WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. ” There are numerous cases reported on this blog where witnesses have been proven to be (at the very least) “reckless” in the statements they have made. The judicial findings have gone far beyond errors or mistakes. When witnesses are exposed in this manner it is not uncommon for them to blame their lawyers who “drafted the statement for them”. The stakes are high. Far too few solicitors firms have a system in place for protecting themselves.
EXAMPLES OF WITNESSES BLAMING LAWYERS
In case anyone is any doubt that this can be a real problem here are a few examples.
HUGHMANS
Hughmans -v- Dunhill [2015] EWHC 716 (Ch)
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“As for the witness statement dated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this statement and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s] evidence is that the witness statement was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”
AMES
Ames -v- Jones [2016] EW B67 (CC).
“She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case.”
“She blamed her solicitor for having misplaced the decimal point and for having assumed that she received housing benefit without asking her. She did not acknowledge any responsibility for signing a statement which contained (on her oral evidence) such fundamental errors.”
LITIGATION FUTURES
A report in Litigation Futures illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”.
The claimant was jailed for eight months for contempt of court. He, in turn, sought to blame his solicitor for submitting the claim without his knowledge or authorisation.
The solicitors, however, had a signed statement and recorded evidence.
” the solicitor produced a witness statement that the claimant had signed as well as a telephone recording of Mr Hooper talking about the claim in detail and the alleged injuries sustained”
However the ingenuity of a fraudster knows no bounds.
“Mr Hooper disputed the evidence by saying that it was an imposter on the call recording, that he was illiterate, and had believed the statement that he had signed related to another accident which had taken place on the same day at the same location.”
This account was not accepted by the judges. Mr Hooper was found in contempt of court and jailed for 8 months.
DOCTOR HEAL THYSELF
Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) when discussing the evidence of a doctor who was giving evidence for the claimant against his own employer
“Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”
THE HANDBOOK FOR LITIGANTS IN PERSON
This was written by six highly experienced circuit judges. It highlights the fact that witnesses often sign witness statements uncritically.
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).
PREVENTING A CONFLICT BETWEEN THE LAWYER AND THE CLIENT
The task of the lawyer is clear, to obtain and record the evidence and not produce it. There should be no conflict between the lawyer and the client. The lawyer’s main task is to ensure that the evidence is complete and accurate. I am not concerned, in this post, with the ethics of drafting, that has been considered in detail elsewhere on this blog. I am concerned with protecting the interests of both the client and the solicitor and ensuring that the:
- The witness is fully aware of the significance of the documents they are signing.
- There is a clear record of the lawyer explaining the significance to the client.
IF YOU DO NOT HAVE A PROPER SYSTEM IN PLACE THEN ONE DAY YOU ARE GOING TO HAVE A PROBLEM
Sooner of later you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement. Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.
Repeating (without apology) the advice given yesterday:-
A witness needs to know, at the very least,
- That this is an important document.
- If it is inaccurate they could have criminal proceedings brought against them.
- That they should check the document fully and carefully and feel free to make any additions or alterations.
- The statement is, however, one of facts and not opinions.
- If they have any doubts about any matter at all they should raise these with the lawyer involved.
- The statement is theirs.
All of this needs to be recorded in writing.
DON’T BE AFRAID TO TEST THE EVIDENCE: IN THE LONG TERM THIS WILL HELP YOUR CLIENT AND YOURSELF
Finally it helps to remember that there are dishonest and fraudulent people out there who will be happy to blame their lawyers if things go wrong. There is no substitute for testing and scrutinising the evidence and giving clear warnings of the consequences if matters appear suspicious. Whilst it is not the lawyer’s job to pre-judge the evidence it is the lawyer’s job to give clear and firm advice on matters relating to credibility and the risks of litigation. The Bar Council Guidance is important reading in that respect.