WHEN LIFE MIMICS ART: (OR ART MIMICS LIFE): WIGAPEDIA, LEGAL CHEEK – AND WHO PREPARED YOUR WITNESS STATEMENT?
I recommend that all litigators read Wigapedia’s “Jargon Buster Litigation Edition” in Legal Cheek. As ever Wigapedia is cruel but fair in his definitions – “Brief – a document which very rarely is”. With Wigapedia’s permission I am taking up just one phrase from his “legal jargon translator”. Regular readers will not be surprised it is about witness statements.
HOW DOES WIGAPEDIA DEFINE A “WITNESS STATEMENT”?
The definition is short and simple.
“The one document produced in court that you can be sure has not been written by the person whose name appears at the top, and who has signed it.”
IS THAT RIGHT? AN EXAMPLE FROM YESTERDAY
Not always, I admit. However it contains an important kernel of truth.
In a judgment yesterday in Lobo -v- Corich  EWHC 1438 (TCC) Mr Justice Stuart-Smith stated:
“The Defendant’s witness statement was vague to the point of being evasive about where he lived when in the United Kingdom between 2014 and 2017. The witness statement has the appearance of being substantially the work of lawyers, while no doubt being based upon information from the Defendant. For that reason, I do not hold the evasiveness against the Defendant personally since it may be attributable to decisions and drafting by others.”
I then looked for other examples. I did not have to look very hard or very far. The preparation and drafting of witness statements remains one of the most problematic areas of civil procedure. Put brutally the lawyers involved have not read the rules and have no training in this regard. This has led at least one judge to observe that litigants in person draft better witness statements than lawyers.
GUIDEBOOK FOR LITIGANTS IN PERSON
This guide, let us remember, is written by a number of 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. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness”
HH OLIVER-JONES QC
“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.
The observations of Mr Justice Smith in the Farepak case farepak-judges-statement are always worth re-reading. A case against the directors of a company collapsed because, it transpired, the evidence produced in voluminous witness statements was not “evidence” at all. The makers had no real first-hand of the matters in the witness statements and the voluminous exhibits.
46. …The only way in which the defendants could have seen the relevance of the documents was to put them to each witness and ask the witness why it was included in the exhibit. I suspect that that exercise would have revealed complete bafflement by most of the witnesses because it was plain as the evidence evolved that the witnesses clearly did not understand, to a significant degree, what was the purport of their evidence, in my view, and why things were said. This is very dangerous. In addition they had little comprehension of the voluminous exhibits
48. I had, in addition to Mrs Burns’ evidence, evidence from seven witnesses who were there to the events. All of those witnesses in my view gave honest evidence. I do not believe that they were dishonest, but it turned out that in each case the emphasis given in certain vital aspects of their affidavit evidence was slanted against the defendants unfairly and in each case all of the witnesses ultimately, in one way or another, acknowledged this, some even apologised, and some withdrew paragraphs of their evidence. This was all in the light of being confronted, as regards those paragraphs, by contemporaneous evidence which they had not been shown, or the importance of which had not been drawn to their attention, or some of which they did not even know about, in some cases even though they were contained in exhibits to their own affidavits.”
NOT “MY” EVIDENCE AT ALL: COGHLAN -v- BAILEY
It is also instructive to read the recent judgment of Mr Justice Langstaff in Coghlan -v- Bailey  EWHC 570 (QB) considering evidence given by a public official.
“In many respects the evidence of Mr Bailey was less than impressive. Though he was an investigator, assigned to an investigation, his emphasis upon the fact he reviewed the material on the files of SOCA was such that he accepted he had done no investigation of his own. When it was pointed out to him that he had used the words ‘my investigation’ in his witness statement of 24 April 2013 when making an application to strike out proceedings brought by the Applicant, he described the word “my” as a typographical error. The evidence he was now giving was that despite calling it “my investigation” it had never been an investigation conducted by him…”
ANODYNE WITNESS STATEMENTS: OF NO USE AT ALL
Another recent judgment of note is that of Mrs Justice Rose in Singularis Holdings Ltd -v- Daiwa Capital Markets Europe Ltd  EWHC 257 (Ch). It may well show much about the way in which witness statements are prepared.
“… I have relied more on the oral evidence of the witnesses than on their written evidence. That oral evidence about their reactions at the time to unfolding events is much more consistent with the contemporaneous documents, and with commercial business sense, than the more anodyne written statements.”
“FOOLISH TO PRETEND OTHERWISE”
Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration)  EWHC 181 (Ch) also contains an analysis of a witness who was “something of an enigma”
“Although a witness statement should be in a witness’s own words, it is a fact that they are often drafted for witnesses and it would be foolish to pretend otherwise”.
The reasons for this are
“Mr Seavers had made a witness statement in opposition to an application for summary judgment against him. In his witness statement for trial, he said that he no longer maintained a number of contentions in that statement, but, when asked to identify which of the statements in his earlier statement he no longer maintained, he could not do so. That, it was suggested, meant that his statement for trial was untrue. Mr Seavers explained the particular passage in his witness statement as having been insisted on by the Bank’s lawyers, which Mr Cutting naturally submitted raised the question of what else had been.”
THE BAR STANDARDS BOARD
The judgment of Mr Justice Collins in Smith -v- Bar Standards Board  EWHC 3015 (Admin)
“44. It is worth noting that in the present approach to litigation involving the drafting and redrafting of statements of witnesses, the latest of which is submitted as his or her evidence, it is often shown in cross-examination that the witness statement does not in truth fully or properly reflect his true evidence. This does not mean that there has been deliberate invention but it is all too easy to persuade a witness that he should put his evidence in a particular way which may turn out not to be entirely accurate.”
DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT
A short, but telling, passage in the judgment of Mr Justice Mitting in TLT & Others -v-Secretary of State for the Home Department [EWHC] 2217 (QB) is another example.
“Most of her oral evidence was given in a calm and straightforward way. It included her acceptance of the Home Office apology, which it might not have done if she had consciously exaggerated her criticisms and fears, and she did not pretend to understand things attributed to her in her witness statement, such as what a “screen grab” was.”
POLICE STATEMENT DRAFTED BY LAWYER
Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police  EWHC 1367 (QB) stated:
“During the course of cross-examination of some of the police officers who gave evidence on behalf of the Defendant but who were not officers of SWP it emerged that their witness statements had been drafted by lawyers. I do not find that surprising but, of course, I have scrutinised the statements with care so as to ensure that they are not attempts to re-write history
DOCTOR’S STATEMENT DRAFTED BY LAWYER
We have seen similar comments in the judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust  EWHC 2627 (QB) when discussing the evidence of a doctor who was giving evidence for the claimant against his own employer
“Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”
PREVENTING A CONFLICT BETWEEN THE LAWYER AND THE CLIENT OR WITNESS
The task of the lawyer is clear, to obtain and record the evidence and not produce it. There should be no conflict between the lawyer and the client. The lawyer’s main task is to ensure that the evidence is complete and accurate. I am not concerned, in this post, with the ethics of drafting, that has been considered in detail elsewhere on this blog. I am concerned with protecting the interests of both the client and the solicitor and ensuring that the:
- The witness is fully aware of the significance of the documents they are signing.
- There is a clear record of the lawyer explaining the significance to the client.
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