THE “TRUE VOICE OF THE WITNESSES ARE NOTABLY LACKING FROM THEIR WITNESS STATEMENTS”: INORDINATE AMOUNT OF TIME & COSTS SPENT FOR NO GOOD REASON
In Estera Trust (Jersey) Ltd & Anor v Singh & Ors [2018] EWHC 1715 (Ch) Mr Justice Fancourt made some telling observations about the usefulness of witness statements prepared for the case. This is a common observation in relation to witness…
CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 In Hughes Jarvis Limited v Searle [2018] EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case…
MORE ABOUT WITNESS STATEMENTS AND THE ICI CASE: WHEN EVIDENCE IS NOT ADMISSIBLE AND (WHEN IT IS) IT IS NOT RELIABLE
We are looking again at aspects of the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).The previous post in this case looked at the “duplicate” witness statements of the defendant. Here…
WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 100: IT IS DIFFICULT TO PROVE ANYTHING WHEN EVERYONE IS LYING: “A FESTIVAL OF MENDACITY”
The judgment of Mr Justice Turner today in Rashid v Munir & Ors [2018] EWHC 1258 (QB) illustrates the difficult task of the trial judge when all of the witnesses are strangers to the truth. “Attempting to establish the common but…
EXPERTS AS ADVOCATES FOR THE CLAIMANTS’ CAUSE: WITNESSES WHOSE EVIDENCE WAS VERY DIFFERENT TO THEIR WITNESS STATEMENTS
I am grateful to Dominic Regan for sending me a copy of the judgment of Mrs Justice Andrews today in Gee -v- Depuy International Ltd [2018] EWHC 1208. The judgment is 762 paragraphs long and will be widely read by…
PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT
In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
FAILING TO TAKE A PROPER PROOF OF EVIDENCE IS UNREASONABLE CONDUCT AND LEADS TO COSTS CONSEQUENCES FOR DEFENDANT – EVEN WHEN CLAIMANT DISCONTINUES
The judgment today in Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) illustrates the importance of taking adequate witness statements. It shows that a failure to review the situation and take a full proof of evidence…
YOUR CLAIM FORM IS, WELL, PRETTY DAMN HOPELESS – AND WITNESS EVIDENCE CAN’T PUT IT RIGHT
The observations made by Mr Justice Andrew Baker in Orascom Tmt Investments SARL v Veon Ltd [2018] EWHC 985 (Comm) are of general interest. They highlight the need for statements of case to be properly particularised and also highlight the dangerous…
WHAT IS THE DIFFERENCE BETWEEN “KNOWLEDGE” AND “BELIEF”? A CASE AND A REVIEW OF 10 KEY POINTS
This blog has looked, many times, at the importance of giving the source of information and belief when a party (and particularly when a legal representative) makes a witness statement. It is sometimes possible for you opponent to attempt to…
VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS
The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses. There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here…
CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial…
CIVIL PROCEDURE – BACK TO BASICS 4: WHAT NOT TO PUT IN A WITNESS STATEMENT: “INADMISSIBLE AND IRRELEVANT OPINION, SUBMISSION, SPECULATION AND INNUENDO”
This is a very basic point. A witness statement should consist of evidence. That principle is often breached in interlocutory applications, as we have seen. However when a lawyer does this, or allows it to happen, in a witness statement…
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
CIVIL PROCEDURE – BACK TO BASICS 2: “EVIDENCE IN SUPPORT” OF AN APPLICATION
The previous post looked at some of the basic requirements of an application to the court. Here we look at the evidence that may be needed in support of an application. The key point here being “evidence”. Numerous hours are…
CIVIL LITIGATORS AND THE SECRET BARRISTER 4: WHY WE CAN’T TRUST THE GOVERNMENT (OR OURSELVES)
SB’s book sales plough on. It has reached the top 10 in the best seller list. The Criminal Bar Association have set up a fund to send a copy of the book to every MP. You can donate here. …
HOW A COURT ASSESSES WITNESS EVIDENCE: A SHORT PRIMER
We have already looked at the decision of the upper tribunal in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase of shares) [2018] UKFTT 82 (TC) in relation to issues of privilege and without prejudice discussions. The same judgment…
“MISSING WITNESSES”- THE INFERENCES TO BE DRAWN: THE USE OF YOUR OPPONENT’S WITNESS STATEMENTS – ITS ALL OR NOTHING
In Property Alliance Group Ltd v The Royal Bank of Scotland Plc [2018] EWCA Civ 355 the Court of Appeal considered, amongst other things, two issues relating to witness evidence. Firstly in relation to the inferences a court should draw from missing…
WITNESS CREDIBILITY 2: ACADEMIC SCRUTINY: PSYCHOLOGICAL RESEARCH AND WITNESS EVIDENCE
Near the beginning of many judgments after a trial there is a section where the judge gives their view of the reliability and credibility of the witnesses. In about 98% of cases it is not necessary to read further to…
THE ASSESSMENT OF EVIDENCE: DECLARATIONS FOR THE DEFENDANT IN A PERSONAL INJURY CASE
The judgment of Master Thornett in Day v Bryant (declaratory relief – costs – QOCS) [2018] EWHC 158 (QB) is an example of a rare case where a defendant, in a personal injury case, obtained a declaration on a counterclaim. It…
WITNESS EVIDENCE: CREATING AN ACCURATE RECORD OF INAPPROPRIATE CONDUCT AT WORK: SPOT – AN IMPORTANT DEVELOPMENT
I have written before about the book The Memory Illusion. In essence lawyers need to be concerned about how easy it is for false memories to be created and how fallible the human memory is. The creation of an inaccurate…
