“CUT AND PASTE” PARAGRAPHS UNDERMINE THE COGENCY OF THE EVIDENCE IN WITNESS STATEMENTS

We are returning to the judgment of HHJ Kelly (sitting as a High Court Judge) in MJF v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 3156 (KB).   This time we are looking at the judge’s observations about the preparation of the witness statements served on behalf of the claimant.  The marked similarities between some of the statements considerably undermined the cogency of the evidence.

“The circumstances in which the witness statements of the claimant’s parents and that of Mrs Sheasby were prepared are very unsatisfactory. The identical terms of a number of the paragraphs, indeed multiple paragraphs as between the parents, demonstrates that the evidence cannot be their own words. In my judgment, the most likely explanation is that these three witnesses discussed their evidence before giving what amounted to joint instructions to the claimant’s solicitor, who then drafted a statement and cut and pasted paragraphs into other statements. This approach undermines the cogency of the evidence as it is impossible to determine the actual words of each witness.”

THE CASE

The claimant brought a case in clinical negligence against the defendant NHS Trust.  She alleged negligent performance of surgery in the fitting of a feeding tube. The defendant denied breach of duty and causation.   The case proceeded to trial following the usual process of disclosure and the meeting of experts.  The claimant succeeded on the issue of negligence and on some (but not all) of her case in relation to causation.

THE WITNESS STATEMENTS SERVED ON BEHALF OF THE CLAIMANT: THE SURPRISING SIMILARITIES

The witness statements were important for a number of reasons, but particularly on issues of causation.  The claimant’s witnesses gave a fairly optimistic picture of the claimant’s condition prior to the medical operation in question.  The evidence, to a large extent, contradicted the accounts given in the medical records.  Further there were marked similarities between some of the statements.

1. 1. Each of the claimant’s lay witnesses gave oral evidence addressing events around the date of the PEG procedure, and the claimant’s level of functioning before and after the surgery. It is clear that the claimant’s parents have provided decades of dedicated care and support to further the welfare of the claimant and her disabled sister, and have been assisted by a very loyal team of carers.

The claimant’s father

1. 1. The father’s written evidence described the claimant’s level of functioning before the procedure on 22 March 2016. He explained that, even before the procedure, the claimant lacked capacity and required 24-hour care. However, he stated that her communication skills were adequate for her needs and, although she required a wheelchair for longer distances, she was able to move around her cottage and climb stairs. He described the claimant beginning to suffer episodes of vomiting in 2015 but that no medical reason was found for vomiting or reflux. He understood that the PEG was to be fitted to help ‘top up’ the claimant’s fluids.

1. 1. The father attended the hospital with the claimant on 22 March. Following the procedure, he stated that he could see right away she was not well and was hunched over. He described her remaining unwell the next day and the GP prescribing naproxen, which the claimant started to take.

1. 1. He explained that, following the claimant’s emergency admission to hospital on 24 March 2016, she underwent surgery leading to an extended stay in the intensive care unit before transfer to a high dependency unit. He stated that the claimant deteriorated during her 14-month hospital stay such that she lost all mobility, was unable to feed herself, needed a tracheostomy, and was now dependent on two specialist support workers 24 hours per day.

1. 1. The father was cross-examined about striking similarities between his witness statement and that of his wife, with multiple passages drafted in identical terms. He told the court that the wording reflected the joint words of himself and his wife. He accepted that some parts of his statement also mirrored parts of the statement of Tracy Sheasby. He told the court that the statements had been typed for them but that they nonetheless reflected the truth.

1. 1. He was asked about the claimant’s level of functioning before the PEG procedure. He explained he was not involved in the claimant’s care on a day-to- day basis but that he was aware that the claimant had been able to walk on her own within her cottage and from the cottage to the carer’s car, a distance of some 30 to 40 yards, and was able to climb into the car. She would use a wheelchair for longer distances, and on occasions such as going to a hospital appointment, when it was more convenient to do so. He accepted that the claimant often walked holding the hand of another but considered that was more because she was autistic and liked the routine, rather than because there was a physical need for such assistance. He described the claimant as a mobile and independent young woman in the period leading up to the procedure. He did not accept there had been any deterioration in her mobility in the years leading up to March 2016. When he was taken to a series of medical records over the years leading to 2016, he said he did not recognise the description of the claimant’s mobility difficulties as documented in some of the notes. He did not accept any deterioration in the claimant’s mobility was as severe as the defendant suggested.

