The importance of being earnest – witness evidence in civil claims

Issues arising from the Horizon/Post Office scandal are en vogue. The inquiry proceedings, which have been ongoing for circa two years, may have gone under the radar, but the recent ITV drama has brought this travesty to wider public attention.

This article does not delve into these wider issues. Rather it focusses on the importance of witness statements and in particular, that witnesses produce statements that reflect their own evidence, in their own words.

Background

On 11 January 2024, Ian Bradshaw, a Post Office investigator gave evidence to the inquiry. He had been involved in the investigation of nine sub-postmasters and sub-postmistresses, giving evidence at their prosecutions.

One of those prosecuted was Lisa Brennan. She was convicted of stealing £3,000 in 2003, following a not guilty plea, and whilst she avoided prison (a six month sentence suspended for two years), the impact of the conviction led to her marriage ending, her bankruptcy  and being forced to sell her home. Her conviction was quashed in April 2021.

During his evidence to the inquiry on 11 January 2024, Mr Bradshaw was asked about the witness evidence he produced as part of the investigations/prosecutions which asserted that the Post Office had “absolute confidence in the robustness and integrity in the Horizon IT system”. He explained that whilst he signed such statement, it was written by lawyers. He agreed that the statement should probably have included a line that they were not his words.

Although these statements were in a criminal context, this article focusses on witness evidence in civil claims and specifically, the issue of the statement being the evidence of the witness, not of a third party, including lawyers.

Witness statements in civil cases

Rules relating to witness evidence are contained in the Civil Procedure Rules (CPR) Part 32 and its Practice Direction (PD). Gone are the days which my training supervisor waxed lyrical about some 30 years ago, when parties did not exchange statements and no one knew what the other side was going to say until that witness spoke at trial. Today, witness evidence has to be produced, the written statement containing the evidence that the witness would give orally as their evidence in chief. A witness statement must comply with the requirements of PD 32:

It is imperative that witnesses know that the evidence they give in a witness statement is theirs alone, and they should be given the opportunity to amend any statement drafted for them by lawyers, so that the statement is their own evidence in their own words. It is vital that lawyers drafting a statement for a witness ensure that the evidence in the draft reasonably reflects the witnesses evidence, in their own words, not what the lawyer may hope the witness to say.

Whilst rules in the Business Courts expand on the above, they rely on the same basic principle that a witness should be giving his/her own evidence. In Mackenzie v Rosenblatt Solicitors [2023], Mr Justice Fancourt dealt with witness evidence adduced in a solicitor’s negligence claim. He was concerned that some of the witnesses gave oral evidence that was not consistent with their written statements, assuming that those statements were in the witnesses own words. He concluded that the statements were, “the careful work of a legal team … (which) resembles a position statement seeking to advance a case”.

Some years ago we received statements from various claimants all pursuing damages for ‘holiday sickness’, instructing the same firm of solicitors. All of them felt “a little ginger in the morning … (after their illness had started)”. Some of those claimants were found to have been fundamentally dishonest as the witness evidence relied on could simply not have been their own evidence.

Comment

Producing thorough and proper witness evidence benefits the witness and the client. It takes time, but it is time well spent. Having a case fall apart because a witness has given evidence because they felt in some way compelled to do so, for various reasons, is of assistance to no one. If evidence from a witness does not support a case, it is much more preferable to know that when witness statements are being produced rather than at trial.

It will be interesting to see how this issue develops in the Post Office inquiry and elsewhere, but the narrow issue of this article shows how important proper witness evidence is, and how devastating incorrect witness evidence can prove to be.

Read other items in Personal Injury Brief – February 2024