PROVING THINGS: IF YOU LIKE THE BLOGS – THEN WATCH THE MOVIE…
The Webinar I did last week called “Proving things: if you don’t prove it, then you don’t get it” is now available for purchase online. TOPICS COVERED Topics covered include: “If you don’t prove it you don’t get it” Witness…
THE ADVANTAGES OF GETTING WITNESS EVIDENCE EARLY – AND GETTING IT RIGHT: REDUCING THE RISKS OF LITIGATION
It is worthwhile repeating, and thinking about one part of the judgment of Master Leonard Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs). “… the cost of preparing witness evidence will normally be recoverable as part of the cost…
PROVING THINGS 83: WHEN A DEFENDANT DOES NOT GIVE EVIDENCE, ADVERSE INFERENCES CAN BE DRAWN: STAGED CRASH ESTABLISHED
In UK Insurance Ltd v Gentry [2018] EWHC 37 (QB) Mr Justice Teare considered what inferences can properly be drawn when a defendant, accused of dishonesty, does not give evidence. KEY POINTS The claimant brought a case in deceit – alleging…
HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at [2017] EWHC 3054 (QB). This judgment deals with the issue…
THE CREDIBILITY OF WITNESSES: WHEN THE DEFENDANT’S OWN EVIDENCE AMOUNTS TO A HOME GOAL
This blog has looked many times at the issue of witness credibility and why the judge prefers the evidence of one witness over another . This was an issue to the fore in the judgment of Mr Justice Green in Khakshouri…
“SOMETIMES AN UNIMPRESSIVE WITNESS SPEAKS THE TRUTH”: FACT FINDING AND THE CIVIL COURTS: PRIVY COUNCIL OVERTURN FINDINGS OF FACT
In Cleare v The Attorney General & Ors (Bahamas) [2017] UKPC 38 the Privy Council was scathing of the method of fact finding of the trial judge. The judge erred in failing to consider the significance of medical evidence. ” It…
CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 2: WHEN A WITNESS DISCUSSES THEIR EVIDENCE
The judgment in McGann v Bisping [2017] EWHC 2951 (Comm) deals with numerous procedural issues, many of which arose in the course of the trial. We have looked at one of these already. The case also involved a witness, during the course…
MAKE UP A FRAUDULENT CASE, TELL LIES TO THE COURT – GO TO JAIL: THE FORGED WILL CASE HAS A SEQUEL
An earlier post looked at Patel -v- Patel [2017] EWHC 133 (Ch) in which the judge disbelieved all the witnesses who gave evidence that a will had been made in 2005. The trial judge observed. “My remaining concern with Nirja’s evidence is…
SIGNING THE STATEMENT OF TRUTH IN PRE-ACTION DOCUMENTS: WILL THE SOLICITOR GO TO JAIL OR NOT?
There has already been some discussion in the Gazette about the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB). In particular the observations in relation to signature of documents by the legal representative. This…
PROVING THINGS 78: AN ABSENT WITNESS IS NEVER GOING TO HELP: DEFENDANT’S FAILURE TO TAKE CONTEMPORARY STATEMENTS LEADS TO ADVERSE INFERENCES
In a talk today to a group of clinical negligence lawyers I discussed the issue of evidence, and “missing” documents and witnesses. In particular the relevance of Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 on the…
LEGAL QUACKERY & AN “OVERWHELMING MIASMA OF FAKE LAW” : OBSTRUCTING JUSTICE AND OBSTRUCTING THE COURT SYSTEM
I usually confine this blog to cases relating to the law in England and Wales. However the judgment of Noonan J in Bank of Ireland Mortgage Bank -v- Martin & anor [2017] IEHC 707 was brought to my attention by an…
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
PROVING THINGS 76: A RECAP – I DIDN’T EXPECT TO GET THIS FAR…
Today saw the 75th in the series “proving things”. I never anticipated that the series would run so long, I initially planned around 10 posts. Now we have reached 75 (and with no plans to stop) this is an appropriate…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
ASSESSING THE CREDIBILITY OF WITNESSES: PROBLEMS WITH INDEPENDENCE WHEN THE WITNESS REQUIRES A TRANSLATOR
Who is going to be believed? This is the central question in many (if not most) cases that go to trial. The judgment of Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) shows many of…
PROVING THINGS 67: THE DIFFICULTIES WHEN WITNESSES DEPARTS FROM THEIR WITNESS STATEMENT: MULTIPLE INCONSISTENCIES DAMAGE CREDIBILITY
I am grateful to my colleague Colm Nugent for sending me a copy of the decision in Baker -v- British Gas Services (Commercial) Limited [2017] EWHC 2302. Amanda Yip QC (sitting as a Deputy Judge of the High Court*), considered…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
WITNESS STATEMENTS “INADMISSIBLE”: CONTAINED “SUBJECTIVE INTENTION”, “OPINION” AND “LEGAL ARGUMENT”: ANOTHER EXAMPLE
A brief passage under the judgment of Mr Justice Arnold in Takeda Pharmaceutical Company Ltd v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch) serves to show how much “witness evidence” served by a litigant can, in fact, be inadmissible….
DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009. In 2013 the Court of Appeal overturned a judge’s decision to grant…
WRITING TO THE COURT UNILATERALLY (AGAIN) – PROCEDURAL FAIRNESS AND WHY JUDGES NEED THE PATIENCE OF A SAINT
I have no plans to expand this blog to cover issues relating to procedure in Employment Tribunals. However there are certain passages of the judgment of Mr Justice Kerr in Jones v The Secretary of State for Business Innovation &…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
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