“PREPARED IN A WAY THAT MAKES ME ASHAMED OF MY PROFESSION”: ENSURING WITNESS STATEMENTS ARE ACCURATE IS AN IMPORTANT TASK – IF YOU WANT TO KEEP YOUR JOB…

There are nearly 800 posts on this blog that deal with  issues relating to witness statements.  The importance of ensuring that a statement is accurate is seen in the judgment of the Solicitors Disciplinary Tribunal in SRA -v- Gilfillan, available here.

The method by which the statement was prepared, and inaccurate statements served, led to the solicitor being struck off the Roll.   The judgment highlights the fact that the preparation of witness evidence, its approval by the client and the service of accurate statements should be a key part of a litigator’s education.

“I am a judge who is constantly unhappy because it is well over a year since I have seen one of these cases properly prepared. They are mostly prepared in a way which makes me ashamed of our  profession.
They are generally prepared by people who have never done anything to do with the law. You probably have to get four tiers up before you get to a solicitor. The stuff is generally drivel and the people who are in the witness box are constantly embarrassed by the paucity of the work that has been undertaken on their behalf…”

THE CASE

The respondent solicitor had represented a claimant in a road traffic case.  It transpired that the witness statements that had been served in support of the claim were not accurate.  The SDT   judgment gives a detailed account of the way in which the statements came to be prepared.

The Particulars of Claim dated 30 June 2015 included Particulars of Special Damage
confirming that the repairs to the client’s vehicle amounted to £1,917.36. This was
incorrect, as not all of the damage claimed was caused in the accident with the
defendant. Some of the damage had been caused in a second subsequent accident,
which had taken place approximately a month later.

22. The Respondent sent a first draft of a witness statement to the client on
8 January 2016 by email sent at 13.32. The Respondent stated in his email:
“I attach the first draft of a statement which I will also send through the Post.
There will be loads of mistakes within and therefore please read it through line
by line and make alterations you feel are necessary and I will then prepare a
fair copy.
Please sign and date the back page and send it back so I can then send the fair
copy onto the other side. I need to serve the statement on the other side by
Wednesday 13” Jan so please deal with this asap.
Any questions, please contact me.”

23. The client replied to the Respondent on the same day in an email sent at 15.14 and
stated:
“… I have to clarify that the crack on the rear passenger side bumper was not
from this incident. As I originally stated, from this incident I had paintwork
damage to the driver side bumper and as a consequence of the pressure, the
passenger side bumper had dropped slightly. The crack was the result of the
car being hit outside my home when parked (after this inciden [sic]), but no
details left. I did mention this when I was called to arrange collection on my
car.”

24. The Respondent replied to the client on the same day in an email sent at 17.31 and
stated:
“Thanks very much for this. Please can you go through the statement and
make whatever changes you feel are necessary.
I really don’t mind if you change everything as long as it is your account that
is given as you may be the one that is giving evidence in the witness box.
Please do your best.”

25. The Respondent also sent the statement to the client by post and explained in a letter
dated 8 January 2016:
“Should you have any suggested amendments or queries, please telephone me
on the above number.”

26. The Respondent spoke to the client on 12 January 2016 and recorded in a telephone
attendance note what the client had said as follows:
“She said she was unseat-belted and as so [sic] she was not in situ when the
car was struck”

27. The client returned an amended draft statement to the Respondent, which she signed
and dated 10 January 2016. The client had made amendments to the statement
including removing references to a crack in the bumper on the rear passenger side and
instead inserting reference to a “dropped bumper”.

28. The Respondent sent the statement to HF Solicitors by email on 15 January 2016 and
by post on 18 January 2016. In the email sent on 15 January 2016, the Respondent
stated:
“Please find attached my client’s type signed witness statement.
She has signed the statement but we are not yet in possession of the Statement
of Truth and therefore we would be extremely grateful if you would consent to
the late production of the SOT. We anticipate this to be on the 12” Jan. The
substantive material within the statement will not alter.”