1. 1. The father understood the claimant to be toilet trained before the procedure but did not get involved in her personal care. It became clear that much of his knowledge on continence issues was based on what he had been told by others. His understanding was that the claimant had been able to communicate when she wanted to use the toilet, could walk to the toilet, possibly holding someone’s hand, and the carers would clear up afterwards. He did not believe the claimant’s level of continence had changed much over the years leading to 2016.

1. 1. The father was asked about the claimant’s ability to swallow, and her eating and drinking ability in general. He stated he did not get involved in feeding; but did not consider that there was really a problem until the claimant started to have difficulties taking in enough fluid.

1. 1. Overall, he did not accept that the medical notes reflected his recollection of his day-to-day experience of the claimant’s level of functioning in the period prior to March 2016.

The claimant’s mother

1. 1. The mother’s witness statement is in nearly identical terms to that of her husband. When cross-examined about the obvious similarities of the statements, she was somewhat defensive. She told the court the words were definitely her and her husband’s own words because they wrote the statements separately. When it was put to her that could not possibly be correct given the identical wording, she conceded there may have been an element of one person writing it first and the other agreeing. She also accepted that she would have discussed the evidence with Mrs Sheasby, but maintained that Mrs Sheasby wrote her own statement.

1. 1. The mother told the court there was no deterioration in the claimant’s mobility between the time she learned to walk, at around 3½ years old, and March 2016. She stated there was similarly no deterioration in continence from the point that the claimant was toilet trained to March 2016. She accepted that there could be short-term issues with incontinence if the claimant had a seizure, but that she thereafter regained functionality to her previous level. She told the court that the purpose of the PEG was not because of difficulties with swallowing, but because the claimant did not like to drink.

1. 1. The mother was taken to a series of entries in the claimant’s medical records across the years prior to the procedure. As with her husband, she did not accept that all of the descriptions in the medical records were an accurate reflection of the claimant’s level of mobility, continence, and swallowing ability.

…

Mrs Tracy Sheasby

1. 1. Mrs Sheasby has worked with the claimant for nearly 26 years. Her written evidence described the claimant prior to the procedure as being able to communicate her needs, walk unaided, get in and out of bed unaided, take a good part in getting dressed, get on and off a chair unaided, and take herself to the toilet independently. She stated the claimant was also able to walk to the car, get in and out of the car independently, and only required a wheelchair for longer distances.

1. 1. Mrs Sheasby’s witness statement provided an account of the claimant’s typical daily routine before the PEG procedure. This involved the claimant getting herself out of bed to use the toilet, communicating what she wanted for breakfast using Makaton, and taking her tablets with a drink. The claimant got washed and dressed, mostly by herself, but with some assistance brushing her hair and applying cream. Ms Sheasby described the claimant as able to brush her teeth and help with cleaning up breakfast dishes and vacuuming the lounge. She described often taking the claimant out for lunch or to meet the claimant’s friends. The claimant ate something for lunch such as a jacket potato with cheese and baked beans, or a sandwich and some soup. The claimant would take a short walk after lunch. Mrs Sheasby described herself and the claimant preparing dinner, which could be cottage pie with mashed-up peas and carrots. The claimant would then get ready for bed, mostly by herself, but with some additional support.

1. 1. In cross-examination, Mrs Sheasby stated she had no idea why the wording of part of her statement was identical to that of the claimant’s parents. She accepted that she and the parents had discussed what they would say in their witness statements, but said she had never seen their statements.

