WITNESS EVIDENCE & THE BURDEN OF PROOF: A CIVIL TRIAL IS NOT A SEARCH FOR THE ABSOLUTE TRUTH: FOOTBALLERS ON TRIAL
Anyone looking for a detailed consideration of the law relating to witness evidence and the burden of proof can find it in the judgment of His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City Football Club Ltd  EWHC 2862 (QB). There was a stark difference of evidence and the judge, reluctantly, decided the case applying the burden of proof.
“A civil trial is not a search for absolute truth, even when findings of fact are possible”
“Suspicion and speculation are no substitutes for evidence and no basis for findings of fact.”
The claimant alleged that he had been assaulted whilst working as an apprentice footballer between 1986 – 88 when aged 16 – 17. On two occasions he had been subject to an assault (of a non-sexual nature) involving the use of a goalkeeper’s glove in an intimate area.
- Judges are reluctant to decide cases on the burden of proof.
- This was not a case where the absence of witnesses (from either side) would lead the court to draw adverse inferences.
- In this case the claimant was not a credible witness.
- Some of the witnesses called in support of the claimant were not credible. One was dishonest.
- However some of the claimant’s witnesses were credible.
- The experts in the case had gone beyond their remit in commenting upon the effect of an assault upon the claimant’s footballing ability. That was a matter for the judge.
- The claimant had failed to prove his case on the balance of probabilities.
Burden and standard of proof
The burden of proof is not, of course, the starting point but the end point of a case such as this because it is first necessary for the court, if it can, to find the facts. No judge likes to decide cases on the burden of proof if he or she can legitimately avoid having to do so. A judge should only resort to the burden of proof where he or she is unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence: see Verlander v Devon Waste Management Limited  EWCA Civ 835 at . Those cases where resort to the burden of proof is necessary to decide the case are sometimes described as being “exceptional“: see Verlander at  explaining the earlier case of Stephens v Cannon  EWCA Civ 222. If the available evidence is so conflicting or uncertain or falls so short of proof that there is nothing left but to conclude that the party bearing the burden of proof has not proved his case so that the court is unable to find the facts on the balance of probabilities, it must then ask where the burden of proof lies and apply the burden against the relevant party (that is to say to give the benefit of doubt to the other party). In this case, on all issues, the party bearing the burden of proof is the claimant. It follows that my duty is to examine and evaluate the evidence and in doing so to assess the credibility or reliability of the witnesses and to try to resolve all disputes of fact on the balance of probabilities, but to the extent that I cannot do so, the burden must be applied against the claimant and consequently the benefit of any doubt must be given to the second defendant.
The standard of proof is the balance of probabilities. It may be unnecessary to say more than that but I will do so simply because there appeared to be a conflict or at least a difference of emphasis between the submissions of Ms Weereratne QC and Mr Mulderig in their respective skeleton openings. Mr Mulderig, referring to Re H  AC 563, cited part of Lord Nicholls’ opinion at page 586 where he said that “the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability” and went on to say that “deliberate physical injury is usually less likely than accidental physical injury” and “that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether on balance the event occurred“.
Ms Weereratne QC made clear that she relied on the more recent case of Re B  1 AC 11 and submitted that there is no heightened standard of proof in such a case as this. In my judgment, the submissions of Ms Weereratne QC are correct and I think it fair to say that Mr Mulderig did on reflection concede the point. For the avoidance of doubt, there is in my judgment a single civil standard of proof on the balance of probabilities, that is to say proof that the facts in issue more probably occurred than not. It is the simple balance of probabilities, neither more nor less, and the inherent probabilities are simply something to be taken into account where relevant in deciding where the truth lies. There is no sliding scale requiring stronger evidence the more serious the allegation or the more serious the consequences. Those points were clarified by the House of Lords in Re B, when explaining the earlier decision in Re H. It follows that “serious cases” do not require a different standard of proof, a heightened standard of proof or a specially cogent standard of evidence. The court must of course give appropriately careful consideration to the evidence before being satisfied of the matter which has to be established and must look with care at accusations which potentially give rise to serious consequences but nevertheless, in determining whether or not they occurred, the court must apply a single unvarying standard, that is to say the balance of probabilities.
ADVERSE INFERENCES FROM ABSENCE OF WITNESSES
The judge considered an argument based on the absence of certain witnesses from trial.
