YOUR WITNESS STATEMENTS ARE IDENTICAL: NOW THAT IS A COINCIDENCE
There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case. Advocates of this approach may want to read the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe  EWHC 2602 (Ch) and then the judgment in New Court Securities she refers to.
“a process better calculated to devalue the evidence of the two principal witnesses for the prosecution in the criminal proceedings – and, subsequently, in the civil proceedings in this court – would be difficult to imagine.”
The judge was hearing an action by time share owners alleging breach of contract by a membership company. The claim was dismissed on the grounds that the claimants failed to prove causation or damages. The penultimate paragraph of the judgment reads
“I also note that the Claimants’ second witness statements were largely identical: see the comments of Chadwick J in Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited  BCLC 1104 at 1115-6. The Court of Appeal’s decision was reversed by the House of Lords and Chadwick J’s decision reinstated but there was no criticism of Chadwick J’s judgment on this point by the Court of Appeal in any event”
THE JUDGMENT IN NEW COURT SECURITIES
In New Court Securities Chadwick J was considering the weight to be given to two witness statements which were identical. The makers of those statements alleged that they had not made them together. The judge had clear views on the likelihood of that.
The standard of proof and the weight to be given to the evidence of Mr Lewis and Mr Abrahams
“Before examining the events of 21 July 1989 in detail, it is appropriate that I should make two observations. First, the allegations against Mr Roberts are serious allegations involving the imputation of conscious dishonesty. The standard of proof required is the civil standard of ‘balance of probabilities’; but inweighing probabilities the court must take into account the gravity of what is alleged (see Hornal v Neuberger Products Ltd  3 All ER 970 at 973, 978,  1 QB 247 at 258, 267 per Denning and Morris LJJ). As Ungoed-Thomas J put it in Re Dellow’s Will Trusts  1 All ER 771 at 773,  1 WLR 451 at 455:
‘… the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it …’
Accordingly, in examining the evidence in support of the allegations that Mr Roberts made representations on 21 July 1989 which he knew to be false, I keep in mind that convincing proof is required to displace the presumption that a person in his position could be expected to act honestly.
Secondly, the circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings against Mr Roberts, and the manner in which they gave that evidence, make it necessary to approach the evidence which they have given in this trial with extreme caution. The circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings may be summarised as follows:
(1) On 1 December 1989 Mr Lewis and Mr Abrahams were interviewed, together, by officers of the Serious Fraud Office (the SFO) in the presence of Nicholas John Holt, a solicitor and then the director of SNC responsible for its legal affairs.
(2) Shortly after this meeting the SFO produced a first draft statement to be made by Mr Lewis. Copies of that statement were given to both Mr Lewis and Mr Abrahams. It was used by Mr Holt to prepare a second draft composite statement headed ‘Draft Statement: Geoffrey Alan Lewis/Anthony Sidney Abrahams’. That composite statement contains input from both Mr Lewis and Mr Abrahams.
(3) On 14 December 1989, a copy of the draft composite statement was sent by Mr Holt to SNC’s solicitors; but not to the SFO. On 19 December 1989 a partner in that firm of solicitors, and his assistant, went through that composite statement at a meeting with Mr Lewis and Mr Abrahams.
(4) As a result of that meeting a further draft composite statement was prepared (the 20 December draft), taking in amendments arising out of the joint discussions with Mr Lewis and Mr Abrahams. A copy of that composite statement was given to the SFO.
(5) Further amendments to the 20 December draft were made by Mr Holt, following conversations with Mr Lewis and Mr Abrahams.
(6) On 8 January 1990 two clean copies of the composite statement were prepared by Mr Holt; one for Mr Lewis and one for Mr Abrahams. The two statements are in substantially identical terms.
(7) Those two statements were then re-typed by the SFO in Criminal Justice Act form; and were presented to Mr Lewis and Mr Abrahams, individually, for signature on 9 January 1990.
The effect of this process was that any independent recollection which either Mr Lewis or Mr Abrahams might have had as to the events of 21 July 1989 was likely to have become coloured by the recollection of the other. No doubt Mr Holt, and SNC’s solicitors, thought they were acting in the best interests of SNC; but a process better calculated to devalue the evidence of the two principal witnesses for the prosecution in the criminal proceedings – and, subsequently, in the civil proceedings in this court – would be difficult to imagine.
The problem does not stop there. When asked on 25 January 1991, in the course of his cross-examination in the criminal proceedings, to explain why his Criminal Justice Act statement was virtually word for word identical with that of Mr Lewis, Mr Abrahams’s observation was that the coincidence was ‘interesting’. When pressed, he gave this answer:
‘It is amazing we both wrote twelve pages and ninety five per cent is the same, but I am not surprised … I am not surprised that we wrote similar sort of statements, because we did the deal together … I would, I suppose have found it very surprising if Mr Lewis had written a totally different type of statement.’
Mr Abrahams denied, emphatically, that he had prepared his statement in conjunction with Mr Lewis. He denied that he was ever shown Mr Lewis’s statement. He said that the similarity between his statement and that of Mr Lewis was ‘sheer coincidence’.
Mr Lewis was equally disingenuous. When he was asked about the same matter, on 29 January 1991, he said that he had never seen Mr Abrahams’ statement. There followed this exchange:
‘Q. There is a very marked similarity between your witness statement and that of Mr Abrahams. Are you aware of that? A. In the circumstances, as we spent most of the day together in the deal in Ferranti, I would assume that our recollection of events should be pretty similar.
Q. You would attribute the similarity to the fact that you saw and were involved jointly and therefore separately have described it in the same way? A. As I said, as we spent most of the day together, the facts would appear similar to both of us.’
In my judgment, Mr Lewis and Mr Abrahams each sought, deliberately, to mislead the jury in the criminal proceedings as to the true process by which their Criminal Justice Act statements were prepared. The true position did not emerge until full discovery was made, belatedly, in the course of the trial of the civil action in this court. I do not accept their explanations, given in this court, that they had forgotten, at the time when they gave evidence in January 1991, the circumstances in which their Criminal Justice Act statements had been prepared one year earlier.
In these circumstances it would, in my view, be unsafe to make a finding of dishonesty against Mr Roberts on the unsupported evidence of Mr Lewis and Mr Abrahams. I approach the examination of the events of 21 July 1989 on the basis that little, if any, weight can be given to their evidence where it is in conflict with that given by Mr Roberts.
On taking witness statements
- Drafting witness statements: the questions you ask will determine the answers you get: eight crucial points on evidence.
- Drafting witness statements that comply with the rules: a checklist too important to ignore.
- Drafting witness statements and the genius of John Munkman.
- Drafting witness statements: essential guidance from an authoritative source that every litigator should read.
- The importance of drafting witness statements that comply with the rules.
On witness credibility generally
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.
- Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability