearing he dismissed the claimant’s application for permission…
DENTON PRINCIPLES APPLY WHERE WITNESS EVIDENCE SERVED LATE
The judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) considers the issue of whether the Denton principles apply when a witness statement is served late but there…
SIMILAR WITNESS STATEMENTS (WITH THE SAME TYPOS) AND WITNESS CONFERRING WITH OTHERS: WHY “I SAY THE SAME AS THEM” RARELY HELPS
In the judgment today in Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC) HHJ Russen QC (sitting as a High Court judge) made some observations about the witnesses giving evidence. The fact that some…
EVIDENCE OBTAINED BY TORTURE: THE SUPREME COURT CONSIDERS THE APPROPRIATE APPROACH WHEN TORTURE CANNOT BE PROVEN
In the judgment today in Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 the Supreme Court sends out a clear message about the use (or rather non-use) of evidence obtained by torture in civil proceedings. This…
COURT TAKES UNUSUAL “GRADATED” APPROACH AND DEFERS APPLICATION FOR RELIEF FROM SANCTIONS FOR LATE SERVICE OF WITNESS STATEMENTS – & IT COULD COST THEM $58 MILLION (I SUPPOSE THAT EVERY LITTLE HELPS…)
In Manning & Napier Fund, Inc & Anor v Tesco Plc [2020] EWHC 2106 (Ch) Mr Justice Hildyard took the unusual step of deferring the claimants’ application for relief from sanctions in serving witness statements late. “Much or all of…
WHEN WITNESS EVIDENCE GOES OFF TRACK: CREDIBILITY SPRINTS AWAY
There are several recent cases where judges deal with the issue of credibility and witnesses. The first we are looking it is the decision of HHJ Melissa Clarke in British Amateur Gymnastics Association v UK Gymnastics Ltd & Ors [2020]…
A “GENERAL INCREASE IN HOSTILITY AND AGGRESSIVENESS IN THE CONDUCT OF DISPUTES”: CLAIMANT’S APPLICATION TO COMMIT STRUCK OUT AS AN ABUSE OF PROCESS
The judgment in Navigator Equities Ltd & Anor v Deripaska [2020] EWHC 1798 (Comm) emphasises that there is a particular duty on a party bringing committal proceedings. The judgment has very important things to say about the way in which…
NEARLY LEGAL: JOHNNY DEPP: WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: “EVERY LITIGATION SOLICITOR IN THE COUNTRY SIGHS HEAVILY IN WEARY FAMILIARITY…”
A Tweet this evening, followed by a number of comments, causes me to repeat my advice on the necessity of the lawyer protecting themselves when drafting a witness statement on behalf of a client or witness. NEARLY LEGAL…
WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS
This report of the Witness Evidence Working Group was produced at the end of last year. It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
CIVIL PROCEDURE BACK TO BASICS 79: NON-DISCLOSURE OF THE OTHER SIDE’S WITNESS STATEMENT
Today we are looking at CPR 32.12. The rule preventing a party using the other side’s witness statements for purposes other than the action they were served in. THE RULE Use of witness statements for other purposes 32.12 (1) Except…
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. …
COVID REPEATS 41: OFFICE GOSSIP IS NOT EVIDENCE
This week we continue with our look back at cases in relation to witness evidence. This contains another reminder that there is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information…
COVID REPEATS 40: ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
This week we are looking at witness statements and the process of gathering witness evidence. In August 2015 I wrote at length about the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA…
COVID REPEATS 39: THE DANGERS OF OBTAINING ONE-SIDED WITNESS STATEMENTS: A PROBLEM THAT CANNOT BE GARAGED
This week we are looking at past posts and cases on witness statements and witness evidence. This is an area with no shortage of cases to choose from. I have made the point, many times, that witness statements are basically…
EVALUATING EVIDENCE ON APPEAL: THE APPELLATE COURT WILL NOT READILY DISPLACE THE FINDINGS OF THE TRIAL JUDGE
I am grateful to Christopher Kardahji from Irwin Mitchell solicitors for sending me a copy of the judgment of Mr Justice Freedman in Lenord -v- First Manchester Limited [2020] EWHC 982 (QB). The judgment contains a detailed analysis of the…
LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO? (A RECAP)
For various reasons issues relating to the credibility of witnesses and “lies” are in the news this week. Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct….
