The judgment of Mr Justice Blair in Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust  EWHC 2627 (QB) deals with many complex issues of causation and law in a difficult clinical negligence case. However I want to deal with just one, almost incidental, comment that highlights a fundamental problem with witness evidence: whose evidence is it anyway?
The claimant had been rendered effectively blind after medical treatment. He alleged negligence in that treatment. On of the doctors involved in that treatment, unusually, gave evidence on the claimant’s behalf.
THE JUDGE’S COMMENT ON THE DOCTOR’S EVIDENCE
“It is also appropriate to say something more about Mr Benson. As was pointed out on behalf of the claimant, in a clinical negligence trial it is unusual to have one of the clinicians directly involved give evidence for the claimant. It was suggested on behalf of the defendant at one point that he might be less than impartial since he carried out the surgery on the claimant at the material time. However, there is no complaint about his surgery though in the event it was not successful in restoring sight to the claimant’s left eye. Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers), I found him overall to be a good witness who did his best to assist the court. “
THE PROBLEM THIS HIGHLIGHTS
There is, understandably, a degree of scepticism as to how much witness statements represent the “evidence” of the witness. There are numerous examples on this blog.
THE ABRAMOVICH CASE: THE INDUSTRIOUS PRODUCT OF LAWYERS
In Berezovsky -v- Abramovich  EWHC 2463 (Comm) Mrs Justice Gloster DBE commented on the history of the litigation and length of the witness statements and observed;
“It also led to some scepticism on the court’s part as to whether the lengthy witness statements reflected more the industrious work product of the lawyers, than the actual evidence of the witnesses.”
THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT
This was written by six highly experienced circuit judges.
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically. This reflects badly not only on the witness, but on the whole case presented by the party calling the witness.” (11.1).
HH JUDGE OLIVER-JONES QC: LITIGANTS IN PERSON ARE BETTER THAN LAWYERS
“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.
Smith –v- J&M Morris (Electrical Contractors) Limited.  EWHC 0025 (QB
PREVENTING A CONFLICT BETWEEN THE LAWYER AND THE CLIENT OR WITNESS
The task of the lawyer is clear, to obtain and record the evidence and not produce it. There should be no conflict between the lawyer and the client. The lawyer’s main task is to ensure that the evidence is complete and accurate. I am not concerned, in this post, with the ethics of drafting, that has been considered in detail elsewhere on this blog. I am concerned with protecting the interests of both the client and the solicitor and ensuring that the:
- The witness is fully aware of the significance of the documents they are signing.
- There is a clear record of the lawyer explaining the significance to the client.
The question of ethics when drafting witness statements is considered
- Drafting witness statements: Guidance from the Bar Council that every litigator should read.
- Witness statements and avoiding jail: are you protecting your clients and protecting yourself?
Posts on witness evidence and credibility generally: