CHANGING WITNESS STATEMENTS: COMPARE AND CONTRAST: EDITING STATEMENTS CAN AFFECT CREDIBILITY
The judgment case of ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust  EWHC 2010 has an interesting passage on witness statements. It is an example of how early witness statements that were not initially disclosed can come (eventually) to be examined in detail at trial. This rarely helps the overall credibility of the witness.
” I therefore do not understand how it was that this potentially important sentence came to be excluded from the served witness statement, but it is of obvious concern to the court that facts and matters believed to be true are omitted from witness statements served in accordance with court Orders, presumably because those facts and matters are thought not to be helpful to the Claimant’s case. This leads to cross-examination on a false basis and to witnesses getting into difficulty and appearing to be mistaken in their recollection”
The claimant brought an action alleging clinical negligence during his birth had led to his suffering devastating brain injury and serious disability. To a large extent the issue of liability turned on what was said in the operating theatre and the accuracy of the evidence of the claimant’s mother.
THE JUDGMENT ON WITNESS STATEMENTS
Martin Spencer J reviewed the evidence of the mother and the evidence given in cross-examination.
“SL then revealed that she and her husband had written down notes of what had occurred straightaway after ML was delivered and that she had given those notes to her solicitor who should have those original notes. He agreed that she would have used those notes when making her witness statement and the notes were written when matters were fresh in her mind.
After SL’s evidence on day 1, the trial was adjourned and after dealing with Mr Forbes’ consideration of the unredacted medical notes of Patient A, B and C and the abandonment of the allegations (n) to (r), SL was then recalled to deal with a further witness statement dated 1 November 2010 which had not been served previously but in respect of which privilege was now waived. That statement was added to the bundle at page 146 A. This stated:
“12. At this point I was in extreme pain and remember saying, “Please, just chop me, what are you waiting for?“ meaning that I wanted a caesarean section. Mr Christopoulos said that they were trying to avoid this route and when my husband asked why, Mr Christopoulos said that this is major surgery with six weeks recovery time. My husband explained that I had a narrow pubic arch and this might make it difficult to deliver naturally, to which Mr Christopoulos replied that this was not a problem.”
It will be noted that this final sentence was omitted from the statement served for the purposes of the proceedings (see paragraph 54 above in this judgment) and replaced with the words “I don’t remember him saying anything else about the caesarean section or about the baby’s condition.” This change appears to have been deliberate, a decision having been made that although it appeared in her statement made in 2010, SL would not adduce the evidence about her husband having commented on her narrow pubic arch in her statement served for the purposes of the proceedings. Nor had this been pleaded. However, given her evidence in cross-examination, it seems clear that SL had not simply changed her mind about whether her husband had said that but, on the contrary, maintained strongly that he had. I therefore do not understand how it was that this potentially important sentence came to be excluded from the served witness statement, but it is of obvious concern to the court that facts and matters believed to be true are omitted from witness statements served in accordance with court Orders, presumably because those facts and matters are thought not to be helpful to the Claimant’s case. This leads to cross-examination on a false basis and to witnesses getting into difficulty and appearing to be mistaken in their recollection. I must assume that the decision to omit that sentence was SL’s.
“15. At 11.30am I was given an epidural and after about 20 minutes I felt much more coherent and relaxed as the pain disappeared and I started talking and joking with my husband and sister. Mr Christopoulos said that we should wait another hour and get me to deliver vaginally.”
SL was further cross-examined about this statement by Mr Bishop QC and he pointed to various differences between this original statement from 2010 and SL’s witness statements served for the purposes of the proceedings. Thus, there was no mention in paragraph 12 of other factors apart from pain as being the reason for the request for a caesarean section, and the reference to talking and joking with her husband and sister had been omitted from the more recent statement. She had also referred to there having been four fetal blood samples. There was also an error in relation to the timing of a conversation with Mr Christopoulos after ML was delivered.
Generally, the Claimant’s case now depends critically upon this evidence from SL and my assessment of her accuracy and reliability as a witness. I do this in paragraph 86 below where I discuss my findings in relation to the critical conversation between SL and Dr Christopoulos, weighing SL’s evidence against that of Dr Christopoulos with which it was inconsistent.”
The judge preferred the evidence of the treating doctor to the evidence of the mother. The claimant’s action failed.