THE ASSESSMENT OF EVIDENCE: DECLARATIONS FOR THE DEFENDANT IN A PERSONAL INJURY CASE

The judgment of Master Thornett in  Day v Bryant (declaratory relief – costs – QOCS) [2018] EWHC 158 (QB) is an example of a rare case where a defendant, in a personal injury case, obtained a declaration on a counterclaim. It includes a tale of wholly unsatisfactory witness taking. The internet also plays a part, with the claimant referring to himself in the third person on online chat rooms.

THE CASE

The claimant alleged that the defendant had sexually assaulted him some years previously.  The defendant was charged and convicted. Upon appeal the defendant’s sentence was increased to 8 1/2 years.  The claimant asserted, throughout the criminal proceedings, that he was not interested in money. However he later obtained a payment from the CICA and then issued civil proceedings against the defendant and his employer.

THE UNRAVELLING OF THE CLAIMANT’S CASE

As part of the civil case the claimant disclosed a medical report.  That report led to the unravelling of the claimant’s case and the acquittal of the defendant of the criminal charges. (By this time the defendant had spent 2 1/2 years in prison).

The Master analysed the contents of the claimant’s medical report.

1. 1. “That report featured :

a. Reference to the Claimant’s extensive recorded medical history of his self-reporting as a liar who deceived people. This crucial evidence had not been placed before the jury during the criminal trial;

b. An assertion that the alleged sexual assault had deprived the Claimant of a successful boxing career, in which he had been selected to represent GB at the 1984 Los Angeles Olympics. That alleged loss of career opportunity formed part of his damages claim. It became apparent upon private investigation on behalf of Mr Bryant that there was no evidence the Claimant ever had had such a career. Despite this sport being well-regulated and extensively archived, there was no evidence that the Claimant had ever boxed at any openly competitive level and he certainly had not been selected for the GB Olympics Team.

1. 1. Further evidence challenging the Claimant’s credibility came to light. At trial, the Claimant had suggested the only person he had confided to about the alleged assault contemporaneously was a slightly older young man in his neighbourhood, a Mr Chris White. The Claimant’s emphasis both at trial and in the medical report was that the shame of the incident had prevented him from telling his parents and it was only many years later that, upon a trip to Bournemouth, was he moved to confide in his partner about what had happened when he lived in that region as a youth. Mr White denied there had ever been such a conversation, however, when approached by the Defendant.

   2. Mr Bryant appealed to the Court of Appeal Criminal Division, who admitted the fresh evidence produced by the Defendant. The Crown factually conceded that the Claimant was recorded in medical records as a chronic liar and that he had invented his boxing career. Further, both the Claimant and Mr Mick Gregory, a witness who had been willing to support the Claimant’s boxing career allegation as part of the prosecution investigation, now made substantial factual concessions :

a. Mick Gregory now distanced himself from the very clear assertions in a statement he had originally given to the Police in which he had very clearly attested to the Claimant’s boxing history and was willing only to offer the most generalised of acknowledgment that the Claimant had any boxing associations;

b. The Claimant resiled from Mick Gregory’s former claims on his behalf about that career and instead offered a cautious admission of having only been involved in unlicensed boxing in private clubs and venues i.e. not at Olympic squad level.

1. The conviction was quashed and the Crown did not seek a retrial. Mr Bryant was released from prison having served 2 ½ years of the sentence. His name was removed from the Register of Sex Offenders. The Defendant’s previous good character was restored although, it hardly goes without saying, Mr Bryant had sustained the profound ignominy of the original charge through to conviction and had served time in prison.”

THE CIVIL ACTION

The claimant’s civil action had been stayed during the period of the appeal. The claimant was given permission to amend his claim to remove the reference to his alleged boxing career.  Shortly afterwards the claimant dispensed with his solicitors and became a litigant in person.

He took no further part in the litigation. He did not attend a defendant’s application to strike out. He did not comply with any of the directions.  Eventually the claim stood out.

THE COUNTERCLAIM

The defendant counterclaimed.  This gave rise to some problems of evidence.

1. From the Defendant’s viewpoint, he not only maintains but wishes to establish before the court he was wrongly charged, prosecuted, convicted, imprisoned, besmirched within his community and has suffered considerable physical, financial and emotional hardship both in and out of prison. I am told the Defendant attributes to this unfortunate history the sudden and unexpected death of his wife, aged 54, in February 2017. Anyone can follow Mr Bryant’s aims in principle but the difficulty in this civil process is that, in contrast to the criminal prosecution, this court has been deprived of the opportunity of testing the Defendant’s claim by hearing from the Claimant. Instead, there is not even a witness statement from the Claimant and, as stated, he has failed since November 2016 to comply with other directions or to appear at court hearings through to trial. The evidential predicament thus created has been effected by the Claimant personally.

