DECIDING CASES ON PAPER: WOODLANDS, EVIDENCE & DECIDING CASES "ONLINE"
The decision in Woodland -v- Maxwell looked at in an earlier blog is interesting because it is one of the rare cases where the Court of Appeal carried out a (brief) analysis of the evidence in the case more than three years before the trial judge. It illustrates the importance of cross-examination and highlights the major, if not fundamental, difficulties of courts determining matters “on-line”. Witness statements and documents produced after an incident are far from reliable, they have to be tested by cross-examination – otherwise major injustice could result.
WOODLANDS IN THE COURT OF APPEAL (THE FIRST TIME)
The defendant at one stage admitted liability. It later withdrew that admission. The judge at first instance granted permission to withdraw the admission the claimant appealed to the Court of Appeal.
THE COURT OF APPEAL (LOOKING AT THE EVIDENCE ON PAPER)
The Court of Appeal has been the champion of the view that witness credibility and matters of evidence are matters for the judge at first instance. However in this case they had to review the evidence. In this case they adopted the decision of the judge who had determined the preliminary issue of withdrawal from admissions.
“He recognised he could not conduct some form of mini-trial into the prospects of success but it was not difficult to discern that the central bone of contention was that Ms Maxwell and Ms Burlinson should have appreciated earlier than they did that Annie was in difficulty and should have embarked sooner on rescuing her. The original conclusion by H.S.E. was that she had been rescued promptly. There were concerns about the report of Ms Bailey because she did not speak to people involved in the incident and “the dangers of attempting in this sort of incident to form an opinion based only on paperwork are manifest”. She appreciated there was “a not insignificant body of other evidence which she considered might be of assistance” but she took no steps to obtain it. Caution had to be applied to statements from school children taken at the request of Mr Woodland for there was an obvious risk of contamination of their evidence. As the report indicated, there were many contradictions in the statements. He concluded:
“Against that background, for LBB [Miss Bailey] to reach the conclusion based on the material in her possession that Ms Maxwell and Ms Burlinson were at fault is open to serious challenge. It is also of note that there are no criticisms directed at Mrs Stopford.”
SO LOOKING AT THE PAPERS AND STATEMENTS THE EVIDENCE OF THE CHILDREN IS OPEN TO QUESTION
Of course the judges were not making findings of fact here. They were making observations about the documents and evidence. The childrens’ evidence had to be treated with caution. Adults could be expected to be better witnesses.
BUT LOOK WHAT HAPPENED AT TRIAL
When the witnesses were cross-examined the true picture emerged. It was the evidence of the children that was most accurate and the defendants’ evidence that appeared to have been “contaminated”.
As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. Each of their accounts seemed to me to have been a conscientious attempt to recollect what was, undoubtedly, a traumatic event. By contrast, the reliability of the evidence of three DSS teachers diminished. All three added details that were not previously mentioned. In my view, each gave some implausible explanations for omissions in previous statements. Ms Burlinson made assertions of fact that, when explored, transpired were based on debatable assumptions
NOT A LONE EVENT
There are numerous examples on this blog of cases where witness statements have proven to be wholly inaccurate. The Handbook for Litigants in Person is written by six experienced Circuit Judges. It is interesting to read what they say about witness statements.
“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”
SO HOW IS A JUDGE GOING TO DECIDE THESE ISSUES ON-LINE OR ON PAPER
On the face of the documents the evidence of three swimming teachers could well be preferred to that of three schoolchildren. It is only by careful cross-examination and testing of the evidence that the correct view came out at trial.
It will be interesting to see how judges determine disputes “on-line” or on paper. Disputes that get to a hearing usually involve some kind of disputed evidence. Witness statements and even contemporaneous documents are not always accurate. A whole era of injustice, or “e-bay” justice beckons.
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.
1. Litigators must know about credibility.
2. Witness Statements and Witness Evidence: More about Credibility.
3. Which Witness will be believed?Is it all a lottery?
4. The witnesses say the other side is lying: What does the judge do?
5. Assessing the reliability of witnesses: How does the judge decide?
6. Which witness is going to be believed? A High Court case.
7. The Mitchell case and witness evidence: credibility, strong views and reliability.
8. Witness statements and witness credibility: getting back to basics
9. Witness credibility: what factors does the court look at?