WITNESS STATEMENTS AND AVOIDING JAIL: ARE YOU PROTECTING YOUR CLIENTS AND PROTECTING YOURSELF?
In the recent case of Hughmans -v- Dunhill [2015] EWHC 716 (Ch) an interesting point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion was not accepted. However this judgment highlights a point that disappointed clients can, and sometimes will, blame their lawyers when their evidence is not accepted in court. It also highlights the point that few firms have any system in place for ensuring that the witness evidence is accurate and for protecting their own position if a witness later attempt to blame them for any errors in their evidence.
THE CASE
The claimant firm of solicitors was suing for legal fees in the sum of £179,666.68; the defendant counterclaimed for negligence; breach of fiduciary duty and wasted costs.
- “As for the witness statement dated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this statement and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s] evidence is that the witness statement was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”
There was also in application for:
“an order for compensation from Hughmans pursuant to the Court’s inherent supervisory jurisdiction over solicitors. In this regard counsel for Ms Dunhill particularly relied upon Hughmans’ failure to correct the alleged inaccuracies in Ms Dunhill’s Form E and witness statement dated 6 July 2011.”
THE APPLICATION
The claimant solicitors were successful in the application for summary judgment and the counterclaim by their former client was struck out. However it highlights the difficulties that could be caused when a client alleges that their evidence was, in effect, concocted by their solicitor.
How many firms have a system in place to protect themselves from this type of allegation?
REASONS FOR CONCERN IN RELATION TO THE DRAFTING, EXPLANATION AND SIGNING OF WITNESS STATEMENTS
There are several reasons for concern.
- I am sometimes asked to lecture of witness statements and witness evidence to firms of solicitors. Prior to lecturing I always ask for their “standard letter” to clients and prospective witnesses which sends the draft of a witness statement and explains its significance. As a general rule the letters I am sent are vague and ineffectual. They do nothing to explain the significance of signing the statement to the witness and even less to protect the position of the solicitor. (The letters may well be significantly re-drafted after I have finished the lecture!).
- I have been involved in hearings (including contempt of court hearings) where witnesses often attempt to blame their lawyers for problems with their witness statements. A witness “on the hook” or likely to go to jail (as two did in one case I was involved in) will happily implicate anyone else, including their own lawyers, in an attempt to extricate themselves.
JUDICIAL SCEPTICISM AS TO THE DRAFTING OF WITNESS STATEMENTS
Further it has to be said that there is, on occasion, a fair degree of judicial scepticism about the drafting of witness statements. A witness who attempts to pin the blame on their lawyer may have a head start.
THE WOOLF REPORT
In his Final Report on Access to Justice, Lord Woolf observed that:”Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting…” (Para 55).
THE JACKSON REPORT
In his Reports Jackson L.J. devoted a considerable amount of time to the unnecessary escalation of costs due to “over-drafted” witness statements.
Over-drafting by the lawyer”.
“3.5 To prepare an effective witness statement in a complex case, substantial input is required from the witness. The lawyer must spend sufficient time with a witness so that he understands what the witness is trying to say. This in itself can rack up costs and this is before several iterations of the statements have been drafted and comments from the witness, counsel and the rest of the solicitor team have been taken into account. Often what appears to happen is that a witness statement simply repeats what is already in the documents and it ends up being a carefully crafted court document more akin to submissions than the story of a lay person.”
THE ABRAMOVICH CASE
In Berezovsky -v- Abramovich [2012] EWHC 2463 (Comm) Mrs Justice Gloster DBE commented on the history of the litigation and length of the witness statements and observed;
“It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.”
THE HANDBOOK FOR LITIGANTS IN PERSON
This was written by six highly experienced circuit judges.
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).
HH JUDGE OLIVER-JONES QC
“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.
Smith –v- J&M Morris (Electrical Contractors) Limited. [2009] EWHC 0025 (QB).
PREVENTING A CONFLICT BETWEEN THE LAWYER AND THE CLIENT
The task of the lawyer is clear, to obtain and record the evidence and not produce it. There should be no conflict between the lawyer and the client. The lawyer’s main task is to ensure that the evidence is complete and accurate. I am not concerned, in this post, with the ethics of drafting, that has been considered in detail elsewhere on this blog. I am concerned with protecting the interests of both the client and the solicitor and ensuring that the:
- The witness is fully aware of the significance of the documents they are signing.
- There is a clear record of the lawyer explaining the significance to the client.
WHAT SHOULD THE LAWYER DO?
What I am not going to do is to draft the covering letter for you. That is something that must be drafted, by a fee earner, with great care. However a witness signing a statement has to be told in full and clear terms of the need for their statement to be accurate. A good starting point is the matrimonial Form E form, set out in the Hughmans’ judgment.
“The cover page of the Form E contained the following rubric:
“Please fill in this form fully and accurately.…
You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.
A failure to give full and accurate disclosure may result in any order the court makes being set aside.
If you are found to have been deliberately untruthful, criminal proceedings for perjury may be taken against you.”
A witness needs to know, at the very least,
- That this is an important document.
- If it is inaccurate they could have criminal proceedings brought against them.
- That they should check the document fully and carefully and feel free to make any additions or alterations.
- The statement is, however, one of facts and not opinions.
- If they have any doubts about any matter at all they should raise these with the lawyer involved.
IF YOU DO NOT HAVE A PROPER SYSTEM IN PLACE THEN ONE DAY YOU ARE GOING TO HAVE A PROBLEM
Sooner of later you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement. Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.
RELATED POSTS
The question of ethics when drafting witness statements is considered
Posts on witness evidence and credibility generally:
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?
5. Assessing the reliability of witnesses: How does the judge decide?
6. Which witness is going to be believed? A High Court decision on credibility
7 Evidence, Experts & Arson: Analysing the evidence when serious allegations are made