“THAT PART OF MY WITNESS STATEMENT IS NOT TRUE”: NEVER A GREAT START TO A CASE

In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank.

“…it is not a promising start when a witness states on oath at the commencement of his oral evidence that his witness statement has been written in his own words and, immediately thereafter, this is shown to be untrue.”

THE CASE

The claimant was suing the bank for damages alleging double charging on his mortgage account and damages on the basis that the bank had wrongly reported adverse credit issues.

KEY POINTS

  • A witness,  in cross-examination, expressly disavowed parts of his witness statement stating that they had been put in, against his wishes, by the defendant’s solicitors.
  • On close examination it was clear that witness had been given numerous opportunities to check and revise the statement and had made no comment.
  • It is important to have in place a document chain in relation to the drafting of witness statements.

THE WITNESS EVIDENCE

The Witnesses
  1. JM has complained that NatWest’s attitude to these proceedings has not been one of cooperation in the way envisaged by the CPR and recently the subject of a reminder from the Court of Appeal, see Denton and others v T H White Ltd [2014] EWCA Civ 906 at paragraph 40. That that criticism is not unfair is demonstrated in part by NatWest’s very late and unheralded application to amend its defence and adduce evidence from a new witness to whose proposed statement a 220 page bundle of documents was exhibited, 50 pages of which was a schedule then recently prepared by the proposed witness and the remaining 170 pages of which were, at that late stage, hitherto undisclosed – and in that sense only – new documents. NatWest’s application was unsuccessful[3].
  2. At trial, JM further complained that NatWest’s case in defence to his claims has been created or structured by its solicitors. JM supported this complaint by reference, first, to the similarity between a witness statement dated 9.5.13 of Mrs Teresa Stothard (‘TS’), the partner in the firm of solicitors instructed by NatWest having conduct of the litigation, and the statement of Duncan Milton (‘DM’), a senior manager in NatWest’s debt Management Department, dated 17.1.14. It is part of a lawyer’s function to identify cogent material and there can usually be no criticism of a solicitor making a witness statement and putting material before the court as documentary evidence for the purposes of an interim hearing. JM’s criticism is that TS’s witness statement became DM’s evidence for trial. The real thrust of his point is that, when giving oral evidence, DM put his statement forward as a document written in his own words whereas the truth is that in substance it was taken from a witness statement crafted almost a year earlier by or for TS.
  3. For further justification, JM relies upon the oral evidence of another of NatWest’s witnesses, PK, who disavowed a paragraph in his witness statement on the basis that he had disagreed with it but it had nevertheless been included by NatWest’s solicitors. The paragraph is material to the arrears and reporting issues.

