SIMILAR WITNESS STATEMENTS (WITH THE SAME TYPOS) AND WITNESS CONFERRING WITH OTHERS: WHY “I SAY THE SAME AS THEM” RARELY HELPS

 In  the judgment today in Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC)  HHJ Russen QC (sitting as a High Court judge) made some observations about the witnesses giving evidence.  The fact that some of the witness statements were “materially identical” coupled with one witness contacting others during the course of giving their evidence.  A matter that only came to light because the hearing was being held remotely.

THE CASE

The judge was hearing a claim for moneys due under a retention. The defendant also brought a counterclaim.  The claim was successful, the counterclaim was dismissed.

THE JUDGE’S OBSERVATION ON THE WITNESS EVIDENCE

47.              By way of general comment at this stage, I was troubled by concerns about the reliability of the evidence of Mr Lewin and Mr Hannon.  It did not get off to the most auspicious start in their witness statements being in materially identical terms to the point of them sharing common typographical errors.  Mr Lewin said he suspected the draft of his statement was produced by SS’s solicitors.  Mr Hannon denied he had largely cut and pasted his witness statement from the text of Lewin’s statement.  He said he had prepared some parts of his witness statement and there had then been some to’ing and fro’ing with Mr Lewin and Mr Bailey, by which he invited comments to check for completeness, before he sent the signed version to SS’s solicitors.  He said he had not read either Mr Lewin’s witness statement or Mr Bailey’s and that he had no idea whether or not Mr Lewin had simply copied his statement.  This evidence about the materially identical nature of their respective witness statements obviously causes some concern about how much of each reflected the witness’ own recollection.

48.              The testimony of Mr Lewin revealed significant flaws in his recollection of the detail of matters which were said to justify SS’s counterclaim.  His evidence generally inclined towards vagueness on key points.  I deal separately below with the reasons why no confidence could be placed in the electricity meter readings which he had produced.

49.              It also emerged from Mr Lewin’s evidence that (having since left SS and NCL) he had not carried out a search for relevant documents within his own files.  He said that he had some in storage but had not been asked to carry out any search.  Mr Lewin also said that he had not been able to access some of his older emails.  Most of the copies of emails in the trial bundle for the years 2009 to 2017, which had been disclosed by SS, were shown to have been obtained from Mr Hannon.  Mr Hannon confirmed as much when he said he had retrieved as much as he could from papers kept by BRH in storage. The trial bundle documents emanating from Mr Hannon included a photograph of an email dated 27 November 2009 added late to the trial bundle (and addressed in paragraphs 153 and 154 below) to which SS sought to attach great importance.  When viewed in the light of the almost identical terms of Mr Lewin’s statement and the general vagueness of Mr Lewin’s testimony, this enabled Mr Frampton to make the telling point that SS’s case appeared largely to be Mr Hannon’s case.

50.              I should also note that during a 10 minute mid-morning break in the course of the second day of Mr Lewin’s testimony (via video link on his tablet) Mr Lewin was overheard by Mr Frampton and a representative of SS’s solicitors having a private telephone conversation with Mr Bailey while the microphone on Mr Lewin’s tablet remained switched on.  I did not immediately before that break remind Mr Lewin not to speak to anyone else about his evidence, while he was giving it, but I had given him the usual admonition against doing so at the end of the previous day’s testimony. No doubt having also heard me give a similar warning to previous witnesses, he therefore knew not to do it.  As I had paused the recording of the hearing during the break there is a degree of uncertainty over what was said between Mr Lewin and Mr Bailey.  However, Mr Lewin accepted that he had telephoned Mr Bailey to “ask him how I was doing.” Initially, Mr Lewin said Mr Bailey had told him to hang up but then admitted that they did exchange further words and that he (Mr Lewin) had said “am I getting my knickers in a twist?…Sorry, just stick to meter readings do I?.” Mr Lewin then said that all Mr Bailey told him was “No, carry on”, before accepting that this did not make sense. When Mr Frampton later asked Mr Bailey about the conversation, he said he had only told Mr Lewin he was doing “Okay”.

51.              This was an unfortunate episode and guarding against the obvious risk of contamination of a witness’ independent recollection of events is the reason why there should be no consultation with others while it is being tested in the witness box.  It was apparent to me that both men regretted it.  Although the picture is not entirely clear, I am satisfied that the shortness of the break and the even shorter duration of the call within it means that there was no question of Mr Lewin being fed his lines by Mr Bailey.  Regrettable though it was, I therefore do not point to it as a reason to draw a conclusion from Mr Lewin’s testimony (or Mr Bailey’s for that matter) which I would not otherwise have reached.”

PREVIOUS CASES ON “IDENTICAL” STATEMENTS

There are, it seems, litigators out there who believe that the filing of numerous identical witness statements adds weight to their case.   Advocates of this approach may want to read the judgment of  Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch) and then the judgment in New Court Securities she refers to.

THE CASE

The judge was hearing an action by time share owners alleging breach of contract by a membership company. The claim was dismissed on the grounds that the claimants failed to prove causation or damages. The penultimate paragraph of the judgment reads

“I also note that the Claimants’ second witness statements were largely identical: see the comments of Chadwick J in Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited [1992] BCLC 1104 at 1115-6. The Court of Appeal’s decision was reversed by the House of Lords and Chadwick J’s decision reinstated but there was no criticism of Chadwick J’s judgment on this point by the Court of Appeal in any event”

THE JUDGMENT IN NEW COURT SECURITIES

In New Court Securities Chadwick J was considering the weight to be given to two witness statements which were identical. The makers of those statements alleged that they had not made them together.  The judge had clear views on the likelihood of that.

The standard of proof and the weight to be given to the evidence of Mr Lewis and Mr Abrahams

“Before examining the events of 21 July 1989 in detail, it is appropriate that I should make two observations. First, the allegations against Mr Roberts are serious allegations involving the imputation of conscious dishonesty. The standard of proof required is the civil standard of ‘balance of probabilities’; but inweighing probabilities the court must take into account the gravity of what is alleged (see Hornal v Neuberger Products Ltd [1956] 3 All ER 970 at 973, 978, [1957] 1 QB 247 at 258, 267 per Denning and Morris LJJ). As Ungoed-Thomas J put it in Re Dellow’s Will Trusts [1964] 1 All ER 771 at 773, [1964] 1 WLR 451 at 455:
‘… the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it …’

Accordingly, in examining the evidence in support of the allegations that Mr Roberts made representations on 21 July 1989 which he knew to be false, I keep in mind that convincing proof is required to displace the presumption that a person in his position could be expected to act honestly.
Secondly, the circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings against Mr Roberts, and the manner in which they gave that evidence, make it necessary to approach the evidence which they have given in this trial with extreme caution. The circumstances in which Mr Lewis and Mr Abrahams prepared their evidence in advance of the criminal proceedings may be summarised as follows:
(1) On 1 December 1989 Mr Lewis and Mr Abrahams were interviewed, together, by officers of the Serious Fraud Office (the SFO) in the presence of Nicholas John Holt, a solicitor and then the director of SNC responsible for its legal affairs.
(2) Shortly after this meeting the SFO produced a first draft statement to be made by Mr Lewis. Copies of that statement were given to both Mr Lewis and Mr Abrahams. It was used by Mr Holt to prepare a second draft composite statement headed ‘Draft Statement: Geoffrey Alan Lewis/Anthony Sidney Abrahams’. That composite statement contains input from both Mr Lewis and Mr Abrahams.
(3) On 14 December 1989, a copy of the draft composite statement was sent by Mr Holt to SNC’s solicitors; but not to the SFO. On 19 December 1989 a partner in that firm of solicitors, and his assistant, went through that composite statement at a meeting with Mr Lewis and Mr Abrahams.
(4) As a result of that meeting a further draft composite statement was prepared (the 20 December draft), taking in amendments arising out of the joint discussions with Mr Lewis and Mr Abrahams. A copy of that composite statement was given to the SFO.
(5) Further amendments to the 20 December draft were made by Mr Holt, following conversations with Mr Lewis and Mr Abrahams.
(6) On 8 January 1990 two clean copies of the composite statement were prepared by Mr Holt; one for Mr Lewis and one for Mr Abrahams. The two statements are in substantially identical terms.
(7) Those two statements were then re-typed by the SFO in Criminal Justice Act form; and were presented to Mr Lewis and Mr Abrahams, individually, for signature on 9 January 1990.
The effect of this process was that any independent recollection which either Mr Lewis or Mr Abrahams might have had as to the events of 21 July 1989 was likely to have become coloured by the recollection of the other. No doubt Mr Holt, and SNC’s solicitors, thought they were acting in the best interests of SNC; but a process better calculated to devalue the evidence of the two principal witnesses for the prosecution in the criminal proceedings – and, subsequently, in the civil proceedings in this court – would be difficult to imagine.
The problem does not stop there. When asked on 25 January 1991, in the course of his cross-examination in the criminal proceedings, to explain why his Criminal Justice Act statement was virtually word for word identical with that of Mr Lewis, Mr Abrahams’s observation was that the coincidence was ‘interesting’. When pressed, he gave this answer:
‘It is amazing we both wrote twelve pages and ninety five per cent is the same, but I am not surprised … I am not surprised that we wrote similar sort of statements, because we did the deal together … I would, I suppose have found it very surprising if Mr Lewis had written a totally different type of statement.’

Mr Abrahams denied, emphatically, that he had prepared his statement in conjunction with Mr Lewis. He denied that he was ever shown Mr Lewis’s statement. He said that the similarity between his statement and that of Mr Lewis was ‘sheer coincidence’.
Mr Lewis was equally disingenuous. When he was asked about the same matter, on 29 January 1991, he said that he had never seen Mr Abrahams’ statement. There followed this exchange:
‘Q. There is a very marked similarity between your witness statement and that of Mr Abrahams. Are you aware of that? A. In the circumstances, as we spent most of the day together in the deal in Ferranti, I would assume that our recollection of events should be pretty similar.

