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PROVING IT. A PRACTICAL GUIDE TO EVIDENCE

Iqbal Mohammed

Witnesses

1. Berezovsky v Abramovich [2012] EWHC 2463 (Comm), per Gloster J:

On my analysis of the entirety of the evidence, I found Mr Berezovsky an

unimpressive, and inherently unreliable, witness, who regarded truth as a transitory,

flexible concept, which could be moulded to suit his current purposes ... sometimes

he was clearly making his evidence up as he went along in response to the perceived

difficulty in answering the questions in a manner consistent with his case .... On

occasions he tried to avoid answering questions by making long and irrelevant

speeches, or by professing to have forgotten facts which he had been happy to

record in his pleadings or witness statements. He embroidered and supplemented

statements in his witness statements, or directly contradicted them. He departed from

his own previous oral evidence, sometimes within minutes of having given it. When

the evidence presented problems, Mr Berezovsky simply changed his case so as to

dovetail it in with the new facts, as best he could. He repeatedly sought to distance

himself from statements in pleadings and in witness statements which he had signed

or approved, blaming the interpretation of his lawyers, as if this somehow

diminished his personal responsibility for accounts of the facts, which must have been

derived from him and which he had verified as his own.

2. Compared to the Defendant:

... there was a marked contrast between the manner in which Mr Berezovsky gave his

evidence and that in which Mr Abramovich did so. Mr Abramovich indeed gave

careful and thoughtful answers, which were focused on the specific issues about

which he was being questioned. At all times, he was concerned to ensure that he

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understood the precise question, and the precise premise underlying the question

which he was being asked. He was meticulous in making sure that, despite the

difficulties of the translation process, he understood the sense of the questions which

were being put to him ... To a certain extent that difference, no doubt, reflected the

different personalities of the two men, for which I gave every allowance possible to Mr

Berezovsky. But it also reflected Mr Abramovich's responsible approach to giving

answers which he could honestly support. Where he had relevant knowledge, he was

able to give full and detailed answers; he took care to distinguish between his own

knowledge, reconstructed assumptions and speculation. He was not afraid to give

answers which a less scrupulous witness would have considered unhelpful to his

case ...

3. Lord Bingham in Current Legal Problems, vol. 38, reprinted in The Business of

Judging: Selected Essays and Speeches 1985-1999, OUP 2011:

Faced with a conflict of evidence on an issue substantially affecting the outcome of

an action, often knowing that a decision this way or that will have momentous

consequences on the parties lives, how can and should a judge set about the task of

resolving it?

The normal first step in resolving primary issues of fact is, I feel sure, to add to what

is common ground between the parties (which the pleadings in the action should

have identified, but often do not) such facts as are shown to be incontrovertible.

the main tests needed to determine whether a witness is lying or not are, I think,

the following, though their relative importance vary widely from case to case:

(1) The consistency of the witnesss evidence with what is agreed, or clearly shown

by other evidence, to have occurred.

(2) The internal consistency of the witnesss evidence.

(3) Consistency with what the witness has said or deposed on other occasions.

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(4) The credit of the witness in relation to matters not germane to the litigation.

(5) The demeanour of the witness.

4. The Court of Appeal quoted the five paragraphs set out above with approval in

Bailey v Graham (aka Levi Roots) [2012] EWCA Civ 1469.

Lawyers

5. Witness training defined in R v. Salisbury [2005] EWCA Crim 3107 by Pitchford J:

What [the witnesses] would have received was knowledge of the process involved. It

was lack of knowledge and understanding which created demand for support in the

first place. Acquisition of knowledge and understanding has probably prepared them

better for the experience of giving evidence. They will be better able to give a

sequential and coherent account.

6. Bar Standards Board Guidance on Witness Preparation states that witness

familiarisation arrangements are not only permissible; they are to be welcomed.

7. However, witness coaching is strictly prohibited: Paragraph 705(a) of the Bar Code

of Conduct expressly states that a barrister must not rehearse, practice or coach a

witness in relation to his/her evidence.

8. The Guidance accepts that the line between (a) the legitimate preparation of a

witness and his/her evidence for a current or forthcoming trial or hearing and (b)

impermissible rehearsing or coaching of a witness, may not always be understood.

9. R v. Momodou [2005] 2 All ER 571:

61. There is a dramatic distinction between witness training or coaching, and witness

familiarisation. Training or coaching for witnesses in criminal proceedings (whether

for prosecution or defence) is not permitted. This is the logical consequence of well-

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known principle that discussions between witnesses should not take place, and that

the statements and proofs of one witness should not be disclosed to any other

witness ... The witness should give his or her own evidence, so far as practicable

uninfluenced by what anyone else has said, whether in formal discussions or informal

conversations. The rule reduces, indeed hopefully avoids any possibility, that one

witness may tailor his evidence in the light of what anyone else said, and equally,

avoids any unfounded perception that he may have done so. These risks are inherent

in witness training. Even if the training takes place one-to-one with someone

completely remote from the facts of the case itself, the witness may come, even

unconsciously, to appreciate which aspects of his evidence are perhaps not quite

consistent with what others are saying, or indeed not quite what is required of him. An

honest witness may alter the emphasis of his evidence to accommodate what he

thinks may be a different, more accurate, or simply better remembered perception of

events. A dishonest witness will very rapidly calculate how his testimony may be

improved. These dangers are present in one-to-one witness training. Where

however the witness is jointly trained with other witnesses to the same events, the

dangers dramatically increase. Recollections change. Memories are contaminated.

Witnesses may bring their respective accounts into what they believe to be better

alignment with others. They may be encouraged to do so, consciously or

unconsciously. They may collude deliberately. They may be inadvertently

contaminated. Whether deliberately or inadvertently, the evidence may no longer be

their own. Although none of this is inevitable, the risk that training or coaching may

adversely affect the accuracy of the evidence of the individual witness is constant. So

we repeat, witness training for criminal trials is prohibited.

62. This principle does not preclude pre-trial arrangements to familiarise witness with

the layout of the court, the likely sequence of events when the witness is giving

evidence, and a balanced appraisal of the different responsibilities of the various

participants. Indeed such arrangements, usually in the form of a pre-trial visit to the

court, are generally to be welcomed. Witnesses should not be disadvantaged by

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ignorance of the process, nor when they come to give evidence, taken by surprise at

the way it works. None of this however involves discussions about proposed or

intended evidence. Sensible preparation for the experience of giving evidence, which

assists the witness to give of his or her best at the forthcoming trial is permissible.

Such experience can also be provided by out of court familiarisation techniques. The

process may improve the manner in which the witness gives evidence by, for

example, reducing the nervous tension arising from inexperience of the process.

Nevertheless the evidence remains the witness's own uncontaminated evidence.

Equally, the principle does not prohibit training of expert and similar witnesses in, for

example, the technique of giving comprehensive evidence of a specialist kind to a

jury, both during evidence-in-chief and in cross-examination, and, another example,

developing the ability to resist the inevitable pressure of going further in evidence

than matters covered by the witnesses' specific expertise. The critical feature of

training of this kind is that it should not be arranged in the context of nor related to

any forthcoming trial, and it can therefore have no impact whatever on it.

10. In the civil context, see Ultraframe v Fielding [2005] EWHC 1638 (Ch) in which

Lewison J referred to the above stating:

25. There are, of course, significant differences between civil and criminal procedure.

Not least, in civil cases evidence in chief generally takes the form of a pre-prepared

witness statement, whereas in criminal cases it is elicited by (non-leading) question

and answer; and in civil cases witnesses are normally permitted to sit in court while

other witnesses are giving evidence, whereas in criminal trials this does not happen

until the witness has given his own evidence; and even then it is unusual. In criminal

cases witnesses do not see each other's statements or depositions; whereas in civil

cases it is common for witnesses to see and respond to the statements of other

witnesses. Nevertheless, the principle that a witness' evidence should be his honest

and independent recollection, expressed in his own words, remains at the heart of

civil litigation too. In the light of the disappearance of all evidence in chief from civil

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cases, it may be thought that the importance of the witness's own independent

recollection in giving his evidence under cross- examination is all the greater.

11. See Maister, D., The Trusted Advisor.

Witness statement

12. See CPR 32.8 and accompanying notes, as well as Practice Direction 32 and CPR

22.

13. How best to take a proof: Smith New Court Securities Limited v Scrimgeour

Vickers (asset Management) Limited [1994] 1 WLR 1271.

14. See also Aquarius Financial Enterprises Inc v Certain Underwriters at Lloyds

[2001] 2 Lloyds Rep 542.

Drafting

15. Use the witnesses own words: Aquarius and Alex Lawrie Factors Limited v

Morgan The Times, August 18, 1999, CA at p. 130. Toulson J said in Squarius:

It cannot be too strongly emphasised that this means the words which the witness

wants to use and not the words which the person taking the statement would like him

to use...

...48. The Law Society's Guide to the Professional Conduct of Solicitors provides

guidance on the taking of witness statements. It requires a high degree of skill and

professional integrity. The object is to elicit that which the witness is truthfully able to

say about relevant matters from his or her own knowledge or recollection,

uninfluenced by what the statement taker would like him or her to say...

... If bad practices in the taking of witness statements come to be seen as normal, so

that witness statements become lawyers artefacts rather than the witnesses' words,

their use will have to be reconsidered...

