WHEN AN EXPERT DECLAIMS A POINT “WITH A LEVEL OF SCIENTIFIC CERTAINTY”: BUT THE HANDWRITING SAMPLE WAS NOT FROM THE CLAIMANT

There are plenty of examples of difficulties with expert’s giving evidence on this blog.  Another example  of problematic expert report can be seen in the judgment of Mr Justice Saini in  Packham v Wightman & Ors [2023] EWHC 1256 (KB). The defendants’ handwriting expert stated, “with a level of scientific certainty” that the claimant was the author of a certain letter.  The expert’s main difficulty, it turns out, was that the handwriting sample relied upon was not the claimants.  It was the claimant’s accountant who had filed reports with Companies House.

 

“That sample was used by X as the basis for comparison with the handwriting in the death threat letter. X concluded following this comparison, and without qualification, that Mr Packham had written the death threat with a “level of scientific certainty” and X made what they called a “definite conclusion of identity” (Report of 25 October 2022). The problem was that the sample from Companies House was not Mr Packham’s handwriting. It was the handwriting of his accountant who, as is quite conventional, had completed the Companies House documentation. There is nothing distinctive about the handwriting and, of course, there is no suggestion that the accountant had authored the death threat.”

THE CASE

The claimant brought an action for defamation against the defendants.  The first and second defendants ran a case that, amongst other things, the claimant had been the author of a letter with death threats to himself.  To support their case these defendants obtained an expert report.  The expert took a signature from documents at Companies House.  On the basis of that signature the expert stated, “with a level of scientific certainty” that Mr Packham was the author of the letter.  The expert’s primary difficulty, however, was that the sample signature he was relying on was not Mr Packhams.  The document had been signed by the company accountant.  The expert did not, thereafter, give evidence, and the allegation was belatedly (and apparently reluctantly) abandoned.

