WITNESS STATEMENTS, WITNESS EVIDENCE AND SELF-PROTECTION FOR THE LAWYER

Every few years I repeat advice given in relation to the need for “self-protection” when drafting witness statements.  This is often caused by something I have seen in practice, questions I am asked, or a transcript of a case.  The points made here have been made several times before in this blog. There is a reason I write about them so regularly…

THE CLIENT MAY BLAME THE LAWYER

A report in Litigation Futures illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”.

IT WAS ALL MY SOLICITOR’S FAULT”

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.

THE LAWYERS PROTECTED THEMSELVES

It is not uncommon for parties, and witnesses, found guilty of lying to attempt to blame their lawyers.A signed statement is essential. At an early stage, and certainly before the issue of proceedings.

Litigating with an unsigned statement (which was totally contradicted by a later signed statement).

This was a problem seen in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773. An enquiry was being sought into civil deaths in Iraq.   One of the applicants relied on an unsigned witness statement.

1. The fourth claim for judicial review is brought by the father of Jaafar Majeed Muhyi, a 13 year old boy who was fatally injured by an explosion in Haritha, near Basra, on 13 May 2003. The allegation made in the original claim summary and maintained in the amended grounds for judicial review was that Jaafar’s injuries were caused when he was playing in the street and a previously unexploded munition blew up in his face.

2. The basis for this allegation was an unsigned witness statement dated 23 February 2004 from the claimant, which stated:

“At around about 11am my son was in the street outside my home. He was about 10 metres from where I was watching, which was inside the house. I do not know how it came about that the sub-munition (also known as a ‘cluster bomb’) exploded and killed my son. I am not sure whether my son picked up the sub-munition or whether it simply went off when he was close by. I had a clear view of the incident.”

However a later signed witness statement gave a totally different account.

1. On 9 October 2015 PIL wrote to the Government Legal Department enclosing documents which were prepared in 2013 for the purpose of a civil claim for damages in which PIL also act for Jaafar’s father, Hashim Majeed Muhyi. These documents included a signed witness statement of Mr Muhyi dated 25 March 2013. This witness statement gives a very different account of the incident on 13 May 2003 in which Jaafar was fatally injured:

“I was sitting in my house with my family [when I] heard a helicopter approaching our house. Jaafar was outside playing by himself in the street whilst the rest of my children were playing inside the house. I suddenly heard a bomb close by so I immediately rushed out to check on Jaafar. … There was no military presence but I saw the helicopter flying off in the distance.

Once outside, I could see my son lying on the street. I was able to spot him immediately. As I ran over I could already see that he had been hit.”

Mr Muhyi goes on to say in the statement that he believes the British were trying to target a missile battalion of the Iraqi army, which was two streets away from his house. (I note in passing that this seems implausible, as Jaafar’s death occurred some 12 days after major combat operations in Iraq had formally been declared complete.) The witness statement exhibits a copy of Jafaar’s death certificate, which (as translated) records the cause of death as a “mine explosion”.

OTHER EXAMPLES WHERE “LAWYER DRAFTED” WITNESS STATEMENTS HAVE COME UNDER SCRUTINY

My witness statement was found to be inaccurate – but it was my solicitor’s fault.

The solicitor was blamed (by the client in Hughmans -v- Dunhill [2015] EWHC 716 (Ch) a point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion was not accepted. However this judgment highlights a point that disappointed clients can, and sometimes will, blame their lawyers when their evidence is not accepted in court.  It also highlights the point that few firms have any system in place for ensuring that the witness evidence is accurate and for protecting their own position if a witness later attempt to blame them for any errors in their evidence.

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”

THE HANDBOOK FOR LITIGANTS IN PERSON

This was written by six highly experienced circuit judges.

“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).

HH JUDGE OLIVER-JONES QC

“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.

   Smith –v- J&M Morris (Electrical Contractors) Limited.  [2009] EWHC 0025 (QB). 

Statements drafted by lawyers for police officers

Mr Justice Wyn Williams inMouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB).

“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.

Inaccuracies in doctor’s statement blamed on claimant’s lawyers.

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)”

HAVING A SYSTEM IN PLACE TO PROTECT YOURSELF

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.

DON’T BE AFRAID TO TEST THE EVIDENCE: IN THE LONG TERM THIS WILL HELP YOUR CLIENT AND YOURSELF

Finally it helps to remember that there are dishonest and fraudulent people out there who will be happy to blame their lawyers if things go wrong.  There is no substitute for testing and scrutinising the evidence and giving clear warnings of the consequences if matters appear suspicious.  Whilst it is not the lawyer’s job to pre-judge the evidence it is the lawyer’s job to give clear and firm advice on matters relating to credibility and the risks of litigation. The Bar Council Guidance is important reading in that respect.