Witness evidence and how not to impress a judge
Any party that cannot produce witnesses to speak first-hand about the facts that they wish to rely on will find themselves in great difficulties at trial, as Sir James Munby noted in Darlington Borough Council.
Following the case of Woodland v Maxwell, it’s worth revisiting just how important witness evidence is and what types of evidence give judges a bad impression.
Woodland was a claim brought on behalf of a ten year old girl who suffered a serious brain injury caused by drowning whilst attending a school swimming lesson in 2000.
The judge had to recreate the events of the day when the young girl was injured by undertaking a detailed analysis and examination of all the evidence available to him. This included witnesses giving evidence of their recollections of the day in question as well as contemporaneous written accounts given by the children who were in the same class and who had been asked by their parents shortly after the incident to write down what had happened.
The judge was critical of the defendant’s witnesses whose statements and evidence contained assertions that had not been made in previous statements or to the accident inquiry. The judge noted that if these suggestions were correct, the witnesses would have said the same on the day of the accident or shortly after – but they had not done so. Matters were made worse by implausible explanations being given by the witnesses as to why these comments were missing from their previous statements.
On the claimant’s side, the evidence upon which she was relying upon included accounts given within hours and days of the accident by witnesses and hospital staff.
This should be a reminder of how important it is that early statements are prepared setting out full details as well as being consistent with the available documentary evidence.
Another recent case which shows the crucial importance of consistent witness evidence is McGovern v Sharkey. This time, the claim failed because the judge favoured the defendant’s evidence over the claimant’s evidence.
In McGovern, the judge found that the claimant had lied consistently and not been candid. When it came to the defendant’s evidence, the judge preferred this, not just because of the manner in which he gave his evidence but also because the defendant had the advantage of being able to rely on the contemporaneous notes and records and also on his usual practice. There were numerous conflicts of evidence between the claimant and the defendant and in resolving this conflict the judge looked for some degree of inherent probability or support in the medical notes and records.
This should be a reminder to everyone involved in litigation of the crucial importance of taking a detailed witness statement at the very beginning of the litigation, and sticking consistently to that statement if possible.