THE JUDGMENT ON THIS ISSUE
    1. D1-D2 with D1 taking the lead, have used this litigation as a device to introduce offensive material to smear Mr Packham. D3 has to some extent also participated and he did not distance himself from certain of the allegations. The evidence before me suggests that this litigation has been used by them as a continuation of D1’s and D2’s overall campaign against Mr Packham. In this regard a number of matters were relied upon but I consider the claimed false death threat issue to be the most serious. D1 and D2 maintained into the third day of trial the extraordinarily serious allegation that Mr Packham had forged his own death threat letter, when there was plainly no proper basis for doing so. I need to outline the history before explaining how these Defendants behaved. Mr Packham has received many threatening communications in the past, but the situation escalated around a successful legal claim brought by Wild Justice in relation to lawfulness of General Licences for killing of wild birds. At that time, Mr Packham received a series of such threats (as did Ms Corney) including a particularly frightening handwritten death threat letter (“the death threat”) outlining “a list of things they might do” to kill him by organising a car crash or poisoning. The author said, “You will never be safe, you will never be able to go out, we will always be there”. Mr Packham did not write the death threat and send it to himself. That is my finding. Indeed, even a cursory examination of the handwriting in the death threat and comparison with a true sample of Mr Packham’s handwriting demonstrates obvious differences between the two. Mr Packham does not know who wrote the threat. Hampshire Police conducted an investigation which concluded he was not the writer. Mr Packham took a photograph of the death threat, and posted it on social media. He said he did this because his approach is to be public and vocal when he receives threats. He explained that he wishes to show those responsible that he will not be intimidated. Mr Packham also appeared on the Victoria Derbyshire BBC television show in April 2019, during which he discussed the threats he had received. At the apparent instigation of the Scottish Gamekeepers Association (SGA), a group which is opposed to Mr Packham’s views on a number of matters, a spurious claim that Mr Packham had in fact forged the death threat began to circulate. It was suggested the SGA had expert evidence to support this.
    1. On 14 March 2021 an article was published in The Sunday Times with the headline, “Packham did not forge death threat, say police“. The article went on to say that the SGA had, “lodged a complaint with Hampshire Constabulary last month that questioned the authenticity” of a note containing a death threat against Mr Packham. The SGA had commissioned two “graphologists” to compare the letter with examples of his handwriting. As I have said, the SGA are hostile to Mr Packham. The article said that the newspaper had instructed their own expert who had concluded that Mr Packham did not write the death threat letter. I note from the documents in the bundle before me that other experts had also considered this issue. One was professionally discredited and the other gave a report which was equivocal.
    1. In the Amended Defence of 24 April 2022 it was alleged that Mr Packham had made:
“knowingly false public statements … relating to the circumstances surrounding purported death threats made against [him], which were intended by [him] to elicit media interest in, and public sympathy and support, including financial support, for Wild Justice and [his] campaigning for environmental issues.”
    1. D1-D3 each authorised this pleading and signed a statement of truth attesting to their belief in the allegation. They further signed a statement of truth in a CPR Part 18 response expressly maintaining an allegation that Mr Packham “forged the death threat letter”. They obtained an expert report in support of this allegation from a person who was due to give evidence at trial. I will not name that expert (but will call them “X”) because what I say may amount to a criticism of their approach. In particular, I would have expected X, as a purported professional in this field, to have been horrified by what later emerged and to have unequivocally withdrawn their evidence. X did not give evidence, as I explain below, and has not had an opportunity to explain their position. The error was in X taking handwriting from a Companies House Form 288a (relating to a company of which Mr Packham is a director) as the “reference sample” of Mr Packham’s own handwriting. That sample was used by X as the basis for comparison with the handwriting in the death threat letter. X concluded following this comparison, and without qualification, that Mr Packham had written the death threat with a “level of scientific certainty” and X made what they called a “definite conclusion of identity” (Report of 25 October 2022). The problem was that the sample from Companies House was not Mr Packham’s handwriting. It was the handwriting of his accountant who, as is quite conventional, had completed the Companies House documentation. There is nothing distinctive about the handwriting and, of course, there is no suggestion that the accountant had authored the death threat.
    1. This critical error was made clear to the Defendants by Leigh Day on 3 November 2022, but they refused to withdraw the allegation. Not only did they refuse to withdraw it, but D1 (writing expressly on behalf of all the Defendants) asked Leigh Day to serve a handwriting expert report, adding “…could you not find a handwriting expert this side of Basra willing to state that Packham did not write his own death threat note”. Why Basra? This was a gratuitously offensive reference to the legal representation by Tessa Gregory (“Ms Gregory”) of Leigh Day of Iraqi civilians in wholly unrelated litigation. Ms Gregory acts for Mr Packham in the present case. She had earlier worked at Public Interest Lawyers, a firm which, like Leigh Day, had acted in claims arising out of the Iraq War. Mr Packham’s case has nothing to do with Iraq or other clients of Ms Gregory. To her credit Ms Gregory acted with exemplary professionalism and moderation in the firm’s responses to this (and a number of other pieces of offensive correspondence emanating from D1 concerning representation of Iraqi civilians). I will not set out those further offensive references, which included irrelevant references by D1 to another person who worked at Public Interest Lawyers. One of the great assets of the British legal system and its respect for the Rule of Law is that solicitors and barristers are not to be equated with their clients, current or former. D1’s approach showed an ignorance of this. D1 gave oral evidence about these references and sought to explain his actions. He said he found it difficult acting as a litigant in person and felt pressured by having to deal with correspondence, particularly letters which came in on a Friday afternoon. I accept it is hard to act in person in litigation. That is not, however, an excuse for D1’s approach towards Leigh Day and Ms Gregory.
  1. Despite being made aware they had no credible expert evidence for the trial supporting the allegation, D1/D2 persisted with it until the third day of trial when it was withdrawn. X was lined up to give evidence with no further report having been submitted. I queried how this case of forgery was to be pursued given that X’s conclusion was patently unsustainable. Mr O’Brien wisely withdrew the allegation and I required that this be stated in open court on behalf of D1 and D2. However, later in the trial, in his oral evidence D1 still appeared unwilling to concede that Mr Packham had not forged the death threat. In terms of aggravation of damages, D1 and D2 are responsible for the fact that an obviously unsustainable allegation was made and pursued into trial. I reflect it in the damages they will be ordered to pay to Mr Packham. It has no relevance to D3, save possibly in respect of costs issues. D3, until Mr Price KC came on board, had adopted the false death threat case.