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16. If English is not the first language, think about Zabihi v Janzemini [2008] EWHC

2910 (Ch). In this case, Blackburne J held:

[25] Since time and again I found that when cross-examined a witness's oral

evidence was at odds with his signed witness statement I have felt reluctant

to place weight on the signed statements of persons who, for whatever

reason, have not been tendered for cross-examination unless the evidence

related to some uncontroversial matter or was supported by other credible

evidence. This has been the case with the witness statements provided on

both sides. My reluctance to place weight on such untested evidence has

been increased by two considerations. First, in nearly every case, English,

the language of the witness statement, was not the first language of the

witness; indeed, it was not always apparent whether the witness had any real

grasp of English. Second, it was apparent that some at least of the witness

statements tendered in support of Mr Zabihi's claims (or in answer to the

Defendants' evidence) had been prepared by RPI (and in some cases by Mr

Zabihi himself) for the witness to sign in circumstances where I am far from

confident that the statement represented matters known to the witness or

accurately reflected what the witness wished to say. Not the least of the

difficulties in this regard is that few of the witness statements coming from

persons with little or no English were first written and signed in Farsi, the

language with which the witness would be familiar, and then translated into

English.

[26] I have therefore avoided placing reliance on witness statements untested

by cross- examination except where I have no reason to doubt the accuracy

and completeness of the statement, or passage from the statement, in

question.

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17. Keep it relevant or risk costs: Cummings and Others v The Ministry of Justice

[2013] EWHC 48 (QB).

18. The whole truth is required, see para 6(iii) of the BSB Guidance which states that the

statement:

Must contain all the evidence which a witness could reasonably be expected

to give in answer to those questions which would be asked of him in

examination in chief. The witness statement should not be drafted or edited

so that it no longer fairly reflects the answers which the witness would be

expected to give in response to oral examination-in-chief in accordance with

the witness's oath or affirmation. Although it is not the function of a witness

statement to answer such questions as might be put in cross-examination,

great care should be exercised when excluding any material which is thought

to be unhelpful to the party calling the witness and no material should be

excluded which might render the statement anything other than the truth, the

whole truth and nothing but the truth. While it is permissible to confine the

scope of examination-in-chief to part only of the evidence which a witness

could give, that is always subject to Counsel's overriding duty to assist the

Court in the administration of justice and not to deceive or knowingly or

recklessly to mislead the Court (Rule 302 of the Code of Conduct).

Consequently, it would be improper to exclude material whose omission

would render untrue or misleading anything which remains in the statement. It

would also be improper to include fact A while excluding fact B, if evidence-in-

chief containing fact A but excluding fact B could not have been given

consistently with the witness's promise to tell the truth, the whole truth and

nothing but the truth. Whether it is wise and in the client's interest in any given

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case to exclude unfavourable material which can properly be excluded is a

matter of judgment.

19. Avoid commentary: Rock (Nominees) Ltd v RCO Holdings [2003] EWHC 80 (CH).

Expert evidence

20. Consider CPR 35.3, see Stevens v Gullis & Pile [1999] B. L. R. 394.

21. Expert evidence should be independent and seen to be independent and

uninfluenced in form or content by the litigation: Whitehouse v Jordan [1981] W. L.

R. 246.

22. Experts should not assume the role of an advocate: Pollivitte Ltd v Commercial

Union Insurance Company Plc [1987] 1 Lloyds Rep. 379.

23. The facts or assumptions on which they have given evidence should be stated and

material that may alter their view ought to be considered: Re J [1990] F. C. R. 193.

24. Choosing between two markedly different experts: Stagecoach South Western

Trains Ltd v (1) Kathleen Hind (2) Andrew Steel [2014] EWHC 1891 (TCC). The

judge held:

37. Not all of the expert evidence was satisfactory. In a case of this sort, what

assists the court most is agreement about the state of the Tree before the incident

and, in connection with the case against Mr Steel, a discussion of the various

professional obligations which he may or may not have had. Instead, although there

was a useful Joint Statement, the experts, particularly Mr Sheppard, spent far too

much time dealing with matters of law and contentious matters of fact. There was

also an uncomfortable amount of switching between that which the experts said an

arboriculturalist should or could have done, and that which they suggested may be an

obligation on the part of the landowner, without these boundaries ever being properly

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delineated and adhered to, and with no real regard for the fact that the latter issue

was a matter for the court, not the experts.

38. When he visited the site in June 2010, Mr Sheppard (who had been

instructed by the claimant and was already liaising with the claimant's solicitor) briefly

inspected the site and then had what was called an informal conversation with Ms

Hind. As they were speaking, and rather betraying that alleged informality, Mr

Sheppard made some rough notes on a small scrap of paper. He then went back to

his car and expanded on his notes, principally by inserting questions into the notes

that he had already made. There has been a long-running dispute about the accuracy

of the notes. Moreover, although he had told Ms Hind that he would send her a copy

of the notes for her to agree, he failed to do so. There was no explanation for this

failure.