THE MAKING OF A DECLARATION

1. 1. This evidential limitation raises an important and more than academic observation as to what can be achieved in principle in a counterclaim for declarations as sought. If the court is minded to express a factual declaration, then findings will have been reached on the balance of probabilities. This limitation stands in contrast to the criminal procedure. From the criminal procedural viewpoint, Mr Bryant had the presumption of innocence until his conviction. His conviction was because the Crown established guilt beyond reasonable doubt. However, and of course most critically, that conviction was quashed because the Court of Appeal (following very open concession from the Crown) were not satisfied the decision of the criminal court had been reliable, having regard to the higher burden of proof. The jury instead might have acquitted Mr Bryant had the fuller evidence been put before it and so it was unreliable.

Upon the conviction being quashed, Mr Bryant reverted to the protection of the presumption of innocence. That is ultimately only a presumption, however, albeit a fundamental one. But none of this sequence facilitates an expectation that Mr Bryant can now establish himself by his civil counterclaim to be innocent beyond reasonable doubt. The highest assistance he can expect from the civil court is for any relevant comments it might feel able to express about the weight of the evidence it has considered as might lead to a finding of fact.

1. Mr. Bryant’s desire to establish (or rebut) an allegation by way of declaration rather than the pursuit of monetary compensation is not unique. Other examples could be found of those accused of abuse in a civil claim as commenced but as never comes to trial. Reasons why such claims might not continue could be various but death or discontinuance by the claimant would be immediate examples. Regardless of the probable statistical minority of such claims, it will be recognized how those accused would thereafter remain in a most undesirable factual vacuum. Serious allegations will have been raised but no findings ever made by the very court utilised by the complainant to present the allegations. Whilst from a puristic legal viewpoint it can be said that an allegation never proven in court remains no more than an allegation, on a personal level it would be unrealistic to ignore the obvious profound distress, inconvenience and expense sustained by those who had looked to those proceedings to rebut the allegations and to establish their innocence. Their sense of injustice and deprivation of process for the accused will enure well beyond merely any payment of their legal costs upon discontinuance, for example.

2. I must emphasise at this point that the predicament I recognise of an allegation still needing to be resolved despite the procedural opportunity to do so having been removed might not only affect those accused of abuse but also those who allege abuse. In the case of the latter, this can be because of the relationship between legal costs and legal representation.

3. Those alleging abuse, unless extremely solvent, are unlikely to obtain legal representation unless its expense stands a reasonable prospect of being reimbursed by way of a costs order against a defendant following success in the claim. Hence the concept of “success” for the purposes of conditional fee agreements. Success is typically defined in terms of the achievement of an award of damages. So where a factual finding of abuse is required in order to sustain a claim in damages, it remains open to any solvent defendant to make a sufficiently attractive financial offer to settle the damages claim and thereby ensure that the claimant is advised by his or her lawyers on a conditional fee arrangement not to proceed further but to instead accept the offer. So a claimant alleging abuse can also find themselves having been deprived of the opportunity to have their case heard and the benefit of a reasoned judgment.

4. I should add that those alleging abuse may not necessarily be as claimant but could be a counterclaimant. Take, for example, an educational institution who might bring a comparatively straightforward claim for unpaid tuition fees against a student who then counterclaims damages for the vicarious liability of the institution for sexual abuse. Here, the primary claim for unpaid fees could easily be withdrawn given the greater implications of the counterclaim.

5. Whether complainant or accused, and as claimant or counterclaimant, it therefore seems to me fundamental that in certain appropriate and sufficiently serious cases the courts should be asked to recognise the interests of those for whom pure factual resolution is more important than financial remedy. Indeed, on my understanding, such need probably represents a high percentage of those at the centre of abuse allegations.

6. It nonetheless remains comparatively uncommon for a civil court to make purely factual declarations without providing other relief or financial award. Generally, declarations are sought and granted alongside with other forms of relief, typically in the form of injunctions. It may be this reflects former more commonly encountered claims and trends in litigation. Either way, in current times where abuse and sexual harassment claims are becoming increasingly more common, it is important carefully to consider how case law can assist.

7. The important starting point is that there is nothing to prevent the court from making a binding declaration simply because no other remedy is claimed. So Mr Bryant is procedurally entitled to seek declarations despite not pursuing a claim in damages. However, in considering whether to grant a declaration or not, the court should take into account the justice served respectively to the claimant and to the defendant, whether the declaration will serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration.

