WITNESS STATEMENTS: THE LAWYER’S DUTY NOT TO MISLEAD

There are some important observations  by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin).  The case relates to witness statements and the duty of the lawyer when they know that there are conflicting witness statements from the client. (There is an argument that it also shows the total folly of preparing and issuing a case on the basis of a witness statements that is unsigned).

“In those circumstances no responsible lawyer aware of the 2013 witness statement and conscious of their duties to their client and the court would have felt able to advance the original allegation as if it were their client’s current case unless they had first raised the inconsistency with Mr Muhyi and received instructions from him that the 2013 witness statement was erroneous and that he believed the allegation made in the original unsigned statement to be true. That, however, was exactly what the claimant’s legal team did.”

KEY POINTS

  • One of the claims in the action was put forward on the basis of an unsigned witness statement and stated that the claimant’s son had been killed whilst playing with unexploded ordinance.
  • A later, signed statement, stated that the death had occurred  directly by reason of a plane or helicopter attack.
  • Proceedings had been issued, and permission to continue granted, on the basis of the facts put forward in the unsigned witness statement.  This continued even though the claimant’s solicitor was had the new statement and knew that the facts put forward could not be maintained.

PRACTICE POINTS

  • I have already mentioned the fundamental lack of wisdom in proceeding on the basis of a statement that is unsigned.
  • Once a party knows that a pleaded case is unsustainable, careful consideration should be given as to the ethical position and the duty to inform the court and the opposing party.  Particularly if the court has, effectively, been misled.
  • It is worth remembering the guidance in the Chancery Guide section on witness statements.

19.6 Witness statements must contain the truth, the whole truth and nothing but the truth on the issues covered. Great care must be taken in the preparation of witness statements. No pressure of any kind should be placed on a witness to give other than a true and complete account of his or her evidence. It is improper to serve a witness statement which is known to be false or which the maker does not in all respects actually believe to be true. In addition, a professional adviser may be under an obligation to check where practicable the truth of facts stated in a witness statement if he or she is put on enquiry as to their truth. If a party discovers that a witness statement which they have served is incorrect they must inform the other parties immediately.

