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…
EVIDENCE AND WITNESS STATEMENTS: AVOIDING THE PITFALLS: WEBINAR 25th FEBRUARY 2021
I am giving a webinar on avoiding the pitfalls in evidence and witness statements on the 25th February 2021. Details are available here. “Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
KIDS CLUB AND THE DANGERS OF SELECTIVE EVIDENCE: WITNESS STATEMENTS IN AN INSOLVENCY CONTEXT
The decision in the Official Receiver -v- Batmanghelidh and others [2021] EWHC 175 (Ch) involves some consideration of the way in which the claimant presented the evidence. Whilst the claimant was under a particular duty in this case this involves…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: A MANDATORY OBLIGATION THAT IT IS DANGEROUS TO OVERLOOK
We have looked many times at cases where problems have occurred because someone making a witness statement fails to comply with the mandatory obligation to give the sources of their information and belief. The problems this can lead to are shown…
WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)
A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases. The dangers of asking leading…
THE MISUSE OF WITNESS STATEMENTS: 2021 SHOWS THAT THE TREND CONTINUES: THREE CASES THAT ARE PROBABLY THE TIP OF AN ICEBERG
A search term that led to this blog earlier this week was “witness of fact giving expert evidence”. This, and changes coming into force in the Business and Property Courts in March mean that this is a good time to…
“HIS WITNESS STATEMENT … CONTAINED A GREAT DEAL OF ANALYSIS, SUBMISSION AND COMMENTARY ON DOCUMENTS”
Because of the imminent changes in the rules in the Business and Property courts it is an opportune time to see how often the basic principles of witness evidence are not being observed. We see this in the judgment in YJB…
NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS FROM APRIL 2021: IN-HOUSE WEBINAR AVAILABLE
In April this year those practising in the Business and Property Courts will be subject to much more stringent requirements in relation to the preparation of witness statements relating to trial. The lawyer conducting the case will have to sign…
WITNESS STATEMENTS: IMMINENT NEW RULES IN THE BUSINESS AND PROPERTY COURTS
Last year we looked at the report of the Witness Evidence Working Group for the Business and Property Courts. This set out why changes were needed to the drafting of witness statements in those courts. Some of the proposals in…
DIVIDING FACTS FROM COMMENTS AND SUBMISSIONS: WHY IT MATTERS AND HOW IT CAN HELP YOUR CASE
The judgment is Scottow -v- Crown Prosecution Service [2020] EWHC 3421 (Admin) is of interest for many reasons. This, however, is a blog about procedure. It is worthwhile looking at the comments that the Divisional Court made about the way…
PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE
In Pinnegar v Kellogg International Corporation & Anor [2020] EWHC 3431 (QB) HHJ Platts (sitting as a High Court judge) considered the weight to be given to evidence of matters that had happened some 50 years previously. It shows that…
WITNESS STATEMENTS THAT REQUIRE TRANSLATION OR WHERE THE MAKER IS NOT LITERATE: FAILURE TO COMPLY WITH RULES IS NOT SIMPLY A “TECHNICAL BREACH”
In Diamond v Secretary of State for the Home Department [2020] EWHC 3313 Mr Justice Calver considered the weight to be attached to witness statements that did not comply with the Civil Procedure Rules. The case shows why everyone should…
“SADLY, THIS IS AN ALL-TOO-COMMON FAILURE IN WITNESS STATMENTS PROVIDED IN CIVIL LITIGATION”
The comments of Mr Justice Murray today in Guest Supplies Intl Ltd v South Place Hotel Ltd & Anor [2020] EWHC 3307 (QB) repeat what has been mentioned numerous times on this blog. “It will perhaps be seen from…
CLAIMANT REFUSED PERMISSION TO RELY ON NEW WITNESS STATEMENT SERVED PART-WAY THROUGH A TRIAL: LATE WITNESSES COULD NOT BE ALLOWED TO PLUG GAPS
In PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) Mrs Justice Moulder refused the claimant’s application for permission to rely on new evidence which was served in the middle of a trial. Not only is this a consideration…
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…
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