PROVING THINGS 242: A SOLICITOR’S SHORTHAND NOTE OF WHAT HAPPENED IN THE MAGISTRATES’ COURT IS NOT GOING TO CARRY ANY WEIGHT AT ALL

November 10, 2022 · by · in Appeals, Applications, Civil evidence, Witness statements

The judgment of Mr Justice Garnham in Correia v Williams [2022] EWHC 2824 (KB),  was looked at yesterday on this blog. The judgment also contains an interesting approach to civil evidence at trial. The claimant’s solicitor prepared a witness statement annexing her notes of what had occurred at a trial in the Magistrates’ Court.  The solicitor was not giving evidence and an attempt to adduce that statement at the trial. This was rejected by the trial judge and this rejection was upheld on appeal.

 

“This material, on the Appellant’s case, went to key issues in the case. Even if I were wrong in rejecting the criticism of the judge’s decision not to admit the evidence, it seems to me this would have been very unsatisfactory evidence on such critical issues. The weight that could have been attached to it would have been slight, if anything at all”

THE CASE

The claimant brought an action for damages for personal injury.  As part of the evidence in the case the claimant served a witness statement from their solicitor. That statement exhibited notes that the solicitor had taken from a magistrates’ court trial.  On the morning of the civil trial an issue arose as to whether that statement was admissible, the solicitor herself, was not giving evidence.  That application was not allowed b the trial judge and the case was dismissed.

 

  1. Ms Khan indicated that she intended calling her client on whose behalf a witness statement dated 15 December 2021 had been prepared. She also indicated an intention to rely on a witness statement from her instructing solicitor, Ms Alexandra Bailey. Ms Bailey’s witness statement exhibited handwritten notes taken at a Magistrates Court hearing at the conclusion of which the Appellant had been acquitted of driving without due care and attention. I note in passing that when the Appellant had given evidence before the Magistrates Court he did so through an interpreter.

 

THE DECISION ON APPEAL

The decision not to allow the solicitor’s statement as evidence was upheld on appeal.

