THE WITNESS EVIDENCE AT TRIAL WAS DIFFERENT TO THE PLEADED CASE AND THE WITNESS STATEMENTS: ANOTHER EXAMPLE OF WHY CARE IS NEEDED

Earlier this month I posted an article on the need for “self protection” by lawyers when drafting witness statements.  An example of why care is needed can be seen in the judgment of HHJ Stephen Davies, sitting as a High Court Judge, in  R N Restaurant (Stockport) Ltd, Re [2024] EWHC 69 (Ch).  The judge observed that, in some cases, the evidence being given was factually different to the pleaded case, and earlier witness statements. In other cases the judge was doubtful that the witnesses could recall specific events and conversations.

“when on the first day of the hearing she was asked by Mr Lawrence ..her evidence was  significantly different from the pleaded case … and the evidence she had given in her witness statements.”

THE CASE

The action concerned the transfer of shares in a business. There had been earlier litigation between the parties.  In this part of the judgment the judge is considering the credibility of the witnesses. In some cases the evidence given differed to that in the pleadings and their witness statements. In some cases the statements differed to those given in the earlier litigation.  Other witnesses could recall specific conversations but that judge doubted the accuracy of recollection.

30. 30. Nusrat.  A striking feature of Nusrat’s evidence was that when on the first day of the hearing she was asked by Mr Lawrence (through an interpreter) careful and fair questions about the circumstances in which she came to transfer the 4 shares to Asad and Usman, her evidence was  significantly different from the pleaded case (in particular, paragraph 10.7 of her Points of Claim) and the evidence she had given in her witness statements (in particular, paragraphs 41 and 45 of her second witness statement dated 21 April 2023 and paragraph 7 of her third witness statement dated 21 July 2023).  In short, she did not say that she had transferred the shares on the conditional basis pleaded and set out in her statements.  Instead, she said that she transferred the shares because she wanted to prevent Tariq from destroying the restaurant business and she was willing to transfer the shares on the basis that her sons had suggested that this would assist in that objective and she trusted her sons.  In her cross-examination on the second day she reverted to a significant extent to her previous evidence.  This was either because she had re-read her witness statements in Urdu overnight, and realised the need to emphasise in evidence the points which she had not previously raised or, more likely I am driven to conclude, despite her denial, because she had discussed her evidence with others overnight despite my warning that she should not do so.  Even however if I was wrong about that, in my view the conflict between what she had pleaded and said originally in relation to this claim (at a time when there was no question – as there may be as regards her earlier witness statement and evidence for the first trial – of her not having received full or entirely accurate assistance with the production of her witness statement or fully accurate interpretation)  and her oral evidence means that I must treat her evidence with real caution.
31. Mr Mohammed Idris Mir.  Mr Mir is a solicitor with a longstanding family connection with the Tariq family who was initially unwilling to provide a witness statement but who, after being served with a witness summons to attend trial, attended and provided a witness statement which made some amendments to the previous witness summary produced by Nusrat’s current solicitors after discussions with him.
32. The importance of his evidence was that in early 2020 he had translated the witness statement drafted by Nusrat’s then solicitors into Punjabi in her presence, after which she signed it without making any changes.  As relevant to this case he gave evidence in relation to a discussion he had had with her about a key paragraph in Nusrat’s witness statement which was the focus of attention both at the first trial and again, and even more so, at this trial, saying that he had a clear recollection of what she had said when he asked her about it in 2020.
33. I regret to say that I do not find this clear recollection reliable for the following reasons: (a) the meeting and discussion occurred almost 3 years ago, in the context of a busy professional practice with there being nothing particularly unusual in the subject matter or purpose of the meeting, such as would justify his having such a clear recollection; (b) it seems very unlikely to me that he just happened to ask her, and then to remember, without the benefit of any contemporaneous document, what she had said about the one paragraph which is of particular importance in this case when, at the time, her brief reference in that statement about giving 4 of her 25 shares to her sons could not, in my view, have been thought by him to have been of any obvious significance; (c) at the time, he did not think what he recalled her saying as being sufficiently important to justify amending the witness statement before she signed it so that it accorded with what she had told him, when at least on one view it was sufficiently important for that to be done to ensure that she did not give misleading evidence; and (d) he had also acted for her in October 2021, when he had written a letter to Usman claiming the return of the 2 shares on the basis of substantially the same version of events, so that in my judgment there is plainly a risk of cross-contamination of his recollection of what he had been told in January 2020 and in autumn 2021, especially since he did not make any file note of his attendance in January 2020.  