CIVIL PROCEDURE BACK TO BASICS 57: YOU CAN’T SUBMIT THAT A WITNESS IS LYING UNLESS YOU HAVE PUT THAT CASE TO THEM

A short, but fundamental, point about making submissions at the close of a case.  You cannot  generally make submissions that a witness  is lying unless that case has been put directly to that witness in cross-examination.

“It is a fundamental tenet of the adversarial procedure in  these courts that a case is put against the opposing party. It is only fair for a person against whom allegations are made to have that put to them while giving evidence in the box and to have an opportunity to deal with those in the box in front of the trial Judge. Equally it is a vital tool in the Judge’s exercise of assessing the credibility of witnesses for him to see witnesses confronted with the case against them to see how they react or deal with it.”

AN EXAMPLE – ALLEGATIONS OF LYING SHOULD NOT HAVE BEEN MADE IN CLOSING SUBMISSIONS WHEN THEY HAD NOT BEEN PUT TO THE WITNESS IN CROSS-EXAMINATION

This can be seen most directly in the judgment of Stuart-Smith J in Ocensa Pipeline Group Litigation, Re [2016] EWHC 1699 (TCC)

The judge was considering the evidence of one of the lead claimants. He found that the evidence of the witness was not reliable.  However he was highly critical of the defendant’s submissions that the claimant was lying.

1413.       In many important respects I am not able to accept that Snr Sequeda’s evidence is reliable. It was, however, a considerable and unwelcome surprise when the Defendant’s closing submissions on LC39 opened with the assertion that his only vulnerability was “the vulnerability of a witness who came to court ready to lie in order to advance a claim, and whose lies are slowly and surely exposed through the forensic process” {C4/4.8/615}. This allegation had not been put to him, as it should have been if it was to be made or pursued, and it was a grave error of judgment on the part of the Defendant to advance and develop it without having done so. On being required to review the terms of its closing submissions generally the Defendant has withdrawn the allegation of lying, though it maintains the submission that Snr Sequeda’s evidence was unreliable and wrong in a number of respects. The allegation of lying was one that should not have been made in the original closing submissions and which was rightly withdrawn. For the avoidance of any doubt, had I been required to rule on the point, I would have rejected any suggestion that Snr Sequeda was dishonest in the giving of his evidence.”

A PARTY MUST PUT THEIR CASE TO A WITNESS

This is set out in some detail in the judgment of Smith J in NGM Sustainable Developments Ltd -v- Wallis [2015] EWHC 2089 (Ch)

50. It is a fundamental tenet of the adversarial procedure in these courts that a case is put against the opposing party. It is only fair for a person against whom allegations are made to have that put to them while giving evidence in the box and to have an opportunity to deal with those in the box in front of the trial Judge. Equally it is a vital tool in the Judge’s exercise of assessing the credibility of witnesses for him to see witnesses confronted with the case against them to see how they react or deal with it. Of course all experienced Judges are well aware of the potentially oppressive nature of cross examination and are alert to ensure that it does not become oppressive and are alert to ensure witnesses fully understand the questions that are being put. For example in a number of instances in this case Counsel put (whether deliberately or not I do not know) questions which comprised two questions. The witness generally hears the latter of the questions and answers that and then it is not clear what his response would be to the earlier part of the rolled up question. A trial Judge should always be alert to ensure that errors do not creep in as such errors will not be identified on reading the transcript.

1. Equally witnesses regularly say “yes” when they mean “no”. They regularly say “ok” when they are not agreeing the question but acknowledging they understand the question.

2. I always remind Counsel at the start of any long trial where issues of fact are hotly contested that it is essential that their case is put to the opposing side where necessary in cross examination. I always indicate that a failure to put that case will disentitle them from making submissions criticising witnesses when the criticism was not put to them when they were available for cross examination see for example Sharab v HRH Prince Al-Waleed [2013] EWHC 2324 (Ch).

3. This is the nature of the adversarial process in these courts. In that context especially in the context of fraud it is essential that the Claimant is tied to the pleaded case: see the observations of Lewison LJ in the Court of Appeal in Lowe v Machell [2012] 1 All ER (Comm) 153 at [74]. This is the more so where a case is based on fraud bearing in mind the observations of Lord Nicholls in Re: H (sexual abuse, standard of proof) [1996] AC 563 at 586:-

“The more serious the allegation the less likely it is the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is less likely than negligence……”

Ungoed-Thomas expressed this neatly in Re: Dellow’s Will Trusts [1964] 1 WLR 451, 455:-

“The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

1. Further I accept the principle that if explanations are put forward by the Defendants a finding of liability involves rejecting those explanations as being inherently improbable see Grupo Torras SA v Al-Sabah (no5) [1999] EWHC 300 (Comm), [1999] CLC 1469 at 1541 (affirmed) CA [2001] Lloyds Reports Bank 36; Attorney General of Zambia v Meer Care & Desai [2007] EWHC 952 (Ch) [90-91].

2. It follows from that that the Claimant is tied to its pleaded case namely that the Defendants made fraudulent representations to induce them to enter into the Loan Agreement and that those fraudulent representations are those as pleaded in the Amended Particulars of Claim and involve an allegation that the Defendants set out the Side Letter never intending to enter into any negotiations whatsoever.

3. Mr Collings QC who appears for the Claimants regularly strayed from that golden mean. The Defendants in their closing set out several examples.

4. Most of these circled around Mr Collings QC trying to establish that the Defendants in their discussions with the Claimants before the Loan Agreement and the Side Letter held back their desire to obtain shares in and possibly control of the Claimant.

5. The purpose behind this strategy seems to me to attempt to exploit the fact that the Side Letter made no mention of a desire to acquire shares. However the fundamental difficulty facing Mr Collings QC is that the plea he is seeking to establish by this cross examination is not the one that is in the Amended Particulars of Claim. The Claimant’s case is not that the Side Letter did not fully set out what was to be discussed with the result that the shareholding was sprung upon the Claimants (it is said) without warning and when it was not in a position to do anything because it was already committed by the Loan Agreement.

6. In my view that allegation is not open to the Claimant on the pleading.”