W – Witness credibility
17/1/20
BIOCONSTRUCT GMBH v WINSPEAR [2020] EWHC 7 (QB)
Considers weight to be given to a statement of a witness who does not attend trial [67]. Considers requirements for due execution of a deed [123]. On the facts a deed of guarantee had not been validly executed. Considers whether a defendant can be estopped by convention from denying the validity of a deed [149] and holds that as a matter of law neither of the defendants could be estopped from denying the validity of the deed.
19/10/19
KOGAN v MARTIN [2019] EWCA Civ 1645
Observations in Gestmin v Credit Suisse (2013) on reliability of witness evidence are not to be taken as laying down general principles [88]. The fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Where a party's sworn evidence is disbelieved, the court must say why that is and cannot simply ignore the evidence. Gestmin was addressed to commercial cases, in which there may be abundant documentation. In a case involving discussion between private individuals living together it is inherently improbable that details of all their interactions would be fully recorded in documents.
25/2/19
MARME INVERSIONES 2007 SL v NATWEST MARKETS PLC [2019] EWHC 366 (Comm)
A claim to rescind interest rate hedging contracts on grounds of manipulation of the EURIBOR reference rate failed. The court reviewed the principles for implying representations [115]. None of the pleaded representations could be implied. A representation that RBS was not manipulating or attempting to manipulate EURIBOR had not been pleaded and even if implied, there was no evidence to show it would have been false. The court reviewed the requirements for fraudulent misrepresentation [253] (including where knowledge of falsity is not known to the person making the representation) and the circumstances in which an adverse inference can be drawn from destruction of documents [268] or from a witness not being called [271]. The court also reviewed principles of reliance [278] (including the need for the claimant to have given some thought to any implied representation) and causation [289]. On the facts no reliance was established, the contracts had in been affirmed and could not be partially rescinded. An alternative claim for damages would also have failed.
26/7/17
BLUE v ASHLEY [2017] EWHC 1928 (Comm)
Considers the test for proving an oral agreement [48] - [64] and the weakness of evidence based on memory [65]. On the facts no reasonable person would have considered that a conversation in a pub was serious and was intended to create a contract for payment of £15m.
18/3/15
SPAR SHIPPING AS v GRAND CHINA LOGISTICS HOLDING (GROUP) LTD [2015] EWHC 718 (Comm)
The court explained why no weight was to be given to the witness statement of a witness who was available to be called [79]. The court considered applicable principles of ratification [88], whether a term is a condition of a contract [92], when time is of the essence [154], and when conduct amounts to a repudiation [208]. On the facts, payment of hire under a charter party had not been a condition. and there had been a repudiation by the hirer,
10/4/14
LLOYDS TSB INSURANCE SERVICES LTD v SHANLEY [2014] EWCA Civ 407
The fact that a claimant tells lies does not necessarily lead to the conclusion that the whole of his case is without substance. The judge had been entitled to find for the claimant in a breach of copyright claim, despite the claimant’s manifest and repeated dishonesty.
15/11/13
GESTMIN SGPS SA v CREDIT SUISSE (UK) LTD [2013] EWHC 3560 (Comm)
An investment company had purchased a high-risk investment because it had confidence in the skill and judgment of its investment adviser. It had deliberately chosen to proceed with the investment and could not be said to have been sold an unsuitable product. A claim that the investment had been induced by misrepresentation also failed. The correct approach in commercial cases is to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts [16-23].
4/12/12
SLOCOM TRADING LTD v TATIK INC [2012] EWHC 3464 (Ch), [40]
A court may draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue.
3/8/12
SOHAL v SURI [2012] EWCA Civ 1064
A trial judge is entitled to use findings as to the demeanour and credibility of the witnesses to decide the facts.
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