It seems to me that he has persuaded himself that his recollection is different to and far better than it really could be and is.  Even if he did have a general recollection of some discussion along the general lines indicated, I am unable to accept it was as specific as he now says it was, and could only have related in general terms to Nusrat having given the shares to her sons as part of the process by which Tariq was to be prevented from running the restaurant business and was to be replaced by her two sons to prevent him from destroying the business and, with it, the family prosperity.   
34. Asad.  I must also treat Asad’s evidence with caution, since the key part of his evidence in his witness statement from 2020 was so plainly at odds with his evidence in written and oral evidence in this case and without, in my view, any convincing explanation for the difference.  It seemed to me that the best explanation he could give was that in the previous litigation he did not want to volunteer any information which might have opened up an opportunity for Tariq to claim that he and Usman held the 4 shares on trust for the partnership.  This, on analysis, amounts to an explanation that he was prepared to tailor his evidence to the court to support his own case in the earlier litigation.  It also seemed to me that he had become so emotionally attached to the litigation, fuelled by his loathing for his father Tariq and his sense of betrayal by Usman, together with his determination to prevent Usman – and, through him, he believes, Tariq – gaining full control of the restaurant business, that he was unable to give objective, reliable, evidence.
35. Mr Taher Nawaz.  Mr Nawaz is a chartered accountant and principal of the accountancy firm which has, until Usman assumed control, provided accountancy services to the Company and to Tariq, Mahboob, Nusrat and Mirza as regards their associated tax affairs.  The key part of his evidence was that in September 2016 he asked his assistant why 5 shares were being transferred from Nusrat to Asad and Usman and was told that Asad had informed his assistant that it was “so that he and his brother could be appointed as directors in order that they could vote to remove their father as a director of [the Company]”.
36. I do not accept that Mr Nawaz has such as clear and precise recollection of this conversation as he says, because: (a) to have such a clear recollection of a conversation with his assistant taking place over 7 years ago is inherently surprising, especially in the context that he could not have been aware that it would be an important issue to anyone at the time or for many years thereafter; (b) as he agreed in cross-examination, he would have been aware that as a matter of strict company law there was no such requirement, so that he might have been expected to say so at the time, especially since he did say that the initial proposal (to transfer 2.5 shares each) was not possible as a matter of company law; and (c) he has not produced any contemporaneous notes or other documents to confirm his oral recollection.  I am satisfied that his recollection of what was said could only be in far more general terms and along the same lines as what I have concluded was all that Mr Mir was told.  Even if I am wrong about this, I am unable to accept, if this was indeed Mr Nawaz’s evidence, that what he was told was that the only reason why the shares were transferred was because the two sons had to be shareholders in order to be directors.
37. Usman.  Usman was a most unimpressive witness.  Despite having graduated with a degree in business management, having been involved in the running of the restaurant business and in the events of 2016 to date, and having been the successful bidder to take over the restaurant business, he sought to portray himself as very largely excluded from the decision making process by his elder brother Asad and almost entirely ignorant of basic principles of corporate governance.  Overall, the impression I gained was that he was essentially a weak personality, easily influenced by others and willing to do what he was asked by the person or persons who at the time had influence over him.  Also, however, I am satisfied that he was more aware of what was happening and why than he was prepared to admit in evidence, and that he was not simply doing whatever Asad asked him to do without any understanding of what was happening and why.  I therefore treat his oral evidence with great caution.
38. Siddra.  Siddra is one of Tariq and Nusrat’s two daughters and Asad and Usman’s sisters.  She gave evidence by video-link from the UAE, where she now lives.  She was the most reliable of the three siblings who gave evidence, possibily because she is less involved in the continuing battles.  However, as with the other witnesses she had a good recall of the important events as concerned the family at the time but, in my view, less if any recall of the specific reasoning for the transfer of the 4 shares. 
39. Finally, I should say that Reema, the other sister and married to Qaiser (who also worked in the restaurant business), had provided a witness statement but was not called to give evidence since she was unable to speak to the key issues in the case.