PROVING THINGS 96: A WITNESS MAY NOT BE TELLING LIES – BUT THEIR MEMORY MAY WELL BE BIASED: ASSESSING EVIDENCE WHEN FRIENDS FALL OUT

One of the hardest tasks of litigation is trying to assess the credibility of a witness, particularly your own witness.  Litigants can (and often do) have strong views about the case and what they said and did.   The fact that a witness is honest in stating their recollection does not mean they are correct.  The practical implications of this can be seen in Walker & Ors v Mills & Anor [2018] EWHC 998 (Ch).  It shows that a judge can find that a witness is honest and not setting out deliberately to deceive, but also mistaken.

“I bear in mind the common human capacity and tendency for a witness to convince him or herself that events actually occurred in the way in which the witness now with hindsight believes they should have occurred. In this case that tendency has been exacerbated by the fact that there has been a falling out between two men who formerly had a friendship. Each is now convinced not only that the other was to blame for that falling out but that the other had been engaged in deception well before the break in relations came

THE CASE

The claimant was seeking moneys said to be due from the defendants for services due and for a declaration that certain shares were held on trust for him. The case rested, to  a large degree, on the credibility of the witnesses.   The judge found that their past friendship, and subsequent falling out, had coloured their recollections and thus their evidence.

    1. No challenge was made to the honesty of most of the witnesses who were called. Other than Mr. Walker and Mr. Mills the witnesses were giving evidence about matters which had happened some little time ago and where their attention had not been focused on the points now in issue. Such limited criticism as there was of the evidence of those witnesses was by way of suggestion that there might be doubt as to the accuracy of their recollection by reason of the passage of time. Those witnesses were able to provide only very limited assistance on the central questions of the dealings between Mr. Walker and Mr. Mills.
    2. The position was rather different in respect of the evidence of Mr. Walker and Mr. Mills. On behalf of the Defendants I was invited to conclude that Mr. Walker was deliberately giving evidence which he knew to be untrue and that he had fabricated documents. It was said that Mr. Walker had adopted a policy of secrecy in respect of his dealings with the Defendants and with others and that he had been deliberately hiding the truth. I was invited to conclude that he had been acting dishonestly in the period from 2012 onwards. In return it was said on behalf of the Claimants that Mr. Mills was giving an account which he knew to be untrue in serious respects. It was also contended that he had engineered a parting of the ways with Mr. Walker in October 2015 so as to avoid paying sums which he knew were due.
    3. In assessing the reliability of the evidence of Mr. Walker and of Mr. Mills I bear in mind the common human capacity and tendency for a witness to convince him or herself that events actually occurred in the way in which the witness now with hindsight believes they should have occurred. In this case that tendency has been exacerbated by the fact that there has been a falling out between two men who formerly had a friendship. Each is now convinced not only that the other was to blame for that falling out but that the other had been engaged in deception well before the break in relations came. I also bear in mind that the accuracy of any witness’s evidence is to be tested against the picture shown by the contemporaneous documents and by an assessment of the way in which events normally occur and that considerable caution must be exercised before placing undue weight on the perceived demeanour of a witness when giving evidence.
    4. There were a number of aspects of the evidence of both Mr. Walker and Mr. Mills which raised question marks as to the reliability of that evidence. I am not, however, satisfied that either was engaged in a deliberate and long-planned deception of the kind alleged by the other side.
    5. There were a number of respects in which Mr. Walker’s evidence was unpersuasive and which led me to the conclusion that I could not place reliance on that evidence.
i) As I have already explained Mr. Walker was not prepared to accept that his account of the strength of the friendship with Mr. Mills might have been overstated. This was an attitude which he manifested in other parts of his evidence in that he was not prepared to countenance any deviation from the account put forward in his witness statement even when confronted with material inconsistent with that account. I formed the firm impression that Mr. Walker was unwilling to give an answer which he thought might weaken his case or which might mark a departure from the account set out in his witness statement. Even if that unwillingness is not seen as being a conscious stance it did demonstrate an inability to consider matters objectively in that having persuaded himself of a matter Mr. Walker maintained that position even when it was demonstrably unrealistic…
  1. In the light of those matters I have grave concerns as to the reliability of the evidence given by Mr. Walker. I do not conclude that Mr. Walker was giving me an account which he consciously believed to be false. However, there are a number of respects in which I am satisfied that his current account is not reliable. I have concluded that I must exercise considerable caution in accepting that account and that I will not be able to accept Mr. Walker’s account of matters in relation to questions in dispute where it is not supported by either documentary confirmation or by an assessment of inherent likelihood.
  2. I do not accept all the criticisms which the Defendants made of Mr. Walker’s evidence. I have already said that I do not accept that Mr. Walker deliberately manipulated matters so as to remove assets from Clarion Plc believing that the company was likely to be insolvent. I also reject the Defendants’ contention that I should view with caution documents produced by Mr. Walker. I do not accept that there is any basis for concluding that Mr. Walker has fabricated documents to support his case. On 26th January 2018 Mr. Walker spent 3½ hours with Mr. McGoldrick who is a solicitor but who was not acting as Mr. Walker’s solicitor in the proceedings. At that time Mr. Walker had sought an extension of time for the filing of his witness statement saying that he was too ill to work on the statement. The Defendants invited me to conclude that Mr. Walker had misled the court and that Mr. McGoldrick was attending to assist in the preparation of a witness statement. There is no basis other than suspicion on which I could come to that conclusion. I have already said that it is apparent that both Mr. Walker and Mr. Mills are now willing to think the worst of the other. The explanation given by Mr. Walker that Mr. McGoldrick was providing him with moral support is not inherently incredible and I have no basis for rejecting that explanation.

