WHEN IT IS OBVIOUS THAT THE STATEMENT IS NOT IN THE WORDS THAT WITNESS WOULD USE: A REMINDER OF THE DANGERS

There is a short passage in the judgment of Costs Judge Leonard in  Pulford v Hughes Fowler Carruthers Ltd [2023] EWHC 1429 (SCCO)that is illustrative of the dangers of “lawyerly” witness statement.

THE CASE

The judge was considering issues of fact in a solicitor and own client costs dispute. In particular as to the extent to which the client had been informed of the amount of the costs being incurred and gave authority.  The judge noted that the witness statement was written, in part, in formal legal language, using words that were not normally in the claimant’s vocabulary.

THE JUDGMENT ON THE WITNESS STATEMENT

1. 1. It does not assist the Claimant that her witness statements, set out as they are in rather lawyerly fashion, do not appear to be (as required by Practice Direction 32, paragraph 18.1) in her own words. The Claimant has in evidence put some emphasis upon the fact that her first language is not English. Although, as was evident under cross-examination, she has a perfectly good command of English, her witness statements do not reflect her manner of speaking and it does seem unlikely that words and phrases in her evidence such as “purportedly”, “therein” or “I refute the relevance”, are her own. Her witness statements say that they were prepared from emails sent to her advisers and from the documentary record, but that does not really explain why she could not have given her evidence in her own words.

1. This matters, because the Claimant’s evidence under cross-examination (as I shall explain) could be strikingly different to that given in her witness statements.

A POINT TO REMEMBER: A CLIENT CAN ALWAYS LEAVE YOU AND THEN BLAME YOU

The fact that a statement is written using “lawyerly” language can often be taken as an indication that the lawyers had too large a role in its drafting. This is a good time to remind everyone of a very useful post from Darlingtons solicitors . I said at the time it was first written that it deserved wider publication, and they kindly agreed I could reproduce it.   (I suspect a lot of hard-earned experience is behind this advice. Darlingtons are to be congratulated for sharing it).

ARE YOU LEGALLY STREETWISE?

Darlingtons make some very telling points to help the young lawyer.

“Disputes and litigation often bring out the worst in people”

•  You will almost certainly come across clients who are very streetwise and know their way around litigation situations and life better than you

• A litigation client may, as part of his or her strategy, have the intention, from the outset, to possibly blame you for not getting the result they want

•  Your inexperience and/or naivety may be taken advantage of further by the client seeking credit and/or not paying bills on time. With litigation matters it is imperative to have sufficient money on account, replenished as necessary.

• Clients may seek to take advantage of you by trying to get you to be overly aggressive with the opponent’s lawyers and/or compromising your professional position. As a solicitor you have a duty to protect and promote your clients interests but you must also be careful about your ethical duties to other lawyers and the court. Be particularly wary of making any threats at a clients behest to the other party that could be construed as blackmail.

• Your client may well not tell you the truth or provide you with full information or documents.

  In short, as a junior lawyer you may find that streetwise and savvy clients may deliberately select you as their lawyer for some of the above reasons.”

Forewarned is forearmed

If you happen to be a trainee or a junior lawyer in a very small firm and a new client comes to your firm with what looks like a juicy case in terms of fees and/or complexity, ask yourself why that client has chosen you and your firm. It could be for some of the reasons described above. The client may also assume that in a very small firm, in a very competitive legal marketplace, you might be under pressure to go out of your way to keep him or her happy.

Never underestimate the sophistication of a client or the importance of non-legal aspects to a legal case. This is especially the case with litigation. When someone’s back is up against the wall, where there is a lot at stake, people rarely play nice.

SOME EXAMPLES OF LITIGANTS BLAMING THE LAWYERS WHO DRAFTED THEIR STATEMENTS

The claimant firm of solicitors was suing for legal fees in the sum of £179,666.68; the defendant counterclaimed for negligence; breach of fiduciary duty and wasted costs.

1. “As for the witness statement dated 6 July 2011, Ms Dunhill contends that this was inaccurate and misleading in the three respects set out above, and in particular in stating in paragraph 29 that the AST had been “dissolved”. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that [her former solicitor] had invented this  statement   and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that [her former solicitor] should have realised that it was legally inaccurate.{The former solicitor’s]  evidence is that the  witness statement  was prepared “with great care on the basis of [Ms Dunhill’s] detailed written and oral instructions”

AMES -v- JONES

Mr Recorder Halpern QC in Ames -v- Jones [2016] EW B67 (CC) said of a witness

“She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case.”

“She blamed her solicitor for having misplaced the decimal point and for having assumed that she received housing benefit without asking her. She did not acknowledge any responsibility for signing

THE WITNESS EVIDENCE IN THE MOUNCHER CASE

Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB).

1. “During the course of cross-examination of some of the police officers who gave evidence on behalf of the Defendant but who were not officers of SWP it emerged that their witness statements had been drafted by lawyers. I do not find that surprising but, of course, I have scrutinised the statements with care so as to ensure that they are not attempts to re-write history. As it happens, the important aspects of those officers’ evidence related to the arrests of the Claimants and the reasons for the arrests. Upon those issues, there is a large amount of contemporaneous or near contemporaneous documentation which provides a reasonably sure guide as to why particular Claimants were arrested and what happened when they were arrested”.

BARRETT: WITNESS STATEMENT BY A DOCTOR

We have seen similar comments in the judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB) when discussing the evidence of a doctor who was giving evidence for the claimant against his own employer

“Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”

THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT

This was written by six highly experienced circuit judges. It shows a certain degree of judicial scepticism in relation to the way witness statements are taken.

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).

LITIGATION FUTURES REPORT

The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”.

The claimant was jailed for eight months for contempt of court. He, in turn,  sought to blame his solicitor for submitting the claim without his knowledge or authorisation.

The solicitors, however, had a signed statement and recorded evidence.

” the solicitor produced a witness statement that the claimant had signed as well as a telephone recording of Mr Hooper talking about the claim in detail and the alleged injuries sustained”

However the ingenuity of a fraudster knows no bounds.

“Mr Hooper disputed the evidence by saying that it was an imposter on the call recording, that he was illiterate, and had believed the statement that he had signed related to another accident which had taken place on the same day at the same location.”

This account was not accepted by the judges. Mr Hooper was found in contempt of court and jailed for 8 months.

HAVING A SYSTEM IN PLACE TO PROTECT YOURSELF

Note how the solicitors in the above case were able to protect themselves. I am here repeating matters I have written on before.  However the dangers involved are serious ones.

A witness needs to know, at the very least,

• That this is an important document.
• If it is inaccurate they could have criminal proceedings brought against them.
• That they should check the document fully and carefully and feel free to make any additions or alterations.
• The statement is, however, one of facts and not opinions.
• If they have any doubts about any matter at all they should raise these with the lawyer involved.

IF YOU DO NOT HAVE A PROPER SYSTEM IN PLACE THEN ONE DAY YOU ARE GOING TO HAVE A PROBLEM

Sooner of later  you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement.  Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.  That is going to be even more problematic if the statement uses phrases and expressions that a client would never use – the input of the lawyer is going to be taken as obvious, or at least need  a lot of explanation.