A WITNESS STATEMENT “SIGNED OFF ON, WITH INSUFFICIENT CONSIDERATION AND SCRUTINY”

Lawyers are always, one would hope, telling clients and witnesses to read draft witness statements with care prior to signing them. An example of the problems that a failure to consider the matter in detail can be seen in the judgment of Mrs Justice Cockerill in PBS Energo AS v Bester Generacion UK Ltd & Anor [2020] EWHC 223 (TCC). A case that is perhaps remarkable because it was a lawyer who had to make major alterations to their statement.  The judge found that these were honest mistakes, however it shows the importance of the careful checking of statements.  The alterations led to an adjournment, it is highly probable that the party calling that witness (which was successful) ending up paying the costs of the adjournment in any event.

 

“this genuinely was an extremely unfortunate case of a statement having been signed off on with insufficient consideration and scrutiny, and better recollection having been prompted by full reading of the underlying materials shortly prior to trial.”

THE CASE

The judge was giving judgment following a lengthy trial on the issue of which party was entitled to terminate the contract and who should pay consequential damages.

THE JUDGMENT

The judgment contains an assessment of the witnesses, including the in-house lawyer for one of the parties.

“Mr Prieto was the in-house lawyer for Bester. His evidence got off to an unfortunate start in that he sought to make a considerable change to his witness statement. As PBS submitted, this event raised a substantial question over his credibility as a witness and the unexpected change to a material part of Mr Prieto’s evidence necessitated an adjournment of the hearing to enable PBS to prepare adequately. However careful consideration of Mr Prieto’s evidence, which was given in a notably straightforward manner, persuaded me that this genuinely was an extremely unfortunate case of a statement having been signed off on with insufficient consideration and scrutiny, and better recollection having been prompted by full reading of the underlying materials shortly prior to trial. In the event, however, it transpired that his evidence was of limited impact on the main issues.”