WITNESS CREDIBILITY WHEN BOTH SIDES ARE NOT WHOLLY TRUTHFUL: THE APPROPRIATE APPROACH

This blog has looked, many times, at the approach that the courts take in relation to conflicting witness evidence. Particular problems arise when both sides are being less than truthful.  Many of these principles involved have developed out of hard fought commercial disputes. However they were considered and applied by Sir Robert Nelson in ABC -v- West Heath 2000 Ltd [2015] EWHC 2687 (QB) in the much more difficult and sensitive context of a personal injury action for sexual abuse.

THE CASE

The claimant was seeking damages for sexual abuse she suffered whilst a pupil at a special needs school. She had behavioural problems and some communication and memory difficulties.  The allegations were denied by the third party, Mr Whillock, who was Vice Principal of the school at the time.

THE JUDGE’S REVIEW OF THE EVIDENCE

The judge concluded that neither the claimant nor Mr Whillock had been truthful.

  1. I am satisfied that neither the Claimant nor Mr Whillock have been fully truthful in their evidence or in their dealings with others.
THE APPROPRIATE APPROACH OF THE COURT TO CONFLICTING EVIDENCE

The judge found that the third party had lied on numerous occasions.

  1. I conclude therefore that the third party is a wholly untrustworthy witness but I have also found that there are various aspects of the Claimant’s evidence which cannot be regarded as wholly reliable. As the burden of proof lies on the Claimant I am conscious of the fact that any exaggeration of her claims requires me to consider her evidence and the issues with considerable caution. I note the decision in Armagas Limited v Mundogas S.A. 1985 WLR640 as to how to deal with credibility issues when there is a substantial conflict of evidence such as there is here. The advice of Lord Goff in that case was where such conflict exists reference to the objective facts and documents, to witnesses motives and the overall probabilities can be of very great assistance in ascertaining the truth. The witnesses themselves however have to be assessed, especially in the light of objective facts and documents and overall probabilities.
  2. I perform that task here. I note that once the abuse was reported the Claimant has given a clear and consistent account of a course of conduct by Mr Whillock culminating, she alleges, in an act of sexual intercourse which she did not consent to. I found her account of a gradually developing and increasingly intimate relationship persuasive in itself and on the probabilities. I noted that when she gave her evidence that Mr Whillock did start to touch her and said when challenged, “yes it did happen” she did so with a quiet nod of the head, an almost internal gesture. I also noted that she appeared to be distressed when describing the events in the car at the motorway service station. The fact that I found part of her account persuasive and convincing does not mean however that I accept her evidence in total.
  3. I am equally satisfied that Mr Whillock lied to the police, to Mrs Wells, and to the court. His denial that he was sexually attracted to the Claimant and his evidence that he didn’t particularly enjoy the Claimant’s company, no more than any one else’s, was wholly against the weight of the evidence and as untruthful as it was unconvincing. The same applies to the initial denial of encouraging the Claimant to send him indecent photographs.
  4. Nevertheless the fact that I have found that the Third Party to be a thoroughly unreliable witness does not mean that every aspect of his evidence is untrue.
(The judge accepted that inappropriate sexual contact had taken place but not that there had been rape or penetrative intercourse).

THE GUIDANCE IN ARMAGAS -V- MUNDOGAS

Here we have guidance given in a shipping case taken and applied (extremely sensitively) in the context of difficult issues in a sexual abuse case.  That guidance from Lord Goff:

Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” [emphases added].

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