ASSESSING WITNESS CREDIBILITY: A REMINDER OF THE BASIC PRINCIPLES
Today is is a good day to look again at the judgment of Mr Justice Leggatt in Gestmin SGPS S.A. -v- Credit Suisse [2013] EWCA 3560 (Comm). This is case that is now mentioned regularly in cases involving witness recollection and…
COVID REPEATS 30: THE LYING WITNESS: THE APPROACH OF THE CIVIL COURTS
We are going back to what was the most widely read post on this blog in 2017 and 2018. It is about witnesses telling lies.Mr Justice Smith has observed that “witnesses can regularly lie”. How do lies impact upon the…
COVID REPEATS 29: “THERE IS NO PRIMER FOR SCUTTLERS”: THE JUDGE’S ASSESSMENT OF EVIDENCE WHERE (HE FOUND) THAT A SHIP WAS SUNK DELIBERATELY
We are looking again at the judgment of Mr Justice Teare in Kairos Shipping Ltd -v- The Standard Club Europe Ltd [2016] EWHC 2412 (Admlty) is a comprehensive lesson in thorough fact finding. “There is no primer or guide to…
PROVING THINGS 176: RELYING ON MEMORY FROM EVENTS A LONG TIME BACK
I am grateful to David Platt QC for sending me a copy of the judgment given today of Geoffrey Tattersall QC (sitting as a Deputy High Court Judge) in Bannister -v- Freemans Public Limited Company [2020] EWHC 1256 (QB). …
JOHNNY DEPP: LATE WITNESS STATEMENTS & THE COURTS: JUDGE CURTAILS THE EVIDENCE THAT CAN BE CALLED
The judgment of Mr Justice Nicol in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 1237 (QB) is interesting because the judge grants relief from sanctions because of a delay in service of witness statements. More significantly,…
THOSE WHO DRAFTED THE WITNESS STATEMENTS HAVE “FORGOTTEN WHAT THE ROLE OF THE WITNESS STATEMENT IS”: BACK TO BASICS FROM MR JUSTICE WAKSMAN
I am returning to more traditional territory in looking at the judgment of Mr Justice Waksman in PCP Capital Partners LLP & Anor v Barclays Bank Plc [2020] EWHC 646 (Comm). Witness evidence and witness statements have been a regular…
COVID REPEATS 13: “CLOSING ARGUMENT WAS … AND EYE-GLAZING, BUM-NUMBING, DISC-HERNIATING TOTAL OF 662 PAGES”
For this repeat we are staying with Mr Justice J.W. Quinn, this time looking at his judgment in The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) It is a judgment worth looking at again, not…
MORE ON THE NEW STATEMENT OF TRUTH: CAN YOU CHANGE THE WORDING?
I have had questions, from several sources, about whether it is possible to amend the “new form” of the statement of truth when a document is not being signed by a party to litigation. PRACTICE DIRECTION 22. The new…
THE NEW RULES: LINKS TO ALL THE POSTS: MITIGATION, THE STATEMENT OF TRUTH AND WITNESS STATEMENTS IN A FOREIGN LANGUAGE
The rules that came into force yesterday seemed to take some people by surprise. I did write about them back in February, but a few things have happened since then. Here are links to the previous posts on the new…
NEW WEBINAR (COMING SOON): WITNESS STATEMENTS: THE STATEMENT OF TRUTH AND SOCIAL ISOLATION.
