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 […]

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

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 TLT & Others -v-Secretary of State for the Home Department [EWHC] 2217 (QB) is another […]

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

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 – possibly at its most extreme – in the decision of Mr Justice Mann today in […]

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

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, this requirement is dangerous. For instance there have been several cases where the courts have […]