The decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd  EWHC 2866(TCC) gives a working example of the dangers of not taking a full witness statement and exploring issues of importance with a witness. The judge stated that if a full and proper witness statement had been taken the litigation would have been avoided.
The claimants brought an action against the defendants alleging professional negligence. That action was dismissed. A second hearing took place on the issue of whether the claimants should pay the costs on an indemnity basis.
THE WITNESS EVIDENCE
The defendant argued that witness evidence taken on the claimants’ behalf was misleading and deliberately so.
- The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record[ed] all of his relevant evidence”. The claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. In the event, the defendant’s solicitors proved correct. Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation [judgment, paras 67, 92 and 95]. The inescapable inference (said Mr Lixenberg) was that the claimants either deliberately put forward a selective version of the evidence that Mr Thomas would give or failed adequately to explore the true nature of his evidence despite being asked to do so. Either way, the reliance placed on Mr Thomas’s evidence was unreasonable in a high degree.
THE STATEMENT WAS NOT DELIBERATELY MISLEADING BUT TAKING A PROPER STATEMENT WOULD HAVE PREVENT THE CLAIMANTS’ LOSS AT TRIAL
The judge rejected the submission that the statement had been taken in a deliberately misleading way. However the failure to take a statement had a highly significant effect on the litigation.
“As for the use of Mr Thomas’s witness statement, this may be seen as unfortunate but not, I think, as improper or unreasonable to a high degree. It is important to remember that Mr Thomas did not have any specific recollection of the Property or his communications with the defendant. This meant that the contents of the witness statement depended, to a greater degree than might normally be the case, on the angle of approach and the focus of the enquiry. The statement also was in the nature of a response to the factual case of Mr Wheatley , whose oral evidence added materially to the account of how Mr Thomas’s advice was elicited in the relevant conversation. The result of all of this was that a statement that responded in perhaps a rather literal way to the defendant’s evidence proved not to have explored avenues of enquiry which, when followed at trial, were damaging to the claimants’ case. As mentioned above, the defendant’s solicitors expressly raised concerns about Mr Thomas’s statement. But I am not told that they produced a statement of their own from him or specifically challenged particular matters of fact or assertion. I do not at all think that the statement obtained from Mr Thomas by the claimants’ solicitors was drafted with a view to being misleading, and it seems to me that it was not unreasonable of them to rely on it, although the loss of the case at trial might possibly have been avoided if they had explored the issues more widely and intensively with Mr Thomas”
THE DANGERS OF TAKING EVIDENCE IN A ONE-SIDED MANNER
This illustrates the dangers of failing to explore the evidence of a witness fully. The statement in this case was not deliberately designed to deceive but the evidence had not been fully explored. In particular the person taking the statement had failed to consider the weak aspects of the case with the witness. This turned out to be a dangerous practice. When the witness was called he supported the other side’s case.
There is a real danger of “forensic myopia” when engaged in the task of collecting evidence. Taking a statement on a limited basis can have grave consequences. It can deceive a party as to the strength of their own case; it can lead to fundamental problems at trial. Perfectly reasonable offers of settlement can be ignored. For litigants the results can be catastrophic.
OTHER PLACES TO LOOK
The Kellie case provides an object lesson of the dangers of “confirmation bias” and the need to understand the “psychology of investigations” set out in the earlier blog “Evidence and Psychology: Guidance from the East”
It also pays to read The Questions you Ask will determine the Answers you Get.
A REMINDER OF THE KEY POINTS
The actual process of investigation can prejudice the witness results. This can happen on the part of the person taking the statement and not just the witness. There is a tendency to seek out evidence that supports a view and overlook or ignore the evidence that contradicts it.
PRACTICAL INTERVIEWING TECHNIQUES”
- Ask open questions.
- Use alternative techniques if the interviewee’s memory is particularly weak or vague.
- Have a thorough documentation retention process inplace.
- A person making an investigation should take measures to insulate themselves from confirmation bias.