LIES, DAMN LIES AND LITIGATION: WHY PEOPLE TELL LIES AND WHAT DOES THE JUDGE DO? (A RECAP)
For various reasons issues relating to the credibility of witnesses and “lies” are in the news this week. Litigation is not always about lies or liars. Often it is about misunderstandings, mistaken recollection and people convincing themselves that they are correct. However in litigation, as in life, people do tell lies. Litigators need to know about lies, and liars. This is a good time to remind people of an interesting article by Yudhijit Bhattacharjeein the June 2017 of National Geographic “Why we lie”. It reminds us that we always need to remember that someone in a case may be lying.
“Honesty may the best policy, but deception and dishonesty are part of being human”.
WHY WE LIE
The article looks at a number of liars ranging from Lance Armstrong to Charles Ponzi. It looks at American Presidents that have lied “Nixon, Clinton and Trump” and considers whether lying is an innate part of the human condition.
“Lying is so easy compared to other ways of gaining power…It’s much easier to lie in order to get somebody’s money or wealth than to hit them over the head or rob a bank” (Sissela Bok)
There are psychologists who specialist in the study of lying. The results of the studies conclude that results are similar across different cultures – most of us lie, but only a little. The surprise is “not why so many lie, but rather why the don’t lie a lot more”. The major causes of lying are:
- To cover up a mistake or misdeed (22%)
- Economic advantage (16%)
- Personal advantage (15%)
- Avoidance (to escape or evade people) (14%)
- Self-impression (to shape a positive image of themselves) (8%).
JUDGE AND YE SHALL NOT BE JUDGED
The article gives an example of Judge Couwenberg who was removed from the bench for repeated lies about his past.
“Patrick Couwenberg’s staff and fellow judges in the Los Angeles County Supreme Court believed he was an American hero. By his account, he had been awarded a Purple Heart in Vietnam. He’d participated in covert operations for the Central Intelligence Agency. The judge boasted of an impressive educational background as well… None of it was true.”
WE ARE PROGRAMMED TO BELIEVE
We have to rely on others to navigate the world. Being “hardwired” to be trusting makes us gullible. We are particularly prone to accepting lies that confirm our world view. If evidence is obtained to undermine lies this may, in fact, strengthen belief in the lie.
WHAT HAS THIS GO TO DO WITH US LITIGATORS?
Considering whether someone is telling lies is an essential part of a case. Yet considering why, when and how people tell lies forms little, if any, part of a lawyer’s training. The assumption is, of course, that the liars are always on the other side and will be exposed by brilliant lawyering and cross-examination. There is, it has to be said, something humbling about cross-examining a totally honest and impartial witness. There is always a sense of exhilaration in exposing a dishonest witness.
WITNESSES CAN LIE BUT NOT ALL OF THEIR EVIDENCE MAY BE DISHONEST
In EPI Environmental Technologies Inc -v- Symphony Plastic Technologies PLC  EWHC 2945 (Ch) Mr Justice Smith considered issues in relation to credibility
i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
ii) Second, witnesses can regularly lie. However, lies are themselves does not mean necessarily that the entirety of that witnesses evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.
iii) Third, I regard it as essential that witnesses are challenged with the other side’s case. This involves putting the case positively. This is important for a judge to enable him to assess that witness’s response to the other case orally, by reference to his or her demeanour and in the overall context of the litigation. A failure to put a point should usually disentitle the point to be taken against a witness in a closing speech. This is especially so in an era of pre prepared witness statements. A judge does not see live in chief evidence, thereby depriving the witness of presenting himself positively in his case.
I should stress also that in my view those points also are equally applicable to experts. A judge is very rarely helped by competing expert reports, which express opinions, which are not tested or not maintainable by reference to supporting material. It is not useful simply to leave the judge to find his own analysis of the reports of experts without the experts themselves being put to the test by cross examination. Finally, in the context of experts, with the CPR they have in my view acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence; see Phillips & Others –v- Symes & Others  EWHC 2330 (Ch).