THE CASE

The claimants brought actions seeking orders that the Secretary of State enquire into the deaths and treatment of civilians in Iraq.
  1. The fourth claim for judicial review is brought by the father of Jaafar Majeed Muhyi, a 13 year old boy who was fatally injured by an explosion in Haritha, near Basra, on 13 May 2003. The allegation made in the original claim summary and maintained in the amended grounds for judicial review was that Jaafar’s injuries were caused when he was playing in the street and a previously unexploded munition blew up in his face.
  2. The basis for this allegation was an unsigned witness statement dated 23 February 2004 from the claimant, which stated:
“At around about 11am my son was in the street outside my home. He was about 10 metres from where I was watching, which was inside the house. I do not know how it came about that the sub-munition (also known as a ‘cluster bomb’) exploded and killed my son. I am not sure whether my son picked up the sub-munition or whether it simply went off when he was close by. I had a clear view of the incident.”
  1. IHAT made enquiries into the incident but found no UK record of it, no medical records relating to Jaafar and no way of verifying the nature or origin of the alleged explosive device. IHAT terminated its investigative work in June 2014 after concluding that there was no evidence to suggest that any individual member of the UK armed forces was criminally negligent. The Secretary of State decided that no inquisitorial inquiry was required. A letter dated 15 June 2015 informed the claimant’s solicitors that the reasons for this decision were (1) that the Secretary of State considered that this death did not fall within the UK’s article 1 jurisdiction and (2) that there was in any event no credible breach of article 2.
  2. The amended grounds for judicial review served on 2 July 2015 argued that it was open to an independent investigator to decide that Jaafar was killed by a British munition and that an investigation was in any event necessary to determine whether the British military had taken appropriate steps to safeguard civilian life from unexploded munitions. The amended grounds were accompanied by a witness statement from Mr Philip Shiner of PIL, the claimant’s solicitors, explaining the cluster weapons system and exhibiting evidence about the UK’s use of cluster bombs in Iraq.
  3. The Secretary of State served summary grounds of defence to the claim. After permission to proceed was granted, these were followed by detailed grounds of defence and a witness statement of Mr Sanders, both dated 28 September 2015. Mr Sanders provided evidence about the problems of unexploded ordnance in Iraq, its many origins, the work done by British forces and others to dispose of it and an information campaign undertaken by British forces to seek to raise awareness among the civilian population of the dangers of unexploded munitions.
  4. On 9 October 2015 PIL wrote to the Government Legal Department enclosing documents which were prepared in 2013 for the purpose of a civil claim for damages in which PIL also act for Jaafar’s father, Hashim Majeed Muhyi. These documents included a signed witness statement of Mr Muhyi dated 25 March 2013. This witness statement gives a very different account of the incident on 13 May 2003 in which Jaafar was fatally injured:
“I was sitting in my house with my family [when I] heard a helicopter approaching our house. Jaafar was outside playing by himself in the street whilst the rest of my children were playing inside the house. I suddenly heard a bomb close by so I immediately rushed out to check on Jaafar. … There was no military presence but I saw the helicopter flying off in the distance.
Once outside, I could see my son lying on the street. I was able to spot him immediately. As I ran over I could already see that he had been hit.”
Mr Muhyi goes on to say in the statement that he believes the British were trying to target a missile battalion of the Iraqi army, which was two streets away from his house. (I note in passing that this seems implausible, as Jaafar’s death occurred some 12 days after major combat operations in Iraq had formally been declared complete.) The witness statement exhibits a copy of Jafaar’s death certificate, which (as translated) records the cause of death as a “mine explosion”.
  1. The letter from PIL also enclosed a psychiatric report dated 20 January 2014 based on interviews between Mr Muhyi and the authors of the report. Mr Muhyi’s account of the incident recorded in this report states that “a British plane bombarded the house inflicting several wounds to his son”.
  2. The letter from PIL said that the reference in the 2013 witness statement to a helicopter had been seen by one of the claimant’s counsel team and pointed out to PIL “at the start of July this year”. Inquiries had since been made of Mr Muhyi to clarify his position. In telephone conversations on 6, 7 and 9 October he had told Ms Bethany Shiner of PIL that the 2013 witness statement reflects his current recollection except that it was planes and not a helicopter overhead; that he believes his son was killed by explosives dropped from British planes on the day in question and not from an unexploded munition which the British military had failed to clear; and that he does not recall the 2004 statement and does not believe it to be correct. The letter from PIL said that the claimant’s leading counsel had considered this information and advised that it should immediately be disclosed.
  3. A witness statement subsequently made on 1 November 2015 by Ms Shiner gave details of her recent contact with Mr Muhyi and with his brother-in-law who also claimed to have seen military planes overhead. Another witness statement dated 1 November 2015 from Ms Lucy O’Brien of PIL explained how the original, unsigned statement of Mr Muhyi had been prepared in 2004, based on instructions taken by a caseworker in Iraq.
  4. No skeleton argument was lodged on behalf of the claimant, and at the hearing Mr Fordham QC did not feel able to make any submissions in support of the claim for judicial review made in the amended grounds. However, he invited the Secretary of State to consider the allegation made in Mr Muhyi’s 2013 witness statement and resisted the dismissal of the claim.
  5. The allegation on which this claim is based that – Jaafar was killed by an unexploded munition which blew up in his face – clearly cannot be regarded as credible when (1) it is inconsistent with the claimant’s own evidence and (2) the only basis for it was a statement prepared in 2004 which was never signed by the claimant and which he has since said is not correct. Nor can the claimant’s most recent allegation that his son was killed by bombs dropped from British planes be regarded as credible given the inconsistencies between the different accounts which he has given (or been understood to give) at different times, the fact that this allegation was first made almost a decade after Jaafar’s death, the absence of any other evidence (apart from his brother-in-law’s similar account) to support it and the fact that it is inconsistent with his son’s death certificate.
  6. This is sufficient reason to dismiss the claim. But I cannot let the matter pass without recording my concerns about the way in which this claim has been handled by the claimant’s legal representatives.
  7. The first cause for concern is that, when a witness statement was obtained from Mr Muhyi in 2013 for the purpose of making a civil damages claim, PIL failed to note the inconsistency between his evidence and the allegation on which the judicial review claim was based. There was plainly no intention to hide Mr Muhyi’s new account of events as the substance of it was contained in a case summary served by PIL on the Government Legal Department on 10 May 2013 for the purpose of the compensation proceedings. However, no amendment was made to the claim summary in the present proceedings to reflect Mr Muhyi’s evidence, nor was IHAT told about it. In consequence, time was spent by IHAT examining an allegation of failure by British soldiers to clear unexploded cluster bombs, when this allegation was no longer being made (assuming that it had ever been made) by the claimant. That should not have been allowed to occur. It is clearly essential that PIL should have systems in place to ensure that information and instructions obtained from a client in connection with a civil damages claim are taken into account in any claim for judicial review relating to the same incident (and vice-versa).
  8. The second cause for concern is the more serious because it is a matter not of efficiency but of integrity. At the start of July 2015 one of the claimant’s team of four counsel noticed and pointed out to PIL that the allegation made in their client’s most recent (and only signed) witness statement was that Jafaar was killed by a bomb dropped from a helicopter (see paragraph 124 above). That allegation was obviously quite different from, and inconsistent with, the allegation originally made in these proceedings that Jafaar was killed as a result of playing with an unexploded cluster munition. In those circumstances no responsible lawyer aware of the 2013 witness statement and conscious of their duties to their client and the court would have felt able to advance the original allegation as if it were their client’s current case unless they had first raised the inconsistency with Mr Muhyi and received instructions from him that the 2013 witness statement was erroneous and that he believed the allegation made in the original unsigned statement to be true. That, however, was exactly what the claimant’s legal team did. Amended grounds for judicial review, signed by all four counsel, were served which advanced a positive case that Jafaar was killed as a result of playing with an unexploded cluster munition. That case was put forward without any fresh instructions from Mr Muhyi and without disclosing to the Government Legal Department or to the court the existence or content of his 2013 witness statement. The explanation given at the hearing for this conduct was that the deadline for the service of amended grounds for judicial review was imminent and that it was not possible in the short time available to contact Mr Muhyi to confirm whether his 2013 witness statement was correct. The fact that there is insufficient time before a pending deadline to establish the true position, however, cannot possibly justify putting forward a case which is flatly inconsistent with the client’s most recent evidence – still less can it justify doing so while concealing that fact from the other party to the litigation and the court. By acting as they did the claimant’s representatives misled the court and thereby obtained permission to proceed with the claim. They also caused the Secretary of State to incur the trouble and expense of preparing evidence and argument in response to a claim for which there was no proper basis. This was not a brief aberration, quickly corrected. The claimant’s legal representatives persisted in this course of action for over three months before disclosing the true position in early October 2015.
  9. I have throughout this litigation been immensely impressed by, and grateful to, PIL and the counsel they instruct for the dedicated and responsible way in which they have represented the interests of their clients and ensured that important issues are raised and argued. Against that background, it is all the more disappointing to encounter in their conduct of this claim such a serious failure to observe essential ethical standards.

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