RELIABILITY OF WITNESS EVIDENCE: HONESTY IS NOT THE SAME AS RELIABILITY
In Sloper -v- Lloyds Bank Plc  EWHC 483 Mr Justice Spencer had to consider issues relating to the reliability of witnesses.
“I must emphasise at the outset of my analysis of the evidence that I am quite sure that no witness has to come to court, or made a witness statement, intending to do other than his or her very best to recall events fairly and truthfully. But for the reasons already explained, that is quite a different matter from the reliability of what the witness recollects, tested objectively.”
The claimant suffered from mesothelioma. Her case was that this developed due to working at the defendant bank in the 1970s and 1980s. The only issue in dispute was liability. The claimant called witnesses who said that there had been asbestos tiling and asbestos generally in some of the banks she had worked in.
THE APPROPRIATE APPROACH OF THE COURT TO DISPUTED WITNESS EVIDENCE
There were factual issues that the court had to decide.
On the central issue of whether there were suspended ceilings with asbestos tiles at either or both the Freshwater or Yarmouth branches there is a stark conflict of evidence. Witnesses have had to try to recall what, at the time, would have been unremarkable details of these buildings 30-40 years later. It follows that however credible the testimony of a witness may seem, the reliability and accuracy of the details of that testimony have to be assessed against any objective evidence.
In relation to mesothelioma cases, there is a particular need for caution in this regard, as Lord Rodger emphasised in Sienkiewicz v Greif UK (Ltd) 2 AC 229, having regard to the special rule of causation in such cases, established in Fairchild (supra). At paragraph 166 he said:
“It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases. Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted…”
Mr Platt QC, for the defendants, drew my attention to a very recent Scottish decision in a mesothelioma claim with some similarities to the present case, where Lord Pentland made some helpful observations on the reasons for caution: Prescott v The University of St Andrews  SCOH 3 (13th January 2016). Drawing upon observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (Uk) Ltd  EWHC 3560 (Comm), at paragraphs 15-23, Lord Pentland said, at paragraph 42 of the court’s Opinion:
“The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence. All remembering of events many years ago involves processes of a reconstructive nature; these processes are largely unconscious with a result, as Leggatt J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth. Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution. I have, wherever possible, tested his evidence against other evidence in the case and have considered objectively where the probabilities lie.”
“The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.”
These latter observations are, in my view, particularly apposite in the present case in relation to the evidence of the witnesses called by the claimant. The tragic nature of the case and the natural desire to assist in any proper way, are inevitable human reactions. These, and the other factors referred to in the passages quoted above, make it all the more important to test the recollection of witnesses against contemporaneous documentation. In relation to both Freshwater and Yarmouth there is documentation of this kind. I bear firmly in mind, however, the submission by Mr Steinberg QC on behalf of the claimant that there is also a lack of other documentation which might have cast a different light on the same issues.
I must emphasise at the outset of my analysis of the evidence that I am quite sure that no witness has to come to court, or made a witness statement, intending to do other than his or her very best to recall events fairly and truthfully. But for the reasons already explained, that is quite a different matter from the reliability of what the witness recollects, tested objectively.
For this reason as well, it is not appropriate to attempt to consider the evidence in relation to Freshwater and the evidence in relation to Yarmouth as if it came in separate water tight compartments. Reliability, or lack of reliability, of the evidence of a witness in relation to one branch may well have an important bearing on the reliability or lack of reliability of the same witness in respect of the other branch.
The judge found that there was no evidence that the claimant had been exposed to asbestos.
RELATED POSTS ON WITNESS 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?
- 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 basics9. 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.
- The Yeo case: witness evidence and credibility.
- Witness credibility, attendance notes and findings of fact.
- A quick word on witness credibility: what the butler said
- Another assessment of witness credibility
- Proving things 10: “He said, she said”: The difficulties of recollection.
- Witness evidence, recollection, reconstruction and clinical negligence.