29. The client had not in fact signed or agreed the version of the statement which the
Respondent had sent to HF Solicitors. That statement contained an electronic
signature, which the Respondent had typed. That copy of the statement included
some, but not all of the amendments contained in the amended draft which had been
returned by the client to him on 10 January 2016. The Respondent had removed the
reference to the “crack in the bumper on the rear passenger side” in the statement.
However, reference to the “crack to the rear bumper” being caused by the defendant
was still included. This was not in accordance with the amendments made by his
client. The Respondent had therefore sent a statement to HF Solicitors, which
contained a material factual inaccuracy.

30. The Respondent spoke to the client on 8 June 2016 and sent a further copy of the
witness statement to her following their telephone conversation. The Respondent
stated in a covering letter, which accompanied the statement:
“Enclosed is a copy of your witness statement. You will be asked whether
you have seen and read this and whether you signed it. I hope that you will
say “Yes” to every question. If not, you will be on the back foot from the
start, so it is vital to let the Court know that you have read and had
amendments made throughout……
….. On the other hand, you will say that your vehicle was stationary and you
were unseat-belted and you were looking for something in the car when the
collision occurred…”

31. The Respondent sent Instructions to Counsel on 7 June 2016 and repeated in those
instructions that the damage to the vehicle was £1,917.36. The Respondent also
stated in the Instructions:
“… No doubt, the Claimant will confirm that the damage to the passenger side
rear corner was not accident-related.”

32. The Respondent spoke with the client on 9 June 2016 and recorded in a file note:
“Call from Client Driver to say the medical report still says she was wearing a
seat belt. She was not. The damage to the passenger side rear was not
accident-related. Client to tell Counsel before the hearing.”

33. On 15 June 2016, Counsel telephoned the Respondent regarding the trial, which was
listed for 16 June 2016. The Respondent recorded in a file note that Counsel was:
“…Worried about conflicting evidence in paras 10 and 17……. In the med
evidence the Dr is unsure about the mechanism of the incident. Where was
she etc. This does not tally up with her witness evidence. AG said that she
will say that the rear passenger damage was not accident-related.”

34. This conversation with Counsel should have prompted the Respondent to confirm that
the account of matters set out in the client’s witness statement was an inaccurate
reflection of the client’s evidence. However, he did not do so and, although he sent
further documents to Counsel, he did not take any further steps to draw the errors in
the witness statement to the attention of either HF Solicitors or the Court.

35. The case was taken out of the Court list the day before the trial. The Respondent
informed the principal solicitor at his firm in an email that he had spoken to Counsel
who was “pessimistic about this claim”. The Respondent also explained in his email
to the principal solicitor:
“Broadly speaking he [Counsel] does not feel there is enough evidential
material to win this case. We do not have anything other than an Engineer’s
report to comment on the damage to the vehicle, no photos of the damage, no
medical notes/records. We do have supportive med evidence and P35
questions and we have a client who is hell-bent on proceeding to Trial. Whilst
I accept the negatives of this case, the client is competent and should give
credible evidence. Counsel thinks we may go down for the whole shooting
match ie Lose, indemnity costs and Fundamental Dishonesty finding being
upheld. Whilst we may not prove our case, I very much doubt that the client is
fundamentally dishonest.”

36. The principal solicitor queried whether the client would have to pay costs if there was
a finding of fundamental dishonesty, as ‘After the Event’ insurance protection would
not apply. In consequence, the Respondent sought advice from Counsel regarding
whether an updated witness statement should be served.

37. On 15 June 2016, the Respondent sent a second witness statement to the client by post
and by email. The Respondent explained in the letter accompanying the statement
that the purpose of the second statement was to make it clear to the Trial Judge how
and why she was injured and that it was crucial to point out what part of the car was
damaged, and where repairs were carried out. The Respondent also explained in his
email that Counsel believed the second statement was necessary, as the damage to the
car could not be shown by photographs, nor was there contemporaneous evidence
from her GP, or hospital to show that she was injured.

38. The client sent a photograph of the damage to her car to the Respondent by email on
15 June 2016. The Respondent sent a further email to the client on 22 June 2016
enquiring whether she had reviewed the statement and made any changes. The
Respondent chased the client for her witness statement on 22 June 2016 and
continued to chase her to return the statement between 20 July 2016 and
15 September 2016. In an email sent to the client at 17.19 on 15 September 2016, the
Respondent stated:
“I sent a new statement to you the other day and would be grateful for its
return.
Trial is looming fast and the statement was designed to fill the gaps in our
evidence.
If I do not serve it this week it will certainly not be allowed in and this may
prove very difficult for you to win at trial.”

