WITNESS CREDIBILITY, ATTENDANCE NOTES AND FINDINGS OF FACT

In Mansion Estates Ltd -v- Hayre & Co (A Firm) [2016] EWHC 96 (Ch) His Honour Judge Saffman (sitting as a judge of the High Court) went, carefully, through the principles relating to witness credibility and findings of fact. Given the implications of the findings made this is probably not surprising.

” …in my view it would be wrong to assume that it is inherently more improbable that a professional person will be dishonest than anyone else. If ever such a view validly had traction, I do not think it can do so in the modern world.”

KEY POINTS

  • The judge considered the law in relation to the burden of proof and the assessment of witness evidence.
  • Despite the existence of attendance notes prepared by the defendant the judge preferred the evidence of the claimant. The claimant satisfied the burden of proof and those attendance notes were not accepted.

THE CASE

The claimant brought an action in negligence against the defendant firm of solicitors. The allegation was that the wrong map was used when a subsale of land took place. This devalued, greatly, the value of the retained land.

THE ISSUES

The issue related to what plans the claimant gave the defendant and  what advice was given. The defendant relied upon a number of (what were stated to be contemporary) attendance notes. The claimant’s case was that the defendant’s attendance notes were fabricated.

THE JUDGMENT ON THE BURDEN OF PROOF AND CREDIBILITY

“Burden of Proof

  1. The burden is on the Claimant to establish breach of duty and causation. Notwithstanding that the Claimant asserts that Mr Hayre has fabricated his defence and that it is accordingly dishonest nonetheless the burden on the Claimant is to establish his case simply on the balance of probabilities.

Standard of Proof

  1. Re B (Children) [2008] UKHL 35 is a case concerning the application of the Children Act 1989 but it is of great relevance to the issue of what is meant by “the balance of probabilities”. The House of Lords in that case had to consider the issue of whether, in those cases where the allegation was serious or the consequences of a finding that the allegations were true might be unusually far reaching, there should be a gloss applied to the concept of balance of probability. In other words whether there is a standard somewhere in between “balance of probability”, pure and simple and “beyond reasonable doubt”.

  2. The concept that there was this hybrid was perhaps legitimised by the maxim that “the more serious the allegation the more cogent the evidence had to be to establish it“. Their lordships concluded that the standard of proof does not alter merely because of the seriousness of the allegation or the seriousness of the consequences. Neither should make any difference to the standard of proof to be applied in determining the facts. There was no logical or necessary connection between seriousness and probability. The inherent probabilities were simply something to be taken into account in deciding where the truth lay.

  3. Lady Hale had this to say

“Lord Nicholls’ nuanced explanation[7] left room for the nostrum, “the more serious the allegation, the more cogent the evidence needed to prove it”, to take hold and be repeated time and time again in fact-finding hearings in care proceedings (see, for example, the argument of counsel for the local authority in Re U (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, at p 137. It is time for us to loosen its grip and give it its quietus”.

  1. On the issue of inherent probability she went on to remark on the need to look at matters in context and not in a vacuum;

Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog“.

  1. In the same case Lord Hoffman considered inherent probability

“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator”.

  1. He went on to say;

My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not“.

  1. This was a family law case but the principles quite clearly apply in all aspects of civil law where the standard is the balance of probabilities. That is clear, not least in the observations of Lord Hoffman cited in paragraph 105 above.

  2. I make these observations because the allegations against Mr Hayre are serious and indeed it is possible that a finding that he did fabricate documents may have serious consequences for him. It led to some brief discussion with Mr Chapman during his final submissions on the standard to be applied but it is right to acknowledge that Mr Chapman did readily concede, as in my view he had to, that I must decide this case on balance without adding any gloss.

  3. I recognise however that in so doing dishonesty is less probable than honesty. As Lord Nichols put it in Re H

Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred“.

Assessment of Credibility

  1. It is also right to say something about the assessment of credibility. In his book “The Judge as Juror; the Judicial Determination of Factual Issues, published in Current Legal Problems 38, Bingham J (as he then was) made this observation:

the main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

a. The consistency of the witness’s evidence with what is agreed or clearly shown by other evidence, to have occurred;

b. The internal consistency of the witness’s evidence;

c. Consistency with what the witness has said or deposed on other occasions;

d. The credit of the witness in relation to matters not germane to the litigation;

e. The demeanour of the witness.