THE WITNESS WHO TOLD A TISSUE OF LIES (AND THE DOG THAT GOT AN MBA)
In BSky B -v- HP Enterprises Ltd  EWHC 86 (TCC) Mr Justice Ramsey considered the implications of this but came to the conclusion that a witnesses lies were so far reaching as to render the evidence totally useless. The witness had lied about his education past, that he had an MBA, and made an elaborate story as to his attendance at college. (It is a case worth reading because leading counsel for BSky B managed to enrol his dog on the same college that the witness had qualifications from – the dog got better grades).
EDS submit that it does not follow that all his evidence was false. They referred to the decision of Flaux J in Grosvenor Casinos v National Bank of Abu Dhabi  EWHC 511 (Comm) where the claimant relied on other incidents of wrongdoing on the part of the bank’s officer as evidence suggesting that he was prepared to tell lies. Flaux J said at  and  that there was force in a submission that the evidence demonstrated a propensity to act dishonestly “but I consider the court must guard against merely concluding on the basis of this material that he was also dishonest on 8 February 2000 unless there is other cogent evidence to support that conclusion.” He said that whilst the other acts of dishonesty are obviously of some relevance in assessing whether he was a rogue banker, “I do not regard the subsequent dishonesty in relation to the letter and the guarantees as cogent evidence that he made a knowingly false statement on 8 February 2000. There is no material before the Court to suggest that any such false statements were made to assist, let alone at the behest of, the Ruler.”
They also referred me to the decision of Peter Smith J in Masood and others v Mohammad Zahoor and others  EWHC 1034 (Ch)at  where he said: “Where cases turn on the credibility of witnesses it is important to consider the evidence as a whole. As I said in EPI whilst a witness’ veracity is challenged successfully by demonstrating that the witness has lied it is important to differentiate between establishing that a witness has lied in respect of a particular point as opposed to whether or not his evidence as a whole is a complete lie ….”
I was also referred to the familiar Lucas direction in criminal cases and what Lord Taylor said in R v Goodway  4 All ER 894 that a jury “must be satisfied that there is no innocent motive for the lie and [they] should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour.”
EDS accept, though, that in the light of his evidence concerning his MBA degree, Joe Galloway’s evidence on other matters had to be treated with caution. They accept that the court will not be as reluctant as it normally would be to accept that he is wrong or even knowingly wrong in his evidence on other matters. However they submit that his evidence should, nevertheless, be accepted where it is supported by other evidence or appears inherently likely and indeed it should be accepted unless there is an objective reason to reject it. They say that, as in Grosvenor, the Court should guard against merely concluding on the basis of the evidence that Joe Galloway was dishonest in relation to his degree that he was also dishonest in relation to the making of representations to Sky in relation to the bid unless there is other cogent evidence to support that conclusion.
This is not a case where there was merely a lie as to the MBA degree. Such a lie might have had a limited effect on credibility and might be explicable on the basis that Joe Galloway wished to bolster his academic qualifications and was embarrassed about the way he did it. However his dishonesty did not stop at that. He then gave perjured evidence about the MBA, including repeatedly giving dishonest answers about the circumstances in which he gained his MBA and worked in St John on a project for Coca Cola. In doing so, he gave his evidence with the same confident manner which he adopted in relation to his other evidence about his involvement in the Sky CRM Project. He therefore demonstrated an astounding ability to be dishonest, making up a whole story about being in St John, working there and studying at Concordia College. EDS properly distance themselves from his evidence and realistically accept that his evidence should be treated with caution.
In my judgment, Joe Galloway’s credibility was completely destroyed by his perjured evidence over a prolonged period. It is simply not possible to distinguish between evidence which he gave on this aspect and on other aspects of the case. My general approach to his evidence has therefore to be that I cannot rely on the truth of his evidence unless it is supported by other evidence or there is some other reason to accept it, such as it being inherently liable to be true.
Having observed him over the period he gave his evidence and heard his answers to questions put in cross-examination and by me, which have been shown to be dishonest, I also consider that this reflects upon his propensity to be dishonest whenever he sees it in his interest, in his business dealings. Whilst, of course, this does not prove that Joe Galloway made dishonest representations, it is a significant factor which I have to take into account in assessing whether he was dishonest in his dealings with Sky.”
