LAWYERS, CLIENTS AND WITNESS STATEMENTS: REDUCING THE RISKS: SOME EXAMPLES AND A STRATEGY

Many people kindly send me cases for publication on this site.  Sometimes the information they send with the case is as enlightening as the case itself. In a recent example I was told that a litigant had tried to throw their lawyers “under a bus” in an attempt to explain major discrepancies in their evidence. The judge did not accept this evidence, however it highlights the importance of something that has been said on this blog many times – the need for self protection for the lawyer when drafting a witness statement and asking the client to sign it. Here we look at examples of cases where litigants have blamed their own lawyers and then examine the steps that can be taken to avoid this risk. Sometimes that risk arises out of a genuine misunderstanding by the client of the role of a statement, sometimes the explanation is far less innocent. In any event the prudent lawyer will have a system in place to avoid the finger being pointed at them.

 

Sooner of later  you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement.  Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.

SOME EXAMPLES OF LITIGANTS BLAMING THE LAWYERS WHO DRAFTED THEIR STATEMENTS

Simpson v Paynereported in the PI Brief Update Law Journal.

THE CASE

The claimant worked as a glamour model. She brought an action for clinical negligence alleging that negligent breast augmentation surgery had left her unable to work for seven months.   She also made a claim for livery and stabling costs, stating that she had been unable to ride her horses following the surgery.

The defendant found out  that the claimant had worked after the operation in question, and had extensive problems in relation to other surgery. Further it was clear that she had returned to riding relatively shortly after the operation.  The defendant pleaded fundamental dishonesty in the counter-schedule.

THE TRIAL

The claimant gave evidence for a short time at trial, giving mainly no comment answers.

 “The Claimant simply maintained that her case had never been that she was unable to work fully. She also blamed her previous solicitors indicating that she had not read her witness statement before signing it.”

THE RESULT

The claimant was found to be fundamentally dishonest.  The judge rejected the argument that the claimant’s previous solicitors were at fault, the report states that he:

 

“Did not accept that the Claimant’s previous solicitors were at fault or that she would have signed the last page of her statement without bothering to read it. He said this “was simply not true. She read that witness statement, she was presenting the case that she had not worked for seven months and she had lost income”. [44]”

 

Hughmans -v- Dunhill [2015] EWHC 716 (Ch)

The claimant firm of solicitors was suing for legal fees in the sum of £179,666.68; the defendant counterclaimed for negligence; breach of fiduciary duty and wasted costs.

  1. As for the witness statement dated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this  statement   and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s]  evidence is that the  witness statement  was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”

AMES -v- JONES

Mr Recorder Halpern QC in Ames -v- Jones [2016] EW B67 (CC) said of a witness

“She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case.”
“She blamed her solicitor for having misplaced the decimal point and for having assumed that she received housing benefit without asking her. She did not acknowledge any responsibility for signing

 

THE WITNESS EVIDENCE IN THE MOUNCHER CASE

Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB).

  1. “During the course of cross-examination of some of the police officers who gave evidence on behalf of the Defendant but who were not officers of SWP it emerged that their witness statements had been drafted by lawyers. I do not find that surprising but, of course, I have scrutinised the statements with care so as to ensure that they are not attempts to re-write history. As it happens, the important aspects of those officers’ evidence related to the arrests of the Claimants and the reasons for the arrests. Upon those issues, there is a large amount of contemporaneous or near contemporaneous documentation which provides a reasonably sure guide as to why particular Claimants were arrested and what happened when they were arrested”.

BARRETT: WITNESS STATEMENT BY A DOCTOR

We have seen similar comments in the judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) when discussing the evidence of a doctor who was giving evidence for the claimant against his own employer

“Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”

THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT

This was written by six highly experienced circuit judges. It shows a certain degree of judicial scepticism in relation to the way witness statements are taken.

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).

LITIGATION FUTURES REPORT

The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”.

The claimant was jailed for eight months for contempt of court. He, in turn,  sought to blame his solicitor for submitting the claim without his knowledge or authorisation.

The solicitors, however, had a signed statement and recorded evidence.

” the solicitor produced a witness statement that the claimant had signed as well as a telephone recording of Mr Hooper talking about the claim in detail and the alleged injuries sustained”

However the ingenuity of a fraudster knows no bounds.

“Mr Hooper disputed the evidence by saying that it was an imposter on the call recording, that he was illiterate, and had believed the statement that he had signed related to another accident which had taken place on the same day at the same location.”

This account was not accepted by the judges. Mr Hooper was found in contempt of court and jailed for 8 months.

 

HAVING A SYSTEM IN PLACE TO PROTECT YOURSELF

Note how the solicitors in the above case were able to protect themselves. I am here repeating matters I have written on before.  However the dangers involved are serious ones.

A witness needs to know, at the very least,

  • That this is an important document.
  • If it is inaccurate they could have criminal proceedings brought against them.
  • That they should check the document fully and carefully and feel free to make any additions or alterations.
  • The statement is, however, one of facts and not opinions.
  • If they have any doubts about any matter at all they should raise these with the lawyer involved.

IF YOU DO NOT HAVE A PROPER SYSTEM IN PLACE THEN ONE DAY YOU ARE GOING TO HAVE A PROBLEM

Sooner of later  you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement.  Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.

DON’T BE AFRAID TO TEST THE EVIDENCE: IN THE LONG TERM THIS WILL HELP YOUR CLIENT AND YOURSELF

Finally it helps to remember that there are dishonest and fraudulent people out there who will be happy to blame their lawyers if things go wrong.  There is no substitute for testing and scrutinising the evidence and giving clear warnings of the consequences if matters appear suspicious.  Whilst it is not the lawyer’s job to pre-judge the evidence it is the lawyer’s job to give clear and firm advice on matters relating to credibility and the risks of litigation. The Bar Council Guidance is important reading in that respect.