JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in Eden -v- Parker  EWHC 3302 (Ch)
The judge was considering the credibility of one particular witness:-
“ Mr Connolly submitted that Mr Parker’s evidence was grossly unsatisfactory and that the manner in which he had given his evidence, and its content, reflected criticisms previously levelled against him by His Honour Judge Maddocks in the earlier case of Parker v Synder (as recorded by the Court of Appeal when refusing Mr Parker’s application for permission to appeal at  EWCA Civ 1416 at paragraph 14):
“Mr Parker was an erratic and unreliable witness. His suspicious nature led him to describe as fact that which he imagined to have occurred. His evidence would be adjusted to meet the case he wished to pursue…”
Mr Connolly submitted that, if anything, those observations amounted to an understatement, that the court should treat Mr Parker’s evidence with great scepticism, and that where the court had to choose between his evidence and that of Mr Eden, it should prefer the latter. When Mr Parker was asked in cross-examination about Judge Maddocks’s assessment of him he acknowledged that he had given poor evidence for which he had not been properly equipped but that that did not make him a fraudster: “I may be unreliable but I’m not telling lies.”
I find that Mr Parker was a disastrous witness for his defence. I fear that His Honour Judge Maddocks may have been too kind in his assessment of Mr Parker as a witness. He is probably the most difficult and opinionated witness I have ever had the misfortune to encounter from the bench. He was aggressive, combative and completely unwilling to engage with the questions that were put to him, having (in Mr McEwan’s words) “a colourful temperament” and providing a “generally unfocussed and emotive response to questioning”. Mr Parker was forthright in his rejection of opposing counsel’s propositions. He did himself no favours in the manner of his evidence, which was hardly calculated to engender any sympathy from the court. His stock answers were “Rubbish!” and (less frequently) “Garbage!”. He was prepared to throw allegations of dishonesty around like confetti at a wedding. Mr Parker’s frequent digressions in the witness box demonstrated a serious lack of rigour and focus, and an inability to concentrate on issues, even in the formal forensic atmosphere of the court room. I can well understand that Mr Parker’s legal representatives may not always have been able to follow his evidence and to understand his instructions. In a less formal business environment, and even more so in a social context, I recognise that Mr Parker may not always focus upon what is being said and respond appropriately. In his opening skeleton, and in his written and oral closings, Mr Connolly rightly exposed the many omissions from Mr Parker’s witness statement and the many inconsistencies, both in his written and his oral evidence, and between that evidence and the contemporary documents. I do not propose to identify them individually in this judgment; but having re-read Mr Connolly’s written closing and my notes of that closing, and also of Mr Parker’s evidence, I have no hesitation in finding that Mr Parker is a thoroughly unreliable witness who was prepared to say anything which he thought might support his defence. An example is the wholly unsatisfactory explanation of Mr Parker’s response to the assertion (in paragraph 6 of Eden & Co’s letter before action to Mr Parker of 26 February 2015) that in the course of the site visit Mr Parker had “told Mr Eden and his son that [he] knew the site and the buildings thereon very well and [he] provide[d] a detailed explanation of the proposed refurbishment scheme”. Writing on Mr Parker’s behalf on 15 April 2015, his then solicitors, Lopian Wagner, said (at paragraph 8) that Mr Parker denied any assertion that he had informed “those present” that he knew the houses well. When it was put to Mr Parker in cross-examination that this was an implied acceptance that James Eden had been present at the site view, Mr Parker’s response was to say that this was a reference to Stacey Leonard and Joe Oliver, who had been present at Mr Parker’s offices at the start of the site view, and not to James Eden. I agree with Mr Connolly that this was “patent nonsense” and should have been known to be such by Mr Parker. I do not accept Mr Parker’s explanations that certain matters were considered to be irrelevant to his defence, and so had been omitted from his witness statement, and that his memory had been triggered by the forensic process and by Mr Connolly’s questioning. I find that I cannot accept any of Mr Parker’s evidence in the face of evidence to the contrary which I find to be reliable.
- Witness evidence, reliability and credibility: Why everyone should read Gestmin (or failing that my summary).
- The Arroyo Judgment 3: witnesses and credibility
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability