THE ARROYO JUDGMENT 3: WITNESSES AND CREDIBILITY

This is the third in the series of posts on the  judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages; the second at the expert evidence. Here we look at the judicial assessment of the witness evidence. In particular the discrepancy between the damages claimed and the evidence called. This was a long and complex case but, as is often the case, much turned on the basic issue of witness credibility.

“”wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty. Yet as Baroness Hale of Richmond tartly observed … “it is a task which we are paid to perform to the best of our ability”. The task, as she acknowledged, is a difficult one, to be performed without prejudice and preconceived ideas.” Those observations are directly applicable to the task of fact finding in this case. The task has been difficult; and I have not ducked it.”

THE JUDGE’S GENERAL ASSESSMENT OF THE  WITNESS EVIDENCE

4. The Lay Witnesses

247.           Both before and during the trial the Claimants submitted that witnesses that they were calling were vulnerable in a number of ways that differed from witness to witness. I have kept those submissions in mind at all times when assessing the quality and reliability of the evidence that each witness has given. It is true that the environment of an English court hearing, whether the witness travelled to London or gave evidence by videolink from Colombia, was alien for all of the lay witnesses called on behalf of the Claimants and, to a lesser extent, for those called on behalf of the Defendant. It is also true that it took some time before some of the Counsel on each side shed some of the bad habits that can creep into the technique of even the most expert examiners and cross-examiners. In general, where questions were liable to confuse a witness, either the witness made clear that the question was not understood or the Court or Counsel intervened to obtain more acceptable formulations. In reviewing the evidence for the purposes of writing this judgment, there have been very few occasions where it has seemed that there was a significant misunderstanding between Counsel and the questioner.
248.           The Claimants’ lawyers consistently voiced the concern that that the witnesses may be overawed or intimidated by the proceedings or be inhibited by an undue sense of deference. All of the witnesses for whom English was not their first language were courteous and some used phrases which might not have been expected of a witness from England. A recurring example was to respond to Counsel who said “thank you” after an answer by saying “you are welcome” or “my pleasure”. But these and other courtesies did not appear to be the product of undue deference. On the contrary, the canny toughness to which I refer elsewhere in the judgment was often in evidence.
249.           The main difficulty with the lay evidence is that a number of witnesses were poor historians. This applied extensively to evidence where chronology was important. As will be seen in the analysis and review of the evidence in the Sections dealing with the four Trial Lead Cases in detail, there are a number of critically important points where I reject the evidence of the lay witnesses about when things happened. The Claimants accepted and submitted in relation to a number of witnesses that they would have difficulty in putting events in chronological order for cultural reasons. I accept and have made due allowance for the fact that this is so. But the problem went deeper than that. Reviewing the lay evidence overall as one of the last parts of writing this judgment, I find myself driven to the conclusion that the Claimants’ inherent difficulties with chronological memory have on occasions been reinforced by the process of litigation. For numerous reasons, including time constraints, this trial and this judgment have not investigated in detail how that came about; but it certainly did. The problem showed itself in ways that were both general and particular. Particular instances include the timing of Snr Sequeda’s (LC39) house move and when Snr Buitrago and Snr Manco (LC50) dug their fish ponds – there are numerous others that are to be found in the Sections dealing with the Lead Cases in detail. More generally, the mantra that the ODC pipeline caused no damage and that all of the Claimants’ troubles started with the Ocensa pipeline pervaded the evidence and was frequently wrong for the reasons that I have detailed elsewhere.
250.           The evidential difficulties were not confined to chronology. This was recognised by the Claimants in oral closing submissions. The Court was referred to text books and authorities reminding that it is always the task of the Court or tribunal to go on looking for a kernel of truth even if a witness is in some respects unreliable {Day54/15:18} ff. That is a reminder that I have kept well in mind throughout the process of writing this judgment.
251.           I accept wholeheartedly and have attempted always to apply the wise advice of the High Court of Australia that exaggeration or even fabrication of parts of a witness’ testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony and, since that possibility exists, care must be taken that an over-stringent approach does not result in an unjust exclusion from the consideration of the totality of some evidence where a portion of it could reasonably be accepted. The mere fact that there are inconsistencies or unreliability in parts of a witness’ evidence is normal in the Court’s experience, which must be taken into account when assessing the evidence as a whole and whether some parts can be accepted as reliable. I also accept wholeheartedly the observation of the Court of Appeal, made in a different context inRe A (a child) [2011] EWCA Civ 12 at [20], that “wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty. Yet as Baroness Hale of Richmond tartly observed … “it is a task which we are paid to perform to the best of our ability”. The task, as she acknowledged, is a difficult one, to be performed without prejudice and preconceived ideas.” Those observations are directly applicable to the task of fact finding in this case. The task has been difficult; and I have not ducked it.
Both during the trial and subsequently I have of course made an assessment of each witness as an individual. I have been very conscious that cultural difficulties and the fact of hearing evidence in translation may have made that process less secure than might otherwise have been the case and have made as much allowance for those features as possible. I have also, inevitably, had to look at the internal quality of the evidence, and to use the other techniques and cross-checks that will always be used by the English courts when assessing witness evidence. I have at all times looked for what the Claimants called a kernel of truth in even the least satisfactory evidence. The length of this judgment is in no small measure because of the need for extreme care in assessing the witness evidence and because, where unreliable, its unreliability was often not apparent simply on the face of what the witness came to court to say.

