GET YOUR WITNESS TO CHECK THEIR STATEMENT CAREFULLY: OR ELSE

Many earlier posts have concentrated upon the need for care and accuracy in the drafting of witness statements. A classic example of the problems that can occur is shown in the judgment of Mr Justice Warby in David Halberstam -v- Sterm [2015] EWHC 179 (QB).

THE CASE

The claimants were seeking a declaration that certain goods taken under a warrant of possession belonged to them. The defendant denied this and the goods had been taken under a write of delivery.  The defendant filed evidence in reply. This is when the problems started.

KEY POINTS

  • A few missing words in a witness statement led to an argument that there was an offer of settlement which the defendant accepted.
  • It is essential that witnesses check their witness statements carefully prior to service.

THE DEFENDANT’S EVIDENCE

  1. The defendant’s evidence was served later that day. It set out, in greater detail, the position I have outlined above. It made clear that whilst the Rolex had been sold, the other items were in storage with Roseberys the auctioneers. A valuation by Roseberys was exhibited. The defendant’s evidence also exhibited a lower valuation by Sothebys. Sothebys’ valuation letter set out proposed auction dates for the items in and after April 2015. An inference was drawn on the claimants’ side that the intention was to sell in that way at that time. If so, there would have been a less pressing need for interim relief to be granted at the present hearing.
  2. The witness statement of Mr Plitnick contained at paragraph 37 the following:

I have offered to come to an agreement – for example that Gladstar will not sell the Paintings and Furnishings until after trial; or that I will return the items so long as Gladstar is offered proper security. I am afraid that I simply do not trust Mr Stern, though, and the order which the claimants are seeking leaves Gladstar extremely exposed, even assuming (as I fully expect) that this attack on Gladstar’s purchase, like every other attack so far, will be dismissed in short order.”

  1. The claimant’s advisers seized on this paragraph, and via their Counsel’s skeleton argument served the following morning they said that they accepted what was described as the “primary offer” made in paragraph 37. However, shortly after midday the defendant’s solicitors emailed those acting for the claimants to state that the wrong version of the statement had been signed in error by Mr Plitnick. The first sentence should have read “I considered coming to an agreement – for example that Gladstar will not sell the Paintings and Furnishings until after the trial …” etc. A revised version of the statement was served.

THE OFFER

The judge found that the (first) witness statement did not give rise to any legal liability or obligation.

The offer

  1. Mr Bates invited me to rule first on his submission that a contract had been concluded or an estoppel created by the events described in paragraphs 21 and 22 above. It was plainly appropriate to do so as it could have concluded the hearing in short order. Having heard Counsel I held that the service of the witness statement and Mr Bates’ skeleton argument did not give rise to an enforceable agreement to submit to interim relief pending trial, or an estoppel. I was not persuaded that, considered objectively in its context and within the surrounding matrix of fact, what Mr Plitnick said in his witness statement amounted to an offer to submit to interim relief.
  2. It was common ground that whilst an offer of compromise had been made, there had been no offer of either of the kinds referred to in the witness statement. The first sentence of paragraph 37 was therefore false, and known to the claimants to be false. It was, moreover, a false statement about a past fact, addressed to the court, and not cast in the form of an offer. If any such offer was to be made it would ordinarily be made by some other means. If it was to be made in a witness statement it would be spelled out plainly.
  3. I also considered this to be a case where it was clear that there was no intention on Mr Plitnick’s part to create legal relations between the claimants and the defendant, by means of a sentence in a witness statement. I was not persuaded, either, that Mr Plitnick’s witness statement contained any clear or unequivocal promise on which reliance had been placed or detriment suffered so that it would be inequitable for the defendant to resile from it.

SO THE DEFENDANT GOT OUT OF IT THEN?

The incorrect (the judge said “false”)  statement in this case did no lasting damage. However it emphasises how several missing words from a witness statement could have a major effect on the outcome of a case.  In some cases a few loose words could have a major impact on the outcome.

RELATED POSTS

This issue is also discussed in a number of other posts.

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6. Which witness is going to be believed? A High Court decision on credibility

7 Evidence, Experts & Arson: Analysing the evidence when serious allegations are made

8. Drafting witness statements: Guidance from the Bar Council that every Litigator should Read.

9. That witness statement I signed its just not true.

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: