THE CREDIBILITY OF WITNESSES; JOINT MEETINGS AND OVERREACHING EXPERTS: A CASE TO POINT

The judgment of Mr Justice Dingemans in Garcia -v- Associated Newspapers Ltd [2014] EWHC 3137 is a defamation action. It contains some interesting examples of evidential issues and problems. Firstly relating to the assessment of witnesses; secondly in relation to whether “evidence in chief” should be allowed; thirdly in relation to the role of expert witnesses and what should happen if there is a “change of mind” after a joint meeting of experts.

THE FACTS

The defendant had published articles about the claimant who was a practising doctor. The claimant stated that these were defamatory.  One of the major issues in the case was whether one of the claimant’s patients, who had made the allegations to the newspaper, had a history of alcohol misuse.  This led the judge to examine the medical records with some care.

PRELIMINARY ISSUES AS TO EVIDENCE

It is interesting to note that there were some issues as to the evidence.

Procedural matters

1. The trial was extremely hard fought on both sides, and there were a number of procedural rulings required to be made. I gave reasons for those rulings at the time, but I have expanded the reasons for some of those rulings in this judgment.
2. The first relevant ruling related to the Defendant’s application to examine in chief its witnesses. Written witness statements had been exchanged in the normal way. The proposed examination in chief was not to be restricted to matters which had arisen since the exchange of witness statements, or a few short questions to enable the witness to become used to the witness box before cross examination began, but an examination of all the critical evidence. The request was objected to by the Claimant. I refused permission for this extensive examination in chief for a number of reasons. First the request was made only when the Defendant was calling its first witness. This was important in circumstances where the Claimant’s witnesses had already given evidence, and had not requested an opportunity to give their evidence in this manner, and would not now have that opportunity. Secondly the request was likely to have time implications. The case had been case managed on a number of occasions by Bean J. (as he then was) who had directed the parties to produce a timetable. This had been done, and showed that the case would run up to the last day of term. The timetable did not make allowance for extensive examination in chief. (I should record that the parties did complete the hearing on the last day of term, having had a day to prepare closing submissions, and I am very grateful for their efforts in keeping to the timetable).
3. The second relevant ruling related to the Defendant’s request to adduce a supplementary statement from Professor Paul Wallace MBBS, MSc, FRCGP, FFPHM (“Professor Wallace”) in which he qualified some of the statements that he had made in the joint statement of the experts. The Claimant objected to this evidence being adduced because there was a joint statement. I permitted this supplementary statement to be served because if Professor Wallace had changed his opinion on relevant matters it was necessary to know that as soon as possible, and providing a supplementary statement would provide the Claimant with a fair opportunity to consider that change of evidence before cross examination, where the change of mind would have been revealed in any event.
4. The third relevant ruling related to the Claimant’s request to ask Dr Clare Gerada MBE FRCGP FRCPsych FRCP (“Dr Gerada”), who gave expert evidence on behalf of the Claimant, questions about where and how the joint meeting of experts had taken place, and how long the meeting had lasted. This was in circumstances where Professor Wallace had withdrawn his agreement to certain matters set out in the joint statement. The Defendant objected to that, referring to the Protocol on the Instruction of Experts, which made it plain that the contents of discussions couldn’t be referred to at trial. The Claimant also pointed to the protocol which made it clear that the court could direct how the meetings could take place, for example by face to face meeting, or by telephone to reflect issues of proportionality. Some time was taken to look at Phipson on Evidence, Eighteenth Edition which referred to the protocol. I permitted the question to be asked and said I would rule on whether I considered the evidence given to be admissible, and whether it was relevant. In my judgment the evidence given was admissible evidence, if it was relevant. This is because the evidence didn’t disclose the contents of the discussion which was protected by the without prejudice privilege. However I did not consider the evidence to be relevant. The evidence showed that the meetings between experts took place by way of Skype discussions, sometimes with and sometimes without video link, but it did not assist me in determining the relevant contested issues.

THREE LARGE ISSUES

1.The defendant must have felt that its witness statements were inadequate in that it sought (and was refused) permission to adduce evidence in chief. This highlights the importance of the initial witness statements.

2.The circumstances in which an expert witness had a change of mind and could file a further report was interesting.  One would assume that it would not do a great deal for the overall credibility of a witness.

3. It is possible for the court to examine the circumstances, or some of the circumstances, in which a joint meeting took place.

RESOLUTION OF THE EVIDENTIAL DISPUTE

There was a dispute between the doctor and his patient (Mr Brown) as to what was said in a consulation and how long that consultation lasted.

