Oral evidence part 2: What if a witness doesn’t turn up to court?

The headlines this week around former Deputy Prime Minister Angela Rayner are a reminder of the importance of taking the right advice from appropriate professionals and the potential consequences when such advice is called into question.

Bribery - The Claimant in the behemoth case that is Public Institution for Social Security v Al-Wazzan was refused permission to amend its case mid-trial against the 15th to 19th Defendants.  This is because such an amendment would have required further expert evidence on complex issues of Swiss law, the amendment was made late, and the 15th to 19th Defendants would be prejudiced by the late amendment. The Claimant was given permission to amend as against the 41st Defendant because the amendment was only minor and the 41st Defendant could easily understand the case against it.  The Court also imposed certain restrictions on the cross examination of one of the 15th to 19th Defendants’ witnesses based on the way the case had been pleaded, limiting questioning about the dishonesty of various parties and the falsity of certain documents.

Judicial commentary shows that judges are exceedingly aware of the unreliability of witnesses’ memory when considering evidence at trial. While judges may take differing views as to the reliance that ought to be placed on oral evidence as compared to contemporaneous documents, procedural safeguards are now in place to help strengthen the reliability of witness evidence, in CPR Practice Direction 57AC - Trial Witness Statements in the Business and Property Courts (“PD 57AC”).

We have previously written about the potential death of the shareholder principle in our previous blogs. The recent Privy Council decision in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd & Ors No 2 confirms what we suspected; the shareholder principle no longer exists in England & Wales.

We all know that arbitration and litigation are governed by different rules which dictate the way disputes are dealt with and the way that hearings proceed.  One perhaps surprising difference, however, is the approach to oral evidence. 

Issues with expert evidence can have a profound impact on the credibility of a party’s case, and consequently the likelihood or not of a party succeeding at trial. In this article we discuss some recent case law which highlights the need for parties to carefully comply with their procedural obligations regarding expert evidence, namely Part 35 of the CPR (“Part 35”) and the accompanying Practice Direction, to avoid such risks.

One of the key duties of a liquidator is to investigate the affairs of the insolvent company to determine whether its demise resulted from the acts (or omissions) of its directors or third parties against whom claims may be brought to obtain redress for losses suffered by the Company. This article focuses on claims initiated by the liquidator themselves, whether on their own behalf or on behalf of the company, and considers the weight that will be given to the liquidator’s evidence.

Where a party wishes to rely on a witness statement at trial, Civil Procedure Rule (CPR) 32.5 provides that they must call the witness to give oral evidence unless the court orders otherwise, or notice is provided of the intention to rely on the statement as hearsay evidence.

One of the issues that may arise during litigation is a witness failing to turn up at court to give evidence.

In an ideal world, witnesses providing evidence in First-tier Tax Tribunal proceedings would do so in person at a hearing. It is often easier to build a rapport with the Judge in person, you avoid technical issues, and however informal the Tax Tribunal is in comparison to the civil courts, there is something to be said about looking into the whites of a witness’s eyes during a cross examination.

For a will to be valid, the testator must have had testamentary capacity at the time it was made. Testamentary capacity refers to the mental ability of the testator to make a valid will.

Waqar Shah, a Partner at Kingsley Napley, takes a closer look at the recent report by the Committee of Public Accounts on the cost of the tax system.

When a loved one dies, the terms of their will can sometimes surprise surviving family members, with unexpected beneficiaries or unequal distribution of the estate. In England and Wales, individuals have the freedom to leave their estate to anyone, with no legal obligation to provide for specific family members. Even if the will seems unfair, the law generally upholds the testator's wishes, if the will has been validly made. However, certain family members and dependants may be able to bring a claim against the estate (under the Inheritance (Provision for Family and Dependants) Act 1975), if adequate provision has not been made for them under a will.

The 2023/24 tax year marks a major shift in the way unincorporated businesses are taxed. It is a transition year, with HMRC moving from the traditional “current year basis” to a “tax year basis” from 6 April 2024. While this change is intended to simplify the system in the long run, it introduces some short-term complexities (and often tax expense) during the transition year which partners and other sole traders ought to be alive to.

In order for a will to be validly executed it must comply with the requirements set out at Section 9 of the Wills Act 1837.

Two years ago, the UK political and banking world was rocked by the “de-banking” of Nigel Farage, the politician. It turned out that other figures in the public eye, or related to those who were in politics, had struggled to gain access to accounts, or had them shut. Policymakers have sought to make changes. How far have they moved?

There continues to be a rise in will validity challenges involving allegations that an individual was unduly influenced to change the terms of their will. Such cases often involve the elderly or vulnerable, who may be more susceptible to influence, or someone abusing a position of trust to coerce an individual to write a will on terms that they otherwise would not have. This generally results in the person who exerted the influence (or someone close to them) benefitting significantly under the terms of the will.

The digital asset sector is going through a period of change caused by, amongst other things, additional market adoption and perceived certainty and scrutiny arising from shifts in the regulatory perimeter.  Cybersecurity remains an important consideration for organisations operating in this space, and this is particularly the case for those who fall within the regulatory perimeter which likely brings with it additional regulatory reporting requirements following an incident. This is coupled with the fact that organisations (both large exchanges, and smaller projects) in the digital assets sector have been specifically targeted by threat actors over recent years. 

Ben Atkin comments on recent celebrity court cases, including Johnny Depp’s widely reported libel case against The Sun newspaper and the ongoing dispute between Blake Lively and Justin Baldoni, in HELLO! Magazine.

Kingsley Napley is pleased to report the judgment of Mrs Justice Joanna Smith DBE in the case of Re MPB Developments Ltd [2025], which represents an excellent result for our client.  

The Child Brain Injury Trust reports that every 90 seconds, someone in the UK is admitted to hospital with an acquired brain injury, and every 15 minutes, a child in the UK acquires a brain injury. While many will make a full recovery, for others, this may impact on their ability to make certain decisions as adults.