JUDGES AND WITNESSES 4: THE LITIGANT IN PERSON AND THE ABSENT WITNESS

In Otou -v- Brierley [2015] EWHC 1938 (Ch) Edward Murray (sitting as s Deputy Judge of the Chancery Division) was in an unusual situation. A witness statement drafted by a litigant in person contrasted to a witness statement by a party who did not turn up to be cross-examined.

THE CASE

The claimant, acting as a litigant in person, was seeking damages for breach of a settlement agreement.

THE EVIDENCE

“The evidence

  1. In terms of the evidence adduced at the trial, I had a lengthy witness statement dated 25 February 2015 from Mr Otuo, on which he was cross-examined by Mr Roseman. The witness statement ranges widely over a variety of issues, some of which are irrelevant and many of which are at best tangential to the issues arising at the trial in relation to the proper interpretation of the Settlement Agreement. It includes many accusations against Mr Brierley and a lengthy and embittered recital of the history of their dealings prior to and leading up to Mr Brierley’s action against Mr Otuo that was settled by the Settlement Agreement, as well as their dealings since then. Much of his evidence appears to go to Mr Brierley’s credibility rather than to the specific issues arising at this trial. It is difficult to separate his submissions from his factual statements.

  2. I am conscious that Mr Otuo is representing himself in relation to these proceedings, and I make allowance for this fact in considering the contents of the witness statement as well as his Re-Amended Particulars of Claim, which he apparently prepared without the benefit of legal advice. In cross-examination, however, Mr Otuo was often evasive and inconsistent. Mr Roseman put to him that he had stated in his affidavit dated 6 December 2012, prepared in connection with his application for a freezing injunction or other interim proprietary relief in relation to the Properties, that he had paid Jay Thenuwara in respect of the debt listed in Schedule 2 to the Settlement Agreement, when his evidence now appeared that he had not paid Mr Thenuwara but had given him security, instead. When it was put to him by Mr Roseman that his statement in his affidavit that he had paid Mr Thenuwara was not true, he replied that he had not lied. When he was pressed on his knowledge, as an experienced businessman, of the distinction between making a payment and granting security, he admitted that he did understand the distinction and then apologised to the court to the extent that “the court felt misled by” his statement.

  3. Overall, I do not feel able to place much reliance on the content of Mr Otuo’s witness statement or his evidence given in cross-examination, except where that evidence is confirmed by contemporaneous documents or is otherwise consistent with undisputed facts.

  4. Mr Brierley provided a witness statement dated 26 February 2015, however he did not attend trial to make himself available for cross-examination by Mr Otuo. Accordingly, his evidence has not been tested, and I have not relied on it, except where it is confirmed by contemporaneous documents or is otherwise consistent with undisputed facts.”

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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