Q. You would attribute the similarity to the fact that you saw and were involved jointly and therefore separately have described it in the same way? A. As I said, as we spent most of the day together, the facts would appear similar to both of us.’

In my judgment, Mr Lewis and Mr Abrahams each sought, deliberately, to mislead the jury in the criminal proceedings as to the true process by which their Criminal Justice Act statements were prepared. The true position did not emerge until full discovery was made, belatedly, in the course of the trial of the civil action in this court. I do not accept their explanations, given in this court, that they had forgotten, at the time when they gave evidence in January 1991, the circumstances in which their Criminal Justice Act statements had been prepared one year earlier.
In these circumstances it would, in my view, be unsafe to make a finding of dishonesty against Mr Roberts on the unsupported evidence of Mr Lewis and Mr Abrahams. I approach the examination of the events of 21 July 1989 on the basis that little, if any, weight can be given to their evidence where it is in conflict with that given by Mr Roberts.

OTHER EXAMPLES

Look at the witnesses in In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688.  Various witnesses for the defendant gave evidence as to the way in which an accident happened.   Several, it transpired, had not even seen the accident but were “told what had happened” and assumed it was right. Jackson L.J. noted:-

• “I was wholly unimpressed by these forays into the written evidence and the transcripts of cross-examination. There is always a need with accident witnesses to be careful to distinguish evidence of what they actually saw from evidence about they think might have happened. The judge was plainly alert to this danger when evaluating the evidence of the various witnesses.

• Thus, although Ms Walton had certainly recorded an impression that the man was thrown from east to west, she also said that she did not see enough of the accident to be able to say where the man had come from. Her final sentence was “All I can say for sure is that the police car was travelling from south to north and the man travelled from west to east in the air, I think“. This is hardly a promising basis for a submission that the judge ought to have accepted this account.In any event I do not see how the claimant can have been thrown any appreciable distance west to east when he ended up due north in the left hand lane of Southgate Road. To make matters worse, during cross-examination, Ms Walton volunteered that she had been “sort of told what had happened and … I sort of assumed that was right“.

• Similarly Ms Hutchings explained in cross-examination that what she had said about the cyclist coming from Northchurch Road was an assumption. She explained that she did not think she had seen the cyclist at all.

• Ms Knight’s account also had inconsistent features, not least her account of the impact occurring at right angles, which was inconsistent with the physical evidence. She also places the resting place of the bicycle in Northchurch Road. In cross-examination she accepted that the branches of the tree were substantial, even though not in leaf at that time of year, and had blocked her view so that she could not get a proper picture of what happened. As to what she saw at the point of collision she accepted that it was “all a bit of a blur” and she might be mistaken. Later in her evidence when, being cross-examined by Mr Waters, she started to refer to the bicycle being at “an angle” to the car. It is fair to say that Mr Waters managed to get Ms Knight to accept that the angle was such that it was impossible for the cyclist not to be coming down Northchurch Road. I would, for myself, have regarded that as opinion evidence that Ms Knight was unqualified to give. The judge was perfectly entitled to accord it no weight.”

 WITNESSES AGREEING “TOO MUCH”

Mr Justice Turner’s judgment in Laporte & Christian -v- Commissioner of Police for the Metropolis [2014] EWHC 3574 (QB) dealt with the evidence of police officers and found that they had been distorted by conversations with each other.

1. I am satisfied that, after the event, efforts were made to ensure that the TSG officers produced in their notes of the incident a consistently gloomy picture of the situation which they had earlier faced at the Civic Centre. It is not disputed that it is entirely appropriate for officers, in general, to confer in making their notes in order to preserve, at the very least, a coherent chronology of events. Nevertheless, each officer must record his or her own individual recollection rather than follow a “party line”. There are respects in which I have concluded that officers allowed their individual accounts to be contaminated either by information received from Inspector Wakeford or others thereby distorting their own recollections.

“CORROBORATIVE EVIDENCE”

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) heard evidence from members of the claimant’s family who gave “supportive evidence”. The similarities were so marked that the defendant’s counsel actually drew up a graph to show the same phrases being used.

“Various families members and friends gave supportive evidence

1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.

2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.

1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.”

IDENTICAL WITNESS STATEMENTS ARE JUST SUSPICIOUS

In AA -v- London Borough of Southwark [2014] EWHC 500 QB the deputy judge considered three statements given in the course of the litigation. Unanimity in the witness statements did not help.

. “Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.”

SO BE CAREFUL WHAT YOU ASK AND WHAT YOU DO: TAKING WITNESS STATEMENTS THE MOST UNDERESTIMATED SKILL OF ALL

The questioning of witnesses and drafting of statements is a highly skilled task. It is given very little (if any) consideration during the whole process of legal education and training. Statements are often (probably usually) taken by people who have not read the rules, or Practice Directions, and never seen a witness give evidence in court.  It is perhaps unsurprising that so many parties come to grief.