ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the first of a series looking at “risks” of litigation. We are familiar with the concept of “if you are believed then you will win”. However there are cases when litigants can be believed (in terms of their honesty and frankness with the court) and still lose their case.
“When witnesses give “evidence” about hypothetical circumstances there is always a risk that their evidence is tainted by honest but wishful or optimistic thinking”
NO-ONE IS TRYING TO MISLEAD ME
This issue can be seen in the judgment last week of HHJ Eyre QC in Williams Tarr Construction Ltd v Anthony Roylance Ltd & Anor  EWHC 2339 (TCC) where the judge was assessing the witness evidence in relation to contractual issues that had arisen some eight year prior to trial.
“I am entirely satisfied that neither the Second Defendant nor Mr. Parker was deliberately seeking to mislead me. However, there is a degree of force in the criticisms made of the evidence of each man. Each appeared to have reached a fixed view about matters and to be unable or unwilling to countenance any suggestion that matters might have in fact been more nuanced than he had said. Mr. Parker was concerned to place emphasis on what he believed to be normal practice and on the rôle he felt a civil engineer should take rather than on the details of the Second Defendant’s actual involvement and, as I will explain below, would not move from an assertion as to the extent of Hy-Ten’s involvement which I have found to be unrealistic. For his part the Second Defendant was at great pains to minimise his involvement in the designing of the Retaining Wall: an approach which at times prevented him from addressing the questions he was being asked and which caused him to place on various of the contemporaneous documents interpretations which were at best strained and at times simply unrealistic. None of that is particularly surprising in that both men were giving evidence in June 2018 about dealings which had begun in early 2010 and where the construction works had concluded in May 2011 with the crucial exchanges occurring in October and November 2010. I repeat that I am satisfied that each man believed that what he was saying in his evidence was correct. However, in assessing their evidence and their presentation in the witness box I have to be very conscious of the fact that both men were inevitably recollecting matters from a particular viewpoint and also to be conscious of the common human inclination to recollect past events as having actually happened in the way in which the person recalling them believes they would, or indeed should, have happened.”
AN HONEST WITNESS CAN BE TAINTED BY WISHFUL OR OPTIMISTIC THINKING
Similarly in Classic Maritime Inc. v Limbungan Makmur SDN BHD & Anor  EWHC 2389 (Comm) Mr Justice Teare made it clear that the candour and honesty of a witness does not mean that every aspect of their evidence will be accepted.
Mr. Lu gave oral evidence. He was a good witness in that when he knew the answer to a question he answered it clearly and without hesitation. When he did not know he said so. When he had difficulty in remembering he said so. When he proffered an opinion as to what was likely to have happened he was anxious to emphasise that it was only an opinion and that he may be wrong. His demeanour, listening carefully and thinking about the questions put to him, suggested to me that he was an honest witness doing his best to assist the court. However, he was not a decision maker at a high level and so there were some limitations to the value of his evidence. Also, as is the case with many witness statements drafted by lawyers for use in litigation there were some passages in Mr. Lu’s statement which contemporaneous documents indicated were not quite right. Although he confirmed that his statement was true in his examination in chief he accepted, when cross-examined, that there were errors in it. I nevertheless thought that he was an honest witness when giving oral evidence. It does not follow that his recollection was always reliable or that his knowledge of particular matters was complete. Further, part of his evidence concerned what would have happened had there been no bursting of the dam. When witnesses give “evidence” about hypothetical circumstances there is always a risk that their evidence is tainted by honest but wishful or optimistic thinking. It will be necessary to bear that in mind when considering Mr. Lu’s “evidence” in this regard.