1. 1. Mrs Sheasby was cross-examined about her written account of the claimant’s typical routine and she confirmed it reflected the position immediately prior to the PEG procedure. She accepted that the claimant had slowed down somewhat in terms of mobility, but did not accept there was any big deterioration in the claimant’s level of continence and described the position ‘as going up and down’.

1. Mrs Sheasby was taken through various medical records and, rather like the claimant’s parents, did not recall the claimant suffering from the issues documented by medical professionals. She did however agree that medical records portrayed a picture of the claimant having deteriorated between 1998 and 2016 but stated that she never noticed a time where she thought ‘oh god, she can’t do this, she can’t do that’. When taken to the medical records relating to continence, she agreed that the bowel position had changed over the years and progressed to the use of a bowel irrigation system. She did not accept there was a deterioration in respect of bladder function, other than occasional wetting, and stated it had never reached a position where pads had to be worn constantly. Mrs Sheasby accepted that the claimant’s swallowing deteriorated in around 2014/15 but that she recollected that the issue was with drinking rather than eating.

THE JUDGE’S OBSERVATIONS ON THE WITNESS STATEMENTS: THE “CUT AND PASTE” APPROACH

1. 1. The claimant’s parents and carers are the only witnesses with direct knowledge of the claimant’s abilities over the years leading to the procedure in March 2016. Each of their witness statements was prepared in November 2023, some 7½ years after the index event, and required an even longer memory as to the progression of the claimant’s condition over the two decades since 2003. The cautionary advice in Gestmin is apposite to the assessment of this lay evidence. It is also relevant that none of these witnesses are independent and each has an obvious close bond with the claimant, factors which may impact upon the objectivity with which they can recollect events. That is not to say that the witnesses are deliberately misleading the court but it does risk unconscious bias affecting the accuracy of their answers.

1. 1. The circumstances in which the witness statements of the claimant’s parents and that of Mrs Sheasby were prepared are very unsatisfactory. The identical terms of a number of the paragraphs, indeed multiple paragraphs as between the parents, demonstrates that the evidence cannot be their own words. In my judgment, the most likely explanation is that these three witnesses discussed their evidence before giving what amounted to joint instructions to the claimant’s solicitor, who then drafted a statement and cut and pasted paragraphs into other statements. This approach undermines the cogency of the evidence as it is impossible to determine the actual words of each witness.

1. 1. The evidence of Mrs Sheasby painted a rosy picture of the claimant’s level of functioning before the PEG procedure. Her detailed account of the claimant’s typical routine portrayed a young woman with a high degree of independence; able to get herself out of bed and to the toilet, to largely wash and dress herself, communicate her breakfast wishes, and assist carers with domestic tasks such as cleaning up dishes and vacuuming. Her lunchtime routine was said to extend to lunch dates or meet-ups with friends. Meals such as jacket potatoes, sandwiches, or soup were consumed. Trips out were usual, including short walks without a wheelchair. Neither of the claimant’s parents sought to demur from the account given by Mrs Sheasby to any material extent.

1. What is startling is the extent to which Mrs Sheasby’s and the parents’ recollection of the progression of the claimant’s functionality differs from that recorded in the medical records. The court has the benefit of compendious contemporaneous medical notes spanning many years. In addition to the cogency to be attached to medical records generally (per Synclair), it is of note that the records concerned were compiled by a wide variety of treating clinicians. It is far less likely that multiple medical professionals all made errors in their note-taking. That undermines the evidence of the claimant’s parents and Mrs Sheasby to the effect that a number of the medical records give an inaccurate, that is to say overly negative, reflection of the claimant’s level of functioning.

Avoiding pitfalls with witness statements – how to draft an effective witness statement: webinar 26th February 2025: Booking details available here 

“Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included”
(the White Book)

Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give.

This webinar looks at:

• The mandatory requirements for witness statements and the consequences of non-compliance
• Protecting the witness from the lawyer
• Protecting the lawyer from the witness
• Witness statements and proportionality
• Where lawyers go badly wrong with witness evidence
• Explaining the significance of the statement of truth.
• A checklist for taking a statement