PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT

July 20, 2017 · by · in Civil evidence, Witness statements

I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with manifold other difficulties in the judgment of His Honour Judge Saffman in Ram & Anor v Chauhan & Anor [2017] EW Misc 12 (CC) (19 July 2017).

THE CASE

The claimant brought an action for a declaration that a will was invalid. As part of the preparation for the case the claimant’s solicitor took a statement from a witness who later became the second defendant in the action.  That witness changed his story totally and asserted that the first witness statement he made was given under duress and because of the actions of the claimant’s solicitor.

THE ADDITIONAL DIFFICULTY

The added difficulty was that the claimant’s solicitor was presenting the case at trial.  He had to give evidence to rebut allegations made about his own conduct.  The solicitor was exonerated and the allegations against him were found to be false. However it presented some real difficulties, largely resolved because of the documentary record of the taking of the statement and subsequent correspondence in relation to its drafting and signature.

THE JUDGE’S JUDGMENT ON THIS ISSUE

  1. The Will on its face bears the signature of 2 witnesses. It also bears the usual attestation clause indicating that the deceased signed the Will in the presence of them both and that they endorsed the Will with their signatures in the presence of each other.
  2. It has to be said that the form of the attestation clause is broadly as one would expect certainly, in my view, it cannot therefore be said that the form is sufficiently irregular or unusual to greatly undermine the force of the presumption. The presumption in favour of due execution therefore arises.
  3. The contention that the Will has been invalidly executed arises from the evidence of the Second Defendant, since withdrawn. On 2 June 2016 as a result of communications that he had received from Mr Chapman a conversation took place on the telephone between the Second Defendant and Mr Chapman during which the Second Defendant specifically said, amongst other things, that when the deceased signed the Will only she, the First Defendant and the Second Defendant were present. In short, he asserted that the witnesses were not present. There is in the trial bundle a copy of Mr Chapman’s telephone attendance note to that effect. By letter of 3 June 2016 a copy of that telephone attendance note and a draft witness statement prepared by Mr Chapman in pursuance of it was sent to the Second Defendant. The Second Defendant returned the witness statement duly signed after some prompting from Mr Chapman. That statement is dated 15 June 2016 and unequivocally states that when the deceased signed the Will there was no one present apart from himself and the First Defendant (other than of course the deceased). His signature on that witness statement appears below a statement of truth.
  4. The Second Defendant does not dispute the conversation took place between him and Mr Chapman; indeed he does not dispute the accuracy of Mr Chapman’s telephone note nor does he suggest that the witness statement sent to him for signature does not accurately reflects what was said. The letter under cover of which it was sent pointed out to the Second Defendant in terms that if the statement need to be amended then the Second Defendant should notify Mr Chapman of the changes desired on a separate copy. No such notification was given to Mr Chapman who only received back in the post the unamended witness statement duly signed.
  5. The Second Defendant now says that that statement is untrue and he made it because he was pressured by Mr Chapman and by the Claimant and his family. He has signed another statement dated 2 May 2017. At paragraph 9 of that statement he now says that the Will was signed in the presence of the 2 witnesses was names appear as witnesses on the will. That statement is also endorsed with a statement of truth. Elsewhere in the witness statement he speaks of the pressure that he says was applied to him and which resulted in his signing a statement which was untrue.
  6. At paragraph 4 of his most recent statement he states that “the signature on this document …that is the original statement of 15 June 2016) does not appear to be mine as I don’t remember signing it”. It is an observation which is wholly inconsistent with his position that he signed the original witness statement because he succumbed to pressure to do so. There is in the circumstances a very significant internal inconsistency in his most recent statement to say nothing of its inconsistency with his original statement.
  7. The allegations against Mr Chapman of exerting undue influence were raised very late in the day by the witness statement of the Second Defendant of 2 May and resulted in the highly unusual situation whereby Mr Chapman felt obliged to defend himself in the witness box against what he alleged to be groundless allegations. It led to a situation where an advocate had to enter into the arena as a witness. The propriety of such a step was something which exercised the court and legal representatives and recourse was had to the Solicitors Code of Practice. In the end it was felt on this occasion that Mr Chapman could if he wished give evidence to rebut the Second Defendant’s allegations. The Second Defendant did not avail himself of the opportunity of cross-examining Mr Chapman albeit that he was notified of Mr Chapman’s intention to enter the witness box where he could be cross-examined by the Second Defendant if the Second Defendant so wished. Mr Bowen, whose client’s interest was now supported by the Second Defendant’s new position, did however take the opportunity to cross examine.
  8. Before he himself gave evidence however, Mr Chapman took the Second Defendant through the communications which he had had with him. None of those communications suggested that Mr Chapman had applied inappropriate pressure on the Second Defendant. It is right that there were several letters and telephone chasers to the Second Defendant initially to get in touch and then subsequently to return the statement but, in my view, nothing that can be seen to evidence undue pressure exerted by Mr Chapman. Indeed, the Second Defendant accepted that he would not obliged to sign the first witness statement. The fact is that he did so and sent it back to Mr Chapman in the post. In the end the Second Defendant’s allegation of pressure seems to come down simply to the fact that Mr Chapman had on one occasion telephoned him after hours and on another occasion had suggested to him that if he signed the statement reflecting the contents of the telephone conversation of 2 June then he would be “of the hook”.
  9. In fact, as it happens, it must have been clear to the Second Defendant by November 2015 that being an executor was going to be an onerous responsibility because of the dispute between the family as to the validity of the Will because Mr Chapman had written to him in November in his capacity as executor to advise him that issue was being taken with the Will, and requiring the Second Defendant to make no distribution of the estate and to send Mr Chapman provisional estate accounts. The upshot was that the Second Defendant had been obliged to consult solicitors. As a fact, if the Will was invalid then the Second Defendant would not be involved in this family dispute and to that extent would indeed be “off the hook“. Having said that, Mr Chapman does not recall using that expression and volunteered the observation that it is not one that he would generally use in his everyday language but if he did, it is difficult to see that making that observation was in some way putting improper pressure on the Second Defendant much less the sort of pressure that would cause a person to lie in a witness statement to be used in court proceedings.
  10. The conclusion that I have reached, having been taken through the communications between Mr Chapman and the Second Defendant and having heard the evidence of the Second Defendant and Mr Chapman, is that there is absolutely no evidence that Mr Chapman did anything improper to impel the Second Defendant to sign his First witness statement. The fact that the Second Defendant makes such an allegation in the face of a complete absence of evidence to that effect does also not reflect well on him.
  11. That conclusion leads to the further conclusion that the Second Defendant is a wholly unreliable witness but I reach that conclusion not just on that basis but also because of the wholly inconsistent nature of his first and second statement and the internal inconsistencies in his second statement.
  12. Mr Chapman argues that I should have regard to the second defendant’s first statement and accept that as being accurate. He argues that there was never any reason for the Second Defendant to suggest that the Will was not validly witnessed unless that was in fact the truth. It was not something that was even suspected by the Claimant until the Second Defendant set that hare running.
  13. However, I have concluded that since it appears to me that the Second Defendant is completely unreliable I cannot accept his evidence at all – either one way or the other.

THE PAPER TRAIL

The decision shows the importance of a “paper trail” – a clear written record of what was said, with the witness being given the opportunity to read the statement and change it if necessary.  There was a clear written record in this case.  It was probably not fundamental to the overall decision but undoubtedly assisted a solicitor put in a very difficult position.

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