THE SELF-CONFIDENT WITNESSES THAT CONVINCE THEMSELVES BUT NO-ONE CAN RELY ON
In Bhullar -v- Bhullar [2017] EWHC 407 (Ch) His Honour Judge Stephen Davies had the difficult task of ascertaining the truth in that most fraught and difficult of circumstances: a family that has been in business together and then fallen out.
“That is a perfect description of someone who has become so identified with his case, and so convinced that he is in the right and his brother in the wrong, and that everyone else who does not agree with him is lying, that he is unable to distinguish between his genuine independent recollection of the detail of events and what he has convinced himself happened.”
“If what he now says happened had indeed happened then I have no doubt he would have told his previous solicitors, who would have put it in the correspondence and witness statements. I regret to say that I am satisfied that he has altered his evidence once he became aware that unless he was able to give evidence to this effect his prospects of successfully defending the case were adversely affected. I am satisfied that he has persuaded himself that this happened under the pressures of the litigation.”
THE CASE
The action was a derivative action. The claimant alleging that the defendant companies had been run to his detriment. The witnesses were all related but were now estranged.
THE ASSESSMENT OF THE PRINCIPAL WITNESSES
-
The principal witnesses are Inder and Jat. They are both intelligent men who have, sadly, fallen out irretrievably over the running of the family business in the years preceding and following the death of their father. The end result is that each has become convinced that the other is a liar who has defrauded the family business and each is so determined to win this and any future litigation between them that they are unable to give evidence with any real detachment. Therefore, I am unable to accept the uncorroborated evidence of either as wholly genuine, objective or reliable.
-
As regards Inder, he said early in cross-examination that he had “practically 100% confidence in his recollection of events” because he had “lived it and dreamed it all the time”. That is a perfect description of someone who has become so identified with his case, and so convinced that he is in the right and his brother in the wrong, and that everyone else who does not agree with him is lying, that he is unable to distinguish between his genuine independent recollection of the detail of events and what he has convinced himself happened. Mr Chaisty submitted that there were many occasions where he attempted to avoid answering difficult questions by making long and impassioned speeches, and I agree with that criticism. ,,,
-
As regards Jat, he did come across to me as a more reasonable person in the round, but again I am satisfied that he had let his personal feelings against Inder taint his recollection of events. Most significantly in my view was his failure to make reference to what are now very important elements of his case in previous correspondence and in his first witness statement. He attempted to blame his previous solicitors for the errors and omissions in his first witness statement. I accept that there is some reference in his second witness statement to his first witness statement having been prepared in a rush. However that does not in my view come anywhere close to explaining his failure to mention these matters in his first witness statement and he was unable to provide any sensible explanation as to how he had come to recall these important issues to include them in his third witness statement. He is, as I have said, an intelligent man who I am satisfied clearly knew that this was an important issue in the case. If what he now says happened had indeed happened then I have no doubt he would have told his previous solicitors, who would have put it in the correspondence and witness statements. I regret to say that I am satisfied that he has altered his evidence once he became aware that unless he was able to give evidence to this effect his prospects of successfully defending the case were adversely affected. I am satisfied that he has persuaded himself that this happened under the pressures of the litigation.
-
The consequence of all this is that I have had to make findings by reference primarily to the contemporaneous documentary evidence, by reference to the witness evidence of those other witnesses from whom I heard and whose evidence I accept as broadly reliable, and by reference to my assessment of the inherent plausibility of the accounts given by the witnesses in relation to each of the important issues in dispute.