39. The client replied to the Respondent’s email at 18.02 the same day and stated:
“I have personally sent back the witness statement and if it hasn’t arrived
tomorrow please let me know and I will write something and send it to you as,
to be honest I’m not sure where some of the information on it was gathered
from!? It states that me [sic] car had lots of scratches and marks, this was her
car. Up to that point my car was clean, the crack (which she didn’t do) was a
“hit and run” whilst I was waiting for the car to be repaired.”

40. The Respondent replied to the client’s email at 18.04 and confirmed that he would
“amend the bits you don’t like”. The client made a number of handwritten
amendments to the second statement, which she also signed and dated the statement 1
September 2016. The client confirmed in this statement that her car was hit on the
rear passenger side approximately one month later and that this caused the crack in
the bumper. She also explained that she had informed her insurers that this damage
was not caused by the defendant.

41. On 16 September 2016, the Respondent sent “an addendum witness statement” dated
1 September 2016 to HF Solicitors. That statement did not accurately reflect the
amendments that the client had made, as whilst the client had deleted the reference to
her noticing that the rear bumper had dropped by two centimetres, it was still included
in the statement sent to HF Solicitors.

42. The Respondent sent an email to the client on 19 September 2016 in which he
acknowledged receipt of the statement and he also attached a copy of the amended
statement, which he had sent to the other side.

43. HF Solicitors called the Respondent querying why a second statement was being
adduced and advising that a late application should be made to rely on that evidence.
HF Solicitors also confirmed in an email on the same date that they were unable to
consent to the inclusion of the witness statement at this stage, and that it should be
considered by the trial judge, as it had been served 9 months late and without good
reason.

44. The Respondent instructed a different barrister and sent an email to him on
23 September 2016 stating:
“The case was originally due to be head [sic] at Edmonton CC but was pulled
a day before trial as there were no DJs to hear it. The Counsel then did not
like the case and asked me to firm up how the client claims she was injured
and where the damage was to the car. Please can you have a look at this
Application in its bare form and bulk it up if needs be. There really isn’t much
to say other than what’s in.”

45. That Counsel replied to the Respondent’s email on 26 September 2016 stating:
“I have taken a look at the statements and must say I find it surprising that the
other side are objecting. I think your application notice hits the main points.”

46. Counsel suggested adding a paragraph to the application notice, which the
Respondent included. However, the Respondent failed to inform Counsel that the
witness statements dated 10 January 2016 and 1 September 2016 did not include all of
the amendments that the client had made and that this had been due to his error, not
that of the client. The Respondent’s instructions to Counsel instead gave the
impression that there were evidential issues with the case, when those issues had been
caused by his failure to amend the client’s witness statements in accordance with her
instructions, and his failure to address the inconsistencies in the medical and the
engineer’s reports.

47. The Respondent sent the statement to the Court on 26 September 2016 together with
an Application Notice for the statement to be adduced in evidence at the Trial. The
Respondent stated in the Application Notice:

“Pursuant to CPR 32.5(3)(a) the Claimant seeks to rely upon her first
statement dated 10 January 2016 together with the attached witness statement
dated 1 September 2016. The Claimant seeks to amplify the content of her
first statement. She seeks to explain better how and why she was injured and
where the damage was to her vehicle. There is nothing within her statement
that is new or that will put the Defendant at an evidential disadvantage.”

48. On 6 October 2016, the Respondent sent instructions to Counsel to represent the client
at the Trial. The Respondent also explained there was nothing new in the amended
statement, other than it setting out how and why the client had been injured, and the
area of damage to her vehicle. The Respondent further explained that there was very
little evidential material to assist Counsel to prove the case, and that everything would
depend upon the client’s evidence under cross-examination. The Respondent did not
inform Counsel that some of the material evidential issues had been caused by his
failures.

49. The Respondent also sent an email to the client on 6 October 2016 in which he
attached the witness statements. The Respondent stated in his email that the client
would be:
“….asked whether you agree the contents of the statement so if there is
anything within, please speak to your Barrister about this as this is crucial to
the success of your claim”.

