WITNESS STATEMENTS: WHEN THINGS GO WRONG – BLAME THE SOLICITOR

September 30, 2016 · by · in Uncategorized, Witness statements

This blog has noted before that a witness whose evidence is not accepted often attempts to renege on their witness statement and blame their solicitor for the errors. Another example can be found in the recent decision of Mr Recorder Halpern QC in Ames -v- Jones [2016] EW B67 (CC). It highlights the need for solicitors to have processes in place so that witnesses have a chance to check their statement, ensure it is accurate, and understand the significance of the statement of truth.

“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.”

THE CASE

The claimant was bringing an action under the Inheritance (Provision for Family and Dependants) Act 1975.  Her late father had remarried and the entire estate left to his second wife.

ASSESSMENT OF THE WITNESSES

The Recorder considered the credibility of the claimant:-

  1. The only witnesses who gave live evidence were Danielle and Elaine. Danielle was an unsatisfactory witness whom I found to be unreliable. I have concluded that I cannot accept any of her evidence unless it is either independently corroborated or is inherently probable.
  2. The aspects of her evidence which I found to be particularly unsatisfactory were that:
(1) 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 also blamed Lornis [her partner] for inconsistencies between her evidence and the financial documents on which her case was based, saying that she relied on him to deal with these financial issues. However, he was not called as a witness.
(2) She repeatedly failed to give straightforward answers to questions. I make some allowance for the fact that some of the questions in cross-examination were very lengthy and were in substance submissions to the court, followed by a question mark, but that cannot excuse all the instances of this. I was left with the impression that her main aim in giving evidence was not to assist the court by answering the questions to the best of her ability, but to assist her case by getting across the points she wanted to make. She was not above inventing or embellishing facts if she could see no other way of sticking to her story in the face of other evidence.
  1. I give some examples (more are set out in the course of this judgment):
(1) In her first statement she said, in relation to the financial help that Michael gave her in her business: “My father provided some on-going support by providing glass and glazing material if we needed them“. In her second statement this had grown into: “My father paid the deposit on the shop I am now using … My father gave me pretty much anything I needed for the business“. In her oral evidence she maintained that he paid for anything needed for the business; however, she later accepted that Lornis had always been a sole trader and that it had never been her business.
(2) Her first statement (August 2014) said that her monthly deficit representing outgoings less income was £600, but in her oral evidence this has grown to £2,000, with no satisfactory explanation for the increase.
(3) In her first statement she said that she received housing benefit and paid £14.80 per month as top-up rent. In her oral evidence she denied that she received any housing benefit and said that her rent was £1,480 a month. 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. I accept (in the light of documentary evidence) that the rent is around £1,500 a month, but I am left in doubt as to whether she receives housing benefit. (Given that Danielle and Lornis are renting their home from a private landlord, any housing benefit would be paid to them and not direct to the landlord.)
(4) She exhibited to her statements invoices or delivery notes for items bought by Michael for her business. When it was pointed out that the latest document was dated 2007 and that the documents appeared to relate to start-up costs, she said that these were the only ones she could find and that he continued to buy stock for her thereafter. She sought to counter the question by suggesting that the items must have been bought in the name of Michael’s business, which is why she did not have invoices or delivery notes. I found this unconvincing.
(5) She referred in her oral evidence to money she had had to borrow from her family to make ends meet. I was shown correspondence in which her solicitor agreed on 20th June to provide evidence of this, but no evidence was forthcoming.
(6) Ms Julian pointed out in cross-examination that, with an alleged monthly deficit of some £2,000, she ought to have accumulated debts of nearly £80,000 since Michael’s death, instead of the £15,200 which she claimed she owed. She answered this by saying that she had received gifts as well as loans from her grandmother and other family members. However, she could not explain why these were not mentioned in her statement. I formed the conclusion that this was an invention in the witness box intended to get her out of a hole.
(7) In her first witness statement she said that Michael used to say: “it will all be yours one day“. It is not clear from the statement whether this was a reference to H&L or to the entire estate; I assume she meant the former, since she cannot have imagined that Michael intended to leave nothing to Elaine. However, in cross-examination, this changed into an expectation that Michael would leave his shares in H&L to her son. In my judgment the original statement was untrue. She was gilding the lily, and when it became clear to her in cross-examination that this was not a sustainable piece of evidence, she watered it down to something which she hoped would appear more credible.
(8) It appears that she and Lornis have two cars, of which one is said to be for business use and one for personal use. Her statement of needs and resources said that she and Lornis spend £407 a month on motor expenses (i.e. £4,884 a year); this was intended to refer solely to personal use, not business use. The accounts for the business show £3,928 on motor expenses in 2013-4. It seems inherently unlikely that she and Lornis spend nearly £9,000 on the running costs of their cars; it would therefore appear either that she has exaggerated the home use or that a considerable amount of home use was wrongly being attributed to the business. When this was pointed out to her, her immediate reaction was to plead ignorance and blame Lornis.

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