THE PRESENT CASE

The Master found that it was an appropriate case to make a declaration.  The fact that the claimant had elected not to participate in the action was, if anything, an aggravating feature.

1. Drawing from that guidance, I am satisfied that there is a very real and present dispute presented by this litigation in respect of which a declaration is appropriate.

2. The need for a declaration on the facts of this case is, I find, independent of the additional feature of its currency having been, as I also find, deliberately tainted by the Claimant’s failure to co-operate and pursue his case through to trial. The purpose of the declaration should not in any way be described as now affecting the Defendant less or having become merely academic because the main claim has been struck out. Mr Bryant was accused of an exceptionally serious assault and so has a legitimate interest, in my judgment, of obtaining the justice of appropriate findings. I do not consider it necessary to show there has been an abuse of process or other default by the Claimant that has caused the current position to arise as a necessary prerequisite for permitting a declaratory remedy of the type sought here to proceed because the authorities frame the court’s powers and discretion much more broadly.

3. Indeed, any credence to such analysis would have to incorporate and acquiesce to the Claimant’s default to enable the proposition even to arise. That cannot be right. It cannot be that a party’s abuse of process could be used to their advantage by disputing the applicability of seeking a declaration alone by way of counterclaim. Similarly, neither can a party’s procedural unwillingness to participate justify any submission from the same party that they are prejudiced by not being able to reply to the Defendant’s counterclaim. I am quite satisfied that the Claimant has had more than sufficient opportunity to respond to the counterclaim.

4. These last points and the court’s duty, as I accept it to be, “to do the fullest justice to the [claimant^[1]] to which he is entitled“, per Millet LJ in Patten is the only, and not simply the most, effective way of resolving the litigation in the unsatisfactory state personally created by the Claimant. Further, the use of the term ‘claimant’ above was clearly not intended to refer only to conventional primary ‘claimants’ as we now might term them but, as here, also to someone defending allegations and who counterclaims for declaratory relief.

EVIDENCE FROM A BLOG

The judgment is interesting in that the claimant started writing about himself (in the third person) in the comments section of a local newspaper.

1. “The contrast between the self-presented and the “anonymous” versions from the Claimant are clear and striking. In the “anonymous” contributions the Claimant can quite fairly be described as deliberately retributive without reservation. The self-presented accounts portray him as a victim who has reluctantly been forced to speak out and seeks compensation only because of Mr Bryant’s unwillingness to admit his deeds. It is very difficult to accept these stances could be described as mutually consistent. I am satisfied they are not and have to ask myself which seems factually the more accurate portrayal.”

A VERY CASUAL WITNESS STATEMENT

A witness, Mr Gregory, signed a witness statement in 2013, stating that the claimant had had the chance of being a successful boxer.

1. 1. “Mr Pettitt approached Mr Gregory to provide an updated statement as part of Mr Bryant’s appeal. The critical points to note about this later statement dated 16.06.16 is that Mr Gregory :

a. Confirmed his signature to the 2013 statement;

b. Admitted to knowing the Claimant when he was aged about 10-13 years “as a boxer” “from school” but states he then had no further contact with the Claimant until about 2011/12 when he heard about the Claimant supplying boxing rings;

c. Offers no reference to knowing about the Claimant’s asserted boxing career or achievements;

d. Could not recall whether the 2013 statement had been sent to him in the post or handed personally to him by the Claimant but that he recalls the Claimant asking him for a character statement “over a Police matter. He did not tell me what the case was about. I don’t know now either…”.

More particularly in respect of his 2013 statement, Mr Gregory comments how :

“The statement has a date but was not written by me as I don’t write my sevens with a cross through it. As far as I know I was never contacted by Dorset Police….I was never at Marvels Lane as a trainer or a boxer. In 1983 I was not in boxing I was still playing football…I never trained Day…I only knew him as a junior…to be honest I didn’t really read the statement but the record appeared very good. I did not check any records to see if the claimed bouts were true. I took it as read. As I said, in the period of dates I was not ever in boxing or coaching or boxing. I cannot confirm that any of the statement content is true as far as the number of bouts is concerned and the selection for the Olympics.”

1. The propriety of Mr Gregory signing a statement in 2013 testifying as to the truth of the Claimant’s alleged boxing career when, by way of his 2016 statement, he admits to being unable to confirm the truth of its contents, is not directly for my consideration or decision making. On any view, of course, Mr Gregory presents as an unreliable witness who clearly pays little if any regard to the importance of stating the truth of a document, despite being at risk of prosecution or civil contempt in the event of it being established he wilfully stated anything within it to be false.”