WHEN THE WITNESS EVIDENCE SIMPLY SAYS – “I AGREE WITH HIM”
There was a post on this blog earlier this week about the issues caused by similar witness statements. Another intriguing problems is what happens when the witness simply says “I agree with…” the other witness. This type of “evidence” is unlikely to be given any credibility at all.
“If for whatever reason Anthony Johnston was unable or unwilling to take the time or trouble to provide a witness statement stating what his evidence was about this visit, it is not in my view incumbent on cross-examining counsel to have to begin cross-examination by embarking on a voyage of discovery to ascertain what his evidence actually is, before proceeding to challenge him upon it. In such circumstances I consider that I am entitled to place little or no weight on Anthony Johnston’s evidence.”
YOU CANNOT SIMPLY RE-USE OR RE-CYCLE WITNESS STATEMENTS
In Re-Use Collections Limited -v- Sendall & May Glass Recycling Ltd  EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses in vague and general terms. There are also important issues relating to the assessment of the credibility of witnesses.
Equally significant are the judges comments in relation to the paucity of the evidence in relation to damages. This emphasises the neeed to give detailed, and early, consideration to the need to prove damages at trial.
The case was an action against a former employee who had set up a competing business. The claimant succeeded in establishing breach of contract by the defendant but not breach of fiduciary duty.
THE WITNESS EVIDENCE
Two of the witnesses were not called. Part of their statements, at least, were drafted in an unusual manner. The “confirmed the truth and accuracy” of the statements of other witnesses. The judge found this practice unhelpful, to say the least.
(iii) Two witnesses made available to be called by the claimant but not required for cross-examination
Anthony Johnston had made a very short witness statement which was limited to confirming the truth and accuracy of those issues addressed in the statements of Mark Owen and Mark Wilson to which he was privy. That was not the most helpful of approaches to take, since it left unexplained which particular issues he was referring to, and the basis on which he could confirm them from his own knowledge. Nonetheless it was reasonably clear from the evidence of those witnesses that his only direct involvement was in the visit to Dagenham on 18 April 13. Mr Choudhury, having cross-examined Mark Wilson in some detail about that visit was not minded, for reasons of timing, to re-run the whole process with Anthony Johnston, even though he was able to be called. Mr Keen, whilst not challenging my indication that it was not necessary for the defendants’ case about that visit to be put again to Anthony Johnston, observed that in such circumstances it would be difficult for this court to make any adverse assessment of Anthony Johnston’s reliability as a witness without seeing him being cross-examined.
Whilst I accept Mr Keen’s approach as being generally correct, I consider that two reasons justify Mr Choudhury’s stance in this case, namely: (1) the delay caused to this trial on day 1, by the claimant’s unsuccessful attempt to adduce late quasi-expert evidence, and on day 2, by the claimant’s belated supplemental disclosure, collectively making it thoroughly undesirable that time should be spent on repetitious cross-examination; (2) Anthony Johnston’s failure to identify in clear terms in his witness statement precisely what his evidence was in relation to this visit. If for whatever reason Anthony Johnston was unable or unwilling to take the time or trouble to provide a witness statement stating what his evidence was about this visit, it is not in my view incumbent on cross-examining counsel to have to begin cross-examination by embarking on a voyage of discovery to ascertain what his evidence actually is, before proceeding to challenge him upon it. In such circumstances I consider that I am entitled to place little or no weight on Anthony Johnston’s evidence.
Julie Knight, the managing director of a HR consultancy which provided services to the claimant, provided a short witness statement which simply confirmed her advice to the claimant as to the correct procedure to follow in dealing with Keith Sendall after the visit of 18 April 13. It was not contentious, and Mr Choudhury did not need to cross-examine her on its contents. My only criticism is that it also ended with the same general statement that she confirmed the truth and accuracy of those issues addressed in the statements of Mark Owen and Mark Wilson to which she was privy, which again seemed to me to be unhelpful especially since it was not immediately obvious from the rest of the witness statement precisely what evidence she was seeking, let alone able, to support in this regard.”
On taking witness statements
- Drafting witness statements: the questions you ask will determine the answers you get: eight crucial points on evidence.
- Drafting witness statements that comply with the rules: a checklist too important to ignore.
- Drafting witness statements and the genius of John Munkman.
- Drafting witness statements: essential guidance from an authoritative source that every litigator should read.
- The importance of drafting witness statements that comply with the rules.
On witness credibility generally
- 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