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06th January 2017

The case of the unconvincing witness

Two recent construction cases - one arising from a development of Port facilities (Djibouti v Boreh [2016] EWHC 405 Comm) and the other a hotel and resort development claim (Harlequin v Wilkins Kennedy[2016]EWHC3188 TCC) - have provided the High Court with a further opportunity to warn those readying themselves for trial against the coaching of witnesses.
Whilst the importance of documentary evidence in deciding the outcome of a dispute is well recognised and contributes to high level of pre-trial settlements in civil litigation, for those cases that are not compromised and do end up being tested on the full span of the evidence, the value of witness testimony on the day cannot be underestimated. The experience of giving evidence ‘from the box’ though, can be a challenging experience for even the strongest of characters and constitutions and whether a witness will ‘come up to proof’ (which depends in no small part on how they behave when on the receiving end of broadsides of testing cross-examination) will always be unpredictable. This has led to a market in ‘witness training’ as parties do everything they can to reduce the risks that their case will break down due to unconvincing testimony from the stand. In that lies the danger.

Although it is important that any witness who is to appear at trial has a keen understanding of what a trial is like and it is good practice to educate a witness on that, the Courts have long made clear that training a witness in how to present his or her evidence is unacceptable and can be highly prejudicial. It seems from the Djibouti and Harlequin cases however that parties are still prepared to run the gauntlet of trial with coached witnesses. In both cases, the cost of doing so was laid bare.

In Djibouti, Flaux J put it (somewhat sympathetically of the witness in that case) in this way:

“…Whilst I am not suggesting that witness training in itself is improper, (provided that it does not amount to coaching of a witness as to what to say, which would be improper)it is to be discouraged, since, as this case demonstrates, it tends to reflect badly on the witness who, perhaps through no fault of his or her own, may appear evasive because he or she has been “trained” to give evidence in a particular way.”

Dismissing the evidence of the principal witnesses on both sides in Harlequin, Toulson J was equally critical of ‘coaching’. In agreeing with Flaux J (albeit less sympathetically of the individuals concerned), he pointed to the fact that the training one of those witnesses (someone he described as “singularly evasive”) had evidently received:

“…exacerbated [his] natural tendency to avoid answering any difficult question…”

The unconvincing nature of the evidence was exposed by the witness’s:

…agonising attempts…either to suggest that he was not really involved or to rewrite [a] document…”

The Judge added:

“…Such attempts [of the witness] to distance himself from relevant events were, at times, almost risible…”

The upshot of such unreliable evidence was that:

“… the Court [was]in the unenviable position of having to tell the story, and make findings of fact, in circumstances where the evidence of the two crucial witnesses was fundamentally flawed.”

The unconvincing testimony of these witnesses, was in stark contrast to other witnesses in the case; one of whom the Judge described as honest, straight forward and compelling and another as:

“…always doing her best to assist the court…”

So, how convincing would you be if you had to give evidence at a trial?

For further information on the firm’s litigation and dispute resolution services please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.
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