DRAFTING WITNESS STATEMENTS: WHEN THE CLAIMANT’S STATEMENT IS SIMPLY A REHASH OF THE PARTICULARS OF CLAIM
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Recorder Sheehan KC in the case of Ball -v- The Wolverhampton NHS Trust. It is a working example of the difficulties that flow when witness statements fail to comply with the rules. A copy of the judgment is available here Ball v RWNHS Trust Judgment 201223 F
“Unsurprisingly, the Claimant was asked about the circumstances in which the first witness statement was created. The Claimant stated that the content is “what I put together and then solicitors put it together for me to sign as far as I know”. At least as far as the bulk of the witness statement is concerned, this evidence is not credible. It is very clear that the bulk of the witness statement is a slightly adjusted version of the Particulars of Claim which is patently not in the Claimant’s own words.”
The claimant brought an action for damages for clinical negligence. Her case was that the defendant was negligent in failing to offer her the option of referral to a specialist peripheral nerve injuries surgeon following an operation. Her case was that she would have accepted the referral and would have had an operation which would have reduced her symptoms. The action was unsuccessful.
THE CLAIMANT’S WITNESS EVIDENCE
One interesting aspect of this case is the judge’s observations on the way in which the claimant’s witness statements had been drafted. The first was largely a rehash of the allegations in the Particulars of Claim. The second contained detailed observations on a medical report that the claimant, in evidence, initially stated she had not read.
“The Claimant’s Evidence
93. The Claimant’s evidence in chief was contained in two witness statements,
dated 16 December 2021 and 25 August 2023. In her evidence in chief the
Claimant confirmed that the content of her first witness statement was correct
save for a minor correction.
94. The Claimant’s first witness did not, however, comply with many of the
essential requirements of a witness statement as set out in paragraph 18 of the
CPR Part 32 Practice Direction on witness evidence. This states that “the
witness statement must, if practicable, be in the intended witness’s own words
and … should be expressed to be in the first person”. A witness statement
should also indicate “which statements in it are made from the witness’s own
knowledge and which are matters of information and belief”.
95. These requirements of the Part 32 Practice Direction are not matters of form but
go to the very function of the witness statement, that is, to be the witness’s own
evidence in chief. The importance the Courts attach to these requirements is
evident from, for example, the introduction of Practice Direction 57AC in
relation to witness statements used in the Business and Property Courts.
Although those provisions do not apply to these proceedings, the requirement
that a witness statement contains the evidence the witness would give “if they
were allowed to give oral evidence at trial without having provided the
statement” concisely summarises the function of a witness statement.
96. In contrast to these requirements, the first 58 paragraphs of the Claimant’s first
witness statement are a virtual word for word cut and paste of the content of
paragraphs 2-59 of her Particulars of Claim, which predate her witness
statement by almost two years.
97. Paragraph 1 of the Claimant’s first witness statement reads:
“At all material times the Claimant was a NHS patient being treated and/or
cared for at New Cross Hospital, Wolverhampton (NCH) and/or by the
Defendant’s staff at NCH.”
98. While in subsequent paragraphs of the witness statement the word “Claimant”
used in the Particulars of Claim is replaced by “I”, the content of the bulk of the
witness statement is simply the same as that of the Particulars of Claim. After
paragraph 59 the content of the witness statement contains a paraphrase of the
allegations of breach in the Particulars of Claim. It is only in the final 24
paragraphs that the witness statement diverges from the Particulars of Claim,
but these mainly go to issues outside of the scope of this preliminary issue.
99. Unsurprisingly, the Claimant was asked about the circumstances in which the
first witness statement was created. The Claimant stated that the content is
“what I put together and then solicitors put it together for me to sign as far as
I know”. At least as far as the bulk of the witness statement is concerned, this
evidence is not credible. It is very clear that the bulk of the witness statement
is a slightly adjusted version of the Particulars of Claim which is patently not in
the Claimant’s own words.
100. The Claimant’s evidence was that she had read her witness statement and she
realised the importance of the statement of truth before she signed it. She stated
that she was somewhat dyslexic but always got someone to read the content of
documents to her if she had difficulty with them before signing them.
101. The Claimant’s second witness statement was made on 25 August 2023, a little
over two weeks before the Claimant gave her evidence. Despite this, her
evidence to me was that she could not understand some its contents. She
accepted that she had read and signed the second witness statement very
recently but said that “her memory was not the best”. She could not provide
any further explanation as to why she had so recently signed a witness statement
which contained sections that she did not understand or could not remember.
102. The Claimant’s second witness statement contains 16 paragraphs commenting
in detail on the report of Mr Milner dated 3 August 2023, but the Claimant’s
initial oral evidence was that she did not recall having read that report or having
had it read to her. She later accepted that some of this report must have been
read to her although she did not remember this.
103. The Claimant’s oral evidence overall was in sharp contrast to the content of her
witness statement. While the witness statement contained an apparently clear
and precise recollection of relevant events and the documents referred to in it,
in her oral evidence the Claimant had very limited recollection of most of those
documents and, in many cases, limited recollection of the consultations and
other events that the documents related to. She frequently stated that she was
unsure whether she could recall a document or event, or what happened at the
event. Her lack of clarity about her own recollection can be summarised by her
repeated use of the comment “but don’t quote me” when answering questions.
