THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd  EWHC 2866(TCC. This case gives a working example of the dangers of not taking a full witness statement and exploring issues of importance with a witness. The judge stated that if a full and proper witness statement had been taken the litigation would have been avoided. A lot of costs would have been saved.
The claimants brought an action against the defendants alleging professional negligence in the design of a domestic garage. That action was dismissed. A second hearing took place on the issue of whether the claimants should pay the costs on an indemnity basis.
THE WITNESS EVIDENCE
The defendant argued that witness evidence taken on the claimants’ behalf was misleading and deliberately so.
- The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record[ed] all of his relevant evidence”. The claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. In the event, the defendant’s solicitors proved correct. Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation [judgment, paras 67, 92 and 95]. The inescapable inference (said Mr Lixenberg) was that the claimants either deliberately put forward a selective version of the evidence that Mr Thomas would give or failed adequately to explore the true nature of his evidence despite being asked to do so. Either way, the reliance placed on Mr Thomas’s evidence was unreasonable in a high degree.
THE STATEMENT WAS NOT DELIBERATELY MISLEADING BUT TAKING A PROPER STATEMENT WOULD HAVE PREVENT THE CLAIMANTS’ LOSS AT TRIAL
The judge rejected the submission that the statement had been taken in a deliberately misleading way. However the failure to take a statement had a highly significant effect on the litigation.
“As for the use of Mr Thomas’s witness statement, this may be seen as unfortunate but not, I think, as improper or unreasonable to a high degree. It is important to remember that Mr Thomas did not have any specific recollection of the Property or his communications with the defendant. This meant that the contents of the witness statement depended, to a greater degree than might normally be the case, on the angle of approach and the focus of the enquiry. The statement also was in the nature of a response to the factual case of Mr Wheatley , whose oral evidence added materially to the account of how Mr Thomas’s advice was elicited in the relevant conversation. The result of all of this was that a statement that responded in perhaps a rather literal way to the defendant’s evidence proved not to have explored avenues of enquiry which, when followed at trial, were damaging to the claimants’ case. As mentioned above, the defendant’s solicitors expressly raised concerns about Mr Thomas’s statement. But I am not told that they produced a statement of their own from him or specifically challenged particular matters of fact or assertion. I do not at all think that the statement obtained from Mr Thomas by the claimants’ solicitors was drafted with a view to being misleading, and it seems to me that it was not unreasonable of them to rely on it, although the loss of the case at trial might possibly have been avoided if they had explored the issues more widely and intensively with Mr Thomas”
THE DANGERS OF TAKING EVIDENCE IN A ONE-SIDED MANNER
This illustrates the dangers of failing to explore the evidence of a witness fully. The statement in this case was not deliberately designed to deceive but the evidence had not been fully explored. In particular the person taking the statement had failed to consider the weak aspects of the case with the witness. This turned out to be a dangerous practice. When the witness was called he supported the other side’s case.
There is a real danger of “forensic myopia” when engaged in the task of collecting evidence. Taking a statement on a limited basis can have grave consequences. It can deceive a party as to the strength of their own case; it can lead to fundamental problems at trial. Perfectly reasonable offers of settlement can be ignored. For litigants the results can be catastrophic.
AND THE COSTS TO THE CLAIMANTS?
The approved costs budget was £91,000 and the action went over the original time estimate. The judge had no difficulty in ordering that £90,00 be paid on account.
THE CLAIMANTS COULD HAVE COME AWAY WITH SOMETHING…
The judgment also makes it clear that the defendant (which had been successful at trial) had made an offer of £60,000. It is not possible to state, but important that we speculate, whether claimants with a clear view of the true paucity of the witness evidence they had, would have accepted that offer and, at least, recovered something rather than paying (a minimum) of £90,000 together with their own costs of the action.
OTHER PLACES TO LOOK
The Kellie case provides an object lesson of the dangers of “confirmation bias” and the need to understand the “psychology of investigations” set out in the earlier blog “Evidence and Psychology: Guidance from the East”
It also pays to read The Questions you Ask will determine the Answers you Get.
DRAFTING WITNESS STATEMENTS: AN UNTUTORED PART OF THE LAWYER’S CRAFT
This case highlights the points made in the Business and Property Group Working Group report on witness statements highlighted the practical problems that those litigating in the BPC face.
“… the current practice regarding the drafting of factual witness statements is problematic in several respects. This difficulty is exacerbated by the fact that the lawyers who are in charge of drafting witness statements have very little guidance as to that process. The seniority and experience of those lawyers may differ widely. Junior solicitors may be given the function of preparing first drafts of evidence when they have limited experience of the function and role of the witness statement in the trial process.”
THE NEED FOR THIS WEBINAR: GETTING YOUR STOCK IN TRADE
The report went on to find that:
” … the vast majority of the current practitioners (solicitors and counsel), and indeed most of the judges, have little or no experience of trying commercial disputes under the previous system which required oral evidence-in-chief at trial. Unsurprisingly, the proper and sensible scope of evidence-in-chief is no longer the stock-in-trade knowledge of those responsible for proofing witnesses and helping them draw up their statements”
New rules come into force in April in the Business & Property Courts. Those conducting litigation, and those supervising them, will now need a considerable amount of working knowledge in relation to the rules and cases relating to witness statements. A reminder that I have prepared a two-hour long webinar, together with the accompanying notes, aims to provide sufficient information to provide that knowledge.
- Reviews the issues highlighted in the BPC report in detail, including the weaknesses in the skill set of litigators.
- Considers all the new changes, including the consequences of the lawyer signing a declaration
- Looks in detail at the rules and case law relating to the preparation and service of witness statements.
- Contains checklists and highlights the practical steps that litigators can take to ensure witness statements are accurate and comply with the requirements.
FOR DETAILS OF HOW TO COMMISSION THE WEBINAR
Contact me directly on firstname.lastname@example.org