CAN ONE WITNESS STATEMENT SIMPLY SAY “I AGREE WITH THEM” ? THIS IS NEVER A GOOD IDEA: SOME CASES REVIEWED

I gave a webinar earlier today where an interesting question was asked.  If a husband and wife are giving evidence and they agree with each other, can one statement simply say “I agree with them”? This “agreement” of witness statements is never  a good idea.  This gives a good opportunity to review the case law on this topic. (The webinar is still available on demand details are available here).

YOU CANNOT SIMPLY RE-USE OR RE-CYCLE WITNESS STATEMENTS

In Re-Use Collections Limited -v- Sendall &  May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses in vague and general terms.   There are also important issues relating to the assessment of the credibility of witnesses.

Equally significant are the judges comments in relation to the paucity of the evidence in relation to damages. This emphasises the neeed to give detailed, and early, consideration to the need to prove damages at trial.

THE CASE

The case was an action against a former employee who had set up a competing business. The claimant succeeded in establishing breach of contract by the defendant but not breach of fiduciary duty.

THE WITNESS EVIDENCE

Two of the witnesses were not called.  Part of their statements, at least, were drafted in an unusual manner. The “confirmed the truth and accuracy” of the statements of other witnesses.  The judge found this practice unhelpful, to say the least.

(iii) Two witnesses made available to be called by the claimant but not required for cross-examination
  1. Anthony Johnston had made a very short witness statement which was limited to confirming the truth and accuracy of those issues addressed in the statements of Mark Owen and Mark Wilson to which he was privy. That was not the most helpful of approaches to take, since it left unexplained which particular issues he was referring to, and the basis on which he could confirm them from his own knowledge. Nonetheless it was reasonably clear from the evidence of those witnesses that his only direct involvement was in the visit to Dagenham on 18 April 13. Mr Choudhury, having cross-examined Mark Wilson in some detail about that visit was not minded, for reasons of timing, to re-run the whole process with Anthony Johnston, even though he was able to be called. Mr Keen, whilst not challenging my indication that it was not necessary for the defendants’ case about that visit to be put again to Anthony Johnston, observed that in such circumstances it would be difficult for this court to make any adverse assessment of Anthony Johnston’s reliability as a witness without seeing him being cross-examined.
  2. Whilst I accept Mr Keen’s approach as being generally correct, I consider that two reasons justify Mr Choudhury’s stance in this case, namely: (1) the delay caused to this trial on day 1, by the claimant’s unsuccessful attempt to adduce late quasi-expert evidence, and on day 2, by the claimant’s belated supplemental disclosure, collectively making it thoroughly undesirable that time should be spent on repetitious cross-examination; (2) Anthony Johnston’s failure to identify in clear terms in his witness statement precisely what his evidence was in relation to this visit. If for whatever reason Anthony Johnston was unable or unwilling to take the time or trouble to provide a witness statement stating what his evidence was about this visit, it is not in my view incumbent on cross-examining counsel to have to begin cross-examination by embarking on a voyage of discovery to ascertain what his evidence actually is, before proceeding to challenge him upon it. In such circumstances I consider that I am entitled to place little or no weight on Anthony Johnston’s evidence.
  3. Julie Knight, the managing director of a HR consultancy which provided services to the claimant, provided a short witness statement which simply confirmed her advice to the claimant as to the correct procedure to follow in dealing with Keith Sendall after the visit of 18 April 13. It was not contentious, and Mr Choudhury did not need to cross-examine her on its contents. My only criticism is that it also ended with the same general statement that she confirmed the truth and accuracy of those issues addressed in the statements of Mark Owen and Mark Wilson to which she was privy, which again seemed to me to be unhelpful especially since it was not immediately obvious from the rest of the witness statement precisely what evidence she was seeking, let alone able, to support in this regard.”

IDENTICAL WITNESS STATEMENTS ARE JUST SUSPICIOUS

In AA -v- London Borough of Southwark [2014] EWHC 500 QB the deputy judge considered three statements given in the course of the litigation. Unanimity in the witness statements did not help.

Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.”

WITNESSES SO SIMILAR A CHART WAS DRAWN UP

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) heard evidence from members of the claimant’s family who gave “supportive evidence”. The similarities were so marked that the defendant’s counsel actually drew up a graph to show the same phrases being used.

“Various families members and friends gave supportive evidence
  1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.
  2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.
David Hood
recall of what he overheard MsHastie telling the out of hours service
Ms Hastie recall of what she told Greta Jones
Greta Jones recall of symptoms relayed by Ms Hastie
Karen Jones recall of what Greta Jones told her Ms Hastie had said
1
“lethargy”
“being listless”
Listless
2
“high temperature”
“high temperature”
“high temperature”
“high temperature”
3
“history of severe headaches”
“severe headache for two days”
“intense headache for two days”
“intense headache for two days”
4
“crying and screaming”
“crying and screaming”
“crying and screaming”
“crying and screaming”
5
“being off his food”
“being off his food”
“and the last solid food he had had was on the morning of 31st December when he had a small amount of Weetabix”
“not eating”
“not eating”
6
“unable to drink very much”
“unable to drink”
“not … drinking”
“not … drinking”
7
“vomiting bile”
“vomiting Calpol and bile”
“vomiting bile”
“vomiting bile”
8
“pale”
“pale looking”
“pale looking”
“pale looking”
9
“not being himself”
“not being himself”
“not being himself”
“not being himself”
  1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.”

WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG

This is the title of an article by Joshua A. Krisch on vocativ. The opening paragraph says it all

“Let’s face it—there’s something inherently fishy about a panel of witnesses who each recall the exact same series of events. Humans are imperfect; we see things differently, forget minor details and recount stories in odd orders. So, when witnesses’ accounts don’t differ by a healthy margin, it’s actually a sign something might be wrong.”

The article draws upon an article by the Royal Society: Too good to be true: when overwhelming evidence fails to convince.  This is a sophisticated mathematical analysis. However, as Joshua Krisch, summarises “the probability of perfect agreement between witnesses is almost zero”.

So the more witnesses that positively identify a culprit, the less likely they are to be correct (the optimum number is three).

A PROCESS CALCULATED TO DEVALUE THE EVIDENCE OF WITNESSES

There is an interesting discussion in the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch) and the judgment in New Court Securities she refers to.

The judge was hearing an action by time share owners alleging breach of contract by a membership company. The claim was dismissed on the grounds that the claimants failed to prove causation or damages. The penultimate paragraph of the judgment reads

I also note that the Claimants’ second witness statements were largely identical: see the comments of Chadwick J in Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited [1992] BCLC 1104 at 1115-6. The Court of Appeal’s decision was reversed by the House of Lords and Chadwick J’s decision reinstated but there was no criticism of Chadwick J’s judgment on this point by the Court of Appeal in any event”