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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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THE VULNERABLE CLAIMANT GIVING EVIDENCE: GROUND RULES AND INTERMEDIARIES: "I HAVE STRONG RESERVATIONS ABOUT WHETHER ANY OF THE GROUND RULES WERE NECESSARY"

THE VULNERABLE CLAIMANT GIVING EVIDENCE: GROUND RULES AND INTERMEDIARIES: “I HAVE STRONG RESERVATIONS ABOUT WHETHER ANY OF THE GROUND RULES WERE NECESSARY”

February 21, 2020 · by gexall · in Advocacy, Applications, Civil evidence, Witness statements

In the judgment today  in Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) Mrs Justice Farbey considered a case that involved a vulnerable claimant.  The judgment contains some scepticism as to whether  the ground rules set…

WHEN WITNESSES DO NOT ATTEND TRIAL 1: WITNESS EVIDENCE NOT ALLOWED: A BROKEN FINGER IS NOT A GOOD EXCUSE NOT TO ATTEND COURT

WHEN WITNESSES DO NOT ATTEND TRIAL 1: WITNESS EVIDENCE NOT ALLOWED: A BROKEN FINGER IS NOT A GOOD EXCUSE NOT TO ATTEND COURT

October 10, 2018 · by gexall · in Applications, Civil evidence, Civil Procedure, Witness statements

This is the first of two posts today in relation to witnesses not attending to be cross-examined.  In EC Medica Group UK Ltd & Ors v Dearnley-Davison & Ors [2018] EWHC 1952 (Ch) Kelyn Bacon QC (sitting as a Deputy High…

VULNERABLE WITNESSES IN THE CIVIL COURTS:  EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS

VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS

April 26, 2018 · by gexall · in Access to justice, Advocacy, Civil evidence, Civil Procedure

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…

FACT FINDING IN THE FAMILY COURT:  ERRATIC WITNESSES AND BEHAVIOUR ON DISCLOSURE WHERE THE CONDUCT WAS NOT FAR SHORT OF CONTEMPT

FACT FINDING IN THE FAMILY COURT: ERRATIC WITNESSES AND BEHAVIOUR ON DISCLOSURE WHERE THE CONDUCT WAS NOT FAR SHORT OF CONTEMPT

January 28, 2018 · by gexall · in Bundles, Civil evidence, Conduct, Disclosure, Witness statements

We have looked at “fact finding” by the courts many times.  The fact finder in a family case has a particularly  arduous and unenviable task . The judge has to  assess evidence that is often highly charged, and where there…

CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 2: WHEN A WITNESS DISCUSSES THEIR EVIDENCE

December 20, 2017 · by gexall · in Civil evidence, Conduct, Witness statements

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…

BEING A WITNESS IN COURT:  "AVOIDING HUMILIATION":  USEFUL LINKS (VIDEOS TOO)

BEING A WITNESS IN COURT: “AVOIDING HUMILIATION”: USEFUL LINKS (VIDEOS TOO)

October 23, 2017 · by gexall · in Civil evidence, Civil Procedure, Useful links, Witness statements

This idea for this post comes from another blog. Pink Tape has a recent post giving  parents tips on giving evidence in court.  This caused me to look at the assistance available generally. This is one part of the legal…

THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT

THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT

October 6, 2017 · by gexall · in Civil evidence, Civil Procedure, Witness statements

In Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 (Ch) Mr Justice Morgan considered issues relating to the standard of proof when there are allegations of dishonesty and fraud.  Part of the judgment also deals with the…

ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE

ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE

July 11, 2017 · by gexall · in Civil evidence, Witness statements

In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC)  the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial. THE CASE The action was a for breach of trademark…

LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO?

LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO?

June 4, 2017 · by gexall · in Civil evidence, Witness statements

Litigation is not always about  lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct.  However in litigation, as in life, people do tell lies. Litigators need to know about lies, and…

WHEN THE WITNESSES ALL SAY THE SAME THING: A RECAP

WHEN THE WITNESSES ALL SAY THE SAME THING: A RECAP

May 10, 2017 · by gexall · in Civil evidence, Witness statements

There has been some discussion on Twitter this morning about the issues that  arise when witnesses make statements that are, to all intents and purposes, identical. It provides an opportunity to look at some cases on this issue. They make…

LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED

January 10, 2017 · by gexall · in Civil evidence, Uncategorized, Witness statements

“This may be an interesting year for the consideration of issues relating to the accuracy of memory.   An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic…

LAWYERS, LITIGATION & MEMORY II: HOW YOU ARE AFFECTING THE MEMORY OF WITNESSES (AND POSSIBLY SOWING THE SEEDS FOR DEFEAT)

January 9, 2017 · by gexall · in Civil evidence, Uncategorized, Witness statements

The post on “Lawyers, litigation and memory“clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous…

LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION

LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION

January 7, 2017 · by gexall · in Civil evidence, Uncategorized, Witness statements

A single moment of logical thought will lead to the conclusion that it is strange that lawyers don’t learn about memory.  Much (indeed most) litigation relies on the memory of the parties.  Judges are, more often than not, called upon…

WITNESS STATEMENTS, STATEMENTS OF TRUTH AND CONTEMPT OF COURT

December 12, 2016 · by gexall · in Applications, Uncategorized, Witness statements

The judgment of Mrs Justice Slade in Aviva Insurance -v- Randive [2016] EWHC 3152 (QB) involves no findings of fact.  However it does demonstrate the dangers inherent in being involved in the drafting of witness statements and replies to Part…

PROVING THINGS 44: FINDINGS OF FACT, WALTER MITTY AND WITNESS TRAINING

December 12, 2016 · by gexall · in Uncategorized, Witness statements

The judgment today of Mr Justice Coulson in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2016] 3188 EWHC (TCC) shows the importance of the judge’s assessment of  witnesses. The judge made a clear and robust assessment of the witness evidence,…

PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER

December 7, 2016 · by gexall · in Uncategorized, Witness statements

The judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases. “…the decision of the court is not necessarily the objective truth…

WHY ALL LAWYERS HAVE TO KNOW ABOUT THE FALLIBILITY OF MEMORY (EVEN COMPANY LAWYERS)

December 1, 2016 · by gexall · in Civil evidence, Uncategorized

I have written about the Gestmin principles many times on this blog.  The importance of every litigator knowing about the fallibility of memory, and the way in which a trial judge is likely to approach these issues, is shown in the judgment…

"DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT…"

October 31, 2016 · by gexall · in Civil evidence, Uncategorized, Witness statements

There are several high profile cases in which judges have expressed scepticism (sometimes profound scepticism) about whether a witness statement really reflects the knowledge of a witness.  A short, but telling, passage in the judgment of Mr Justice Mitting in…

ALLEGATIONS AGAINST SOLICITORS THAT PROBABLY SHOULD NEVER HAVE BEEN MADE: CONSPIRACY, DISHONESTY AND DECEIT – ASSERTIONS THAT WERE JUST UNTRUE

October 12, 2016 · by gexall · in Civil evidence, Uncategorized, Witness statements

There have been a number of recent cases of property companies, who have lost heavily in the property market, seeking to recover from solicitors (not necessarily always their own solicitors) for those losses.   This trend can be seen –…

PROVING THINGS 30: OFFICE GOSSIP PROVES NOTHING: THE IMPORTANCE OF THE SOURCE OF INFORMATION AND BELIEF

September 14, 2016 · by gexall · in Civil evidence, Statements of Truth, Uncategorized

There is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information and belief.  This requirement is often ignored, or there is some vague and general wording of knowledge.  Ignoring, and respecting,…

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