104. Making full allowance for the Claimant’s dyslexia, the passage of time since the
relevant events and her first witness statement, and noting that the Court is very
familiar with witnesses who struggle to remember particular documents or
events, the disparity between what the Claimant’s witness statements say and
what she could recall was very striking, particularly in relation to her second
witness statement, which had been made only a little over two weeks before the
trial. Awitness statement prepared in accordance with the practice direction, in
the Claimant’s own words and accurately describing what the Claimant could
and could not remember, would clearly have been a very different document to
those that were served.
105. In my view, given the disparity between the content of her witness statements
and the evidence that the Claimant could actually recall, combined with the clear
genesis of bulk of the first witness statement in the Particulars of Claim, the
Court cannot place any significant reliance on the content of the witness
statements. The Claimant’s evidence must, therefore, be considered
predominantly upon the oral evidence given at trial. It is also of concern that
the Claimant signed statements of truth for both witness statements in these
106. The Claimant’s oral evidence was at times hard to follow. It was characterised
by her inability to remember, or only partially remember, important matters and
by her giving of inconsistent answers about the same topic, sometimes in the
space of a few minutes or sentences.
107. On the limited points where the Claimant stated that she had a clear recollection,
her evidence was contradicted by the documentary evidence in a number of
respects. Overall, I find that the Claimant was an unreliable witness in relation
to several important parts of her evidence.
108. As far as her condition before the arthroscopy is concerned, the Claimant was
cross-examined at length about her failure to mention in her first witness
statement that she had claimed and was in receipt of PIP benefit prior to her
arthroscopy. She was taken to paragraph 3 of her statement where she stated
that her trigeminal neuralgia was “generally kept under reasonable control by
109. The Claimant stated that her application for PIP was because of her knee
difficulties prior to the February 2016 arthroscopy but the first issue listed under
health condition and disability was trigeminal neuralgia.
110. In cross-examination the Claimant stated that she had been provided with
crutches for use after the arthroscopy but in fact needed to be mobilised in a
wheelchair. She was asked to describe the bruising she experienced after the
arthroscopy procedure and her recollection was in the “middle of thigh but a bit
higher” and covered most of the area where the tourniquet had been in place.
111. In relation to her May 2017 consultation with Mr Baloch at the Queen Elizabeth
Hospital in Birmingham, the Claimant confirmed that she has sought a second
opinion from outside of the Defendant Trust. Although the letter dated 19 May
2017 states that there was no surgical option that could be offered to the
Claimant, her evidence was that surgery was not discussed with her and that she
did not ask Mr Baloch whether there was a surgical option for the treatment of
her ongoing symptoms. She was referred for pain management and the
Claimant stated that at this stage she wanted input from a non-Defendant Trust
112. The Claimant was asked about her medico-legal meeting with Dr Sinisi in
October 2018 and the resultant report. She stated that she did remember the
meeting but did not recall any discussion with Dr Sinisi about whether surgery
was a treatment option. Later in her evidence, however, she stated that she “may
have spoken about decompression surgery” with Dr Sinisi.
113. On some issues where the Claimant stated she had a clear recollection, I find
that her recollection was mistaken. By way of example, she was clear in her
evidence that Dr Sinisi had not been the source of the recommendation that his
colleague Mr Fox treat her at RNOH, but her general practitioner’s referral letter
dated 16 May 2019 clearly states that it was Mr Sinisi “who recommended an
opinion from his colleague there, Mr Mike Fox”.
114. The Claimant was asked several times about her attitude to agreeing to further
surgery if it had been offered to her as a treatment option. Her responses on this
important topic varied significantly. At one time she stated that if she had been
told that surgery might not improve her condition, she would not have
undertaken further surgery but later in her evidence she stated that “I had
nothing to lose. I would have taken surgery as I had nothing to lose”.
115. On further questioning the Claimant suggested that she would need to be told
that the prospects of the surgery resolving her difficulties were at least 50% for
her to agree to it, although her answer was equivocal and incomplete. Later still
she stated that if surgery had been offered in 2019 she would have “snapped
their hand off” to show how keen she would have been to undergo the surgery.
116. In relation to her meeting with Mr Fox, she initially told me that he had not
discussed with her the option of surgical treatment and that she had not raised
the possibility of it with him. She said that she was not at the time aware of
surgical decompression, notwithstanding the content of Dr Sinisi’s earlier report
which she had said had been read to her at the time. She then added,
inconsistently with her immediately preceding answers, that “when I first saw
him he said to me, if I could do surgery would you accept it, and I said I would”.
The Claimant did not seem to appreciate the extent to which this answer
contradicted her earlier answer, and I formed the impression that it was possible
that she may have added the later answer because she was concerned about the
effect of her earlier answer on her position.
117. Answering other questions about her meeting with Mr Fox, she both accepted
that he had given her time and was calm and patient with her and then also stated
that” he only saw me briefly” and then suggested that he may not have attended
her second meeting at all, although it was clear from the documentary evidence
that he had.
