“EACH OF THE CLAIMANTS’ STATEMENTS TENDED TO TAKE THE FORM OF A STANDARD TEMPLATE”: THE PERILS OF IDENTICAL EVIDENCE

It may say a lot about contemporary litigation that the practice of numerous witnesses producing near identical witness statements is so common that I almost decided not to write about it.  The practice was considered  by HHJ Judge Hodge QC (sitting as a High Court Judge) in  Various North Point Pall Mall Purchasers v 174 Law Solicitors Ltd [2022] EWHC 4 (Ch). A number of the claimants produced statements that had almost the same content.  There are few (if any) examples of this being a useful strategy.  Producing similar statements may give claimants a false impression of the merits and strength of their case.  In this case the claimants’ action failed. It failed, primarily, on the evidence.

 

THE CASE

The claimants brought an action against the defendant solicitors for, allegedly without permission, releasing funds held as stakeholders in a property transaction to their clients.

THE JUDGE’S COMMENTS ON THE CLAIMANTS’ EVIDENCE

The judge observed how the claimants’ evidence was, in large measure, identical.

    1. In closing, Mr Campbell reminded me that the majority of the claimants had been tendered with translated witness statements, and on the basis that they needed the assistance of an interpreter to give evidence; and that all of the claimants (and two of 174’s five witnesses) had given evidence remotely by video-link. In assessing and evaluating the evidence, he invited me to take account of the potential limitations of online testimony and, in the case of evidence offered through an interpreter, the inevitable downsides of such evidence. I have borne these observations in mind.
    1. With the notable exceptions of Mr Yee and Ms Choi, who were clearly honest and doing their best to assist the court in answering questions in cross-examination, I did not find any of the other claimants to be satisfactory or reliable witnesses. As Mr Bowmer pointed out in his written closing, each of the claimants’ witness statements tended to take the form of a standard template, using in large measure the same standard form of words, and repeating more or less exactly the same content. (Indeed, this was implicitly recognised by Mr McIlroy in his preliminary reading list when he invited me to read only two of the claimants’ witness statements on the footing that “the other statements of the claimants are very similar in content”.) With the two exceptions noted above, this tended to carry over into the claimants’ answers in cross-examination, where they appeared to be giving pre-planned answers to questions, rather than providing their clear, and genuine, recollections of events, and seemed to be anxious to seek to advance their own common agenda. Ms Zeng was a voluble witness whose lengthy answers were wholly disproportionate to any evidence that she could actually provide to the court. Ms Cheng had a poor recollection of events and her evidence was confused and very difficult to follow. Mr McIlroy submits that the claimants have more reason to have a distinct recollection of their meetings with Ms Tsang than she does. However, I am satisfied that these five claimants were not speaking to any genuine recollection of events. Moreover, none of the claimants seemed to display any real or genuine understanding of the precise mechanics of their purchase transactions or of the true position regarding the (limited) protection intended to be afforded by the legal charge in favour of the buyer company.
  1. Having said that, whatever their recollection of events, little real assistance can be derived from the evidence of any of the claimants in determining the real issues in this case for the simple reason that the claimants have little, if any, relevant evidence to give. It was this point that I had sought to convey at the beginning of Day 2 of the trial when I observed that I had reviewed my notes of the evidence overnight, and indicated that I was not sure how much useful evidence I had derived from the cross-examination of the previous day’s witness, and invited the parties’ representatives to bear that in mind. In his written closing, Mr Bowmer acknowledged that the evidence of the claimants was of less significance to the primary issues that the court had to decide.