The decision of Mr Justice Norris in Redstone Mortgages Ltd -v- B Legal Ltd EWHC 3390 (Ch) deals with several important issues relating to evidence in civil cases. In particular the relevance and admissibility of “quasi expert” evidence and the procedure to be adopted when a document is not admitted/”alleged” to be forged. Further it contains interesting observations of the reliability of witness evidence.
The action was a claim in negligence by the purchases of mortgage based securities against a firm of conveyancing solicitors. The court was determining various preliminary issues and involved four selected cases.
(1) IRRELEVANT AND INADMISSIBLE EVIDENCE
The judge heard evidence from a conveyancing solicitor
- Before dealing with the detail of these documents I should make one general point. I received extensive written and oral evidence from Mr Matthew Duncan, a solicitor and former partner of Sidley Austin Wood & Brown. He was then and is now a specialist in structured finance (and in particular residential mortgage backed securities) and in the establishment of residential mortgage lenders. He described himself as “one of the most experienced London-based solicitors practising in this field”. He was the architect of the business structure and the draftsman (or at least the leader of the team of draftsmen) of the documents embodying the commercial relationship between Redstone, Beacon and B Legal; and he was fully conversant with the pre-transaction negotiations between the various parties. His evidence consisted of a blow-by-blow account of the circulation of various drafts, of the advice received, of the various amendments made and of what was intended by them, and of a general commentary upon the documents. His evidence included his analysis of the liabilities of B Legal upon entering the Legal Services Agreement and of who was entitled to enforce those liabilities and under what agreement. I do not regard this evidence as of assistance (or indeed as admissible).
- My primary task is to ascertain as a matter of fact what were the terms of the Retainer and then to determine as a matter of law what, upon the true construction of the Retainer, were the duties thereby imposed upon B Legal, whether expressly or implicitly. Pre-transaction negotiations are not an aid in this task: nor are the subjective intentions of the draftsman. The interpretive process of course includes a consideration of the objective facts about the circumstances of the transaction: to that extent alone Mr Duncan’s evidence assisted.”
This is not the first time we have seen a witness attempt to go outside their remit and set out matters which are, in essence issues of law or construction.
(2) ALLEGING A DOCUMENT WAS FORGED
An issue arose at trial as to whether a document was genuine. The judge was totally clear in his view that an allegation of forgery had normally to be clearly set out and pleaded.
- Proceedings commenced. In paragraph 20 of its Defence served in April 2012 B Legal relied on the Sher Memorandum. In its Reply dated 18 July 2012 Redstone simply did not admit whether or not any report had been made to Beacon in the form of the Sher Memorandum. By the time of trial Redstone did not admit the authenticity of the Sher Memorandum. On the last day for so doing (22 November 2013) it served a Notice pursuant to CPR 32.19 requiring the document to be proved at trial. It does not plead any positive case that the document is forged or lead any evidence seeking to establish falsity.
- Requiring a party to “prove” a document means that the party relying upon the document must lead apparently credible evidence of sufficient weight that the document is what it purports to be. The question then is whether (in the light of that evidence and in the absence of any evidence to the contrary effect being adduced by the party challenging the document) the party bearing the burden of proof in the action has established its case on the balance of probabilities. Redstone cannot (by a refusal to admit the authenticity of a document) transfer the overall burden of proof onto B Legal, any more than it could do so simply by refusing to admit a fact.
- The question is therefore whether any evidence as to the provenance of the document has been produced, and if it has then whether (although not countered by any evidence to the contrary) such evidence is on its face so unsatisfactory as to be incapable of belief. It is vital that the process of challenge is fair. Criticism of the evidence about the authenticity of the document cannot amount to a covert and unpleaded case of forgery. If a case of forgery is to be put then the challenge should be set out fairly and squarely on the pleadings (and appropriate directions can be given). If the charge is that a witness has forged a document (or has been party to the forgery of a document) and the grounds of challenge have not been set out in advance, then if the questions are not objected to the response of the witness to the charge must be assessed taking into account the element of ambush and surprise.