Adverse inferences from absence of potential witnesses
Mr Fewtrell cited the case of Wisniewski v Central Manchester Health Authority  Lloyd’s Rep 223 (CA) for the principles enunciated by Brooke LJ at p. 240. He submitted that an adverse inference should be drawn against the claimant arising from his failure to disclose any witness statements from and call as witnesses a number of people whose names were mentioned in evidence as being people who knew or might be expected to know of the use of “the glove” (one Mr Shaw or others who may have had contact with the press) or of his alcohol misuse and its effects (his mother, his ex-wife and his eldest two daughters) or to whom he said that he had complained of the assaults at least in general terms within a year or two after they had occurred (a friend called Mr Millen). No explanation was given in evidence for their absence (although counsel suggested that a desire to keep the length and cost of the litigation or simple privileged legal advice might be factors). Ms Weereratne QC made the same point in relation to the fact that the defendants (in particular the first defendant) had not called, for example, any other first team players or former apprentices from the mid-1980s named in the contemporaneous documents. No explanation was given in evidence for their absence either (although counsel suggested that the long delay and again possibly privileged legal advice might be factors). It is surprising that at the very least the court did not hear from Mr Millen, who might be thought to have been a good witness (if not necessarily “his best” as I suggested in my judgment on limitation). The claimant said in December 2013 that he was or was able to be in touch with his old friend and he had permission to file and serve statements of further witnesses before the substantive trial, which permission he used to disclose a statement from PL but not from Mr Millen.
I find that the mere absence of such potential witnesses for the claimant is not of itself sufficient to allow to me to draw the specific inferences either that they have been approached but refused to perjure themselves or that the claimant has instructed his solicitors not to approach them because he knows that they will not support him (because what he has claimed is untrue) if brought to court and examined on oath or affirmation. Equally, the mere absence of such potential witnesses for either defendant is not of itself sufficient to allow me to draw the specific inference that there are others who know of the alleged “gloving” practice and will not perjure themselves or that the defendants are not willing to take the risk of what they might say if brought to court and examined on oath or affirmation. This is not a case in which it would be fair or just to any of the parties to decide the case on mere inference, adverse or otherwise, and I do not propose to do so.
THE OVERREACHING EXPERT
The judge rejected the argument that psychiatric evidence was determinative of an issue of fact. The experts were going beyond their remit.
“In finding that the claimant has not proved this aspect of his claim, I leave aside the apparent agreed psychiatric opinion in paragraph 16 of the first joint statement (and confirmed in the second) that even if the assaults occurred they would not have impaired “his long term footballing abilities or potential” (1, D3). Quite apart from the point made by Miss Weereratne QC that they fail to draw a distinction between the basic ability to kick a ball about a pitch and the acquisition of the skills necessary to make kicking a ball into a career I am far from satisfied that this is a matter which they were qualified to address at all. In her own report (1, D79) Dr Reveley had said that she was “not in a position to give an opinion” as to whether the alleged abuse had an impact on the claimant’s footballing career, adding that his “proficiency” would properly be the subject of “other expert opinion”. Of course the claimant has singularly failed to adduce the evidence of any such other expert, despite having been given permission to do so after the limitation trial, but that makes no difference to the medical experts’ lack of expertise on which to base any such opinion. I reject the submission by both defendants’ counsel that the agreed psychiatric evidence is “conclusive” against the claimant on this aspect of his claim, either on liability or causation. On the other hand, he has adduced no expert evidence to support it and the factual evidence does not support it and in my judgment it is this which is conclusive.”
ONE WITNESS REFERRED TO THE POLICE
The judge examined the credibility of each witness called by the claimant in detail. Some he found to be honest. In one case, he said of a witness.
In short, I found him to be a thoroughly unimpressive and obviously dishonest witness. It is impossible to find in the case of such a witness which, if any, of the statements he has ever made are true. If anything was true, it is in my judgment most likely to have been the police statement in which he said that he had never seen “the glove” applied and by necessary implication had never seen it used on the claimant. I reject his evidence in its entirety and accordingly he provides no support whatever for the claimant’s claim. At the conclusion of his evidence I directed that a transcript of it should be provided at the public expense and, subject to any further submissions that any counsel may see fit to make, I propose to consider after the handing down of judgment whether proceedings for contempt of court should be brought against him on the basis that he has made a false statement in a document verified by a statement of truth without an honest belief in its truth (that is to say his witness statement in these proceedings dated 15th April 2014) contrary to CPR 32.14, whether by direction that the matter be referred to the Attorney-General under CPR 81.18(5) or otherwise as appropriate.
I should add that even if the evidence of IG had not already been rejected, he would have been irrevocably tainted by the evidence given by Mr Howard. Mr Howard is a long time friend of IG, whom he described familiarly by nickname. I noted that he also described BD familiarly by nickname. On the balance of probabilities I am satisfied that at the very least Mr Howard and IG have colluded to obtain compensation for themselves by jumping on the bandwagon of the claimant’s claim, the merits or otherwise of which were probably a matter of complete indifference to them.