THE LOTTERY TICKET: WHEN ALL THE WITNESSES MAY BE LYING
A similar problem faced HH Judge Gosnell in Kucukkoylu -v- Ozcan EWHC 1972 (QB) where the judge was faced with parties who, admitted, they had lied on occasions.
“40. This is a troubling case. Both counsel have agreed that the law is very straightforward and for the Defendant to succeed he would effectively have to prove that a contract existed with the Claimant for the purchase of a lottery ticket jointly and that the terms of the contract would give rise either expressly or impliedly to an equal share of the beneficial interest, in the form of the prize money. The case will turn on its facts and the standard of proof is on balance of probability. I have heard a number of witnesses give evidence over a period of six days. Cases are often easy to determine where one witness or group of witnesses are far more convincing than the other. This is not one of those cases. I have the choice between the Defendant and his witness who both concede that they have stated certain things to certain people in the past which they knew were untrue but now contend that that their current version represents the actual truth, and the Claimant and his witnesses who claim to have been truthful throughout but in fact appear less than truthful in the witness box. On occasions of course parties and their witnesses are tempted to bolster a truthful case by lies and exaggerations to make their case more convincing and that may well be happening in this case. It will be clear from my analysis of the evidence that there were number aspects that I was and remain dubious about. I intend to treat all the witnesses evidence with some caution as none of them were entirely convincing with the possible exception of Ms Pichykaranan whose evidence was marginal at best in terms of relevance.
41. I therefore need to search for some empirical evidence which is not dependent on witnesses’ oral evidence alone.
At the end of the day the case comes down to a comparative assessment of the Claimant and Defendant as witnesses. Neither of them was particularly impressive. The Claimant was confident throughout but despite having the assistance of an interpreter had grave difficulty directly answering straightforward questions. It was however significant that the questions he had difficulty answering were those which called for an explanation where there was some inconsistency in his case. The introduction of new evidence about the discarding of the play slip , the forgery of the play slip and the new date of birth were all clearly efforts to deal with difficulties which had become evident to him in the run up to the trial and where wholly unconvincing as a result. The Defendant had the difficulty of dealing with the fact that he was an admitted liar in that he had told both Camelot and the Police that the ticket had been stolen. He also had to deal with the fact that he appeared to think initially that the Claimant had made no contribution to the ticket purchase when he then had to concede at a later stage that he had ( presumably after watching the CCTV footage). These were significant problems for his case but he at least attempted to deal with the questions head on. He contended that he had lied to Camelot and the police in desperation to prevent the Claimant stealing from him. He also claimed that he could not remember at first whether the Claimant had in fact made a contribution hence the change in his evidence. Whilst these explanations may not have been wholly convincing they at least were theoretically plausible whereas the Claimant’s tactic of avoiding answering the questions at all was wholly unhelpful.
As I have concerns about the reliability of virtually all the witnesses’ evidence I am constrained to place more reliance on the evidence which cannot be manipulated. The play slips which I accept are genuine very strongly suggest that Boards A and B were played by two different people. The CCTV footage very strongly suggests that the Defendant was making selections of numbers himself rather than merely going over the Claimant’s numbers. These are both strongly supportive of the Defendant’s case. I also feel that the Defendant’s case is inherently more plausible. If the Claimant is right and the Defendant had a dream the previous night depicting the Claimant winning the lottery why would the Defendant spend approximately three hours (which a number of witnesses appear to accept) persuading the Claimant to play. There is no evidence to suggest they were particularly close prior to this incident. I cannot see why the Defendant would be so determined to make his employer play if he was not directly to benefit. It is much more likely that he would badger his employer for hours if his dream was that they had played together and he needed his employer to play for the dream to come true. It would also then be necessary for them both to choose numbers and both to contribute to the price of the ticket. Having weighed all of the evidence in the balance, and taking into account the strengths and weaknesses in both parties’ cases I find I prefer the evidence of the Defendant on the determinative issues.