I am preparing and recording a webinar on preparing and drafting witness statements. Particular attention is being given to the difficulties of interviewing witnesses and preparing statements in a time of social isolation. The webinar should be available from the…
THE OTHER IMPORTANT RULE CHANGE TODAY IN RELATION TO WITNESS STATEMENTS: AND, HONESTLY, THIS COULDN’T HAVE COME AT A BETTER TIME
Along with changes to the statement of truth the rule changes effective from today now impose a further obligation in relation to witness statements. I have written about this before (but much has happened since). THE NEW RULES From…
GOOD MORNING FOLKS: REMEMBER (TO ADD TO ALL YOUR OTHER TROUBLES) THE RULES CHANGE TODAY…
To add to all the practical difficulties facing litigators the 113th update to Practice Direction Amendments comes into force today. Here are some of the key points. THE AMENDMENT TO THE STATEMENT OF TRUTH This the major change that will…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: NOT A MERE TECHNICALITY: FAILURE TO COMPLY WITH RULES CAN HAVE MAJOR CONSEQUENCES
This blog has dealt, many times, with the difficulties that can arise when a solicitor makes a witness statement in support of an interlocutory application. Not least there is a duty to give details of the source of information and…
THE PROBLEMS THAT CAN OCCUR WHEN A LAWYER MAKES A STATEMENT ON THEIR CLIENT’S BEHALF: “I ATTACH NO WEIGHT TO WHAT HE SAYS”
This blog has looked, many times, at the pitfalls that can occur when lawyers make statements on behalf of their clients. An example can be seen in the judge of Mr Justice Edis in Cobussen Principal Investment Holdings Ltd v…
NEW MANDATORY REQUIREMENTS FOR WITNESS STATEMENTS IN APRIL: STATE THE PROCESS BY WHICH THE STATEMENT WAS OBTAINED
It is worth isolating one aspect of the changes to the rules relating to witness statements coming into force in April as a result of The 113th update to Practice Direction Amendments. That is the mandatory obligation in every witness statement…
THE IMPORTANCE OF THE STATEMENT OF TRUTH (3): THE SCARY STUFF (THE REALLY SCARY STUFF)
This is the third (and final) post in the series that examines the importance of the statement of truth. Here we look at the clear and start warnings given by the courts about the importance of the statement of truth….
THE IMPORTANCE OF THE STATEMENT OF TRUTH (2): WHY LAWYERS SHOULD THINK (MORE THAN TWICE) BEFORE SIGNING IT
Given the imminent changes to the statement of truth this is a good time to consider the problems that can occur when a lawyer signs a statement of truth on behalf of their client. There are some cases that make…
WITNESS STATEMENT SERVED 28 DAYS LATE: RELIEF FROM SANCTIONS REFUSED: ACTION STRUCK OUT: THE PERILS OF DELIBERATELY NOT COMPLYING WITH DIRECTIONS
I am grateful to barrister Andrew Worthley for drawing my attention to, and sending me a note of the decision in Syed -v- Shah [2020] 2 WLUK 15 where Trower J upheld a decision not to grant a claimant relief…
THE PRODUCTION OF WITNESS STATEMENTS: NOW BEING SUBJECT TO RESEARCH: CAN YOU HELP?
This blog has looked, many times, at issues relating to the drafting of witness statements. The Institute for Crime and Justice Policy Research is carrying out research on this subject, in the context of witness evidence in employment tribunals, “Taking…
CIVIL LITIGATION CASE OF THE YEAR: BATES -v- THE POST OFFICE: LITIGATING IN THE FACE OF “INSTITUTIONAL PARANOIA”
There was never any doubt in my mind as to the civil litigation case of the year – Bates -v- The Post Office. All civil litigation is here, witness and expert evidence, allegations of bias, disclosure and much more. One…
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: TO WHAT EXTENT IS “HYPOTHETICAL” EVIDENCE FROM DOCTORS ADMISSIBLE?
The judgment of Mrs Justice Lambert in AB v East Lancashire Hospitals NHS Trust [2019] EWHC 3542 (QB), provides an important lessons for those who draft witness statements, particularly on behalf of defendants in clinical negligence cases. The question is…
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