TAKING WITNESS STATEMENTS AND FACT FINDING: VEHEMENT CRITICISM (OF A SURPRISING SOURCE)

The need to take care when drafting witness statements has been a regular theme of this blog. The delegating of witness statements to a party or client is an extremely dangerous (and foolish) practice.   I have also examined, regularly, the painstaking and careful process that trial judges go through when assessing facts and witnesses.  An example of what can happen when this does not take place can be found in the judgment of Mr Justice Collins in Smith -v- Bar Standards Board [2016] EWHC 3015 (Admin). That it comes as a result of very basic failings by the Bar Standards Board is extraordinary.

“It is worth noting that in the present approach to litigation involving the drafting and redrafting of statements of witnesses, the latest of which is submitted as his or her evidence, it is often shown in cross-examination that the witness statement does not in truth fully or properly reflect his true evidence. This does not mean that there has been deliberate invention but it is all too easy to persuade a witness that he should put his evidence in a particular way which may turn out not to be entirely accurate.”

THE CASE

The Bar Standards Board brought an application against a barrister. The main allegation was that he had told a client that there was a “clean break” in a settlement order when there was not .

  • There was a major delay in the process of investigation.
  • The Ombusdman’s view was that there was no poor service by the barrister. The BSB continued, nevertheless.
  • The witness statement of the complainant client was prepared by the solicitor who was bringing the complaint on the client’s behalf.
  • The complainant did not attend the disciplinary hearing.
  • The tribunal admitted the claimant’s evidence.

THE COMPLAINANT’S WITNESS STATEMENT

“The ombudsman had expressed some confusion as to whether the complaint was made by Mr A or by his solicitors. It was made clear that the solicitors were bringing it on behalf of Mr A. He was concerned that contrary to his understanding and wishes no clean break of maintenance had been made included in the order. The BSB should, accordingly, have appreciated that there was a potential conflict of interest in that the solicitors were vulnerable to an allegation of negligence against them, particularly since a partner of the firm had attended court with Mr Smith and had been able to see the proposed consent order. There was no doubt that at the very least the solicitor had had it read over to him clause by clause. Thus, it was in the solicitors’ interest to put any blame on Mr Smith rather than on themselves.
8. It follows in my view that the BSB were seriously at fault in permitting the solicitors to continue to act on Mr A’s behalf in pursuing the case and, in particular, in producing Mr A’s statement. In fact, there were two statements but the second one merely confirmed the accuracy of the first

THE COMPLAINANT’S EVIDENCE AT THE HEARING

The complainant did not attend the hearing. However the tribunal allowed the witness evidence as hearsay evidence.

30. The BSB had not been involved at all with Mr Abut had left it to Jennings Solicitors to produce his statements. This was a clear failure to act properly since, as I have said and as Mr Douglas recognised when questioned at the hearing, there was a potential conflict of interest, it being clearly in Jennings’ interest to place any blame for the failure to include a clean break, which Mr Asays he thought had been included, on the appellant. There can be no doubt that to allow Jennings Solicitors to be responsible for producing the statements was a serious error by the BSB”
OBTAINING THE WITNESS STATEMENT
31. Mrs Jennings accepted that she had supervised the individual in the firm (a legal secretary) who had obtained statements from Mr A. It was of obvious importance to the appellant that Mr Ashy should attend to give evidence since there was a highly material, indeed crucial, issue of fact to be determined, namely what the appellant had actually said to Mr Aand what Mr Ahad understood at the hearing in the county court.
32. Further, it would have been necessary to discover what Mr Ahad been told by his solicitors which may have influenced him in what the statement contained. I have already noted that Mr A’s statement referred to Mr Douglas not representing him but being there simply as a note-taker, a role which seems somewhat strange for a partner in the firm. He says that he was absolutely clear from the beginning of the proceedings that he wanted an eventual clean break but that was not put to the appellant at the commencement of the negotiations, nor was it contained in the instructions in that form. All that Mr Smith was informed in his instructions was that Mr A wanted a clean break. But if the overall result was in Mr Smith’s view sufficiently favourable, that clean break may well not have been required. That was not in the instructions. That was clearly in my view a reasonable approach that Mr Smith could have taken.
THE HEARING
35. On 13 October 2015 Mr Burn, who was dealing with the matter on behalf of the BSB, received a telephone call from Mrs Jennings in which he was told that Mr Awould not be attending. Mr Burn’s note reads: “Does not want to be involved, would not be able to give any useful evidence in any event as the lay client.”
36. That was an extraordinary observation which led, when Mrs Jennings was cross examined at the tribunal, to thoroughly unsatisfactory answers being given by her. Mr Burn did nothing; he took no steps to procure or seek to procure Mr A’s attendances. At the very least he clearly should have written a letter because he had already been in gross breach of his duty in allowing statements to be taken by Jennings Solicitors and not by a representative of theBSB.
37. Further, it seems that Mr Burn informed Mrs Jennings that it was not vital that Mr A should attend provided that she or Mr Douglas did. If he did so inform Mrs Jennings, that was equally a serious dereliction of duty by him.