CLOSE EXAMINATION OF THE DEFENDANT’S WITNESSES

  1. DM is a senior manager in NatWest’s debt management department. He had no contemporaneous involvement in the matters the subject of these proceedings. Miss Nesterchuk informs me that the witness NatWest had wished to put forward is not available because she has been and is on long term sick leave. On his own evidence, the purpose of DM’s evidence is to speak to NatWest’s systems of and strategies for debt management. DM was first involved in this case in January 2014, a matter of days – or a fortnight at most – before signing his witness statement. When cross-examined about the striking similarity between his witness statement and that of TS, DM contradicted his initial oral evidence that his statement was written in his own words and volunteered that his statement came to him as a draft and that he “looked through” it to make sure he was “comfortable” with it. He said he did not know that it had been taken from an existing witness statement and he expressed surprise when JM drew the similarities to his attention. In one sense this does not matter because the main purpose of DM’s evidence is to speak to NatWest’s procedures in principle not their application, or otherwise, in JM’s particular case. However, it is not a promising start when a witness states on oath at the commencement of his oral evidence that his witness statement has been written in his own words and, immediately thereafter, this is shown to be untrue. DM had not been involved in or in reviewing or advising within NatWest on the relevant dealings between JM and NatWest and was not in a position to give evidence relating to the facts in dispute. For example, the first time DM saw JM’s letter of 30.11.09 to NatWest containing JM’s proposal was when being cross-examined by JM. Of course, anything DM might have had to say about it would have been a matter of comment and evidence of fact.
    1. HD was JM’s BRM. She has been employed by NatWest since 2001. She became a BRM in about 2005 and took over responsibility for CSL’s banking in about 2008. HD says in her witness statement that she gives her evidence in relation to NatWest’s counterclaim; in other words, she does not see herself as a witness of fact in relation to the principal issues in JM’s claim. However, there is a question as to whether and, if so, to what extent she was involved in NatWest’s management and handling of JM’s banking arrangements. JM is very critical of HD, both as to her integrity when dealing with him (for CSL and for himself) and in her evidence, and as to her competence in her dealings with him. The challenge to HD’s integrity is exemplified by evidence as to JM’s attempts to communicate with HD in September 2010. In her witness statement, and initially in her oral evidence, HD suggested that she had not received an email and a letter from JM; she gave as her explanation that she had recently married and had changed her surname with the result that communications to her maiden name might not have reached her; however, when shown an ‘out of office’ reply in her married name received by JM in response to his email sent to her under her maiden name, HD had to accept, when pressed by JM in cross-examination, that her change of surname did not prevent JM’s communications from reaching her. JM also put to HD a series of communications he had sent to her but to which he had received no reply; in fairness to HD, she referred some of these communications to a regional director, Andrew Sparham (‘AS’), but she did not acknowledge JM’s communication at all. JM’s challenge to HD’s competence included taking her to several instances of failure on her part to acknowledge, respond or act in response to communications from him; HD’s general position in answer was that she understood that someone else was dealing with JM. JM submits that HD was evasive when giving evidence and was “not up to the job” of relationship manager; on the material before me at trial, those are fair observations. My impression from HD’s evidence is that she was out of her depth as a BRM and tended to ignore or attempt to pass on rather than deal with matters that JM referred to her and that NatWest had placed within her remit. That being said, there is also evidence that within that she was not supported as she expected to be by AS, her line director, and it is not clear that HD was adequately trained for her role. There is also some force in JM’s challenge to HD’s integrity, including that, at least in relation to her attempt to explain away emails not replied to on the basis that, being addressed to her maiden name, they had not reached her, HD came to court prepared to lie on oath.
    2. PK was NatWest’s third witness. PK is a senior relationship manager. PK became JM’s PRM in 2005. By then, PK had been employed by NatWest or a related company for some 25 years. In oral evidence he referred to his banking qualifications, the breadth of his experience, and the frequency with which he attends training courses to be “upskilled on how to assist customers“. JM characterises PK’s involvement as his PRM as incompetent and “fumbling” and he criticises PK’s evidence as unreliable. I have a very different impression of PK and his evidence. When giving evidence under oath, PK was careful to correct and distance himself from matters included in his written evidence which were outside his knowledge (eg the terms on which JM’s libel action was concluded) and with which he disagreed (the principal example is referred to above). Further, when being cross-examined, PK’s answers were straightforward and at times contradicted Natwest’s internal documentation to JM’s advantage. I reject JM’s criticisms of PK and consider him to be a generally reliable witness. I also note from PK’s and JM’s evidence that PK was instrumental in assisting JM to present his financial position to NatWest in the best light. For example, after JM ceased professional practice in order to deal with the local authority’s prosecution and JM’s subsequent defamation action, it was PK who suggested that JM sever the title to 40A from that of his home in order to be able to obtain additional finance via a buy to let mortgage loan. Further, the documents in the trial bundle, including internal NatWest documents, support the proposition that, working properly within the constraints of NatWest’s policies, PK did what he could to secure financial arrangements most favourable to JM.
    3. There are two further potentially important witnesses who are said still to be employed by NatWest and who would be in a position to give important evidence. Unfortunately, neither was called by NatWest.
    4. The first, to whom I have already referred, is SB, who worked in NatWest’s mortgages department. SB appears to have had telephone conversations with both PK and JM on which NatWest rely. I have set out above my conclusion in relation to SB’s discussion with PK. As an employee in the mortgage services section at the time and as someone who was also concerned with aspects of the subject matter of these proceedings, it seems to me that SB might well have been a more relevant witness than DM.
    5. The second is AS, to whom I have also referred and to whom both HD and PK deferred as a line director and referred in their evidence. AS had written communications directly with JM and he had a meeting with JM on 2/11/10. AS told JM that JM’s communications to HD in September 2010 had not reached her probably because she had changed her name on marriage. Entirely reasonably, JM points to the improbability of that being an honest statement.
    6. AS would have been a significant witness because he met with JM and because, from some point in the latter part of 2010, he appears to have assumed overall responsibility for the handling of JM’s affairs, whether formally or de facto is unclear. It is also apparent from internal NatWest emails that, at the time when he was dealing with JM, AS himself did not know and does not appear to have been able to find out from PK or HD what the “credit implications” were in respect of NatWest’s arrangement with JM for mortgage instalments ” … to be deferred / holiday etc.”[6]. This adds considerable support to JM’s evidence and case that he was not told about adverse credit implications flowing from these arrangements. It also provides indirect support for PK’s evidence that he did not know in any detail what “credit implications” actually meant and may explain why HD did not or was not in a position to provide answers to JM’s emails and letters.