My findings about what occurred at the consultation

1. The first, but important matter, to note about the consultation is that Dr Serrano did correctly diagnose Mr Jones as suffering from gout. It is now common ground following the later findings by a consultant rheumatologist that Mr Jones suffered from gout, and I find that Mr Jones was on 24 January 2011 suffering from gout. Dr Rowan remarked on Dr Serrano’s clinical skills, and the fact that Dr Serrano successfully diagnosed gout when others had not been able to do so before, is an illustration of Dr Serrano’s abilities in this respect. As appears above one of the disputes of fact related to whether Dr Serrano had actually examined the foot and ankle. I accept Mr and Mrs Jones’ evidence that Mr Jones was wearing flip flops, and Dr Serrano accepted this in a supplementary statement. However I accept Dr Serrano’s evidence that he examined Mr Jones’ foot. I do not consider that Dr Serrano could have diagnosed gout successfully, as he did, if he had not taken some time to examine Mr Jones’ foot. This is particularly so where there was a competing possible diagnosis of tendonitis. I accept that it must have seemed a reasonably rapid diagnosis from Mr and Mrs Jones’ perspective, but there was no basis for their suggestion that this was not a careful and justified diagnosis, and there was no basis for their suggestion that Dr Serrano barely looked at the foot.
2. The second matter to note is that the evidence before me shows that Mr Jones’ gout was caused by persistent abuse of alcohol. There was no other explanation for his symptoms on the evidence before me. Other possible causes, such as a seafood diet or the side effects of medication, were not established. I accept that Mr Jones was taking medication which might have caused some elevated readings on Gamma GT tests, but the fact that his readings fell when he stopped drinking proved that the elevated Gamma GT levels had been caused by excessive alcohol intake. Mr Jones described the symptoms of his gout in graphic terms, likening it to having been poisoned and I accept his evidence as to the effects of gout. Dr Gerada said, and I accept, that a medical student would have been expected to work out that Mr Jones was a long term abuser of alcohol from the triangulation in this case.
3. I also find that Mr Jones, and Mrs Jones, refused to recognise the physical damage that Mr Jones had done to himself by his excessive consumption of alcohol. Mr Jones had caused his gout. Mr Jones had caused elevated Gamma GT readings. He had (as later investigations showed) suffered from a fatty liver caused by excessive alcohol intake. I accept that Mr Jones was able to take or leave alcohol as he chose, and was able to stop drinking without suffering withdrawal or other symptoms. Mr Jones part demonstrated that by giving up alcohol for a period of time after he lost his licence, and by reducing the amount he drank afterwards. However it was because Mr Jones was unaware of the physical damage that he was doing to himself that he had not decided to leave alcohol alone until after he had lost his licence. It was obvious from the letter written by Mrs Jones the evening of the consultation that the correct diagnosis of gout, and correct analysis of its cause, was very unwelcome news to Mr and Mrs Jones. They were, as Mrs Jones, recorded “absolutely furious”.
4. Although this was for both Mr and Mrs Jones on the one hand, and Dr Serrano on the other, a difficult and memorable consultation, it is apparent that memories fade and that persons are able to convince themselves that things happened which did not. On the question of the timing of the interview the notes show that there was a 29 minute gap between patients. It is notorious that witnesses’ estimates of time vary considerably in their reliability. I consider Mr and Mrs Jones’ estimation of the time of the consultation to be considerable underestimate of time for the consultation, because Dr Serrano did have to diagnose gout, and he did then explore possible causes for the gout, including drinking, and it is common ground that there was then a substantial discussion about drink. I consider that Dr Serrano’s estimate of time of 90 seconds to 2 minutes for the tasks that he had to do after the consultation ended and before the next consultation began was an underestimate. This was because he had to look at the relevant documents and refresh his mind about guidance. I do accept that he was a GP trainer and therefore very familiar with the relevant layout of the guidance but he also had to make notes, albeit brief notes, recording the effect of the consultation and he then had to go out and call the other patient. I am quite satisfied in the light of the 29 minute period between patients that Dr Serrano’s estimate of the length of time of this consultation is closer than that suggested by Mr and Mrs Jones.
5. As both sides were, in closing submissions, making suggestions that there were deliberate lies told about the timings of the consultation, I should record that I do not consider that anyone was lying about the timings, but the respective witnesses had convinced themselves of their respective timings and the accuracy of those timings.
6. I reject the suggestion that Dr Serrano should not have asked about shell fish consumption and accept his evidence that he did. As he noted Hastings is a seaside town, and shellfish is readily available and it appears that excessive consumption of shellfish would have been a possible cause of gout and needed to be excluded.
