THIS "PROBLEM" WITH WITNESSES: IT IS NOT A ONE WAY STREET: DEFENDANT'S EVIDENCE NOT BELIEVED
Much attention is, rightly, paid to the actions of evidence of claimants who bring fraudulent claims or give untrue evidence. However it is important to remember that this issue with evidence is not a one way street. There are plenty of examples of witnesses being called by defendants who, it transpires, are not wholly accurate. This highlights the litigation risks involved in the collection of evidence and preparation of witness statements. This point is as important for defendants as it is for claimants. Important commercial decisions are made on the basis of witness evidence; it is imprudent to make those decisions on the assumption that every piece of evidence called by a party will be believed.
LILLINGTON -v- MINISTRY OF THE DEFENCE
There is an interesting example in the Court of Appeal decision last week, Lillington -v- Ministry of Defence  EWCA Civ 775. The claimant brought an action alleging negligence on the part of the defendant in his participation in a training march.
THE JUDGE’S ASSESSMENT OF THE EVIDENCE CALLED BY THE DEFENDANT
I do not intend to recite the full details of the judge’s decision on liability. It is, however, important to understand that the judge rejected the evidence of the MoD’s witnesses, Sergeants Claridge and Smith. He rejected as “totally unbelievable” the evidence of Sergeant Claridge to the effect that he had given three orders to the respondent not to carry his Bergen rucksack. Both Sergeants Claridge and Smith made “a rather clumsy attempt to put their actions in a better light”. They had not taken the respondent’s Bergen away from him after 500 metres of the insertion march – or at all.
THE DEFENDANT’S EVIDENCE IN WOODLAND -v- MAXWELL  EWHC 273 (QB)
The judge’s analysis of the defendant’s evidence in Woodland was considered in detail in an earlier post. The claimant suffered serious injury in a swimming lesson. The case went on for may years before trial (going to the Court of Appeal twice and the Supreme Court once). Shortly before trial the defendant adduced new evidence from the swimming teachers. This evidence was treated with some scepticism by the judge.
Her suggestion that Ms Burlinson’s class had started before she entered the pool is a novel one. It is not mentioned in her July 2000 statement given to Mr Palmer; her September 2000 statement to the HSE inquiry; her signed and corrected statement made in October 2001 in response to the claim brought against the STA; her April 2010 account given to Ms Sell-Peters; her detailed witness statement for trial made in September 2010; or her May 2011 defence.
She can identify some support for this contention from Zoe Dean, who agreed with it when cross examined. However, Ms Dean had similarly never mentioned anything to this effect before from 2000 to 2011 when she gave her account. I cannot accept their explanation that both were merely confining themselves to questions asked of them and did not consider the late arrival of the lifeguard/premature start of the lesson, something to be volunteered either as relevant to the issues being investigated by Mr Palmer and the HSE or those arising in this claim….
I cannot accept that Ms Maxwell was prevented from adequately performing her duties as lifeguard because the class had started early when she was not present. If that had been her case, she should and would have spelt this out to others, not least her legal team, many years before hand. I am satisfied that the shift in her account is not explained by some recent jog of her memory, but the recognition that the timing evidence made her previous account untenable.”
THE DEFENDANT’S EVIDENCE IN LAPORTE & CHRISTIAN -v- COMMISSIONER OF POLICE FOR THE METROPOLIS
Again this case has been examined in detail earlier. The claimant was, ultimately, unsuccessful and the claimant’s evidence not accepted, however the trial judge was critical of the evidence given on behalf of the defendant.
“On the other hand, the police witnesses were, in some cases, overplaying the seriousness of the incident at least as strenuously as the protesters were underplaying it.
With respect to the evidence of the local officers, and in particular, PC Bloomfield and Acting Police Sergeant Kneebone, the accounts which they gave in their witness statements were considerably more detailed in some respects than those which they had given earlier under section 9 of the Criminal Justice Act 1967. Much of this detail went to the seriousness of the events upon which the breach of the peace issue fell to be determined. There is force in the claimants’ contention that it is surprising that such detail, if accurate, was not incorporated in the earlier statements made when matters were bound to have been fresher in the officers’ minds. As with the protester witnesses, I do not find that there is any element of deliberate dishonesty revealed by the content of the witness statements in this regard. Nevertheless, I am satisfied that that I must treat the additional detail with come caution.
The criticisms levelled against the TSG officers are more serious.
I am satisfied that, after the event, efforts were made to ensure that the TSG officers produced in their notes of the incident a consistently gloomy picture of the situation which they had earlier faced at the Civic Centre. It is not disputed that it is entirely appropriate for officers, in general, to confer in making their notes in order to preserve, at the very least, a coherent chronology of events. Nevertheless, each officer must record his or her own individual recollection rather than follow a “party line”. There are respects in which I have concluded that officers allowed their individual accounts to be contaminated either by information received from Inspector Wakeford or others thereby distorting their own recollections.
Firstly, the TSG officers all recorded after the event that they had responded to an urgent assistance call from officers inside the Civic Centre. However, all calls are intended to be recorded on a computerised system known as CAD. The operator of the system on the evening in question recorded no request for urgent assistance. He or she recorded two requests for assistance from the two officers in the corridor but neither was labelled as urgent. No officer was called to give evidence that it was he or she who made the urgent call and no audio recordings have been produced. I conclude that there was no urgent call but that Inspector Wakeford inaccurately referred to an urgent call as the officers were conferring in making their notes and that the power of suggestion was such that unreliable hearsay was all too swiftly and undeservedly promoted to the status of direct personal recollection.
Secondly, in their notebook accounts, seven of the TSG officers described themselves as running into the building and through the reception area. The CCTV evidence reveals that their progress was generally somewhat slower than this. By the time the officers came to make their witness statements, they had seen the CCTV footage and their accounts of the speed with which they entered and proceeded through the Civic Centre were trimmed accordingly.
Thirdly, many of the officers recalled seeing significant numbers of protesters active outside the Civic Centre at the time of their arrival. No such activity is to be seen in the clear view provided by the CCTV footage at the material time.
Fourthly, six of the TSG officers recorded that the fire alarm was still sounding and this was adding to the confusion as they were escorting the protesters down the stairs from the third floor landing. Again this is contradicted by the film footage which reveals that the alarm had stopped sounding some considerable time earlier at a time when the TSG officers were going through the foyer and before they had even reached the corridor.
Fifthly, I am satisfied that the descriptions given by many of the TSG officers of the level of resistance and aggression shown by the protesters are overstated. I accept that the film footage would only record a proportion of what was occurring but it would be too much of a coincidence if, by chance alone, none of the more extreme examples of obstructive, aggressive and violent behaviour relied upon had been captured.”
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 case.
7. The Mitchell case and witness evidence: credibility, strong views and reliability.
8. Witness statements and witness credibility: getting back to basics
9. Witness credibility: what factors does the Court look at?
10. That “difficult second statement”: its hardly ever going to be a hit.
11. Assessing the credibility of a witness: it is a matter of communication.
12. Evidence, costs and the credibility of witnesses.
13. Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed
14. Overturning findings of fact on appeal: findings of dishonesty overturned by the Privy Council.