39. When he was cross-examined by Mr Stead, on behalf of Ms Hind, it quickly

became apparent that there were significant inaccuracies in the notes that Mr

Sheppard had made. For example, Mr Sheppard noted that Ms Hind had said that

she "never" went to the area of the garden where the Tree was. Ms Hind vehemently

denied saying that, and stressed instead that she had told Mr Sheppard that she did

go there (as part of her general observations of the trees), albeit that (because of the

overgrown nature of the area) her visits were relatively rare. In cross-examination, he

accepted that, although he could no longer remember the conversation, "rarely" was

the word she had used. There was no explanation as to why, in his notes, he had

deleted the word rarely and inserted the word never.

40. There were numerous other errors and misleading changes of emphasis in

Mr Sheppard's notes. Again by way of example, Ms Hind gave evidence that, during

that conversation, she told Mr Sheppard about the work which Mr Steel had done.

Although Mr Sheppard could not remember the conversation, he continued to deny

that she had made any mention of Mr Steel's work. That seems inherently

implausible, since she would have had no reason not to mention that work,

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particularly as she was talking about the trees in her own garden. That implausibility

was then underlined by the fact that, in his first report, dated 2010, Mr Sheppard

made express reference to the work done to the trees in the garden. There was no

source for that information other than Ms Hind. This again demonstrated the

inaccuracies of Mr Sheppard's note-taking technique, and his equally unreliable

recollection of the conversation.

41. Still further, I noted that, in his reports, Mr Sheppard sets out a large number

of things which he said Ms Hind had said to him during that interview. They are

expressed as things which Ms Hind stated. But these were not matters which were

referable even to the (inaccurate) notes that he had made. When Mr Stead cross-

examined him about this, he accepted that these were his words, rather than Ms

Hind's, and were his 'interpretation' of what she said or would have said. That meant

that the reports were doubly misleading, both because they failed accurately to report

what Ms Hind had actually said, and because they identified her as saying things

which were, in truth, just Mr Sheppard's interpretation of what he thought she would

have said.

42. In the context of this case, these failures matter. Ms Hind, an intelligent

woman and a keen gardener with a working knowledge of trees (see paragraphs 75-

80 below), was portrayed in Mr Sheppard's reports as someone who did not care

about this Tree, or any of the trees in her garden at all, and had cheerfully let it all go

to rack and ruin. There was even an echo of this stance in Mr Meredith Hardy's

closing submissions. I consider that this picture of Ms Hind was wholly misleading

and inaccurate.

43. I deprecate this aspect of the claimant's case in the strongest terms. Save in

exceptional circumstances, experts should not embark on this kind of fact-finding

exercise, particularly when they perform it so unprofessionally. Matters of fact are for

witnesses of fact, not for experts. Because a formal claim had already been made

against Ms Hind by this time, she should at the very least have been interviewed by a

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solicitor and been given the opportunity of checking the resulting notes of that

interview. Neither of these things happened. Inevitably, therefore, these failures

meant that I regarded the remainder of Mr Sheppard's evidence with considerable

scepticism.

44. Unhappily, my reservations about Mr Sheppard's evidence did not end there.

As will become apparent below, there is a significant issue in this case about whether

Ms Hind should have regularly arranged for more detailed expert inspections of the

trees at the property as a matter of course, or whether such inspections were only

necessitated if there was some indication that there may have been a problem with

the Tree. In his first report, at paragraph 7.5, Mr Sheppard accepted that the need for

more detailed inspections was only triggered if the tree displays unusual

characteristics. However, by the time that paragraph was repeated in his second

report (and after the matter had been discussed with the claimant's solicitors), it had

been trimmed and the reference to the requirement for some form of trigger had been

deleted entirely.

45. Mr Sheppard said that this trimming was for reasons of space. I regret that I

am wholly unable to accept that explanation: indeed, I regard it as so absurd as to

constitute further evidence that Mr Sheppard was not acting as an independent

expert in accordance with CPR Part 35. It is plain that paragraph 7.5 of Mr

Sheppard's first report was his honest belief, and, as we shall see, it is one that was

in accordance with the authorities. But it was clearly detrimental to the claimant's

case (because of the difficulty in pointing to anything which indicated that this

apparently healthy tree was, in fact, potentially unsafe). I find that this was the reason

why this important passage was omitted from the second report. It again confirmed

my view that Mr Sheppard's expert evidence was unreliable.

48. I consider that both Mr Barrell and Mr Pryce complied with CPR Part 35. In

their evidence they made appropriate concessions and endeavoured to assist the

court. It follows from all I have said above that, where there were differences of

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opinion between Mr Sheppard on one hand, and Mr Barrell and Mr Pryce on the

other, I preferred the evidence of the latter.

IQBAL MOHAMMED

24 September 2014