"WITNESS TRAINING" DOES IT DO ANY GOOD? THE ROLE OF THE SOLICITOR IN DRAFTING WITNESS STATEMENTS
In Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd  EWHC 3718 QB HH Judge Mackie QC considered witness evidence of routine business transactions that took place over a decade before. He appears to have some doubts about the value of witness training. There are also some interesting observations about the difficult job of the solicitor in drafting witness statements.
The claim was for breach of contract and negligent misstatement. The claims totalled $20 million. The trial lasted 32 days. There were many bundles and 5625 “Key contemporaneous documents”.
- The trial was long. The parties found it necessary to examine in great detail in 2014 the dealings between Globe and TRW between 1996 and the signing of the Agreement in 2001 and then the events that followed. That came about for the first period because of the negligent misstatement claim advanced by Globe, the emphasis placed by TRW on the detailed factual matrix and the case of both on damages in general. For the later period it was caused by aspects of damages and negligent misstatement and an estoppel claim by TRW. For both periods it came about also because of the need to examine the evolution of two motors and to make comparisons between them.
- All the witnesses faced the problem of giving evidence about routine business events taking place between 10 and 18 years ago. This was the fault of Globe in failing to bring its claims earlier, although in this area of industry with parties trying to cooperate in existing and new business, it is to a degree understandable that action is only brought when one side finally realises that unless it does so, any rights which it has will be lost. As a result, the quality of recollection, except about major events, could not be high. At times in the trial it became easy to forget how difficult it would be for witnesses to remember routine matters that had taken place so many years ago. Caution about evidence of matters taking place so long ago is necessary- see for example the observations of Hamblen J in “The Panamax Star” –v- “The Auk”  1 Lloyd’s 606 at 613 (not cited by the parties but read by me for another purpose while writing this judgment). Moreover the witnesses were dealing with mundane and not particularly memorable business events. This is not a case about a memorable event such as a fire or a plane crash. I discount heavily much of the oral evidence including some of what the witnesses honestly recall was the significance of the documents. I place more emphasis than usual on the documents, read in context, and on commercial probabilities when evaluating the competing recollections of honest and intelligent witnesses. I am also cautious about making even that evaluation. It is common ground that the parties worked in close and friendly collaboration and that their dealings comprised much more than is recorded in written exchanges. I conclude nonetheless that anything significant would have found its way onto paper at some point.
- There were few differences about matters of primary fact. When the witnesses differed it was usually about the significance to be attached to undisputed facts and technical matters. Typical disagreements were about what was or was not relied on, what the respective bargaining strengths were at particular times and what people knew or did not know at particular times. There was however considerable disagreement about technical matters among the fact witnesses and to a degree between the experts.
- All the witnesses of fact were clear, honest and straightforward. Some of Globe’s witnesses were hampered by the effects of some external ‘witness preparation training’ which their integrity and common sense fortunately enabled them to shake off as their cross-examination continued. Thus at first Mr McHenry and Mr Keegan appeared reluctant to answer questions clearly and were prone to ask for these to be repeated when witnesses of their calibre should not have had difficulty in understanding what was being asked. Apart from that I was impressed by how readily all the witnesses generally put candour and integrity before the interests of the party for whom they were giving evidence.
- As in so many cases many witnesses were afflicted by statements containing passages of detailed submission supported by the documents about which they could give little relevant or admissible evidence. Criticism was made of similar wording being used in several statements, with Counsel citing observations by Hamblen J in Foster v Action Aviation (2013) EWHC (Comm) to the effect that it is unsatisfactory for there to be a number of similarities in language and points made in a number of witness statements as that reveals witnesses being willing to allow their evidence to be marshalled and to use words that were not their own. In cases such as this one, that criticism is not justified. In a case where witnesses genuinely have the same view, perhaps of company policy, and a solicitor is helping them separately to express it in words I see no reason why he or she should have to search for some different formulation with which the witness is happy for the sake of making it look right. Solicitors have a difficult job as it is steering between on the one hand leaving the statement to the witness and then being criticised for including irrelevant material and, on the other hand, actively directing the drafting and being rebuked for putting words into his or her mouth.