  1. In Thornton v NIHE [2010] NIQB 4 Gillen J suggested that the court must pay attention to these factors:

a. The inherent probability or improbability of representations of fact;

b. The presence of independent evidence tending to corroborate or undermine any given statement of fact;

c. The presence of contemporaneous records;

d. The demeanour of witnesses

e. The frailty of the population at large in accurately recollecting and describing events in the distant past

f. Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication?

g. Does the witness have a motive for misleading the court?

  1. In Mumtaz Properties v Ahmed [2011] EWCA 610 it was recognised that there were many situations in which the court was asked to assess the credibility of witnesses from their oral evidence. That task was not to be carried out merely by reference to the impression that a witness made giving evidence; it was not solely a matter of body language or tone of voice or other factors that might generally be called the “demeanour” of a witness. The judge should consider what other independent evidence was available to support the witness. Such evidence would generally be documentary but could be other oral evidence. Contemporaneous written documentation was of the greatest importance in assessing credibility and could be significant not only where it was present and oral evidence could be checked against it, but also where it might be conspicuous by its absence and inferences drawn.”

THE JUDGE’S ASSESSMENT OF THE WITNESS

The judge preferred the evidence of the claimant.

  1. The position of the Claimant is that Mr Hayre is essentially being dishonest. A finding against the Claimant would in essence be a finding that Raj has been dishonest in his evidence. This is not a case where matters can be determined on the basis that one or other party had “misremembered” or otherwise made an innocent error. It is proper to ask whether it is any more likely that Raj would seek to dishonestly mislead the court. True it is that he has something of an incentive because not insubstantial damages are at stake but it is likely too that Mr Hayre would be affected by an adverse outcome in this case. Even though he is no doubt insured, there may well be an excess and an adverse finding may result in an increase in future insurance premiums. In addition there is the reputational damage caused to a professional person in having a finding of negligence made against him or her. On the other hand it is proper to ask oneself in considering the issue as a whole if it is likely that a solicitor would possibly risk his career to avoid a finding of negligence?

  2. However, in my view it would be wrong to assume that it is inherently more improbable that a professional person will be dishonest than anyone else. If ever such a view validly had traction, I do not think it can do so in the modern world. The fact is that, while the question I pose in the last sentence of paragraph 132 is clearly a valid one, nevertheless, when putting matters into context, the factors which I have described which cast doubt on the integrity of the notes in Mr Hayre’s file together with the other factors to which I have referred at length lead me to conclude that the Claimant has surmounted the “inherent improbability” hurdle.

  3. Finally, I come to consistency and demeanour. Both witnesses would not be swayed from their long established and consistent positions. Both gave their evidence forcefully and unhesitatingly but I have to say that I detected indignation in the demeanour of Raj about the conduct of Mr Hayre which suggested to me that he did genuinely believe that the Claimant had been wronged. That is by no means anything like a determinative factor but it must weigh to some small extent in the scales.

  4. Taking all matters into account I have concluded that on balance and taking account of how that standard of proof is to be considered in the light ofRe B that I prefer the evidence of Raj to that of Mr Hayre and that accordingly the Claimant has discharged the burden upon it of establishing as a fact that Mr Hayre was told of the subsale in December 2006 and that on 2 November 2007 Raj furnished Mr Hayre with the plan signed by him and which is to be found at page F220 of the bundle. I find that the plan was added to the TP1 after it had been signed[10] and that the wrong plan was added. I further find as a fact that Mr Hayre did not advise Raj of the access problems. In reality he would not need to (at least as regards the Car Park and the road) on the basis of the plan that, as a fact, I find that Raj had given him because there were no access problems to that extent.

  5. It is a sad and highly regrettable finding that the attendance note of 2 November misrepresents the true position as I find it to be and it is not a conclusion that I reach lightly. I have given much thought not only to the matters in Mr Hayre’s evidence that have troubled me but also those in the evidence of Raj and which I summarise from paragraph 112 above. I conclude however that those issues do not undermine the compelling factors which count against the Defendant which go to the central issue of what plan was given to Mr Hayre and what advice was given on 2 November.”

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