CIVIL PROCEDURE BACK TO BASICS 70: OPINION EVIDENCE IN WITNESS STATEMENTS
There have been several recent cases in which the courts have emphasised the difference between knowledge and “opinion” in witness evidence. In Irani v Duchon [2019] EWCA Civ 1846 the Court of Appeal dismissed an argument that the defendant was…
WITNESS SUMMARIES, WITNESS SUMMONSES AND RELIEF FROM SANCTIONS: ALL IN ONE CASE…
In Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc [2019] EWHC 2865 (Ch) Mr Justice Kerr granted the claimant’s application to rely on witness summaries and refused the defendant’s application to set aside witness summonses. The judge…
WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”
In Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) emphasised the importance of procedural rules. There are quite a few interesting observations in relation to disclosure, redaction, civil…
THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES
I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here. The Court of Appeal have ordered a retrial in the case. There are important observations about the role of the judge in…
LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE
This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners…
LAWYERS GIVING EVIDENCE 2: “HARD TO FATHOM” WHY THE SOLICITOR WAS TENDERED AS A WITNESS
In the second post about the dangers of lawyers giving evidence we turn to the judgment of Master Marsh in Pineport Limited -v- Grangeglen Ltd [2016] EWHC 1318 (Ch). This was a relief from forfeiture hearing in which the only witness…
LAWYERS GIVING EVIDENCE 1: ENGAGING “TOTALLY INAPPROPRIATELY WITH LEGAL SUBMISSIONS”
An earlier post reported on the dangers of lawyers giving evidence when that “evidence” is in fact a set of legal submissions. It is clear that this issue is not confined to one jurisdiction. This can be seen from the…
CIVIL PROCEDURE BACK TO BASICS 63: WHEN WILL THE COURT REDUCE THE NUMBER OF WITNESSES ALLOWED?
Here we are looking at CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now been considered several times by the courts. Firstly by Mr…
CIVIL PROCEDURE BACK TO BASICS 62: ASKING LEADING QUESTIONS WHEN INTERVIEWING WITNESSES – CAN (OR WILL) LEAD TO PROBLEMS
Examination in chief is rare in civil cases, many (perhaps most) practitioners will never have seen it done in court. There is a rule against asking leading questions when taking a witness through their evidence. There is a good reason…
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER
A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief. An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings…
PROVING THINGS 157: DEFECTS IN EVIDENCE “SO FUNDAMENTAL” THAT APPLICATION DISMISSED
In Mircom International Content Management & Consulting Ltd & Ors v Virgin Media Ltd & Anor [2019] EWHC 1827 (Ch) Mr Recorder Campbell QC (sitting as a High Court judge) refused an application on the grounds that the evidence was…
DRAFTING WITNESS STATEMENTS: THE FINER DETAIL: NO ROOM FOR A MARGIN OF ERROR
A search led to this blog today “witness statement margin” which led me to look this issue up and realise that, despite the dozens of posts on witness statements on this blog, the important issue of margin size has never…
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
A REFRESHER COURSE (1): THE STATEMENT OF TRUTH : “NOT AN IRRELEVANT MANTRA OR MERE VERBIAGE”
The previous post on this blog was about the importance of giving the source of information or belief and first hand witness evidence. However whenever a lawyer signs a document with a statement of truth they are taking their career…
CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST
Another short post caused by a discussion on Twitter about the number of witness statements that fail to comply with the most basic, mandatory, obligations in the Rules. The formal requirements of a witness statement are overlooked at the litigator’s…
CIVIL PROCEDURE BACK TO BASICS 45: THE COURT CAN REDUCE THE NUMBER OF WITNESSES AND EVIDENCE BEFORE TRIAL
We are looking at CPR 33.2(3) in relation to the reducing of witnesses or identifying issues prior to trial. THE RULE CPR 32.2(3) “(3) The court may give directions – (a) identifying or limiting the issues to which factual…
DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL
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
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”
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”
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
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?
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
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)
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
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
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
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
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
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
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
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
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 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
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
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
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…
PROVING THINGS 132: BUNDLES, BURDENS OF PROOF AND GO-KARTS: CLAIMANT MANAGES TO CROSS THE WINNING LINE ON APPEAL
The judgment in Cowley Property Investment Ltd v Oxford Karting Ltd [2018] EWHC 2824 (Ch) contains a consideration of the rule that documents in an agreed trial bundle are admissible. It is a case all about proving things without calling evidence….
WHEN WITNESSES DIDN’T KNOW WHAT THEY WERE SAYING: WHY THE SOURCE OF INFORMATION AND BELIEF IS IMPORTANT
There is a short passage in the judgment in GPP Big Field LLP & Anor v Solar EPC Solutions SL [2018] EWHC 2866 (Comm) that shows (not for the first time this year) that those responsible for drafting witness statements often…
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
THE STATEMENT OF TRUTH: WHY YOU AND YOUR CLIENTS NEED REGULAR REMINDERS OF THE RULES & CASES
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill made some important observations that apply to every aspect of litigation. We looked at the case yesterday: a stark reminder was provided of the dangers…
THE STATEMENT OF TRUTH: THE COURTS SAY IT AGAIN – NOT TO BE TAKEN LIGHTLY
In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill provides a clear and stark reminder of the significance of the statement of truth and need for all relevant parties to sign it….
WITNESS STATEMENTS AND SOURCES OF INFORMATION AND BELIEF: 10 KEY POINTS THAT LITIGATORS SHOULD KNOW: A JUDGE MAKE GET A BIT IRKED IF YOU TRY TO USURP THEIR ROLE
The post earlier today on the deficiencies in a witness statement that led to it being excluded provides a good opportunity to reprise certain key points. Not only was the excluded statement essentially “commentary” and “opinion” it also failed to…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
CIVIL PROCEDURE BACK TO BASICS 13: WHAT IS MEANT BY WITNESS “CREDIBILITY”? WHY THIS IS OFTEN CENTRAL TO A LITIGATOR’S WORK
Many civil cases turn on witness credibility, yet very little training and education is given to lawyers about assessing credibility. Every litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings…
CIVIL PROCEDURE:BACK TO BASICS 9: THE COURT NOT ENTITLED TO REJECT WRITTEN EVIDENCE UNLESS IT IS “SIMPLY INCREDIBLE”
There is a short passage in Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court), that serves as a reminder of a basic principle in interlocutory proceedings – a court will not…
PROVING THINGS 119: WITNESSES & EXPERTS : “IN A CASE OF FAIRLY REMARKABLE REPORTS, THIS WAS THE MOST EXTRAORDINARY”
If you want to see an example of problematic witness statements, and even more problematic expert witnesses, then read the judgment of Mrs Justice Jefford DBE in Castle Trustee Ltd & Ors v Bombay Palace Restaurant Ltd [2018] EWHC 1602 (TCC). …
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