There is an interesting discussion of witness evidence in the judgment of Mr Justice Eder in Austen -v- Pearl Motor Yachts Ltd  EWHC 3544 (Comm). The case was opened on the basis that certain key facts in a witness statement were simply not true. This highlights the needs for solicitors to insist that statements are read carefully prior to signature.
The claimant were suing the defendant yacht manufacturer. A yacht, built by the defendant, sank having struck another yacht. The claimant alleged that that hull was not built to contractual specification. The hull was not of sufficient thickness. The defendant admitted breach but argued that the difference in thickness made no difference. The defendant argued that the collision was of such magnitude that the yacht would have sunk in any event, regardless of the thickness of the hull. Damages claimed were in excess of £500,000.
The nature of the collision and the damage it caused, therefore, were issues of key importance. In particular the size of the initial crack.
As to the suggested original length of crack of about 6 inches, this was indeed consistent with what Mr Austen said in his original written witness statement dated 14 March 2014 signed with a statement of truth. In particular, Mr Austen there stated that after sending out a mayday he went to look through the bilges to see what damage there might be. The statement continued:
“On inspection, I could see that there was a crack of about 6 inches around the port P-bracket and that water was already flowing in at a steady rate through that gap.”
In the event, and somewhat surprisingly, Mr Watthey informed me on opening that what Mr Austen had there stated was not in fact true i.e. Mr Austen had not in fact seen any crack of 6 inches. On one view, this was something of a bombshell to the claimants’ case – in particular, because the view expressed by Mr Humphries in his report was that this piece of information was “fundamental” to understanding how the hull laminate failed.
No doubt anticipating this development and in order to plug this apparently important gap in the claimants’ evidence, the claimants’ solicitors had served a few days before the commencement of the trial a draft unsigned “summary” of a witness statement from one of the divers, Mr Dikmen, which had been prepared by the claimants’ solicitors following very recent telephone discussions and email exchanges with Mr Dikmen and which purported to give evidence of the size of the crack which he (Mr Dikmen) said he had observed from the outside of the hull during a dive shortly after the grounding. At the same time, the claimants’ solicitors issued and served an application notice for permission to adduce such supposed “evidence” from Mr Dikmen. However, it appeared from a separate email from Mr Dikmen that he had refused to sign that draft summary statement in particular because, as he stated in the email, he could not remember the exact measurements of the crack.
I heard Mr Watthey’s application to adduce this “evidence” at the beginning of the trial. As formulated, this application was, in my view, misconceived. In truth, there is no jurisdiction to allow a party simply to put in evidence an unsigned “summary”. However, Mr Watthey in effect submitted that he should be permitted to put in this summary as hearsay evidence and that he would, if necessary, call either or both of the solicitors who would explain the discussions they had had with Mr Dikmen and how the summary came to be prepared. In the event, after hearing submissions from both Counsel, I rejected Mr Watthey’s application for reasons which I gave in a separate ruling and which I need not repeat. The result was that, at the start of the trial, the claimants were left bereft of any direct evidence as to the size of the initial crack.
When Mr Austen gave oral evidence, he confirmed that what he had said in his signed witness statement was indeed untrue i.e. he had never gone down to look through the bilges; and that he had never seen any crack still less any water flowing through any such crack. Mr Austen recognised that this was inconsistent with what he had said in his statement and somewhat embarrassingly could give no explanation at all as to how such an untrue statement had got into his statement nor why he had signed the statement in that form – although, by way of part explanation, he then said in evidence that he thought that the diver (i.e. Mr Dikmen) had told him at the time when he came up from his dive following the grounding that he (i.e. Mr Dikmen) had seen a crack of about 6 inches. Mr Mantle did not challenge this evidence. The result is that despite Mr Austen’s retraction of what he had originally said about the size of the crack in his statement and in this rather roundabout way, the (unchallenged) evidence before the Court based on hearsay as to what Mr Austen now says he was told by Mr Dikmen shortly after the grounding, is that the size of the crack was indeed about 6 inches.
However, I am very concerned about the circumstances in which this evidence came to be adduced as referred to above; and it does not lie happily with Mr Dikmen’s email as referred to above. Further, the fact is that the defendant has not had any opportunity of testing the evidence of Mr Dikmen. In particular, it is not clear exactly when he saw the crack and allegedly reported its size to Mr Austen. Nor has the defendant been able to test what the diver was able to see and how easy or difficult this may have been. Standing alone, I do not consider that I can place any real weight on this hearsay evidence although I bear it well in mind.
Perhaps fortunately for the claimants this incorrect witness statement did not cause irreparable damage to their case. The judge accepted a calculation, based on flow rates of water, which showed that the initial crack must be have been small.
INSISTING THAT THE CLIENT CHECK THEIR WITNESS STATEMENTS
We do not know what happened in the Austen case and the judge appeared to accept that it was a mistake. However giving evidence that a crack had been seen when it was not indicates, at the very least, that the witness failed to check the statement carefully prior to signing. Such an error would prove to be fatal to the case of many litigants.
This highlights the need for the solicitor to insist that witness statements are checked with care prior to signature. Further the solicitor should:
- Make it clear that the statement is an important legal document.
- That the failure to give a full and honest account could lead to severe penalties.
- That the statement will stand as evidence in chief and be verified on oath in court.