A “GOOD CHARACTER” IS NOT A HANDICAP TO A WITNESS
Ms Weereratne QC suggested to the second defendant that he was “hiding behind his good character“. A similar suggestion was made to his witnesses. In my judgment, it is correct to say that he has not simply a good character but a positive good character, by reference to his reputation as a long serving player for the club, his sports-related charitable activities and his involvement, with his wife, in the fostering of children. It is right to recognise that in a case such as this a defendant with a good character has been something of a catch-22 situation: in principle a positive good character is relevant to credibility on the basis that it may be argued that such a person is on the balance of probabilities less likely to have behaved in the manner alleged; on the other hand it is a sad fact that claims, revelations and indeed convictions over recent years have demonstrated that a good reputation can be an effective cover for misdeeds. However, I remind myself that the question in this case is not whether it is likely that the mature elder statesman of football aged 58 years with a distinguished football career behind him that the second defendant has now become assaulted the claimant, but rather whether his younger self, half his lifetime ago when 29 years old, did what the claimant alleges but is now unable or unwilling to admit it. The extent to which an (apparent) good character in later life may be of relevance to the likelihood of misbehaviour long ago is less compelling.
I am not sure that it was entirely fair of Ms Weereratne QC to suggest that Mr Fox was “hiding behind” his good character but it seems to me to be a point of little relevance. Taken to its logical conclusion it would mean that possession of a good character would be a positive disadvantage to a defendant in such a case which is not how the law stands. It is a neutral factor. She invited him to admit to his past behaviour and to apologise to the claimant. Firmly but politely he refused to do so on the basis that he said that he had done nothing wrong and therefore had nothing for which to apologise.
THE RESULT: THE CLAIMANT’S CLAIM FAILED ON THE BALANCE OF PROBABILITIES
I disapplied the primary limitation period and allowed the claimant to proceed with his claim on the basis that a fair trial could still take place. I find that the substantive trial, although fair, has demonstrated that such a long passage of time has so affected the reliability of the memories of some of those giving evidence and the credibility of that evidence that the picture has become so confused and the truth, whatever it may be, so obscured that I am unable to make the positive findings of fact necessary in order for the claimant to succeed. I do not find the claimant’s allegations are consciously dishonest or that nothing untoward ever occurred between players and apprentices at the club all those years ago, but I am unable to find as a fact that the specific events alleged by and allegedly involving the claimant did occur.
Unsatisfactory as it may seem after such a long trial, but having regard to my duty to apply the burden and standard of proof appropriately, I am driven to the conclusion that the claimant has failed to discharge the burden of proof in his claim against the second defendant and it should be dismissed. His claim fails not because I find on the balance of probabilities that there was never any “gloving” at the club or that he was not “gloved” but because he has not proved those allegations and I cannot find on the balance of probabilities that he was “gloved”.
At the risk of repetition, this decision is not the equivalent of a positive finding that no such assaults took place. Except in so far as I have been able to make some findings of fact about matters which do not bear directly on the happening of the specific assaults alleged by preferring one witness over another in relation to certain matters, I am unable to make such a positive finding in favour of the second defendant. A civil trial is not a search for absolute truth, even when findings of fact are possible, but I am very conscious that the full truth has not been revealed by this trial. I have the uncomfortable feeling that neither the claimant nor the second defendant have given a fully accurate account and that both they and others may have been economical with the truth. There is both a legal and a moral difference between the telling of a lie in answer to a direct allegation and keeping silent when the correct allegation has not been made. Whilst I am unable to find the facts necessary for me to conclude that the claimant has proved that the alleged assaults on him happened or happened in the way he alleges or that “the glove” was used in the manner he alleges, I am equally unable to find positively that they did not and it was not. I confess to a lurking suspicion (partly but not wholly arising from the evidence of both JE and PL) that some form of prank may lie at the root of this case. A prank that may have involved a glove but not the extra features of the hot rubbing gel or digital penetration. A prank which is now, honestly or otherwise, misremembered or exaggerated. A prank that caused no lasting harm and would and could not justify the extensive claim made in this case. A prank in a form that has not been alleged so that the second defendant and others have not been required to admit or deny it but can with a clear conscience deny that which has been alleged. This suspicion amounts to no more than speculation (if that). Suspicion and speculation are no substitutes for evidence and no basis for findings of fact.”
On witness credibility
On adverse inferences from absent witnesses
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- My article in The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered
- A failure to disclose can be just as telling as disclosure itself.
- More on experts: non-compliance with the rules taints the evidence badly
- The credibility of witnesses: joint meetings and overreaching experts: a case to point.
- Over eager experts just do not help: they hinder and harm the case of those who call them.
- Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
- Expert evidence about the veracity of witnesses: well, its probably a waste of time.