CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME
There have been several posts on this blog in relation to witness evidence and witness credibility. One important point to note is that a judge is entitled to find that a witness is correct on some matters and not on others. The judge’s role in relation to the assessment of witness evidence is explored in the Court of Appeal decision in Burnett -v-Lynch  EWCA Civ 347.
The claimant had been successful in a claim for clinical negligence in a case where there was a difference in recollection between the claimant and the doctor. The doctor appealed on the basis that the trial judge had not considered the evidence or given full reasons for rejecting the doctor’s evidence that no consultation had, in fact, taken place.
THE COURT OF APPEAL REJECTED CRITICISM OF THE JUDGE’S FINDINGS
20. I see nothing inconsistent in the findings. It is commonplace for a trial judge, and HHJ Gosnell, the DCJ of a busy court centre, is an especially experienced one, to conclude that he has not heard witnesses who failed to tell the truth in the sense that they deliberately lied. Rather, as here, he heard honest, that is, not untruthful, witnesses, whose recollections he did not accept as correct or accurate. Once he had decided that no witness was lying he correctly identified his task as “to decide the issues on the balance of probability remembering that the Claimant has the burden of proof”. He rehearsed the arguments supportive of each party’s case, explained his findings as to two clinical notes, and, having assessed the likelihood or otherwise of the competing cases, gave his reasons for finding as a fact “that there was a consultation with [the Appellant] in February or March 2006 at which the [Respondent] complained of a small pea-sized lump in her breast. There was an examination of the [Respondent] and she was told that the cause was likely to be a blocked milk duct”.
21.I cannot accept the arguments of the Appellant on this point. The evidence the Judge identified plainly entitled him to make such a finding of fact.
22. As to 7th November 2005 the Judge accepted the Appellant’s evidence in relation to a specific clearly identified visit (tiredness, boils, L breast mastalgia, blood tests ordered, reassurance that likely cause was side-effects of Duphaston) but rejected it as to the key part of the case.
23. I do not accept that this demonstrated inconsistency. Judges are daily confronted with the unexceptional possibility, and often the likelihood, that the proper course is to accept part and to reject part of the evidence of the same witness. They are also routinely required to perform the same exercise in respect of the case advanced by a party, accepting in part and rejecting in part. Without that common exercise in discrimination it would be impossible to achieve resolution of many contests before the courts. There is nothing impugnable in the conclusion of the Judge, indeed it demonstrates, in my view, the scrupulous attention he paid to the entirety of the evidence as he reached his decision. His approach comes nowhere near inconsistency or illogicality.
DID A HIGHER STANDARD OF PROOF APPLY WHEN SOMETHING ALLEGED WAS “UNLIKELY”?
The case also contains an interesting discussion of whether, and when, a higher standard of proof was needed.
“24. Having, it is argued, accepted that the Respondent’s case was unlikely, it is suggested that the court had to look at the facts “more critically or more anxiously” and would require stronger evidence before it could be satisfied on the balance of probabilities that the Respondent’s case was made out: In Re D  UKHL 33;  1 WLR 1499 Lord Carswell at para 27 said:
“62. Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”
In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below.
28. It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann’s example of the animal seen in Regent’s Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.”
25. In re D in my view has no application to the instant appeal in the way contended for. This claim did not require the ‘heightened examination’ referred to by Lord Carswell since the allegation against the Appellant is not inherently unlikely (in contrast to Lord Hoffmann’s Regent’s Park example) nor was it sufficiently serious nor do sufficiently serious consequences flow for the Appellant to merit such an approach. On the contrary this was a “routine” clinical negligence claim. In any event, the Judge gave careful consideration to and looked closely into the facts and, as Lord Carswell made clear, even were “heightened examination” required, a different standard of proof or a specially cogent standard of evidence before the trial judge can be satisfied of the matter to be established (paragraphs 28, 47 and 48 of the Opinion of Lord Brown) is not.”
CASES CAN BE WON (AND LOST) WHEN THE WITNESSES ARE NOT TELLING LIES
This is the central point. A witness can be totally honest and yet inaccurate. One of the hardest jobs of a litigator is telling a client that just because they are not a liar this does not mean that they will automatically win their case. A witness can be wholly truthful and yet not accurate
This is clear from the conclusion of the Court of Appeal judgment.
“The Judge in my view was entitled to conclude that no witness was telling a lie, or, to put the same thing another way, that every witness was truthful. “Truthful” is not a synonym for “accurate”. It was more than open to him, as it is to Judges up and down the country day in and day out, to conclude that oral evidence was couched in candour but that some of it did not achieve accuracy. Were it otherwise, many disputes would be incapable of resolution. This was, with the greatest of respect to the parties, a straightforward clinical negligence action. It required no application of evidential or other test of a heightened nature. Rather, it required what it plainly received, that is reasoned support for the permissible conclusions reached. The Judge was, ultimately, “convinced…..on balance that the Claimant’s recollection is to be preferred.” Having in the previous paragraphs set out in some detail the parties’ competing cases, he was under no obligation then “to set out in detail his reasons for rejecting the Appellant’s case” although, in fact, he did so.
OTHER POSTS ON WITNESS EVIDENCE AND CREDIBILITY
- Proving the existence of an oral contract
- Litigators must know about credibility
- . Witness Statements and Witness Evidence: More about Credibility.
- . Which witness will be believed: is it all a lottery?