The exchanges between the judge and counsel
    1. There is no judgment on this issue for reasons which will become apparent. But Mr Armstrong took me to the relevant exchanges between the judge and counsel and advanced his arguments in response. It is necessary to summarise that material here.
    1. After making submissions about the admission of her client’s witness statement, Ms Khan turned to the witness statement of Ms Bailey and the notes annexed to it. Ms Bailey’s witness statement describes how her firm represented the Appellant in respect of a charge of driving without due care and attention at Statford Magistrate’s Court. She explained that that case came to a hearing on 1 March 2018. She attended the hearing and completed contemporaneous attendance notes of the trial, which notes she annexed to her statement. The notes are handwritten, but are largely legible. They are, however, only notes, and she uses shorthand. There is some reference to photographs, which were not produced to the judge nor to me, but to which it appears witnesses were referred. Ms Khan explained that that evidence was served on the Respondent who was asked if any point was taken as to its admissibility. There appears to have been no substantive response.
    1. The Judge then asked Ms Khan whether she was asking him “to determine liability in part based on a solicitor’s note of some person giving evidence in a Magistrate’s Court”; she replied in the affirmative. She was asked whether Ms Bailey was going to give evidence. Counsel replied “I do not think that is required”. She was then asked if, in those circumstances, the evidence was admissible. She said it was. She was asked whether she had any authority to support that proposition. She said she did not.
    1. The Judge then pointed out that the evidence was hearsay. Ms Khan agreed. The judge then suggested that it was hearsay that could not be tested and that no weight could be given to it. Again, Ms Khan agreed. However, she went on to add that the Judge would hear submissions about “the credibility of that evidence“. She said that the “mere fact that there was a trial where two independent witnesses came and gave evidence as to the traffic lights and the mechanics of the accident…is helpful to this court in determining liability.”
    1. Following further argument about the admissibility of the Appellant’s statement the judge gave a ruling on that topic. On his return to court, the judge asked counsel for the Appellant whether she had “other witnesses who can give evidence as to the accident”. Ms Khan replied that there were none. She went on “there were two independent witnesses which I mentioned at the Magistrates’ court but unfortunately one of them is on the heart transplant list and is unable to attend.” The Judge again asked whether she had any other evidence on liability. Ms Khan replied “Your Honour no.” The Judge commented that that was “the end of the claim“. In response counsel said she would be making an application to adjourn the trial. The Judge indicated that he had already ruled on an application to adjourn the trial but he gave Ms Khan a short period of time to “take stock” with her solicitor.
    1. On the Judge’s return, Ms Khan said “the only evidence in relation to liability on behalf of the claimant was the witness statement of the Claimant and the evidence of the Claimant…I have no further evidence that I can adduce to the court in relation to liability.” The Judge responded “so the claim has to be dismissed then“. Ms Khan replied “It is a matter for Your Honour but I cannot adduce any further evidence, well not further evidence, any evidence that has not been dismissed or struck out by the court.” The claim itself was then dismissed by the Judge.
The argument
    1. It was argued by Mr Armstrong that the Statement of Ms Bailey and the notes she annexed was admissible as hearsay under the Civil Evidence Act 1995. That evidence recorded the Appellant’s account in the Magistrates Court, together with that of James Clark, Nadia Alia, Jason Blair and the Respondent. He says this evidence was of particular value in circumstances where the Magistrates proceedings are not recorded and the Court did not have any notes of the trial. The weight to be given to the contemporaneous notes of the Magistrates trial and the Defendant’s Costs Order were matters to be assessed by the judge but did not prevent the statement or exhibit from being adduced.
My analysis
    1. The following points of significance arise from the exchanges between the judge and counsel:
i) the Claimant had produced a witness statement from a solicitor to which was annexed notes of a hearing in a Magistrate’s Court;
ii) the Claimant’s counsel indicated that she did not intend calling the maker of that statement but wanted to rely on the notes without doing so;
iii) The judge pointed out that the solicitor’s record of what was said in the Magistrate’s Court was hearsay;
iv) The Judge pointed out that since the solicitor who had made the notes was not being called, that hearsay evidence could not be tested. Counsel agreed;
v) Counsel told the judge there was no other evidence going to liability that she was able to adduce.
    1. Mr Armstrong points out that the Judge did not deal in his judgment with Ms Bailey’s statement. That is correct, but in my view that is unsurprising when counsel had made it clear that she was not going to call Ms Bailey as a witness.
    1. The Judge described the handwritten notes of the Magistrates’ court hearing as hearsay, which they plainly were. He did not, however, say that hearsay evidence was inadmissible. He did not admit the material as hearsay evidence because counsel did not invite him to admit it. Having rejected the witness statement of the Appellant, the Judge repeatedly asked Ms Khan whether she had any other evidence on liability and she repeatedly said that she did not.
    1. On no occasion, in response to a question about whether she had any evidence which went to liability, apart from the Appellant’s witness statement, did counsel suggest that the notes next to Ms Bailey’s witness statement should be admitted pursuant to the Civil Evidence Act 1995 or otherwise. In those circumstances I can see no ground for interfering with the Judge’s decision on this issue.
    1. This material, on the Appellant’s case, went to key issues in the case. Even if I were wrong in rejecting the criticism of the judge’s decision not to admit the evidence, it seems to me this would have been very unsatisfactory evidence on such critical issues. The weight that could have been attached to it would have been slight, if anything at all. As Warby J (as he then was) observed in Aleksej Gubarev v Orbis Business Intelligence Limited [2020] EWHC 2812 (QB) at [115(2)]:
“Hearsay is best used to establish peripheral or relatively uncontroversial matters. Reliance on hearsay as a means of establishing important facts is generally unsatisfactory: see Phipson on Evidence 19th ed at 29.16, Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) [24], [36 – 37] (Sharp J), and my judgment in Hourani v Thompson [2017] EWHC 432 (QB) [25]“
    1. If Ms Bailey was indeed not being called as a witness, then there was no evidence that the notes were accurate. There was nothing to explain the context of the evidence in the Magistrates’ Court or the meaning to be attributed to notes that were unclear or ambiguous. The Court could not have reached any conclusion about the demeanor of the witnesses or their reliability. Photographs to which witnesses had referred were not produced in the County Court. All the judge would have had to consider were the handwritten notes themselves. I cannot see how then judge could have attributed any significant weight to such notes.
  1. For those reasons I see no ground for interfering with the Judge’s decision on the matters raised in Ground 2.