ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying. In doing so I am not minimising the (criminal) conduct of the forgery. However the report also reveals a widespread problem of attitudes towards the drafting of statements themselves.
THE EXPLANATION FOR THE FORGED SIGNATURES
The solicitor in question instructed a member of firm to “trace over” signatures on witness statements that were being served.
“When the defendant firm asked for the original statement to be sent through the post, she directed another individual to trace over the signatures with a ballpoint pen, in order to give the impression they were original signatures.
The Solicitors Disciplinary Tribunal heard that the claim was struck out. Layton, a solicitor with Blackburn firm Lance Mason Solicitors, told a later costs hearing she had acted appropriately and honestly throughout the matter, and she would routinely produce witness statements by amending a precedent set up for RTA claims.”
(That explanation was false)
LETS LOOK AT THAT AGAIN…
I stress I am not minimising the forgery. But it is also a matter of concern that a solicitor could state:-
” she would routinely produce witness statements by amending a precedent set up for RTA claims.”
This was not a “template” or a checklist but a “precedent”. Instructions are not “taken” but precedents amended.
LETS TALK ABOUT THE WEATHER
It is hardly surprising that judges teach some witness statements with some scepticism. See, for instance, the observations by District Judge Etherington reported by John Hyde in the Law Society Gazette
‘Time and time again I see, particularly in personal injury or RTA cases, there is no sensible narrative about where the duty of care lies and what caused the accident. It is the simple building blocks of a witness statement and it’s not good enough
‘They are more interested in what the weather was or how long the ambulance took to arrive. They have not applied their mind to actually what the accident is about – does this witness statement prove liability? If you read the statement and can’t be satisfied then something is wrong.’
It gets to the stage where counsel are hoping that the judge will ask key questions in order that they can get evidence before the court – that is not in the witness statements.
TEMPLATES AND CHECKLISTS ARE GOOD “PRECEDENTS” ARE BAD
It is tempting to surmise that the reason some lawyers feel they can sign witness statements on behalf of their clients is that the clients have so little input into them. A template or checklist can direct the mind of the witness to the key issue. A “precedent” is almost certainly going to be too vague and not meet the relevant requirements in many cases. It is relatively easy to spot “precedent” witness statements.
WANT SOME EXAMPLES?
Mr Justice Wyn Williams inMouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB)
“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
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)”
In Berezovsky -v- Abramovich [2012] EWHC 2463 (Comm) Mrs Justice Gloster DBE commented on the history of the litigation and length
of the witness statements and observed;
“It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.”
THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT
This was written by six highly 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.” (11.1).
RECOMMENDED FURTHER READING (BY THE JUDGE)
DJ Etherington tweeted a link on Twitter to a post on this blog that he mentioned in the talk and that highlights the Chancery Guide to Witness Statements
RELATED POSTS ON WITNESS STATEMENTS
There are numerous posts on witness statements on this blog. Two of the most widely read are:
- Witness statements: The Chancery Guide: Something for us all.
- Drafting witness statements that comply with the rules: a checklist too important to ignore.
In relation to the lawyer’s duty:-
- Witness statements and avoiding jail: are you protecting your clients and protecting yourself?
- My witness statement was drafted by my lawyer: thank you officer.
- Drafting witness statements: Guidance from the Bar Council that every litigator should read.
- Taking evidence: witness statements and not misleading the court.
- Witness statements: the lawyer’s duty not to mislead
- Fraudulent claimants and the need for self-protection by lawyers
- Witness statements: when things go wrong – blame the solicitor.
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