50. HF Solicitors sent a letter to the firm dated 11 October 2016 in which they stated that
they had reviewed the client’s updated witness statement and had made further
investigations with her insurers. HF Solicitors explained that the client’s insurers had
advised them that she did not notify them of any subsequent incident and that she did
not advise that any of the damage noted in the engineer’s report (which she sought to
rely upon for the purpose of the action) was caused in a subsequent incident, or not
caused in the index incident. HF Solicitors invited the client to provide copies of the
photographs that she took at the scene of the incident and to disclose details of the
subsequent incident.

51. The Respondent sent an email to Counsel on the same date attaching a copy of the
letter that he had received from HF Solicitors stating:
“… I enclose a costs schedule from the Defs solicitor regarding the Application
and a strange letter about the damage to the client’s car that had been done
prior to the index accident. I am not sure what relevance this is, as the
Claimant clearly says in her first statement that the bump on the rear nearside
is not causative of this incident.
Presumably her big thing point [sic] is that this area of damage is considered
within the med report as being accident-related.”

52. The client spoke to the Respondent on 11 October 2016 regarding her witness
statement and the damage to her car. The Respondent also sent an email to the client
on 12 October 2016 and spoke to her again about agreeing quantum. The Respondent
sent an email to HF Solicitors regarding quantum and proposed, on a without
prejudice basis, that repairs should be as pleaded, despite the client having made it
clear, that not all of the damage claimed was caused by the defendant. HF Solicitors
did not agree quantum, as causation was still in dispute.

53. The case was listed for trial on 14 October 2016 with the hearing of the application to
adduce the amended statement in evidence, also being listed on the same date.
Counsel explained at the trial that the purpose of the second witness statement was to
amplify the client’s account of the circumstances in which she was injured. The
Deputy District Judge refused the application and made the following comments
about the application to adduce the second statement:
“Why was it not addressed as a result of the defence? Part of the problem with
this – let us be clear – is I am a judge who is constantly unhappy because it is
well over a year since I have seen one of these cases properly prepared. They
are mostly prepared in a way which makes me ashamed of our profession.
They are generally prepared by people who have never done anything to do
with the law. You probably have to get four tiers up before you get to a
solicitor. The stuff is generally drivel and the people who are in the witness
box are constantly embarrassed by the paucity of the work that has been
undertaken on their behalf…
Unless it is done properly, unless there is a good reason, it is not coming in
because the solicitors were forewarned of it. If they are negligent, they are
negligent….
….If the solicitors have used people who do not know what they are doing or
the supervisors are incompetent, then your client has a claim against them and
you will have to advise her about that….”

54. When it was brought to the Deputy District Judge’s attention that work on the matter
was conducted by a “Grade A fee earner”, the Deputy District Judge commented:
“That is straight negligence, then. You are going to have to advise your client
that they are negligent, potentially. I cannot believe it was done by a Grade A
fee earner…..
…………………
…. I had assumed, because I did not know it was a Grade A fee earner, that
this was the usual debacle where it was someone who had heard of the law,
never studied the law and, when we get four tiers up there was a solicitor
supervising it. I had no idea that something like this was produced by a Grade
A fee earner. I would never dare show my face again if this was the quality of
work I produced. That is something else.”

55. Whilst giving evidence, the client confirmed that she had not signed the second
witness statement dated 1 September 2016, which the Court had refused to admit in
evidence. The client also confirmed that her signature from the back page of a
previous statement had been used on the second statement.

56. The client admitted during the trial that she did not write some of the paragraphs in
the witness statement. She also admitted that she had misled the defendant, and the
Court in her witness statement, which had said that the damage detailed in the
engineer’s report was caused by the accident, when this was not correct. The client
further admitted that she had presented a claim which was not true, as all of the
damage claimed was not due to defendant.

57. The Deputy District Judge adjourned the hearing so that Counsel could take
instructions from the firm on how to proceed. The claim was then discontinued and
the Court ordered the firm to pay the defendant’s costs in the sum of £12,844.60
within 14 days. The Deputy District Judge stated that had the trial continued, it was
inevitably the case that:
“I would have had to make findings of fundamental dishonesty…….
..she has on what she says, a potential claim against those solicitors...”