7. The main dispute is about what was said about Mr Jones’ drinking. On this I accept Dr Serrano’s evidence about what was said by Mr Jones about his drinking as set out in paragraphs 82 to 104 above. Dr Serrano’s account that Mr Jones disclosed drinking half a bottle of Bacardi some nights has been consistent. There is no reason to think that Dr Serrano, who had never met Mr and Mrs Jones before, would invent this statement and state that the matter needed to be reported to the DVLA, unless it had been said.
8. I also reject Mr and Mrs Jones’ account of what was said about Mr Jones’ drinking at the consultation. Although it is now said that a half a bottle of Bacardi was mentioned as a joke, I note that it was not suggested in Mrs Jones’ contemporaneous letter that Mr Jones had made a joke about his drinking. I also reject Mrs Jones’ suggestion in the evidence that the reference to 4 to 5 glasses in that letter was a reference to beer. This was because Mr and Mrs Jones talked in the evidence in terms of pints of beer, and I consider that Mrs Jones was referring to spirits in the letter and was attempting to minimise the disclosure which Mr Jones had made about half a bottle of Bacardi. The evidence showed that if there are generous pourings into the glass, half of a full bottle of Bacardi can be drunk in 4-5 glasses. I also take account of the fact that Mr and Mrs Jones referred in the email to Mr Mackenzie to a disclosure of drinking a couple of beers and a couple of spirits a week, but this was not their evidence in the witness statements before me. I have already noted that Mr Jones gave a written answer on 26 October 2011 which was wrong when referring to his past drinking. In my judgment Mr and Mrs Jones were very upset to be confronted by an accurate diagnosis of gout, caused by drinking, and had convinced themselves, wrongly, that Dr Serrano was at fault.
9. I also find that there was no misunderstanding between Dr Serrano and Mr Jones. The evidence from Dr Serrano and Mr and Mrs Jones shows, and I find, that there was no language barrier between Dr Serrano and Mr and Mrs Jones.
10. I accept that Mr and Mrs Jones’ son became upset during the interview, but do not consider that anyone has a very reliable recollection of how that occurred, whether it was because he had been told off for playing on scales and then asked to move, or because he realised that his parents were becoming increasingly worried about what was being said, or because Mr Jones had held him while making points about his livelihood. I do not consider that anyone was lying about this point. I do not consider that the layout of the room assists in this respect. I do accept that Mrs Jones’ drawing showing the layout of the room would have been a more logical layout, but it was also plain that the practice was not well organised and changes were being made to the rooms and computer systems.
11. I also accept that there was some discussion about Mr Jones being an alcoholic, and I note that in Mrs Jones’ own letter there is reference to the word alcoholic, albeit in terms of being accused of being one. That said I do not consider it likely that Mr and Mrs Jones’ son would have called Mr Jones “an alkie”, and note that Dr Serrano had not referred to that when solicitors had written setting out relevant versions of events. It was apparent from his evidence that Dr Serrano had convinced himself that this was said, and I do not find that he was lying about this point, but I considered Mrs Jones’ evidence on this point to be more reliable.
12. It is apparent that there was a discussion about informing the DVLA, and that Dr Serrano informed Mr and Mrs Jones of his duty to report them, and I accept Dr Serrano’s evidence, as set out above, about that. I do not accept Professor Wallace’s criticisms of Dr Serrano’s conduct of the consultation. I find that Dr Serrano made every reasonable effort to get Mr and Mrs Jones to engage and confront Mr Jones’ alcohol problems, but Mr Jones simply refused, and I accept Dr Serrano’s evidence that Mr Jones tried to distance himself from what he had said. He considered himself a social drinker, had no idea of the damage that he was doing himself, and was not prepared to engage with his new doctor.”

THE CONTEMPORARY NOTES WERE IMPORTANT (AND PREFERRED)

• The contemporary medical notes (including timings) were of considerable importance.
• It is equally important to note that they judge did not find that any of the witnesses were lying. They were honest but mistaken.

AN OVERREACHING EXPERT

One of the experts clearly went beyond their scope.

Dr Gerada gave evidence about which respective version of events was most likely to be reliable. I have not taken that evidence into account, and Mr Browne was justified in stating that Dr Gerada’s evidence on this point was not permissible expert evidence as it dealt with issues of fact, and not issues on which expert evidence was relevant.”

OVERVIEW

The manner in which judges approach disputed evidence is of particular importance. Disputed evidence is the reason most cases reach trial. This case is another example of the appropriate approach at trial.  There are practical problems which most litigators are familiar with.

• The importance of contemporary documentation.
• The “change of mind” after a joint meeting by the experts.
• Experts trying to give evidence of “fact” – something that is the sole province of the trial judge.

OTHER POSTS ABOUT WITNESS EVIDENCE AND CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?