CIVIL PROCEDURE BACK TO BASICS 59: WHEN A CLIENT DISOWNS THEIR OWN WITNESS STATEMENT? SELF PROTECTION FOR THE LAWYER

There has been much discussion on Twitter tonight in relation to the language used in witness statements. That led to this account being given by “Sweary Expat” a lawyer based in the Cayman Islands (some people clearly have to suffer for their work…) However this led me to consider the examples where witnesses have, quite openly, blamed their own lawyers for defects and errors in their witness statements.  Some form of self-protection is essential.

“And on the flip side, we had a civil trial here in Cayman last year, $9 billion claim. Counsel to his witness (via Arabic translator on video link): Is this your witness statement? No But you did write it? I’ve never seen it before. Is that your signature? No.”

(Extract from the judgment in  the case).

SOME EXAMPLES OF LITIGANTS BLAMING THE LAWYERS WHO DRAFTED THEIR STATEMENTS

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

The claimant firm of solicitors was suing for legal fees in the sum of £179,666.68; the defendant counterclaimed for negligence; breach of fiduciary duty and wasted costs.

  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 -v- JONES

Mr Recorder Halpern QC in Ames -v- Jones [2016] EW B67 (CC) said of a witness

“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

 

THE WITNESS EVIDENCE IN THE MOUNCHER CASE

Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB).

  1. “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. As it happens, the important aspects of those officers’ evidence related to the arrests of the Claimants and the reasons for the arrests. Upon those issues, there is a large amount of contemporaneous or near contemporaneous documentation which provides a reasonably sure guide as to why particular Claimants were arrested and what happened when they were arrested”.

BARRETT: WITNESS STATEMENT BY A DOCTOR

We have seen similar comments in the judgment of 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: ALL TOO OFTEN STATEMENTS ARE INCORRECT

This was written by six highly experienced circuit judges. It shows a certain degree of judicial scepticism in relation to the way witness statements are taken.

“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).

LITIGATION FUTURES REPORT

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.

 

HAVING A SYSTEM IN PLACE TO PROTECT YOURSELF

Note how the solicitors in the above case were able to protect themselves. I am here repeating matters I have written on before.  However the dangers involved are serious ones.

A witness needs to know, at the very least,

  • That this is an important document.
  • If it is inaccurate they could have criminal proceedings brought against them.
  • That they should check the document fully and carefully and feel free to make any additions or alterations.
  • The statement is, however, one of facts and not opinions.
  • If they have any doubts about any matter at all they should raise these with the lawyer involved.

IF YOU DO NOT HAVE A PROPER SYSTEM IN PLACE THEN ONE DAY YOU ARE GOING TO HAVE A PROBLEM

Sooner of later  you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement.  Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.

DON’T BE AFRAID TO TEST THE EVIDENCE: IN THE LONG TERM THIS WILL HELP YOUR CLIENT AND YOURSELF

Finally it helps to remember that there are dishonest and fraudulent people out there who will be happy to blame their lawyers if things go wrong.  There is no substitute for testing and scrutinising the evidence and giving clear warnings of the consequences if matters appear suspicious.  Whilst it is not the lawyer’s job to pre-judge the evidence it is the lawyer’s job to give clear and firm advice on matters relating to credibility and the risks of litigation. The Bar Council Guidance is important reading in that respect.