EVIDENCE, RETAINERS, ATTENDANCE NOTES AND WITNESS CREDIBILITY

There have been a number of recent cases where disgruntled clients have attempted to sue their lawyers.  The judgments highlight the difficulties for trial judges who have to assess evidence after some lapse of time.  They also highlight the importance of contemporaneous documents, attendance notes and, in the case of Lyons -v- Fox Williams LLP [2016] EWHC 2427 (QB) the need for a detailed retainer.

THE CASE

The claimant was bringing an action against  his former solicitors alleging negligence when the claimant was attempting to bring a claim under various insurance policies.

THE CHALLENGE FACED BY THE TRIAL JUDGE

Mr Justice Turner outlined the challenges caused by the evidence.
  1. The resolution of this issue has been bedevilled by a number of problems:
i) The dispute over the scope of Mr Custance’s retainer did not arise until years after the events to which it relates. Consequently, for the most part, the independent recollections of the parties and witnesses on a considerable number of issues have either been extinguished or, at least, substantially diminished by the passage of time.[3]
ii) Mr Custance took very few attendance notes. Those which he did take tended to be both frugally drafted and Delphic.
iii) Such attendance notes as have been disclosed were unearthed by Mr Custance in or about March or April 2015 following an unrelated spring clean of his office and well after proceedings had been commenced. As a result the parties’ respective contentions had, at least in part, already been crystallised in ignorance of their contents.
iv) It is common ground that the scope of Mr Custance’s retainer was expanded in some respects after he sent his initial letter of retainer but the extent of such expansion is disputed and was never formally recorded in writing.
v) There is a very considerable volume of relevant email traffic but the evidential value of this is degraded by the fact that, for the most part, it has been drafted in a conversational and informal way.[4] Some of this material is clearly and reliably relevant to the issues which have arisen between the parties. Some is equally obviously not. Yet there remains an extensive and evidentially impressionistic hinterland in which it is not always immediately clear what issues are being referred to without giving careful consideration to the context in which any given email was sent.

THE TERMS OF THE RETAINER

If anyone has any doubt about the importance of a retainer letter they should consider this.
The Scope of the Retainer
  1. Mr Custance’s engagement letter clearly identifies the scope of his retainer to include advice on the AD&D claim. The claimant seeks now to invite me to infer that LTD was also included. However, I am in no doubt that if that had been the intention of the parties the letter would have been unambiguous on the point. It is to be noted that, having identified the AD&D and misrepresentation issues, the letter goes on to say: “In order to advise on these points…”. This clearly indicates that what follows is to be interpreted as being directed towards these issues and not towards LTD cover. Further, the claimant expressly agreed to the terms of the retainer letter in an email sent by way of response four days later. The claimant is an astute businessman and I am satisfied that if he had expected to be advised on LTD issues he would have expressed immediate written concern that Mr Custance’s letter did not make specific reference to them. I thus reject his suggestion that there was any conversation between them suggesting that LTD formed part of Mr Custance’s brief at this stage.

CROSS-EXAMINING ON THE BASIS OF AN INACCURATE WITNESS STATEMENT

There are many examples of the judge considering the issue of credibility in the judgment. There is an interesting example of a witness being cross-examined on the contents of their witness statement.  The judge was considering a witness called by the defendant.

  1. I found Mr Mandel, in general, to be an elusive and protean witness. His independent recollection was, understandably, considerably diminished by the passage of time, as he realistically admitted, with respect to a number of issues. Notwithstanding this, he repeatedly fell into the temptation of adding a gloss to the documentary evidence with reference to speculation as to what might have been said but not recorded. In one exchange during cross examination he was asked, in the absence of any independent recollection on his part, if he accepted that the best that could be done would be to follow what the documents revealed. He replied: “I would say that’s the best we can do. Unfortunately, it may not be the most accurate.” In my judgment, this response went beyond an expression of natural caution but amounted to a wistful recognition that he had, in supporting the claimant’s case, exposed himself too far beyond a position which could be defended on the strength of the contemporaneous documentation. On more than one occasion he was shown to have made assertions in his witness statement which were unsustainable. The following exchange provides an example:

“Q. But you say, you see, in paragraph 35 of your witness statement:

“If the letter was not sent, I can be reasonably confident that I would have discussed its contents with Mr Custance the next time I spoke to him.”

You are trying, through your witness statement, to imply that you would have had a discussion about LTD with Mr Custance. Is that really your reconstruction of all this, Mr Mandel?

A. As I say, I don’t recollect the details of the conversation. It’s possible I could have mentioned it in passing or I may not have mentioned it. I just don’t know.

Q. So what you say in your witness statement is simply wrong, isn’t it?

A. That I believed that Fox Williams was advising –

Q. No. “I can be reasonably confident that I would have discussed its contents …”

What you have done in the previous paragraph, you see — or someone has done it for you — is to highlight in bold the bits that relate to LTD.

A. Right.

Q. You can see what this is trying to imply, isn’t it? It’s plucking a passage out of the letter which wasn’t even sent, putting it in bold, and saying, “Well, although it wasn’t sent, I’m reasonably confident I would have discussed it”. That’s just simply not your reconstruction of events, is it, Mr Mandel? It doesn’t fit with the documents.

A. As I say, I don’t recall the conversation. Since my discussions with AON or my correspondence with AON covered both LTD and AD&D and since we were concerned about generally lowering the temperature and making people aware that we were aware of all the policies and the situation — I may have mentioned it, but I do not remember the conversation specifically.

Q. So what you said in your witness statement is wrong, isn’t it? You are not reasonably confident that you would have mentioned LTD, are you?

A. I guess I’m not reasonably confident, that’s correct”.

SECRET RECORDINGS

There was a surprising development on the sixth day of the trial.

  1. On the sixth day of trial, the claimant disclosed for the first time a transcript of a telephone conversation he had had with Mr Turowski on 13 April 2011 and had secretly recorded. The purpose of adducing this evidence was to refute the suggestion that he had colluded with Mr Mandel to assert inaccurately that English law and jurisdiction were agreed with Mr Turowski. The transcript revealed that the claimant was persistently trying to persuade Mr Turowski to change his “statement slightly just to say, I mean as I said, you and I we did talk about English law.” His repeated, importunate attempts to get Mr Turowski to change his statement reveal just how determined the claimant can be when trying to recruit a witness to his cause. To this court, he attempted to make a virtue of the fact that throughout the conversation he was asserting he wanted Mr Turowski to tell the truth. However, there would have been no point in his recording the conversation unless he kept open the option of deploying it at some later stage in the EY litigation. To extract a concession from Mr Turowski in the context of a conversation in which the claimant himself was not heard to be asserting the accuracy of his account would render the evidence tactically unusable. He could hardly have made much subsequent forensic use of a recording in which he had been heard to ask Mr Turowski to tell lies and I am satisfied that his protestations were aimed at a future potential audience. Mr Turowski’s responses to the claimant in the transcript reveal that he was finding the pressure under which he was being put to be distinctly uncomfortable. Despite the fact that he had been, in broad terms, an ally of the claimant in his dealings with EY and that he was unaware that his comments were being recorded, he did not make any concession to the effect that the contents of his statement were inaccurate.”

AND THE RESULT?

The claimant’s action failed. The reasons for the failure included the fact that the retainer with the defendant did not include the matters complained of.

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