![]() Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation . In the event, the defendant’s solicitors proved correct. T he claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record all of his relevant evidence”. ![]() Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. “The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. One of the grounds the defendant put forward was that a witness statement was misleading. The defendant was applying for indemnity costs after the claimants’ action failed. ![]() Since then we have also looked at the decision in Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd EWHC 2866(TCC). I am here repeating points to some extent points made in an earlier post Drafting witness statements: the questions you ask will determine the answers you get. That post looked at the dangers of asking leading or “slanted” questions of witnesses to lead them to the answers the interviewer wanted. Not merely does it sail close to the wind in terms of its professional propriety, it is severely counter-productive as and when the case comes to trial.” THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET I strongly deprecate this sort of practice. That this information was understood in exactly this way is revealed by the terms of the Facebook posts referred to at paragraphs 9, 10 and 12 of Ms Wilson’s witness statement, as well as by the evidence in Leon Swift’s case. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.” “Misleading information of this sort had the obvious tendency to encourage the bringing of claims, on the basis that the Defendant was a soft target and this was easy money. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim.” “The standard-form questionnaires asked a series of leading questions. SOME KEY QUOTES FROM THE SONAE JUDGMENT “recall bias is always an issue in scientific research based on retrospective evidence, and this phenomenon is hugely magnified when one brings into the equation the obvious corollaries of the medico-legal component. The consequent evidence can be misleading and, ultimately, harmful to the party calling that witness. Among other things this case emphasised the dangers of leading questions when interviewing witnesses. One post took part of that judgment and rehearsed a basic point about the need to take care when asking questions of your own witnesses when preparing statements. Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd EWCA 2264 (QB). YOUR EVIDENCE GOES UP IN SMOKE: THE SONAE CASE These seems an apt time to look at those cases, and pieces of research, that highlight the dangers of asking leading questions in the preparation of witness evidence. The report of the Witness Evidence Working Group concluded that “… the proper and sensible scope of evidence-in-chief is no longer the stock-in-trade knowledge of those responsible for proofing witnesses and helping them draw up their statements” which, if you think about it, is actually quite a frightening conclusion. Cases have been lost, and millions of pound spent in costs, on the basis of witness evidence that is fundamentally flawed. The dangers of asking leading questions, however, remain real and profound. A search term that led to this blog today was “ why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases.
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