WITNESS STATEMENTS, STATEMENTS OF TRUTH AND CONTEMPT OF COURT

The judgment of Mrs Justice Slade in Aviva Insurance -v- Randive [2016] EWHC 3152 (QB) involves no findings of fact.  However it does demonstrate the dangers inherent in being involved in the drafting of witness statements and replies to Part 18 questions.Where facts are set out which cannot be proven, or are simply not true – someone is to blame.   Little can be done about a client who is determined to lie in these circumstances, and there can be no sympathy at all  for such a  litigant.  However in some cases a lying witness will attempt to implicate their lawyer.  This demonstrates the need for a system to be in place to show that the statement of truth has been explained and that the evidence comes from the client and not the lawyer.

KEY POINTS

The key point to be drawn from this is the need for the lawyer to:

  • Explain the significance of the statement of truth to the maker of a witness statement.
  • Have a system in place to record the advice given.
  • The facts of this case have yet to be determined.  However  it emphasises the points made in Witness statements and avoiding jail: are you protecting your clients and protecting yourself?    See the guidance at the end of this post.
  • Be aware that a trapped liar will often seek to blame or implicate others, including their legal representatives.

THE CASE

Mr Randive was involved in a road traffic accident where liability was admitted.  The action failed at trial, the trial judge finding that he was fundamentally dishonest.  The insurance company, Aviva, applied for permission to bring proceedings for contempt of court. The judge was considering that application.

THE JUDGMENT

The judged refused permission on the first ground, however she granted permission on the remaining three grounds.

