THE MALLEABLE WITNESS: ANOTHER EXAMPLE WHERE LAWYERS WERE BLAMED FOR INCONSISTENT STATEMENTS

We have looked before at cases where witnesses point to their lawyers when discrepancies appear in their witness statements.  This can occur in every type of case as can be seen by the judgment of Mr Justice Edwards-Stuart in Fluor Ltd -v- Shangzai Zhenhua Heavy Industries Limited [2016] EWHC 2062 (TCC).

THE CASE

The action concerned the quality of the fabrication of steel monopiles and transition pieces for an offshore wind farm. The claim was for about $US 400 million. The trial lasted 19 days and closing written submissions (excluding appendices) ran to over 800 pages.

DIFFERING WITNESS STATEMENTS

One difficulty that arose was the difference between statements made in the litigation and statements made in early arbitration proceedings.  The judge considered the evidence of the witnesses.

40.              Mr Hans Dekker.  He was a senior employee of Fluor who became Project Director on 1 July 2009.  He is clearly a very able executive and, in general, I am sure that he is an honest man.  However, his evidence before me was tainted by the fact that much of it was directly contrary to the evidence that he gave to the arbitrators in 2012.  In relation to his written evidence to the arbitral tribunal, he explained that his witness statements have been drafted for him by US lawyers and that he had been provided with a limited set of documents, by reference to which the statements have been prepared. He said that he had conversations by telephone with the US lawyers and that he rather naïvely relied on them to get the facts right. He said that the preparation of his witness statements in the current proceedings, by contrast, had been much more thorough, and that he had seen many more contemporaneous documents, with the result that his present evidence was much more reliable and complete than that which he gave in the arbitration.  In these circumstances, I consider that his evidence, both to the arbitrators and to this court, must be treated with a considerable degree of caution.

(In the event the claimant was only partially successful.  The judge also had some words to say about the accuracy of some of the Defendant’s witnesses).

THE MALLEABLE WITNESS

This case shows how even senior and professional witnesses can rely on lawyers to draft their evidence. It also highlights the need for lawyers to ensure that witnesses are aware that a statement is the evidence of that witness and not a legal document.

RELATED POSTS

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: