WHEN WITNESSES ALL SAY THE SAME THING: THIS RARELY TURNS OUT WELL: (WHEN THEY SIGN THE SAME STATEMENT, IT COULD BE WORSE…)

There has been a brief exchange on Twitter this morning. Someone has been served with a  single witness statement  – signed by three people.  There are manifest breaches of the rules here.  It is another example of a statement being served in circumstances where the lawyer involved can have no real comprehension of the civil procedure rules and the rules of evidence.   There are numerous cases where identical or “similar” witness statements have been served.  It is worthwhile looking at a few examples.

 

 

IDENTICAL WITNESS STATEMENTS ARE JUST SUSPICIOUS

In AA -v- London Borough of Southwark [2014] EWHC 500 QB the deputy judge considered three statements given in the course of the litigation. Unanimity in the witness statements did not help.

. “Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.”

WITNESSES SO SIMILAR A CHART WAS DRAWN UP

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) heard evidence from members of the claimant’s family who gave “supportive evidence”. The similarities were so marked that the defendant’s counsel actually drew up a graph to show the same phrases being used.

“Various families members and friends gave supportive evidence
  1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.
  2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.
David Hood
recall of what he overheard MsHastie telling the out of hours service
Ms Hastie recall of what she told Greta Jones
Greta Jones recall of symptoms relayed by Ms Hastie
Karen Jones recall of what Greta Jones told her Ms Hastie had said
1
“lethargy”
“being listless”
Listless
2
“high temperature”
“high temperature”
“high temperature”
“high temperature”
3
“history of severe headaches”
“severe headache for two days”
“intense headache for two days”
“intense headache for two days”
4
“crying and screaming”
“crying and screaming”
“crying and screaming”
“crying and screaming”
5
“being off his food”
“being off his food”
“and the last solid food he had had was on the morning of 31st December when he had a small amount of Weetabix”
“not eating”
“not eating”
6
“unable to drink very much”
“unable to drink”
“not … drinking”
“not … drinking”
7
“vomiting bile”
“vomiting Calpol and bile”
“vomiting bile”
“vomiting bile”
8
“pale”
“pale looking”
“pale looking”
“pale looking”
9
“not being himself”
“not being himself”
“not being himself”
“not being himself”
  1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.”

WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG

This is the title of an article by Joshua A. Krisch on vocativ. The opening paragraph says it all

“Let’s face it—there’s something inherently fishy about a panel of witnesses who each recall the exact same series of events. Humans are imperfect; we see things differently, forget minor details and recount stories in odd orders. So, when witnesses’ accounts don’t differ by a healthy margin, it’s actually a sign something might be wrong.”

The article draws upon an article by the Royal Society: Too good to be true: when overwhelming evidence fails to convince.  This is a sophisticated mathematical analysis. However, as Joshua Krisch, summarises “the probability of perfect agreement between witnesses is almost zero”.

So the more witnesses that positively identify a culprit, the less likely they are to be correct (the optimum number is three).

A PROCESS CALCULATED TO DEVALUE THE EVIDENCE OF WITNESSES

There is an interesting discussion in the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch) and the judgment in New Court Securities she refers to.

The judge was hearing an action by time share owners alleging breach of contract by a membership company. The claim was dismissed on the grounds that the claimants failed to prove causation or damages. The penultimate paragraph of the judgment reads

I also note that the Claimants’ second witness statements were largely identical: see the comments of Chadwick J in Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited [1992] BCLC 1104 at 1115-6. The Court of Appeal’s decision was reversed by the House of Lords and Chadwick J’s decision reinstated but there was no criticism of Chadwick J’s judgment on this point by the Court of Appeal in any event”