- I disagree with the parties that there are 5625 key documents in this case. Many of the documents record the dealings within and between two large companies over some 8 years about a variety of products and subjects. Few of the documents are formal or contractual. Most are informal, created at speed for a particular purpose. Documents dealing with technical matters often make remarks about business matters which are vague or wrong, and vice versa. Positions change over the course of time and are seen differently within separate areas of a business. Documents seeking a particular outcome often contain hyperbole or deal with issues selectively. Managers referring to something in the past will often misremember. Remarks in routine correspondence will understandably not be checked for accuracy with close examination of the documentary history. While the broad picture is important when evaluating the significance of documents genuinely relevant to the particular issues I have to decide, I decline in this judgment to give routine documents the close examination they have received during the trial.
- The litigation process has required the parties to seek out and put together all the contemporaneous documents still in existence which address a particular subject- for example TRW’s records of estimates of future sales. It is a mistake to assume that the equivalent exercise would have been carried out at the time before a decision was taken or estimates conveyed to the other party or that it would have been negligent not to do so. There is a risk of making the false assumption that managers in reputable and well organised companies always generate paper that is consistent, accurate and carefully drafted, know what each other are writing and doing and agree with each other.
- Some points pursued at length in cross examination did not assist resolution of the issues. Most witnesses readily accepted what might seem obvious, that their opposite numbers were astute business people and shrewd negotiators. Some admissions obtained from witnesses about what the detailed position had been many years earlier seemed to me to be more a product of the skill of the cross examiner than evidence to which I could attach much weight.
- Each side at different stages of the case makes forensic points about the changing or shifting case of the other, usually responded to on the grounds that changes occurred only as a result of disclosure (often allegedly late) by the other. In a case of this size which has lasted so long such changes are to be expected and I decline to burrow into the cause of each. I will disregard this aspect of the submissions except where it relates to a point being raised unacceptably late.
- It is the experience of the Court that business (as opposed, perhaps, to intellectual property) litigation between manufacturers of high reputation in the automotive and related industries is uncommon in England, particularly where as in this case the parties continue to have commercial dealings. Suppliers, manufacturers and customers all have good reason to keep on good terms with each other. The sums at issue in this case are large but not as great as the amounts which sometimes make cases of this size and length worthwhile. I have throughout this case frequently urged the parties to try to resolve their differences by discussion and negotiation. I am sorry that a settlement has not been possible in a case where both parties produce such obviously ingenious and useful products and their executives are of such conspicuous ability and integrity.
NO RELIANCE ON REMINISCENCE
Later in the judgment the judge considered the issue of questioning as to the statement of mind of the witnesses.
- Decision. Much time was occupied asking the witnesses what was in their minds in the weeks (and even years) before the Agreement was signed and in examining in close detail documents created in that period. As is to be expected different people remember different things and for the reasons I have given I place little reliance on this reminiscence whether relied on by Globe or by TRW. In broad terms it was common ground that there was discussion and uncertainty about what the specifications for the higher power motor would be. It was still early days and in the hands of Renault, not the parties. Globe witnesses (including Mr Fearon who had been at TRW at the time) recalled that there was uncertainty also about the “38” but that all P1 present and future motors were to be within the Agreement. TRW witnesses recalled that there was no doubt about the “38” and it alone was covered by the Agreement. This evidence was as unsurprising as it was in law unhelpful and to a degree irrelevant. The elapse of time, fading memory, differing recollections, and the submissions about the documents on both sides lead me to find from the negotiations no special facts known to the parties which count as particular background knowledge to shape construction of the Agreement.
The judge went on to find for the claimants on some points and not others in a 548 paragraph judgment.
This issue is also discussed in a number of other posts.