THE DISCREPANCY BETWEEN THE SUMS CLAIMED AND THE WITNESS EVIDENCE

The difficulty here is that the witness evidence in support of damages referred to the Schedule.

  1. The Schedules themselves were shown to be unreliable.
  2. The witnesses gave evidence which indicated that they had not read, or had not understood, what they they were claiming.
  3. One witness in particular was astonished at the sums being claimed on his behalf.
411. Each Lead Claimant in the trial cases gave evidence in their witness statement in the following terms (or very similar): “My schedule of losses has been read to me and I confirm that it is an accurate/precise description of my losses.” {D4/71/809} – Snr Sequeda; {D5/88/954} -Snr Manco; {D5/91/1035} Snr Buitrago; {D6/100/1199} – Snr Mesa; {D6/105/1250} – Snra Arango; {D8/125/1518} – Snr Velez. However, in oral evidence, Snr Sequeda said that he had no idea and that his lawyers had not told him what he was claiming {Day11/85:21}. Snr Mesa gave highly equivocal evidence in a way which left me quite unconvinced that he had seen or had read to him his revised schedule of losses {Day6/126:1} ff. Snra Arango had no idea how much she and her husband were claiming {Day7/119:2}. Snr Velez said that someone had read him his Revised Schedule of Loss but that he didn’t really understand it because he cannot read {Day4/37:1} ff.
412. In the light of this evidence I am not satisfied that the statement in the witness statement is reliable and am not satisfied that any of the Trial Claimants either read (or had read to them so that they understood it) their Revised Schedules of Losses. I am driven to the conclusion that, no doubt with the best intentions, the Revised Schedules of Losses were lawyers’ documents by which they set out what they believed might be the most advantageous formulation of a claim for their clients, rather than rigorously checking with their clients whether what was being put in the schedule was supportable. That process continued even until after the hearing, when the Claimants put in further revisions which are said to reflect the evidence. That may or may not prove to be true, but I cannot rely upon the Schedules themselves to provide support to the Claimants’ cases.

WHEN A CLAIMANT IS “ASTONISHED” AT THE DAMAGES BEING CLAIMED ON THEIR BEHALF THIS USUALLY BEHOVES TROUBLE

There is a detailed assessment of the evidence in each case.  However the issue is most apparent in the judgment concerning the claimant’s evidence in the first lead case.

928.           The Original Schedule of Loss in 2008 claimed COP 3.9 billion (c. £1-1.3 million, depending on the exchange rate), a sum which would have been hilarious if not of such potential consequence for the Defendant’s pocket. By the conclusion of the trial, the claim had reduced to COP 177.6 million (c. £66,000) plus moral damages and damages for loss of amenities. Claims made in 2008 for the reduction of the Claimants’ herd from 200 to 50 cattle, the abandonment of a programme of artificial insemination, and for loss of ability to produce eggs, maize, plantain and yucca had been abandoned. I find as a fact that the Claimants did not know what was being claimed on their behalves in 2008; and I accept that Snr Mesa’s complete astonishment at the size of the claim (which he immediately thought must be for a group – or the group – of claimants) was genuine. If the later iterations of the Claimants’ schedules of loss were either provided or read to them, they did not give them sufficient attention to enable them properly to state in their witness statements that the schedules provided a precise description of their losses. On present information I am not in a position to tell whether that state of affairs involves a failure on the part of the Claimants’ lawyers, the Claimants themselves, or both.
OTHER EXAMPLES
1829.       As in other lead cases, the Claimants in their closing submissions “recognise[d] the difficulties they face in proving the quantum of their claims: that is inevitable given (a) the distance in time since the events complained of and (b) the social, education and cultural characteristics of the Claimants. Together these mean that their records are likely to be less complete or sophisticated than would be the case with farmers in, say, this country” {C4/3.6/936}. As in other cases, this is true but it understates the true level of the Claimants’ difficulties, which go wider than simply the assessment of quantum. As I have indicated, Snr Buitrago’s memory is unreliable, particularly for questions of chronology; and, as I have found, the presentation of the Claimants’ case suffered from the fundamental flaw of ignoring the significance of the ODC ROW. Snr Manco’s memory was in some respects better; but it became clear during the trial that, in crucial respects, he was not in a position to give reliable evidence about what happened or when it happened. Quite how memory changes and works is well beyond the scope of this judgement, save to observe that there are many instances in this litigation which suggest that memory has been affected by the evidence gathering process.
1830.       As a second preliminary point, as with other Claimants, I do not accept that the Claimants were in position to give evidence that their Schedules of Loss had been read to them and that they were an accurate description of their losses. I rely upon the contents of early formulations of the Claimants’ claim when discussing the digging of the fish pools, for the reasons I give there. Otherwise, however, I do not accept that the Claimants understood their Schedules of Loss even if they had been read to them: see [411] above.

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