UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS

There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB,  Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another example of lax practice in the preparation and drafting of statements. In particular the failure to ask, and give, the source of information and belief. This led to an application to strike out the defence and some severe criticism from the judge.

“There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. “

“The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made.”

THE CASE

The claimant was a prison officer. He was successful in an action for damages for personal injury arising out of psychiatric injuries he suffered as a result of the defendant’s treatment of him.

THE CLAIMANT’S APPLICATION TO STRIKE OUT THE DEFENCE

Unusually the judge dealt with the application to strike out the defence at the end of the judgment (where she found in favour of the claimant). There were criticisms to be made of the way in which the defendant had prepared its witness statements.

THE JUDGMENT

“Application to strike out the defence as an abuse of the process of the court

• The application was lodged shortly before trial. It was foreshadowed at the pre trial review when Mr Roy raised a number of justified concerns about the defendant’s approach to the litigation. Several of the witness statements submitted on behalf of the defendant contained passages that were identical. The information given by the defendant to the claimant’s solicitors in advance of and to the court during the pre trial hearing about the availability of witnesses to give evidence was inconsistent and on occasion simply incorrect. Thus, for example, it was the defendant’s position that Ms Noakes (who had not signed a statement) would be called to give evidence. In fact she had died in prison some months earlier. Whilst I can well understand that no individual can know the whereabouts of all potential witnesses, the reassurance being given to the court was based on nothing and so should not have been given. There were several less obvious inaccuracies and misleading statements which it is not necessary to rehearse.
• As part of this application the claimant’s legal team revealed that in August 2016 a former prison officer, Mr Hurley, who was to give evidence for the defendant, had contacted the claimant’s solicitor to complain about the way his witness statement had been drafted by the defendant so that it did not properly reflect his evidence. His statement to that effect formed the basis of a serious attack on the integrity of the defendant’s legal team which was at the heart of the application to strike out the defence as an abuse of the process.
• The claimant sought to have the abuse application determined at the end of the trial. Although this was highly unusual it was the only realistic option given the time constraints. In the event this approach allowed a proper resolution of a number of the issues which were initially contentious;
  the circumstances of the obtaining of Mr Hurley’s witness statement were explored and in the light of the evidence Mr Roy very properly abandoned the submission that any evidence had been fabricated and any allegation of bad faith. He maintained his assertion that the way witness statements were taken was unacceptable and reflected inappropriate zeal on behalf of the defendant’s legal team. 
• There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. I am quite sure that this was done because the pressure of work did not allow for the best preparation and not for any sinister reason. The witnesses who attended gave their evidence and it was tested. IG asked for the draft to be amended before she came into court. She and at least one other witness complained that a last paragraph was included in the draft statement which did not reflect his or her evidence. When Mr Hurley complained to the defendant’s solicitor that his statement was not accurate he was asked “is it the last paragraph?” Mr Roy submits, correctly, that the question was asked thus because the solicitor knew that there was something in the last paragraph which the witness may not be content to sign up to. The last paragraph read “With regard to the allegation made by Liliana against James Marsh, I believe that he did in fact slap Liliana’s bottom. This is based on my knowledge of Liliana. I found her to be honest and genuine in my dealings with her. I don’t believe she would have made up these allegations. She was not the type of person to do so”. Ms Dixon accepted in her statement that the last paragraph reflected her impression of what Mr Hurley had said rather than his words at the time. In evidence Mr Hurley said he had not said that which appears but he did accept in cross examination that he had no reason to think that Ms Garces Rosero was dishonest. He also accepted in cross examination that he thought that the claimant had “possibly” slapped Ms Garces Rosero but he did not think it would have been with any sexual intent. He had said this to Ms Dixon at the end of the interview when she had asked him to say off the record what he thought had happened. His response was reflected in the first sentence of the last paragraph of his statement. As Mr Holloway submitted, the note of interview as to what Mr Hurley said off the record was consistent with his evidence under cross examination. In the event Ms Dixon removed the passages to which he objected and the statement before the court was an accurate account of his evidence in chief. In my judgment it was unwise to invite an off the record comment and then include it in the draft statement. It was likely to lead to upset and a waste of the court’s time while the matter was analysed. In the end no harm was done to the claimant or his case.
• In the course of cross examination when Ms Gourley was asked why she had downgraded her view of collusion between Ms Garces Rosero and Ms Kimber to “possible” collusion in her statement she said that the words used were those of the solicitor. She should have checked the statement more carefully before signing it (if it did not reflect her view) and in any event she had not been entirely consistent in the way she had expressed her view. There is nothing in this point. Nor is there anything in the complaints about the statements of some of the other witnesses. The reference to the claimant being a sexual predator made by one of the governors first appeared in the work book for Operation Daimler and then appeared in the statement. The fact that it was based on an incident which the witness did not describe at all clearly, which had allegedly happened years earlier and had led to no action came out in cross examination and I have disregarded the incident completely. There is no criticism to be made of the solicitor here.
• Numerous witnesses alleged in their statements that after he transferred to D wing the claimant had been instructed not to go onto C wing. The source of that information should have been identified in each statement but was not. This was an oversight. I am confident the source was rumour and gossip within the prison since I have found that the claimant was not instructed not to go to C wing. Had the witnesses been asked to identify their source the defendant would have been alerted to the fact that the allegation may not have any foundation. Instead this assertion was part of the defendant’s case at trial. This was a waste of time but no more than that.
• The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made. However I am quite sure that the defendant did not prevent me from seeing evidence that was favourable to the claimant; Mr Roy’s submission that PII may have been abused is untenable. It should not have been made and I ignore it.
• For the avoidance of doubt I reject any suggestion that Ms Dixon behaved other than with propriety. I also reject the submission that she was “personally invested” ie too close to the case.
• Although I was referred to a large number of authorities by the claimant and to a number of recent authorities dealing with the striking out of statements of case by the defendant, the issue boils down to this, given that there is no assertion of bad faith: has the defendant’s conduct prevented there from being a fair trial? Only if the answer to that is yes should I go on to consider whether to dismiss the defence as an abuse of the process of the court. 
• I am quite satisfied that the defendant’s conduct has not prevented a fair trial as the judgment demonstrates. There has been no injustice. The process of the court has not been abused. On the contrary it has been effective in achieving a fair trial.
• The application is dismissed.”