The proceedings were also brought against his father and two “character witnesses”, a neighbour and a team mate. In fact he played regularly, had played every match for his team that season and had been “man of the match” several times. He had given evidence that he could not play football and was severely disabled. THE FACTS IN SHIKHELLĪ contempt of court action was being brought against Mr Shikhell for false statements he made in a personal injury action. In a similar manner the dangers of having a set “checklist” of questions is clearly seen in the judgment in the contempt of court case of Motor Insurers Bureau –v- Shikhell EWHC 527 (QB). The questions were loaded, not open ended, they were working towards a pre-existing view of what happened. It can be seen that there was clearly an agenda when those statements were being taken. Here I don’t mean deliberately corrupted but that a witness, who is anxious to help, could inadvertently agree with matters which, on closer examination, are not correct. It means that the evidence is far less likely to be “corrupted”. This practice, of not asking leading questions, is an essential tool in a litigator’s armoury. It meant that the judge was hearing the witnesses’ evidence rather than a response to a number of loaded questions coming from the advocate. However the rule against asking leading questions was important. A central fact that a party had told you about clearly in conference 10 minutes earlier could, sometimes, not be teased out of them at all. However the most difficult problem was the fact that you could not ask “leading questions”. “Proofs of evidence” could be fairly perfunctory (if they existed at all). Witness statements now stand as the evidence in chief. There are a declining number of practitioners who will have seen examination in chief in a civil case, let alone carried out this task. The questions asked, and the way questions are asked, will determine the evidence that goes into the statements. This certificate, therefore, certifies that the solicitor has not asked leading questions in the preparation of the statement. The solicitor preparing the statement will have to sign a certificate stating that the guidance in the new Practice Direction has been complied with. Lawyers are enjoined not to ask leading questions. In particular there is a need for the whole process of taking witness statements to be transparent. This blog has looked in detail at the rule changes coming into force early next month.
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