118. The Claimant was also cross-examined about the Provisional Schedule of Loss
(“the Schedule”) dated 1 June 2016 which she had signed with a statement of
truth. This included a past care claim which stated that:
“Prior to the Claimant sustaining the nerve injury in the operation in
February 2016, she was generally very active (notwithstanding that
she had knee problems). The Claimant did the majority of the
housework, gardening and DIY”.
119. The past loss of care claim was calculated on the basis of her partner Michelle
Ball’s loss of earnings caused by her need to provide the Claimant with
extensive at home care following the arthroscopy procedure. The claim was put
at £16,638.24 per annum.
120. Since July 2018 the Claimant’s local authority paid Ms Michelle Ball for the
care she provided to the Claimant in the sum of £13,708.24 per annum, as part
of a care plan for meeting the Claimant’s needs. The Claimant was asked why
no credit for this amount had been given in the Schedule. The Claimant’s
response was to say that she did not deal with the finances in the household, that
was looked after for her by Michelle.
121. The Claimant did not accept that she knew that the Schedule was untrue at the
time she signed the statement of truth. She said that Michelle had read it to her
and that to her knowledge it was true. She considered that Michelle had lost
earnings because of giving up her prior employment and the omission of any
reference to the income for providing care was not intentional. She strongly
disagreed that she was being dishonest in failing to refer to the care income in
122. The Claimant was also asked about a repayment of Carer’s Allowance originally
paid to Ms Michelle Ball, which overpayment the DWP determined arose from
Ms Michelle Balls’ failure to disclose her income from the local authority for
the provision of care to the Claimant. Ms Michelle Ball continued to receive a
£64.60 carers allowance after the time when she was in receipt of an income
from the local authority.
123. The Claimant accepted that no reference to the receipt of Carer’s Allowance had
been made in the Schedule. Again, the Claimant stated that she did not realise
that this should be referred to in the Schedule and she denied any intention to
be dishonest in the presentation of the Schedule.
124. In re-examination the Claimant stated that it was her partner Ms Michelle Ball
that disclosed evidence of direct care payments to her within these proceedings.
She stated that this initial disclosure was not made at the Defendant’s request.
She described the considerable efforts that Michelle had made to secure the
disclosure of further DWP records when the initial batch of records were
125. In re-examination the Claimant was asked what her response would have been
if, after receipt of Mr Isbister’s second opinion in July 2016, she had been
offered the option of referral to a specialist in PNI surgery. She said that she
would have accepted this referral “straight away”. She also stated in reexamination that “nothing would have put me off with any risk” associated with
surgical decompression and that she would have “gambled” and undertaken the
surgery even if there were inherent risks and a risk that the surgery might not be
successful. This answer was not consistent with some of those given in crossexamination, as set out earlier.
It is important to note that, at the end of the judgment, the judge expressly considered the question of whether there had been dishonesty by the claimant and her witness.
241. Although I have concerns about the circumstances in which the Claimant signed
the statement of truth attached to her witness statements and the Schedule, I do
not consider that the test for making a finding of dishonesty has been met in
relation to (ii) and (iii).
242. As to the failure to disclose in the Schedule either her income from the local
authority or the receipt of Carer’s Allowance, Ms Michelle Ball’s evidence was
that the information that had been included in the Schedule was responsive to
the information that was requested by the Claimant’s solicitors. Ms Michelle
Ball stated that all of the information requested had been provided and then the
Schedule had been prepared by the Claimant’s lawyers on the basis of that
243. The Court is not in a position to compare Ms Michelle Ball’s account with that
of the lawyers she refers to. As far as the issue relates to the Claimant it
potentially gives rise to legal professional privilege concerns. However, the
settling of a Schedule of Loss is an activity which in this case has required input
from lawyers as well as factual input from the Claimant. As Mr Tyack points
out for the Claimant, there are variations in pleading practice as to whether
credit is given in a Schedule for the receipt of at least non-CRU benefits.
244. Ms Michelle Ball is, in any event, not a party to the proceedings. The
Claimants’ evidence was that she had relied on Ms Ball to provide the relevant
information as Michelle handled all of the financial information. On this basis
I accept that the Claimant believed that the Schedule contained the relevant
information based on the information provided to her by Ms Ball. I do not
consider that by the standards of ordinary decent people this belief would be
considered dishonest in these circumstances.
245. As to the history with disclosure, it is clear that there have been a number of
failures by the Claimant to give timely disclosure of relevant documents. Again,
I consider that the relationship and the information passing between the
Claimant and her lawyers is relevant to making a determination as to honesty.
Again, the advice given by the Claimant’s lawyers re what documents to
disclose is not known. The Claimant’s evidence to me was that Ms Michelle
Ball had gone to very significant efforts to obtain disclosure of additional
records. On the basis of that evidence I do not consider that dishonesty is
established in relation to the disclosure failures. I do not consider that by the
standards of ordinary decent people the delays in providing disclosure will be
considered to be dishonest, particularly when Ms Michelle Ball was actively
involved in obtaining the disclosure documents, albeit on a delayed basis.”