“Ground 2
  1. The Applicant contends that the assertion in paragraph 48 of his witness statement that he: ‘Stopped driving for six months after the accident, as I was advised not to drive’ was false and was made by the Respondent knowing it to be so.
  2. Mr Walsh pointed out that the Respondent’s own evidence demonstrated that his claim was untrue. In cross-examination at the hearing of his claim in the County Court the Respondent qualified his statement ‘six months I was not driving’ with ‘I’m not saying I was not driving at all, I used to go to short distances until I could feel the pain, so I was avoiding the long distance driving’. Counsel also referred to paragraph 26 of the affidavit sworn by the Respondent on 5th February 2016 to answer to this application in which he wrote:
“26… I stopped driving shortly after the accident. In fact, I only drove on one occasion to Asda’s to buy groceries. This was painful so I did not drive again”
The Respondent then referred to the answer he had given at the County Court set out above. He continued:
“I was trying to convey that I had undertaken a short journey after the accident and that this hurt so I then stopped driving but I did not put it across the way that I should have done”
  1. As Mr Walsh commented, it appears from Dr Jaffery’s report of 27 February 2014 that the Respondent did not mention to him that he was unable to drive after the accident. This was a reference to car journeys but only to record that the Respondent finds long journeys painful.
  2. Mr Naik acknowledged as correct the inconsistencies relied upon by the Applicant in support of Ground 2. The Respondent said that he did not drive for six months after the accident but he did.
  3. There is accordingly a strong prima facie case that the Respondent drove during the six months following the accident and that his statement that he could not drive during that period because of the accident was false and made knowing it to be so.
Ground 3
  1. The Applicant contends that the response by the Respondent to the Part 18 Request for Further Information by which he stated that the approximate speed of the Applicant’s driver’s vehicle at the point of impact was ’30 to 40 Miles Per Hour’ and that his vehicle was shunted a ‘few metres away’ ‘in a ‘straight direction’ was false and was made by him knowing it to be so.
  2. In his evidence to the County Court the Respondent revised the speed of the Applicant’s vehicle downwards to 20 to 30 mph and stated that his vehicle had been ‘rocked’ in the collision, but admitted that it had not been moved forward.
  3. Mr Naik pointed out that in his evidence in the County Court the Respondent disagreed that the vehicles simply touched. He said that his vehicle jerked and ‘came back… so it was trying to move’, saying later ‘It just jerked, it moved’.
  4. Counsel for the Respondent submitted that it was difficult for the Respondent to give an accurate estimate of the speed of the Applicant’s vehicle when it hit his car. The Applicant cannot properly demonstrate that the Respondent’s knew the statements of the vehicle speed to be untrue. Mr Naik acknowledged that the answers given by the Respondent in his Part 18 answer were not consistent with other statements made by him. Counsel agreed that the Respondent gave a variety of answers to the questions raised about the speed of the Applicant’s car on impact and its effect on the Respondent’s car. It was agreed that the Respondent has given inconsistent and unreliable evidence on these issues.
  5. It is agreed by the Respondent that the statement he made in answer to the Part 18 request for information that on impact his vehicle was shunted a few metres away was an untruth. His later evidence was that the vehicle had not moved forward but rocked.
  6. Whilst there may be some room for argument as to whether the Respondent knew that his original estimate of the speed of the Applicant’s vehicle was untrue, there is more than a strong prima facie case that he knew that his original statement that on impact his vehicle was shunted a few metres in a straight direction was untrue. The Respondent was at the wheel of his car. He must have known whether his car was pushed forward a considerable distance on impact or whether it did not move forward but rocked in its stationary position.
Ground 4
  1. The Applicant contends that the statement in paragraph 28 of his witness statement that the Respondent took 16 days off work in total following the accident, in respect of which he claimed 10 days loss of earnings as a result of the accident in the sum of £4,500, was untrue and was made knowing it to be so.
  2. Mr Walsh pointed out that in his medical report of 27 February 2014 Dr Jaffery records that the Respondent told him that he took 4 weeks off work following the accident. However in the response dated 16 February 2015 to the Part 18 Request for Information the Respondent stated that he was off for a few days to avoid back pain.
  3. Mr Walsh referred to the claims notification form which was completed by his solicitors on the Respondent’s behalf on 23 January 2014 in which the answer ‘no’ was given to the question ‘Has the Claimant had to take any time off work as a result of the injury?’.
  4. Other evidence was relied upon by Mr Walsh to show that the claim of 10 days off work because of the accident was untrue and known by the Respondent to be so. The Respondent’s accountant confirmed by letter dated 25 June 2014 that the Respondent missed 16 days off work ‘due to injury’. The dates ran from 31st August to 30th November 2013. Apart from one the days listed by the accountant were at weekends.
  5. Further, counsel for the Applicant pointed out that his GP notes show that the Respondent was taking time off for back pain before the accident. An entry recording a visit on 21st August 2013 states: ‘has low back pain for 1 week, active gym goer, very stressed as losing time off work due to this pain’.
  6. The Respondent sought to explain the answer given in the claim notification form dated 23rd January 2014 sent to the Applicant’s insurers by saying that it was completed by his solicitors and ‘he did not check it carefully’.
  7. The Respondent states that he obtained an accurate record on 24 June 2014 from his accountants of his time off work due to back symptoms. As for the statement of four weeks off work due to the accident in Dr Jaffery’s report of 27th February 2014, Mr Naik pointed out that a further report dated 17th April 2015 was prepared by Dr Jaffery after he had seen the Respondent’s medical records. In the later report Dr Jaffery wrote ‘I attribute 50% of the injuries described to the index accident and 50% to the pre-existing condition’. In his skeleton argument Mr Naik wrote that it was then that the claim for loss of earnings in the Schedule of Loss was reduced to reflect this percentage attribution of injury.
