JUDGES AND WITNESSES 3: “UNCHALLENGED” EVIDENCE AND CREDIBILITY

In Various Claimants -v- Giambrone [2015] EWHC 1946 (QB) Mr Justice Foskett looked at issues relating to the credibility of witnesses where it was alleged that their evidence had not been “challenged” in certain respects.

“…the days of the “I put it to you” cross-examination on other matters have long since gone”

THE CASE

The action was for damages for losses incurred on an Italian development. The action was against the lawyers who, it was alleged, failed to act properly in the interests of the purchasers.

THE JUDGES VIEW OF THE WITNESS EVIDENCE

  1. I will indicate my approach to submissions made that certain matters advanced by or on behalf of the defendants were not challenged in cross-examination by Mr Robert Duddridge and Mr Shantanu Majumdar on behalf of the claimants they represent (see paragraphs 53 – 69 below) in paragraphs 17 – 21 below.

The developments in question (and some issues concerning the assessment of the evidence)

  1. I should add generally, in relation to forensic points made by Mr Flenley in particular that some matters were not challenged and thus must be accepted, that had every potential issue of fact or opinion in dispute been the subject of sustained challenge in cross-examination, the trial would have taken even longer than it did with, as I shall indicate below (see paragraphs 71 – 76), the risk that the increased associated costs would not be recovered by the claimants even if they were to succeed on the merits of the case or that the individual defendants would find themselves with a personal costs liability arising from the way the case had been dealt with on their behalves. A measured and proportionate view must be taken of this kind of contention and, of course, the general credibility and reliability of the witness who says something, particularly, though not exclusively, of a general and expansive nature, which is “unchallenged” needs to be taken into account when making an assessment of the value of that evidence. I propose, where appropriate, to take that approach to contentions of this nature.
  2. Furthermore, Avvocato Giambrone, although a lawyer, did not give evidence as an expert in Italian law and to the extent that his views of the law were given, it was not generally incumbent on those representing the claimants to challenge those views, nor was it necessary to pick up and dispute any collateral comment he might have made in an extended answer to a question.
  3. Avvocato Giambrone was often keen to set the agenda for his questioning rather than focusing on and answering directly the questions posed to him. His answers were often lengthy and expressed quickly. Throughout I felt that he was a witness for whom some credible supporting evidence was required before I could safely accept what he said. It will thus be apparent that I have approached everything he has said with a significant degree of caution. With the exception of Avvocato Virga (see paragraph 28 below), I was of the same view about the other witnesses employed by him and particularly those such as Mr Buchan, Mr Dine and Mr Klingenbergs who have known and worked with him for many years. There was a sense that all wished to be saying the same thing even if, as was the case in a number of important areas, the contemporaneous documentation did not support the combined viewpoint they wished to support and advance.
  4. I should also add that where what is in issue is the meaning of a document or series of documents, the process of elucidation is rarely, if ever, assisted by cross-examining either the drafter of the document(s) as to what was meant by the words used or by seeking the potentially self-serving opinion of someone closely associated with the importance of the meaning of the document. The answer to the issue is ordinarily resolved by reference simply to the words used in the context in which they are used. Equally, where inferences are open to be made on the basis of the totality of the evidence, the mere fact that a particular inferred conclusion was not put to Avvocato Giambrone does not mean that it has been accepted by the claimants or that I must accept it. I will highlight just one example of a number that could be advanced. Issue 20 is expressed in these terms: “Did [the defendants] allow themselves to be influenced by the interests of the vendors, developers or promoters in conflict with the interests of [the claimants]?” That is, in effect, an inference the claimants are inviting me to draw. Mr Flenley argues that because this suggestion was denied by Avvocato Giambrone in his witness statement and since that position was not challenged in cross-examination I must accept the position as Avvocato Giambrone states it. I do not accept that merely because the suggestion that what he said in his witness statement was untrue (or simply misguided) was not put specifically to him (a proposition that inevitably he would deny) means that I am bound to accept his position. It is, of course, important to be fair to a witness, particularly if serious imputations as to the witness’ honesty and integrity are being made, and there may be other areas of a witness’ evidence that need to be challenged head-on, but the days of the “I put it to you” cross-examination on other matters have long since gone. In any event, it needs to be borne in mind that what I am to determine is the collective position of “the firm” or “the practice” on an issue rather than assessing a particular individual’s attitude to or appreciation of that issue. Putting matters to an individual, even the senior person, will not necessarily assist a court in deciding on that issue.”

POSTS IN THIS SERIES

RELATED 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 case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.

11. Assessing the credibility of a witness: it is a matter of communication.

12. Evidence, costs and the credibility of witnesses. 

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