WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP

Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want to recap on cases where witnesses blame lawyers for inadequacies and errors in their own statements.  Most lawyers do not have a system in place for “self-protection”.

EXAMPLES OF WITNESSES BLAMING  LAWYERS

In case anyone is any doubt that this can be a real problem here are a few examples.

HUGHMANS

 Hughmans -v- Dunhill [2015] EWHC 716 (Ch)

1. “As for the witness statement dated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this  statement   and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s]  evidence is that the  witness statement  was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”

   AMES

   Ames -v- Jones [2016] EW B67 (CC).

   “She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case.”

   “She blamed her solicitor for having misplaced the decimal point and for having assumed that she received housing benefit without asking her. She did not acknowledge any responsibility for signing a statement which contained (on her oral evidence) such fundamental errors.”

LITIGATION FUTURES

A report in Litigation Futures illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”.

The claimant was jailed for eight months for contempt of court. He, in turn,  sought to blame his solicitor for submitting the claim without his knowledge or authorisation.

The solicitors, however, had a signed statement and recorded evidence.

” the solicitor produced a witness statement that the claimant had signed as well as a telephone recording of Mr Hooper talking about the claim in detail and the alleged injuries sustained”

However the ingenuity of a fraudster knows no bounds.

“Mr Hooper disputed the evidence by saying that it was an imposter on the call recording, that he was illiterate, and had believed the statement that he had signed related to another accident which had taken place on the same day at the same location.”

This account was not accepted by the judges. Mr Hooper was found in contempt of court and jailed for 8 months.

DOCTOR HEAL THYSELF

Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] 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)”

THE HANDBOOK FOR LITIGANTS IN PERSON

This was written by six highly experienced circuit judges. It highlights the fact that witnesses often sign witness statements uncritically.

“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.” (11.1).