 

DEFICIENCIES IN THE DEFENDANT’S WITNESS STATEMENT

The evidence from the defendant in the case was also subject to scrutiny.
  1. The deficiencies in the evidence of Mr. Mills were not as pervasive as those in the evidence of Mr. Walker but there were nonetheless deficiencies. This was particularly so in terms of the wording of Mr. Mills’s witness statement. In his oral evidence Mr. Mills accepted that in the statement he had downplayed the friendship which he had with Mr. Walker. Similarly, in the witness statement and through the case being put by his counsel in cross-examination of Mr. Walker it was being said that before the discussions at lunch on 7th December 2012 there had been no mention of Comerga and no mention of the possibility of Mr. Mills being introduced by Mr. Walker to persons who might make use of Mr. Mills’s company grooming services. However, in his oral evidence Mr. Mills accepted that there might have been mention of Comerga and also mention of the possibility of such introductions being made. He said that such matters were mentioned in passing rather than in detailed discussions. However, the point is that Mr. Mills accepted that the picture he had painted in his witness statement was too stark and to that extent was not accurate. As will be seen below I have reservations about the reliability of Mr. Mills’s account of his dealings with Mr. Walker in the summer of 2015. In addition I found Mr. Mills’s responses to questioning about the treatment of the sum of £400,000 which was used to buy shares and loan notes in Mini-Cam Enterprises Ltd unimpressive. Mr. Mills failed to address the contentions that this sum had been held to the order of the Second Defendant. He sought to say that because the sum of £400,000 had not physically been received into the account of the Second Defendant he believed that it was not caught by the provision in the Introduction Agreement that 33% of lump sum fees was payable to the other party on receipt. In the light of Mr. Mills’s substantial business experience I found his explanation of his understanding of matters in this regard unconvincing.
  2. So I have concluded that in the wording of the witness statement Mr. Mills allowed his recollection to be coloured by hindsight and by the current disagreement with Mr. Walker and I have found aspects of his oral evidence to have been unimpressive. Accordingly, in respect of his evidence as with that of Mr. Walker I have taken care to consider the extent to which it is either supported by the contemporaneous documents or by inherent likelihood. However, I did find persuasive the concessions which Mr. Mills made. Where he accepted that the true picture was different from that portrayed in his witness statement I concluded that the concessions were the result of reflection and were a genuine attempt to convey an accurate impression in the light of Mr. Mills’s recollection.