SO WHO WAS RESPONSIBLE FOR THESE STATEMENTS?

The claimant made an application for indemnity costs relying, in part, on the inaccurate witness statement.  There is a short supplemental judgment on this point, considering the criticism that was made of the defendant’s solicitors.
  1. In relation to the instructing solicitor, on the face of my judgment, particularly my addressing the evidence of Mr. Kelly, another of NatWest’s witnesses, in particular at para.27 and the paragraph before that, and in an earlier paragraph which is cross-referred to in para.26, which is para.20 of my judgment. The findings that are made there would have justified criticism of the conduct of the solicitor representing NatWest, because the evidence of Mr Kelly included that evidence with which he disagreed had nevertheless been included in his written witness statement. NatWest has waived privilege sufficiently in relation to the preparation of that witness statement for the solicitor to be able to make a witness statement which has been put before the court at the earliest opportunity, which is today, and which fully explains the circumstances in which Mr. Kelly came to make his witness statement. The solicitor’s evidence refers to the number of revisions – there were about six occasions that he had an opportunity to revise his statement – and to the fact that at the time Mr Kelly had expressed his satisfaction with the content of the evidence. Therefore, Mr Kelly’s disavowal of what was in para.26 of his witness statement came as a complete surprise to those representing the bank. On the material that is now before me, there is no basis for any criticism of the solicitors instructed by NatWest. Certainly there was none in the judgment for the reason that Ms. Nesterchuk gave in her closing submissions and has reminded me of again today, which is the exhortation by Lord Bingham in Medcalf v. Mardell [2003] 1 AC 120 about the need for judges to be extremely careful before expressing adverse findings against legal representatives where those legal representatives are not able, by reason of non-waiver of legal professional privilege, to explain and exonerate themselves. The solicitors’ conduct is now, by reason of NatWest waiving privilege, out in the open. So that is the answer to Mr Monks’ criticism in relation to NatWest’s solicitors.

LESSONS TO LEARN

This case illustrates the dangers that witness statements pose to solicitors. A witness in quandary can (and often does) blame the person who took the statement.  See the discussion in the earlier post Witness statements and avoiding jail: are you protecting your clients and protecting yourself?

PROTECTING YOURSELF

A witness signing a witness statement needs to know, at the very least,

  • That this is an important document.
  • If it is inaccurate they could have criminal proceedings brought against them.
  • That they should check the document fully and carefully and feel free to make any additions or alterations.
  • The statement is, however, one of facts and not opinions.
  • If they have any doubts about any matter at all they should raise these with the lawyer involved.

Further, as the Monks case shows, there must be a paper trail which a solicitor can point to which a solicitor can point to which gives a witness a chance to amend their statement and rectify any errors.

As was said in the previous post on this issue

“Sooner of later  you are going to have a problem. A witness is going to blame their lawyer for errors or omissions in their witness statement.  Unless there is a full and clear paper trail showing that the importance of the statement has been explained and the witness given every opportunity to draft and revise their statement, you could (quite literally) end up in the dock.”

RELATED POSTS

The question of ethics when drafting witness statements is considered

Posts on witness evidence and credibility generally:

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

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