EXTRAORDINARY REASONING IN RELATION TO THE ADMISSION OF THE HEARSAY EVIDENCE

43. That reasoning is truly extraordinary. To say that the view was not taken that the BSB had not taken reasonable steps is clearly perverse. It had taken no steps. It is hardly possible to believe that to take no steps is to take reasonable steps. Further, to say that the weight of his evidence was in effect all that mattered was equally perverse in that it ignored the obvious unfairness which would result and equally ignored the fact that Jennings had an interest in procuring a statement which exonerated them and blamed Mr Smith.
44. It is worth noting that in the present approach to litigation involving the drafting and redrafting of statements of witnesses, the latest of which is submitted as his or her evidence, it is often shown in cross-examination that the witness statement does not in truth fully or properly reflect his true evidence. This does not mean that there has been deliberate invention but it is all too easy to persuade a witness that he should put his evidence in a particular way which may turn out not to be entirely accurate.
45. It follows that I have no doubt that the appellant did not receive a fair hearing.”

ABDICATION OF THE DUTY TO COLLECT EVIDENCE

What is remarkable here is the total abdication (and I use that word in preference to delegation) of the task of collecting evidence.

AND, YOU KNOW, THESE PEOPLE HAVE GOT SOME FORM…

In McCarthy -v- The Visitors to the Inns of Court & The Bar Standards Board [2015] EWCA Civ 12 an employee of the Board made a deliberate decision not to disclose information. This was set out in the judgment of the Court of Appeal

“16. Counsel provided his response to the complaint which in turn was sent to ST for comment. The BSB then made preparations for the hearing itself. No statement was ever taken from ST but TA provided a 49 paragraph statement in June 2010. He did not sign or date it but a decision was taken by the BSB not to disclose it. The reason was candidly stated in a letter to ST dated 27 July 2010: “
We have decided that we will not disclose Tim’s witness statement until shortly before the hearing date. This will remove the possibility of Mr McCarthy fitting his case around that statement.”
The point was repeated in another letter of 26 August 2010

This is was Lord Justice Burnett stated:

17. What happened was extraordinary. A conscious decision was taken by an official at the BSB which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution. To my mind, that was compounded by inviting a witness to assume the role of surrogate prosecutor by producing a statement of the sort I have described. Moses LJ drew an analogy between disciplinary proceedings of this nature and criminal proceedings. To my mind that is entirely apt, if not exact, and supports the suggestion that scrupulous standards are required of the BSB acting as prosecutor. This Tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to an end a professional career, even though its decision could not result in a criminal conviction.”

A FAILURE OF BASIC TRAINING

These are very fundamental failings.  The best guidance on the ethical drafting of witness statements comes from the Bar Council.  It may help if it were read more widely.