Tag Archives: Witnesses

LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED

“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 Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3336 (QB). The judgment reviews the principles […]

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

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 problems.  These problems only become apparent once a witness is cross-examined. Here we look at […]

LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION

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 to decide whose memory of events is the most accurate. The judge cannot shy away […]

WITNESS STATEMENTS, STATEMENTS OF TRUTH AND CONTEMPT OF COURT

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 18 questions.Where facts are set out which cannot be proven, or are simply not true […]

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

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, the difficulties posed by witness training, the difficulties posed by missing witnesses and the (virtual […]

PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER

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 of the matters in issue. Instead it is the most likely view of what happened, […]

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

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 of Mr Registrar Briggs in Cusack -v- Holdsworth [2016]  EWHC 3084 (Ch). “… the fallibility […]