(3) DRAWING INFERENCES FROM ABSENT WITNESSES
One participant in the conveyancing process was not called. The issue was whether the court was entitled to draw adverse inferences from the failure to call certain key witnesses.
- The author of the Sher Memorandum was Sarah Lloyd. She was not called as a witness although her whereabouts were known. Mr Chaisty QC invited me to draw an adverse inference from this namely that if called she would not have said that the Sher Memorandum was authentic. This submission in my judgment misapplies the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority  PIQR 324. In certain circumstances the Court is entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give. There must however be a case to answer raised by the party asking for the adverse inference to be drawn, some evidence (however weak) adduced by that party on the matter in question, before the court is entitled to draw the desired inference. Here Redstone runs no positive case and has adduced no evidence to raise the case that the Sher Memorandum is inauthentic: it has simply put B Legal to proof of authenticity. So the only question is whether the evidence which B Legal chooses to call is sufficient to throw upon Redstone the burden of adducing evidence (either direct evidence or evidence by inference from other established facts) to prove on the balance of probabilities that advice was not given about the identity of No.38 which would have been given by a reasonably competent solicitor.
- I take the same view of Mr Chaisty QC’s submission that an adverse inference is to be drawn from the failure of B Legal to call the directors of Beacon.
(4) ASSESSING THE RELIABILITY OF A WITNESS
Remember that the judge is not assessing the witness in terms of honesty. Indeed the Court of Appeal has said, in clear terms, that “honesty is not synonymous with accuracy. Here we see a clear view taken of a honest witness.
- At trial B Legal called Mr Bertaut who gave evidence of the Sher transaction based on his recollection (made when he was contacted in connection with this case in November 2012) enhanced by a refamiliarisation with the Beacon underwriting file and documents from B Legal’s file. This enabled him to say that he had received the Sher Memorandum and had referred the file straight to Caroline Venn, a matter he remembered because it concerned “a query I had never come across before” and because “the combination of circumstances” meant that the case had stuck in his mind. He recalls writing the “Post-it” tab when he walked over to Sarah Lloyd’s desk with the file and Sarah Lloyd was unable to speak to him. He recalls that afterwards they went outside for a cigarette.
- I was unimpressed by this inauthentic detail. Whilst I do not accuse Mr Bertaut of conscious fabrication (he has no apparent incentive to perjure himself) the breezy confidence with which he gave and elaborated his evidence of what was at the time a routine transaction (part only of the land in a registered title was being mortgaged) occurring 6 ½ years earlier left me with the distinct impression that this was not recollection but reconstruction of what must have happened, undertaken out of a desire to be helpful. (The “curious combination of circumstances”, which I take to refer to the knocking together of No 36 and No 38 but the retention of both addresses on the register, in fact only came to light in August 2008, long after Mr Bertaut had left Beacon). So I do not rely upon his evidence as taking me beyond the documents themselves.
OVERVIEW: AN EVERYDAY TALE OF WITNESSES AT TRIAL
I am sure that this case is of interest to conveyancing and property lawyers who will, inevitably, be looking at different aspects of the case. However it serves as a useful illustration of the way in which the courts often treat witnesses and witness evidence.
FURTHER READING ON THESE ISSUES
On credibility and witnesses
- Giving evidence is a grizzly business: how do the courts assess whose account is correct?
- Litigators must know about credibility
- Witness statements and witness evidence: more about credibility
- Which witness will be believed? Is it all a lottery?
- The credibility of witnesses, joint meetings and overreaching experts a case to point.
- More on witness credibility
- The witnesses say the other side is lying: what does the judge do?
- Civil evidence and witness statements: here the catch – the judge can accept some of the evidence some of the time.
On witnesses giving “expert” evidence
- Local Government Lawyer on Do I want your opinion?
- Witness statements are for facts: knowing the difference between evidence and submissions and why it matters
On the matters that a court can infer from the absence of evidence or witnesses
- An article in the Local Government Lawyer: Silence is not necessarily Golden
- What presumptions should a judge infer when party is debarred from calling witnesses