PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald  EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led to that is illustrative of the dangers of not reviewing evidence carefully prior to issue.
“What the claimant did, following an intervention by the District Judge …, and in all likelihood having received legal advice, was to recognise inconsistencies as between his witness statement and the pleaded case, weigh up his prospect of success and having done so, made the decision to discontinue. It is a course of conduct taken by many litigants…”
WEBINAR ON WITNESS STATEMENTS
This aspect of this case, and this topic generally, will be considered in a webinar on the 18th April 2023 “Drafting witness statements the rules, the guidance and the cases”
Booking details are available here.
THE WITNESS EVIDENCE IN EXCALIBUR
It is important to look at the way in which the evidence was presented at trial.
The claimant, born on 21 July 1965, was employed by the first defendant (“the defendant”) as a groundworker at Melbourne House in Newcastle upon Tyne. The second defendant was the main contractor who had engaged the defendant to provide a new drainage system to the wall of the house. It is the claimant’s case that he was climbing up a ladder during the course of his employment when it slipped beneath him causing him to fall and suffer injury.
“In the course of his employment, the Claimant was climbing a ladder to put a string line on the roof in order to put drainage under the roof. The ladder was tied to scaffolding by a piece of string…”
In its Defence and Counter Schedule the defendant pleads that it did not provide the ladder, it provided a mobile scaffolding tower for the use of its employees. In its Defence, the second defendant pleads that ladders were not permitted to be used on the site, a scaffold platform had been provided.
“I didn’t try to move it because I assumed that it was tied on even though I do not subsequently believe it was…. I don’t know if it hadn’t anything on the bottom to keep in in place. I climbed up about 5 to 7 rungs (about halfway up) when my accident happened.”
The trial was listed for a remote hearing. On the morning of the trial the District Judge raised issues as to the ownership of the ladder, and the inconsistency in the claimant’s account as between his pleaded case, his witness statement and the entries in the medical records. The District Judge asked the claimant’s counsel if the claimant wished to consider his position.
As a result of the District Judge’s comments the claimant discontinued his case.
THE CLAIMANT WAS NOT DISHONEST
It is important here to note that the claimant was not alleged to be dishonest. The defendant’s subsequent arguments were around issues of unreasonableness and not dishonesty.
THE OBSERVATIONS OF THE CIRCUIT JUDGE
The Circuit Judge considered issues relating to the claimant evidence.
” Looking at the matter in that way, it seems to me that the Appellant’s conduct in this case was very far removed from what can properly be described as conduct likely to obstruct the just disposal of the proceedings. What the Appellant did in this case was to offer a somewhat different account in his witness statement from that which appeared in the Statement of Case insofar as he was not able to confirm the averment to the effect that the ladder was tied to the scaffold with a piece of string. Indeed, to the contrary, it emerged from his witness statement that he rather thought that the ladder was untied. That was a material inconsistency which undermined the credibility and viability of his claim. “
THE COMMENTS OF THE COURT OF APPEAL – ITS NOT UNUSUAL
The Court of Appeal noted that this was not an unusual event.
“What the claimant did, following an intervention by the District Judge (para 7 above), and in all likelihood having received legal advice, was to recognise inconsistencies as between his witness statement and the pleaded case, weigh up his prospect of success and having done so, made the decision to discontinue. It is a course of conduct taken by many litigants and in my judgment does not begin to provide the powerful reasons upon which a Notice of Discontinuance could or should be set aside”
A CASE THAT ILLUSTRATES THE DANGERS OF NOT REVIEWING AND ASSESSING EVIDENCE AT AN EARLY STAGE
It is always easy, with the wisdom of hindsight, to think that this particular case could have been reviewed with more care prior to trial. However the central points are: (i) this is a common occurrence; (ii) it can, and did, occur without the claimant being dishonest.
TESTING THE EVIDENCE BEFORE ISSUE
This is a case that illustrates that litigators need to review evidence with care. In particular contemporaneous documents. Accounts of how the accident occurred given to treating medical staff are not always correct or definitive, however they are always significant. If the claimant’s case differs from that set out in the medical records this is something that should be considered and addressed head on.
Similarly a discrepancy between the pleaded case and a litigant’s evidence is hardly every helpful to their case. This is a case that illustrates the importance of having a signed witness statement from the claimant prior to drafting any pleading, and making sure that the pleaded case reflects that witness evidence.