WITNESS STATEMENTS AND FUNDAMENTAL DISHONESTY: NOW THERE REALLY IS ONE LAW FOR THE RICH: THE PRACTICAL IMPLICATIONS FOR CLAIMANT LAWYERS

May 13, 2015 · by · in Avoiding negligence claims, Civil evidence, Civil Procedure

There has been much debate about the impact of the “fundamental dishonesty” law.  One practical effect it must have, however, is to ensure that claimant lawyers consider and explain the importance of the witness statement.

THE ISSUE

The problem with the “fundamental dishonesty” legislation is the lack of precision as to what it means.  Defendants will have a major incentive to extend the principle as far as they can.  This is often seen at trials where minor discrepancies in witness statements and differences in accounts in the medical evidence are often cross-examined on at length in an attempt to show that the witnesses are being dishonest. Errors in witness evidence, in particular, are easiest to categorise as “fundamentally dishonest”. On many occasions these do not arise from dishonesty but from poor practice and a failure (by lawyer and client) to fully appreciate the importance of the witness statement.

COMPARE AND CONTRAST: IF YOU ARE RICH ENOUGH TO OWN A YACHT YOU CAN STILL SUCCEED…

Compare the consequences of a finding of fundamental dishonesty in a personal injury action to the case of Austen -v- Pearl Motor Yachts Ltd [2014] EWHC. The claimant was the owner of a 60 foot yacht. The repair costs after the grounding were £456,781.75 plus an addition claim for loss of use of £75,000.

The claimant’s case was that the yacht was not built to the proper specification. If it had been then the damage would not have been so extensive.  The defendant admitted breach but denied causation. The issue of size of the original crack in the boat and the rate of water flow was critical to the case.

However when the claimant came to give evidence he, expressly, disavowed, certain parts of his own witness statement

  1. As to the suggested original length of crack of about 6 inches, this was indeed consistent with what Mr Austen said in his original written witness statement dated 14 March 2014 signed with a statement of truth. In particular, Mr Austen there stated that after sending out a mayday he went to look through the bilges to see what damage there might be. The statement continued:

“On inspection, I could see that there was a crack of about 6 inches around the port P-bracket and that water was already flowing in at a steady rate through that gap.“

  1. In the event, and somewhat surprisingly, Mr Watthey informed me on opening that what Mr Austen had there stated was not in fact true i.e. Mr Austen had not in fact seen any crack of 6 inches. On one view, this was something of a bombshell to the claimants’ case – in particular, because the view expressed by Mr Humphries in his report was that this piece of information was “fundamental” to understanding how the hull laminate failed.
  1. When Mr Austen gave oral evidence, he confirmed that what he had said in his signed witness statement was indeed untrue i.e. he had never gone down to look through the bilges; and that he had never seen any crack still less any water flowing through any such crack. Mr Austen recognised that this was inconsistent with what he had said in his statement and somewhat embarrassingly could give no explanation at all as to how such an untrue statement had got into his statement nor why he had signed the statement in that form…”

The claimant, however, went on to succeed in the action. The judge found for the claimant on the basis of the calculations in relation to flow rates into the vessel.

IF THIS HAD BEEN A PERSONAL INJURY CASE

A  personal claimant who “somewhat embarrassingly could give no explanation at all as to how such an untrue statement had got into his statement…” would now face a real danger of being categorised as “fundamentally dishonest”.  A serious injured claimant with a claim of £500,000 would face the possibility of the entire action being struck out. A wealthy yacht owner, on the other hand, could still succeed – as we have seen.

THE NEED FOR GREAT CARE IN THE DRAFTING OF WITNESS STATEMENTS

This emphasises the need for those acting for personal injury claimants to take great care in taking witness statements and ensuring they are accurate.  Anyone who has been to a trial will know that the most minor of discrepancies is (quite legitimately) pounced on for the purpose of cross-examination.

I have cited, several times, the passage in the Judiciary Working Group Guide for Litigants in Person, which was prepared by six experienced Circuit Judges.

“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.”

RUSH THIS ISSUE AT YOUR PERIL

A great number of witness statements are prepared poorly; some are clearly the work of the lawyer not the client; some are (as the judges above recognise) expressly disavowed in the witness statement.  Claimant personal injury lawyers cannot allow this to happen.  The drafting of the witness statement is one of the key stages in litigation. It should not be rushed.

(Incidentally I am not here supporting the claims of dishonest litigants. They deserve what they get.  I am concerned with those litigants who are fundamentally honest but whose claims are compromised because of the failure to take proper statements and explain the consequence of those statements).

The points made earlier in Witness statements and avoiding jail: are you protecting your clients and protecting yourself? are extremely apposite in these circumstances.

RELATED POSTS ON FUNDAMENTAL DISHONESTY

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?

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