  8. Mr Naik acknowledged that the inconsistencies in the assertions as to whether and if so how many days the Respondent took off work due to the accident were correct. However he contended that the fact that they were inconsistent did not establish that the Respondent knew the statement relied upon by the Applicant to be untrue although he acknowledged that there was a prima facie case to that effect.
  9. The Respondent attested to the truth of his statement shortly before the commencement of the hearing before the County Court on 30 April 2015. In that statement the Respondent asserted that he took 10 days off work due to the accident. This reflected the claim for £4500 in respect of 10 days off work set out in the updated Schedule of Loss dated 4 February 2015.
  10. The evidence of what the Respondent told Dr Jaffery before 27 February 2014 that he took four weeks off work due to the accident, what was inserted by his solicitor on his claim notification form dated 23 January 2014 that he had not taken any time off work due to the accident, the letter from his accountants on 24 June 2014 that he had taken 16 days off work due to the accident during the period between 31 August and 30 November 2013, in the answer to the Part 18 Request For Information on 16 February 2015, that he took a few days off work due to the accident, were mutually inconsistent. They could not have all been true. The statement relied upon by the Applicant, the Respondent’s statement attested to on the day of the hearing on 30 April 2015 for the purpose of the hearing before the County Court, appears to have been based upon the number of days listed in his accountant’s letter, alleged to have been adjusted to take into account Dr Jaffery’s assessment in his report of 17 April 2015 that 50% of days off were caused by the injury in the accidents. It is curious that a document, the Updated Schedule of Loss, was said in the skeleton argument prepared by counsel on behalf of the Respondent for the purpose of this application to have reduced the figure claimed for loss of earnings to reflect Dr Jaffery’s report of 17 April 2015 when the Schedule was updated on 4 February 2015,
  11. There is a strong prima facie case that when it was made the passage in his witness statement that he took 10 days off work due to injury suffered in the accident was untrue and was known by the Respondent to be so.
  12. It is not for the court on this application to make a final determination whether the claim by the Respondent in his witness statement that he lost 10 days off work due to the accident was untrue and made knowing it to be so. However the Applicant has established a strong prima facie case that this claim in the statement attested by a statement of truth was untrue and was made by the Respondent knowing it to be so.
Conclusion
  1. It is not for a court hearing an application for permission to bring proceedings for contempt of court to decide the merits of the application for contempt. The task is to decide on the material then before the court, which has not heard oral evidence. It is to decide whether the Applicant has established a strong prima facie case as asserted in the grounds relied upon that the Respondent made the false statements in documents attested to by a Statement of Truth knowing them to be untrue.
  2. Even if such a strong prima facie case is established, the pursuit of committal proceedings must be in the public interest, proportionate and in accordance with the overriding objective. Applying the overriding objective includes considering the amount of money involved, the importance of the case and allocating to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Ground 1
  1. I have held that the Applicant has not established a strong prima facie case that the statements relied upon in paragraphs 17 and 18 of the witness statement attested to by the Respondent on 30 April 2015 as true were in fact untrue. Accordingly permission to bring contempt proceedings on Ground 1 is not granted.
Ground 2
  1. I have held that the Applicant has established a strong prima facie case that the statement relied upon in paragraph 28 of the witness statement attested to on 30 April 2015 was untrue and was made by the Respondent knowing it to be so.
  2. The Respondent claimed special damages of £200 for travel expenses. This figure does not differentiate between those incurred before and after the six months period and is not large. However the assertion of being unable to drive may have had an impact on the amount awarded for general damages.
  3. If Ground 2 had stood on its own I would not have considered that pursing committal proceedings would have warranted the attendant use of court time and resources. However it does not. The untruths which are the subject of Ground 2 contribute to the overall picture of the injury and loss claimed. Permission is given to pursue contempt proceedings on Ground 2.
Ground 3
  1. I have held that there is a strong prima facie case that the statement of speed in his response to the Applicant’s Part 18 Request for Further Information was false and made by the Respondent knowing it to be so.
  2. The assertion that the vehicle of the driver insured by the Applicant was travelling at such speed that is caused the Respondent’s vehicle to be shunted forward by a few metres gives an impression of the severity of the impact and therefore the likelihood of injury which formed the basis of the claim pursued by the Respondent. Bringing a false claim in the courts is extremely serious. Apart from the dishonesty of bringing such a claim, false claims lead to waste of court time and resources. Although the claim brought by the Respondent was small in financial terms and contempt proceedings will be costly, in the interests of justice and the overriding objective I consider it proportionate for contempt proceedings to be pursued. Accordingly I give permission for such proceedings to be brought on Ground 3.
Ground 4
  1. I have held that there is a strong prima facie case that the statement in his witness statement that he lost 10 days off work due to the accident was false made by the Respondent knowing it to be so.
  2. The claim by the Respondent that the accident caused him injury leading to time off work was the basis of the claim for £4500 made in the updated Schedule of Loss. For the same reasons as permission is granted to bring Contempt Proceedings on Ground 3 such permission is granted for Ground 4.
Disposal
  1. Permission is granted under CPR 81.12(3) to the Applicant to pursue proceedings for contempt of court against the Respondent on Grounds 2, 3 and 4 of the application of 14 August 2015.
  2. Permission to bring contempt of court proceedings on Ground 1 is refused.

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

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